text:
    Thomas R. JONES, Appellant, v. Jean A. JONES, Appellee.
    No. 2D08-2632.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 2010.

      K. Dean Kantaras, Palm Harbor, for Appellant.
    Patrick B. Calcutt and Kathleen M. Cal-cutt of Calcutt, Calcutt & Jayson, St. Pe-tersburg, for Appellee.
   ALTENBERND, Judge.

Thomas R. Jones appeals the Final Judgment of Dissolution concerning his ten-year marriage to Jean A. Jones. He primarily challenges the unusual award of alimony and the requirement that he obtain life insurance. We reverse on both of these issues. As explained below, we also give the trial court authority on remand to adjust the equitable distribution of both assets and liabilities because those decisions interrelated with its decision on alimony.

I.

Mr. Jones is approximately sixty years of age and the former wife is about ten years younger. This was a second marriage for both of them, and the duration of this marriage was approximately ten years. Mr. Jones earned about $55,000 per year, and Mrs. Jones earned about $17,000. Her child support from her first marriage for a teenager ended during the pendency of this appeal. The couple had virtually no liquid assets and short-term debt for cars and credit cards totaled about $35,000. They had a whole life insurance policy on the husband with a cash surrender value of $5000, and he had a retirement plan at work worth about $45,000. Beyond these limited assets, they owned the family home, which was probably worth about $210,000 in April 2008 when the final judgment was entered. It was subject to a mortgage loan of $140,000. Thus, the gross equity in the home was approximately $70,000.

With these combined salaries and assets, the Joneses, as a single family unit, lived a modest, middle-class lifestyle. No matter what judgment a trial judge fashions in this case, the two family units created by the divorce cannot maintain the same lifestyle. Like many Floridians in these difficult economic times, the Joneses almost cannot afford to divorce.

At the final hearing, Mrs. Jones’s attorney asked for “permanent” alimony of $1500 per month until Mr. Jones reached the age of sixty-six. The trial court awarded this amount, but only until he reached sixty-five. Mrs. Jones’s trial attorney may have thought he was requesting “permanent” alimony, but in actuality he was requesting lump sum alimony payable in installments. See, e.g., Thilem v. Thilem, 662 So.2d 1314, 1316 (Fla. 3d DCA 1995) (“To limit the duration of permanent periodic alimony or require review of the award in a certain number of years is error.”); Borchard v. Borchard, 730 So.2d 748, 751-53 (Fla. 2d DCA 1999) (explaining that lump sum, or bridge-the-gap, alimony, paid over a set period, is available to assist the transition from married life to single life when permanent and/or rehabilitative alimony is not appropriate).

In addition to the lump sum alimony, the trial court awarded Mrs. Jones half of the retirement account and half of the cash surrender value of the husband’s life insurance. It is unclear from the judgment whether the trial court expected Mr. Jones to cash in his life insurance policy, but he had no other ready source of cash to pay this amount to the former wife.

The trial court ordered the marital home sold and ordered Mr. and Mrs. Jones to split the net proceeds. He ordered Mr. Jones to pay $5000 in attorneys’ fees for the wife within ninety days of the entry of the judgment. In the judgment, the trial court first ordered that the marital debt “is to be divided between the parties.” Later, the judgment says that the debt shall be divided between the parties “as set forth in the Equitable Distribution Worksheet, Exhibit 1 to this Final Judgment.” Exhibit 1 “divides” the debt by assigning it all to Mr. Jones.

Thus, the final judgment anticipated that from the sale of the home, Mr. Jones would receive $35,000, less his share of the cost of selling the home, and be obligated to pay marital debt and attorneys’ fees of $40,000. Above this, he had to pay $1500 each month to the former wife so that each of them would have approximately $3000 per month on which to live. She would also receive her half of the proceeds from the house.

Finally, the judgment ordered Mr. Jones to obtain a life insurance policy within thirty days “equal in value to the total alimony [that he] is ordered to pay to [Mrs. Jones].” The amount of alimony was not calculated in the judgment, but it appears to total approximately $108,000. The trial court required that Mrs. Jones be named as the beneficiary on this policy, and the policy must be maintained until he has finished paying alimony. The judgment did not specify whether Mrs. Jones was entitled to collect the entire policy in the event of his death, or only the outstanding amount owed on the lump sum alimony. In other words, the judgment did not explain whether the policy only secured the alimony obligation or whether it was an asset that Mrs. Jones would receive for a six-year term. The parties entered into a statement of the evidence for use in this appeal. See Fla. R.App. P. 9.200(b)(4). It is undisputed that the trial court received no evidence on Mr. Jones’s insurability at age sixty or the cost of the insurance.

II.

Mr. Jones argues that the trial court abused its discretion in awarding alimony in this gray area case. Given the ages of the parties, the disparity in their income, health issues, and other factors, we cannot say that the trial court had no discretion to award some form of support to Mrs. Jones. See Berry v. Berry, 992 So .2d 898 (Fla. 2d DCA 2008); Price v. Price, 951 So.2d 55 (Fla. 5th DCA 2007). The fact that Mrs. Jones was seeking an odd hybrid of permanent alimony and lump sum alimony is troubling, but it is not an issue preserved or argued by either party on appeal.

On the other hand, from the written closing argument submitted by Mrs. Jones’s trial attorney and from the final judgment, it is entirely apparent that the trial court’s judgment was based on the assumption that the various payments could be made by virtue of a quick sale of the family home for $210,000. Likewise, it was theorized that Mr. Jones could afford these payments because he would no longer be obligated to pay the mortgage and other expenses of owning the home. The house was not on the market and the parties had no agreement to sell this home when they went to the final hearing. There was no evidence presented to establish that the home could be sold in the manner essential to allow compliance with this judgment.

We conclude that the trial court did not have competent, substantial evidence to support the plan contemplated by this judgment and that the judgment otherwise places unreasonable financial obligations on the husband that he cannot fairly be expected to pay. Accordingly, we reverse the award of alimony and authorize the trial court, on remand, to alter the plan of equitable distribution in a manner that may allow the parties to live at least a little closer to the standard of living that they enjoyed while married.

III.

The trial court also erred in ordering Mr. Jones to obtain life insurance without evidence of insurability and evidence that, at age sixty, he can afford the premiums for that insurance. See, e.g., Smith v. Smith, 912 So.2d 702, 704 (Fla. 2d DCA 2005). Admittedly, there was evidence in this case that Mr. Jones had term insurance through his employment. There was, however, no indication that this insurance would be sufficient to satisfy the court order, and it is unclear whether the trial court intended for the term insurance to be the policy used to satisfy this judgment. Accordingly, the trial court cannot award life insurance for any purpose on remand unless it receives additional testimony.

We reverse the portions of the final judgment awarding alimony and requiring life insurance. On remand, the trial court is free to take additional evidence and to adjust the equitable distribution as needed to achieve an appropriate result.

Affirmed in part, reversed in part, and remanded.

WHATLEY and LaROSE, JJ., Concur.

      . The trial attorneys in this case are not the attorneys of record in this appeal.

      . The worksheet awards the home entirely to Mr. Jones and then gives Mrs. Jones an equalizer payment of $42,817. We assume this portion of the worksheet is not incorporated into the judgment.

      . Obviously, the housing market and home values have changed significantly while this case has been pending on appeal. We emphasize that our decision is not based on any changes in circumstances during the appeal, but only on the record at the time the final judgment was entered. On remand, the recent economic changes may require the trial court to take additional evidence and adjust the final judgment.

      . This judgment suffers from a common malady. The insurance is either "security'' for unpaid alimony, in which case the party receiving alimony should be entitled to be named as a beneficiary only as his or her interest may appear for the limited amount of alimony unpaid by the payor at the time of death, or it is intended to be an asset of the beneficiary to provide future security beyond the time when alimony ceases due to the death of the payor. These two uses of insurance are distinctly different because one serves as security for support, whereas the other creates an asset that may be relied upon after support ends much like a retirement account or some other investment. See Massam v. Massam, 993 So.2d 1022, 1025 (Fla. 2d DCA 2008) (noting that final judgments awarding life insurance to secure alimony must specify whether the policy is security for unpaid alimony entitling the receiver spouse to only a portion of the proceeds or is intended to minimize future economic harm entitling the receiver spouse to all of the proceeds); see also Kearley v. Kearley, 745 So.2d 987, 989-91 (Fla. 2d DCA 1999) (Altenbernd, A.C.J., concurring) (discussing the use of life insurance as security to indemnify the receiver spouse for unpaid alimony or to minimize future economic harm upon the obligor spouse’s death). It is difficult for an appellate court to review an award of life insurance when the trial court has not explained the purpose served by the insurance.


source: Caselaw Access Project

author: ALTENBERND, Judge.

license: Public Domain

text:
    Deborah DOLL, Appellant, v. Peter DOLL, Appellee.
    No. 2D08-2283.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 2010.
    Deborah Doll, pro se.
    No appearance for appellee.
   ALTENBERND, Judge.

Deborah Doll appeals an order awarding her former husband, Peter Doll, attorney’s fees and costs in a postdissolution proceeding. We reverse the order because the trial court based its decision on the former wife’s ability to pay when it is clear that she lacks that ability.

The Dolls were married for approximately two years in the mid-1990s. They were married in New Jersey and moved to Florida. They have one child. Since the time the dissolution proceeding commenced in 1996, visitation and custody issues have been central to their ongoing disagreements. Initially, in the final judgment of dissolution in 1996, the trial court awarded custody of the child to the former wife, balancing claims that the former wife suffered from emotional issues against claims that the former husband was physically or mentally abusive. The former wife and child then moved to New Jersey and resided there.

In 1999, a New Jersey court awarded custody of the child to the former husband, apparently because the former wife’s mental condition had deteriorated. The child returned to Florida with the former husband. Matters were relatively calm until the former husband domesticated the New Jersey order in the Florida dissolution proceeding in early 2005. Since that time, there have been extensive proceedings in the case. These proceedings have largely dealt with the nature and extent of the former wife’s right to have visitation with the child. At times visitation has been suspended. Currently, the trial court has ordered supervised visitation with additional conditions that the former wife finds difficult to accept. The former wife’s attorney withdrew in mid-2005. Since then, she has been unrepresented, and her pro se status, especially as a resident in New Jersey, has made this case challenging for the trial court and opposing counsel.

In February 2008, the former husband filed a motion for attorney’s fees pursuant to section 61.16, Florida Statutes (2007). The motion alleged that the former wife had the ability to pay these fees and that she was also obligated to pay the fees because she was engaging in abusive and vexatious litigation. The motion further requested that the trial court prohibit the former wife from appearing pro se.

The former wife appeared by telephone for the hearing on this motion. The trial court relied on her financial affidavit to determine that she had the ability to pay fees and costs exceeding $7500. The financial affidavit, dated March 21, 2008, states that the former wife earns $988 per month and (somewhat surprisingly) pays $468 per month to the former husband in child support for one child. The affidavit is quite conservative in its estimate of expenses and reflects that the former wife has a monthly surplus of $16 and outstanding judgments and credit card debt well in excess of $50,000. She has no significant assets. It is noteworthy that the trial court awarded fees only on need and ability to pay and did not make any findings that the former wife was intentionally engaging in any abusive or vexatious tactics. It is also noteworthy that when the former wife filed this appeal, the trial court clerk determined she was indigent for purposes of appeal.

We conclude that the trial court had no competent, substantial evidence to support a determination that the former wife had the ability to pay her former husband’s attorney. See, e.g., McCants v. McCants, 984 So.2d 678, 684 (Fla. 2d DCA 2008) (reversing attorney fee award in dissolution proceeding for lack of competent, substantial evidence); Cloud v. Cloud, 638 So.2d 1038, 1039-40 (Fla. 1st DCA 1994) (same). Thus, the trial court abused its discretion in awarding fees and costs in excess of $7500 on this basis.

Reversed and remanded.

SILBERMAN and MORRIS, JJ., Concur.

      . The amount of child support was apparently set in New Jersey in 1999. This amount appears substantially higher than the amount that would be calculated under the current Florida child support guidelines for a parent earning less than $1000 per month. See § 61.30, Fla. Stat. (2009).


author: STEVENSON, J.

text:
    EVERGLADES ELECTRIC SUPPLY, INC., a Florida corporation, Appellant, v. PARAISO GRANITE, LLC, a Delaware limited liability company, Appellee.
    No. 4D09-16.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2010.
    George H. Aslanian, Jr., of Aslanian & Aslanian, Fort Lauderdale, for appellant.
    Stuart H. Sobel and Daniel J. Barsky of Siegfried, Rivera, Lerner, De La Torre & Sobel, P.A., Coral Gables, for appellee.
   STEVENSON, J.

This is an appeal from a final summary judgment discharging a construction lien filed by appellant, Everglades Electric Supply, Inc., against a shopping center owned by appellee, Paraíso Granite, LLC. Everglades was a sub-contractor for improvements that one of Paraiso’s tenants made on the storefront it leased from Pa-raíso. We reverse the summary judgment because the section 713.10 notice filed by Paraíso Granite, which could have precluded the lien on the shopping center for improvements to the leased storefront, was defective.

GKK-Pembroke, Ltd., owned Paraíso Parc, a Publix-anchored shopping center in Broward County with units GKK-Pembroke leased to other businesses. In May 2005, GKK-Pembroke entered into a lease for one of the units that contained the following provision:

10.01 Liens. Nothing contained in this Lease shall be construed to confer upon any party, including, without limitation, material men and contractors, the right to file a mechanic’s or material men’s lien or other lien or any claim relating thereto, nor to perform any labor or to furnish any materials for the account of Landlord in respect to the construction of any improvements, alterations or repairs to the Premises by Tenant, its employees, agents, or contractors.

The following month, and pursuant to Florida’s Construction Lien Law, see §§ 713.001-.37, Fla. Stat. (2007), GKK-Pembroke filed a notice with the Broward County clerk containing the following statement:

3. All leases entered into by GKK-PEMBROKE with Lessees for premises on the Exhibit “A” property contain the following language:
“Lien for Tenant Improvements: This Lease expressly provides, pursuant to Section 713.10 Florida Statutes, that the interest of the Landlord shall not be subject to liens for improvements made by Tenant. The Tenant shall notify the contractor making any such improvements of such provision in the Lease, and the knowing or willful failure of Tenant to provide such notice to the contractor shall render the contract between the Tenant and the contractor voidable at the option of the contractor.”
4. Therefore, potential lienors are put on notice that no lien may be filed against the Exhibit “A” property for work done on behalf of Lessees on any portion of the Exhibit “A” property-

Appended to this notice was a legal description of the subject property, the shopping center.

Later in 2006, GKK-Pembroke and Boca Tanning Systems, Inc., signed a ten-year lease for a storefront in the shopping center. In building out the storefront for its business, Boca Tanning appears to have engaged Living Water Construction & Development, Inc., as its general contractor. At some point, Living Water contracted with subcontractor Strickland Electric, which in turn contracted with sub-subcontractor Everglades Electric, the appellant here. GKK-Pembroke sold Paraíso Parc to Paraíso Granite, LLC, the appellee, in March 2007. Accordingly, GKK-Pembroke assigned to Paraíso Granite its interest in the shopping center, including all of the leases.

In July 2007, when Everglades Electric had not been paid for some of its work, the company recorded a claim of lien against the property leased by Boca Tanning, which property was now owned by Paraíso Granite. Paraíso Granite’s property manager discovered the lien sometime in 2008 and unsuccessfully attempted to have Everglades Electric release it. Paraíso Granite subsequently filed this lawsuit to discharge the lien, among other things. In its answer to Paraíso Granite’s complaint, Everglades Electric raised a counterclaim to enforce its lien against Paraiso Granite. Paraiso Granite moved for summary judgment, arguing that the notice it had filed under section 713.10 prevented Everglades Electric from recording its lien against the shopping center. Everglades Electric responded by essentially arguing that Paraiso Granite’s section 713.10 notice was defective since not all leases in effect contained the language from the notice. After a hearing, the trial judge granted Paraiso Granite’s motion and discharged Everglades Electric’s lien.

We review an entry of summary judgment de novo. Craven v. TRG-Boynton Beach, Ltd., 925 So.2d 476, 479 (Fla. 4th DCA 2006). A party moving for summary judgment must show conclusively the absence of any genuine issue of material fact. Id. at 479-80. In considering the motion, the court must make every possible inference in favor of the moving party. Id. at 480. “A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” Id. We conclude that the trial judge erred because Paraiso Granite did not conclusively show that the facts entitled it to summary judgment.

GKK-Pembroke’s notice did not fully comply with Florida’s Construction Lien Law such as to categorically bar Everglades Electric’s lien. Section 713.10, Florida Statutes (2007), concerns the extent of a construction lien filed under the law. It provides that a lien “shall extend to, and only to, the right, title, and interest of the person who contracts for the improvement as such right, title, and interest exists at the commencement of the improvement.” Id. If, however, “an improvement is made by a lessee in accordance with an agreement between such lessee and her or his lessor, the lien shall extend also to the interest of such lessor.” Id.

But, the statute provides three ways for a lessor to prevent a lien from attaching to his or her interest in the property; only the first two are relevant here. First, the lessor can record “[t]he [subject] lease or a short form thereof ... in the clerk’s office and the terms of the lease expressly prohibit such liability.” § 713.10(1). Second,

[when] [a]ll of the leases entered into by a lessor for the rental of premises on a parcel of land prohibit such liability and a notice which sets forth the following is recorded by the lessor in the public records of the county in which the parcel of land is located:
(a) The name of the lessor.
(b) The legal description of the parcel of land to which the notice applies.
(c) The specific language contained in the various leases prohibiting such liability.
(d) A statement that all leases entered into for premises on the parcel of land contain the language identified in paragraph (c).

§ 713.10(2) (emphasis added). When a lessor properly follows one of these procedures, “[t]he interest of the lessor shall not be subject to liens for improvements made by the lessee.” § 713.10.

Everglades Electric contends that Parai-so Granite could not use subsection 713.10(2) because not every lease it had signed contained the same language prohibiting liens. Paraiso Granite argues in response that all of its leases contained a lien prohibition, even though they were worded slightly differently from each other or from the section 713.10 notice. We agree with Everglades Electric. A lessor can avail itself of the blanket notice provided for in subsection 713.10(2) only if, as the plain language of the statute states, “[a]ll of the leases entered into by a lessor ... prohibit such liability” and the lessor files a notice containing “[t]he specific language contained in the various leases prohibiting such liability.” Here, the ostensibly lien-prohibiting language in the May 2005 lease was significantly different, and more conditional, than the language in the section 718.10 notice. Thus, not all of the leases contained the notice language. Therefore, GKK-Pembroke did not comply with section 713.10 and its notice was defective.

Paraíso Granite urges us to interpret subsection 713.10(2) to operate prospectively, so that only leases entered into after the filing of a notice need conform to the language in the notice and only those leases would be protected. Under this interpretation, any leases entered into pri- or to the filing of a notice would be irrelevant. Paraíso Granite’s interpretation of subsection 713.10(2) is erroneous, since the plain language of the statute clearly encompasses all leases and does not distinguish between those leases entered into before the notice was filed and those entered into after. Paraíso Granite argues that the interpretation we adopt would leave lessors with little protection against claims by laborers and materialmen. We disagree. In this instance, Paraíso Granite could have followed the procedure in subsection 713.10(1) by recording short-form leases until any non-conforming leases were no longer in effect. Once they were no longer in effect, it could have recorded the blanket notice.

Because the section 713.10 notice was defective, we hold that the trial judge erred in granting Paraíso Granite’s motion for summary judgment and in discharging Everglades Electric’s lien. Accordingly, we reverse and remand for proceedings consistent with this opinion.

Reversed and Remanded.

WARNER and LEVINE, JJ., concur.

      . Everglades Electric raises four other issues in this appeal, but we decline to address them because we reverse on this point.


author: WARNER, J.

text:
    Richard Mark COLARUSSO, Appellant, v. Laura Maria LUPETIN, Appellee.
    No. 4D08-4152.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2010.

      Richard Mark Colarusso, Arcadia, pro se.
    No appearance for appellee.
   WARNER, J.

The trial court summarily denied appellant’s motion to dissolve a permanent injunction for domestic violence entered in January 2005 in favor of his then girlfriend. We reverse on the authority of Betterman v. Kukelhan, 977 So.2d 702 (Fla. 4th DCA 2008), in which we held that the summary denial of a motion to vacate a protective injunction violated due process requirements.

Case law has not clearly set forth the applicable legal standard for determining whether a domestic violence injunction should be vacated or modified. Some cases seem to require the movant to allege and prove a change in circumstances. See Knight v. Waters, 786 So.2d 1289 (Fla. 1st DCA 2001) (affirming order denying a motion to modify or dissolve a protective injunction under section 784.046 because the motion did not assert a change in circumstances); Simonik v. Patterson, 752 So.2d 692, 693 (Fla. 3d DCA 2000) (“In the absence of evidence that the circumstances have changed, we find no abuse of discretion in the denial of the motion to modify.”). However, other cases have focused on the “at any time” language in the statutory text, finding that the trial court should have held an evidentiary hearing to allow the movant to present evidence regarding the initial procurement of the injunction. See York v. McCarron, 842 So.2d 281 (Fla. 1st DCA 2003); Madan v. Madan, 729 So.2d 416 (Fla. 3d DCA 1999).

Here, the court gave no reasons for its summary denial. Even assuming that appellant was required to allege a change in circumstances in order to state a legally sufficient motion, appellant alleged in his motion that there was a change in circumstances because the injunction has served its purpose; he had not attempted to contact his ex-girlfriend for years; he has been incarcerated on unrelated charges; and the injunction was impacting his ability to participate in certain prison work programs. Because appellant’s motion was legally sufficient, the trial court should have afforded appellant a meaningful opportunity to be heard rather than summarily denying his motion. See Betterman, 977 So.2d at 703.

Reversed and remanded for further proceedings.

POLEN and STEVENSON, JJ., concur.


author: GERBER, J.

text:
    G.G.J., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1334.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2010.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   GERBER, J.

We reverse G.G.J.’s adjudication for direct criminal contempt of court for failure to appear at a docket call. An appellate court reviews an order of direct criminal contempt under an abuse of discretion standard. Haynes v. State, 944 So.2d 417, 420 n. 3 (Fla. 5th DCA 2006) (citation omitted). An order of direct criminal contempt for failure to appear requires a showing that the failure to appear was willful. Carter v. State, 954 So.2d 1185, 1186 (Fla. 4th DCA 2007). The state presented no evidence that G.G.J. willfully failed to appear. Therefore, the circuit court abused its discretion in holding G.G.J. in direct criminal contempt.

Reversed.

TAYLOR and LEVINE, JJ., concur.

      . Normally, "[d]irect criminal contempt results from conduct committed in the actual presence of the judge." Fiore v. Athineos, 9 So.3d 1291, 1292 (Fla. 4th DCA 2009). However, we have held that a defendant who fails to appear may be summarily punished for direct criminal contempt after failing to provide an adequate excuse for the nonappearance. Woods v. State, 600 So.2d 27, 29 (Fla. 4th DCA 1992) (citing Aron v. Huttoe, 258 So.2d 272 (Fla. 3d DCA 1972), adopted, 265 So.2d 699 (Fla. 1972)). But see Kelley v. Rice, 800 So.2d 247, 252-53 (Fla. 2d DCA 2001) (disagreeing with Woods' interpretation of Aron, and holding that a failure to appear may be punished as indirect criminal contempt).


author: GROSS, C.J.

text:
    Stanley THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2276.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2010.

      Mark S. Lowry of Lowry at Law, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, C.J.

After a confidential informant purchased cocaine from a residence, a search warrant issued. On the premises when the police executed the warrant, the defendant in this case was arrested. During later proceedings, he sought disclosure of the identity of the confidential informant because it was relevant and helpful to his defense. The trial court refused to compel disclosure. We reverse for the circuit court to hold an in camera hearing to determine whether the informant has information germane to the defense in this case.

Stanley Thomas was serving a sentence of four years of probation for the crime of delivery of cocaine. He was charged with violating that probation by committing the new offenses of trafficking in cocaine and possession of drug paraphernalia. Although he was acquitted of the new charges, the trial court found that Thomas had violated his probation.

Thomas’s new charges arose from the execution of a search warrant at a residence. A confidential informant made a controlled buy at the residence from the occupant of the house. This purchase supplied part of the probable cause that supported the issuance of the warrant.

Prior to the violation of probation hearing, Thomas moved for an order requiring the state to disclose the confidential informant, contending the informant had information relevant to his defense. Thomas asserted that the house belonged to his uncle, he did not live there, and he was not involved with any of the contraband found during the search, even though he was at the house when the warrant was executed. The trial court denied the motion for disclosure.

At the violation of probation hearing, Thomas’s defense was that he could not be found guilty of constructive possession of the drugs and paraphernalia, because he did not reside at the residence and the drugs were not in plain view.

A key state witness at the hearing was the lead detective. He said that he entered the residence after SWAT officers, who had secured Thomas face down on the floor. A 14 year old girl and a baby were also present. The detective said he found crack cocaine in plain view on the dining room table and 40 grams of crack cocaine and an ounce of cocaine in a knife drawer by the kitchen sink. The crack cocaine was freshly cooked, still warm and wet. The detective said that scales and packaging materials also were in plain view.

The detective testified that, when he asked Thomas if those items were all they would find, Thomas replied, “[N]o, that’s all, there’s nothing else in the house.” After being read his Miranda rights, Thomas said he would speak with the detective, although he did not sign a waiver. A narcotics dog alerted at several places in the house. Additional crack was found in a bedroom closet in a coat pocket, along with almost a thousand dollars in cash. When the detective asked Thomas about the money, Thomas told him he was in school and not working and laughingly joked about how he acquired the money. The detective construed his response to mean that Thomas earned money by selling narcotics.

The detective identified an insurance bill addressed to Thomas that was seized during the search. It was placed into evidence. A file cabinet in a bedroom contained Thomas’s personal records, but the detective did not collect those records.

During Thomas’s cross-examination, the trial court sustained objections to questions dealing with the informant.

Supporting Thomas’s defense, the probation officer testified that Thomas never listed the address where he was arrested as his residence and never tested positive for drugs.

When presenting his case, Thomas’s attorney first called the girlfriend of Thomas’s uncle. She testified that she and the uncle had been living in the residence at the time of the search. There was only one bedroom; the other room was used for storage. Her young daughter stayed there on and off.

The girlfriend said that Thomas frequented the apartment because he used the computer for school, typically staying about an hour. He did not have a key and did not keep his clothes there. Electric bills in the girlfriend’s name were introduced into evidence. She said that Thomas did not keep personal items at the house, but she had no knowledge of what might have been in the file cabinet. She also knew nothing about drugs in the apartment.

Thomas testified that he lived at a different location. He had a job, and he attended school to study game and simulation programming. This course of study required a computer and he did not own one. So, he used his uncle’s computer to take online classes three or four days a week for an hour or two.

Thomas said he was disabled and pointed out that his job was not a high paying one; several members of his family helped him in different ways. He lived with his sister. His mother contributed to his probation costs and living expenses. His uncle paid his car insurance; therefore, the bill in Thomas’s name was mailed to his uncle’s address. He introduced a variety of mail sent to him at his other address.

Thomas pointed out that, since being placed on probation, he had gotten his GED and started college. Thomas explained that on the day of his arrest, he had been playing a video game while waiting for an email from a professor. Thomas received his Miranda rights but disagreed with the detective about the questions asked. He said he would not have been laughing and bragging after just having been arrested.

Thomas denied owning the drugs; had he known what was going on at the apartment, he would not have gone there. He denied that anything that belonged to him had been in the file cabinet. He denied that drugs and drug paraphernalia had been in plain view and said that the police had lied about the location of the drugs. He denied that the money in the coat belonged to him.

Thomas proffered what the detective had said in deposition — that the informant told the detective that he could buy drugs from someone named “Stan,” and described a man with a different build and hair style than Thomas. However, at an earlier hearing, the state represented that the informant’s description of the drug seller matched Thomas. Thomas wanted to question the informant, because he believed that the informant would testify that someone other than Thomas had sold him the drugs from the residence.

In closing argument, Thomas contended that the detective was not credible. To that end, he pointed to the photos taken by the SWAT team before the search, which did not show scales and cocaine in plain view.

A trial court’s orders regarding discovery of confidential informants are generally reviewed for an abuse of discretion. E.g., Harris v. State, 939 So.2d 338, 339 (Fla. 4th DCA 2006). Recently, in State v. LaBron, 24 So.3d 715 (Fla. 4th DCA 2009), we explained the dynamics of a defendant’s request to disclose a confidential informant:

The state has a limited privilege to withhold the Cl’s identity. Miller v. State, 729 So.2d 417, 419 (Fla. 4th DCA 1999); State v. Zamora, 534 So.2d 864, 867 (Fla. 3d DCA 1988) (quoting from Roviaro v. United States, 353 U.S. 53, 59, 60, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)). The purpose of the privilege is to encourage citizens to perform their obligation of communicating their knowledge of the commission of crimes to law enforcement. Roviaro, 353 U.S. at 59, 77 S.Ct. 623.
If the Cl’s identity is to be disclosed, it is the defendant who has the burden of showing why an exception to the rule of nondisclosure applies. E.g., Miller, 729 So.2d at 419 (citing Zamora, 534 So.2d at 868).
Florida Rule of Criminal Procedure 3.220(g)(2) provides that disclosure may be required in one of two circumstances: “Disclosure of a confidential informant shall not be required unless the confidential informant is to be produced at a hearing or trial or a failure to disclose the informant’s identity will infringe the constitutional rights of the defendant.” Citing Roviaro, 353 U.S. at 60-61, 77 S.Ct. 623, this court explained as follows:
Disclosure of a confidential informant is required if an informant’s identity or content of his communication is relevant and helpful to the defense of an accused or is essential to a fair determination of a cause. The first component necessarily centers around a specific defense asserted by the defendant in the case, as to which the informant’s testimony is material and helpful. See State v. Zamora, 534 So.2d at 868. The second component concentrates on general due process considerations and is not confined to a defense raised by the defendant.

Miller, 729 So.2d at 419.

Id.See also id. (citing State v. Ayala, 713 So.2d 1050, 1052 (Fla. 3d DCA 1998); (Wilson v. State, 13 So.3d 83, 84 (Fla. 2d DCA 2009)); Featherstone v. State, 440 So.2d 457 (Fla. 4th DCA 1983) (utilizing analysis in violation of probation case).

“As a general rule, an informant’s identity need not be disclosed when the informant’s sole role is to provide probable cause in support of a search warrant.” State v. Burgos, 985 So.2d 642, 643 (Fla. 2d DCA 2008). However, disclosure of an informant is appropriate where it is necessary to advance a specific defense.

When asserting that disclosure of information is necessary to establish a specific defense, “[t]he defendant must make a preliminary showing of the eol-orability of the defense prior to disclosure.” State v. Hernandez, 546 So.2d 761, 762 (Fla. 2d DCA 1989); see Harris v. State, 939 So.2d 338 (Fla. 4th DCA 2006), review dismissed, 946 So.2d 1070 (Fla.2006). The defendant must not only allege a legally cognizable defense, but he or she must also support the defense with sworn evidence. State v. Davila, 570 So.2d 1035, 1038 (Fla. 2d DCA 1990) (holding that the defendant failed to establish by sworn proof that disclosure of the confidential informant’s identity was necessary to a legally recognized defense). “A bare allegation that the defendant cannot prepare his case without disclosure is insufficient.” State v. Mashke, 577 So.2d 610, 612 (Fla. 2d DCA 1991).

State v. Borrego, 970 So.2d 465, 467 (Fla. 2d DCA 2007). When a defendant succeeds in meeting the “initial burden of showing that disclosure is necessary to a specific defense, the trial court should hold an in camera hearing to determine, in fact, whether the disclosure would be relevant and helpful to the defense.” State v. Roberts, 686 So.2d 722, 723 (Fla. 2d DCA 1997) (citations omitted).

Although the general rule is that the state need not disclose the identity of an informant whose sole role was to provide probable cause for a search warrant, this is not an inflexible, bright line rule that governs every case. Here, the trial court rejected Thomas’s argument that the informant’s testimony was relevant and helpful to his defense.

Here, even though the informant supplied the probable cause for the search warrant, he also may have had information relevant to Thomas’s defense. The controlling case is Spataro v. State, 179 So.2d 873, 878 (Fla. 2d DCA 1965) (quoting Roviaro v. U.S., 353 U.S. 53, 62, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) (emphasis supplied)), where the second district determined that the “possible significance of the informer’s testimony ” outweighed any public interest in favor of nondisclosure of an informant’s identity. See also State v. Diaz, 678 So.2d 1341, 1348 (Fla. 3d DCA 1996) (affirming order of dismissal where state refused to produce tipster, whose testimony that someone other than defendant was seller of drugs was material to rebut the testimony of the state’s sole witness). In Spataro, as in this case, a search warrant was issued on the basis of an informant’s purchase of drugs at a residence. Spataro, 179 So.2d at 875. Pursuant to the warrant, the police searched the house and found marijuana. Id. Doles, the primary resident of the house at the time of the search, was arrested. Id. Doles and Spa-taro lived together and shared the master bedroom where the drugs were found. Id. As a state witness, Doles testified that Spataro used the drawer in which the drugs were found and that the closet was shared by both women. Id. at 876. The defendant Spataro testified that “everyone had access to the room,” and that Doles “was in and out of [her] drawers.” Id. She also denied ever having seen the marijuana and claimed that it did not belong to her. Id.

Noting that it was a “constructive possession” case, the second district held that the trial court committed reversible error in failing to require a prosecution witness to divulge the name of the informant on cross-examination. Id. at 878-81. It explained that finding contraband to which several people have equal access will not support a conviction for possessing that contraband. Id. at 879. The court reasoned that knowledge of the presence of the drugs was inferred from Spataro’s living there and that testimony by the informant that Doles had sold him the drugs would be relevant to Spataro’s defense that the drugs belonged to Doles, because

it would have materially affected the credibility of her testimony. Furthermore, it would have shown the possession of the narcotics to be in the State’s witness rather than the defendant, since there was no attempt to establish joint possession. Additionally, it was Doles’ testimony which proved that the defendant had knowledge of the presence of the narcotics. Without knowledge, there can be no valid conviction.

Id. at 880 (citation omitted). The second district pointed out that the testimony of Doles, whose credibility was being questioned, was not cumulative but was decisive to a lawful conviction in the case. Id. at 881.

As in Spataro, Thomas made a significant preliminary showing that the informant’s testimony might impact the case in two ways — it would support the notion that someone else had actual possession of the drugs and it would discredit the state’s key witness. Thomas disputed that he resided at the residence and presented evidence that he was merely visiting his uncle, who lived there. The fact that occupancy was disputed is significant, because

[i]n many instances ... the ability to control narcotics will be inferred from the ability to exercise control over the premises where they are found. For this reason, the cases have sharply distinguished between the culpability of a mere visitor from that of an owner or an occupant of premises containing illicit drugs in plain view.

Jean v. State, 638 So.2d 995, 996-97 (Fla. 4th DCA 1994) (quoting Johnson v. State, 456 So.2d 923 (Fla. 3d DCA 1984)).

The only evidence that the drugs and paraphernalia were found in plain view was the lead detective’s testimony, which was contradicted by photographs taken by the SWAT team before the search. The photos thus corroborate the testimony of Thomas and his uncle’s girlfriend that there was no cocaine in plain view on a coffee table. Thomas also argued the informant’s testimony would undermine the detective’s credibility because the detective testified in deposition that the informant identified Thomas from a photo line-up as the person who sold him the drugs. Thomas asserted in his sworn motion that the informant would testify that he did not identify Thomas as the man who sold him the drugs, because he was not the man who did so. The finding that Thomas violated his probation turned on the detective’s credibility. The informant’s testimony might well devastate the detective’s credibility, especially when taken together with the photographs.

We remand for the circuit court to conduct an in camera hearing to determine whether the testimony of the informant is relevant to the defense. If the court determines that the testimony is relevant, it should order disclosure of the confidential informant, set aside the order finding appellant in violation of probation, and conduct a new violation of probation hearing.

MAY and CIKLIN, JJ., concur.


author: PER CURIAM.

text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. COASTAL WELLNESS CENTER, INC., Respondent.
    No. 4D09-3683.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2010.
    Thomas L. Hunker, Miami, for petitioner.
    Dean A. Mitchell, Ocala, for respondents.
   PER CURIAM.

Adopting the reasoning of United Automobile Insurance Co. v. A 1st Choice Healthcare Systems, 21 So.3d 124 (Fla. 3d DCA 2009) (construing section 627.736(4)(b), Florida Statutes (2004), as not imposing a firm deadline for providing an insured or assignee with an “explanation of benefits” (EOB)), we grant the petition for writ of certiorari in part and quash the order and opinion of the circuit court, in its appellate capacity, but only to the extent the circuit court affirmed that portion of the county court’s directed verdict and final judgment in favor of the respondent health care provider on count II of the complaint, for breach of contract for failing to provide an EOB. In all other respects, the petition is denied. Because the one dollar nominal award of damages on Count II was de minimis, and because there is no transcript of the attorney’s fee hearing, Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979), we deny certiorari as to the circuit court’s affirmance of the attorney’s fee award as well.

Petition granted in part and denied in part.

POLEN, TAYLOR and CIKLIN, JJ., concur.


text:
    Evelyn BAUTISTA and Randall S. Bautista, Appellants, v. INDYMAC BANK, F.S.B., Appellee.
    No. 4D09-1348.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2010.
    Megan Carraher and Joshua Bleil of The Tiektin Law Group, P.A., Deerfield Beach, for appellants.
    No brief filed for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).

GROSS, C.J., MAY and CIKLIN, JJ., concur.


text:
    Israel Uriah CORDARO, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4771.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2010.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Appellant’s convictions for both possession of cannabis with intent to sell and possession of more than twenty grams of cannabis violate the double jeopardy clause of the Fifth Amendment to the United States Constitution. Because appellant made a general, “open” plea, and because appellant did not waive his right to raise a double jeopardy challenge on appeal, we vacate his conviction for possession of more than twenty grams of cannabis. See Novaton v. State, 634 So.2d 607 (Fla.1994).

Resentencing is unnecessary in this particular case. The sentence for simple possession runs concurrent with a mandatory minimum term of fifteen years on another charge, and this opinion leaves that term undisturbed. See Labovick v. State, 958 So .2d 1065 (Fla. 4th DCA 2007). Accordingly, we remand to the trial court only for amendment of the judgment and score-sheet to reflect vacatur of count one of the information.

Reversed and remanded.

TAYLOR, GERBER and LEVINE, JJ., concur.


author: PER CURIAM. WARNER, J.,

text:
    William LARGE, Petitioner, v. AQUAMAR S.A.; Molinos Del Ecuador S.A.; Desarrollo Industrial Bioacuatico S.A.; and E.I. Du Pont De Nemours and Company, Respondents.
    No. 4D09-5267.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2010.
    George N. Meros, Jr. and Andy Bardos of GrayRobinson, P.A., Tallahassee, for petitioner.
    Joel S. Perwin of Joel S. Perwin, P.A., Miami, and Walter G. Campbell, Jr., Ivan F. Cabrera and Kelley B. Stewart of Krup-nick, Campbell, et al., Fort Lauderdale, for respondents Aquamar, S.A. and Desarrollo Industrial Bioacuatico S.A.
    Rodolfo Sorondo, Jr. and Christopher N. Bellows of Holland & Knight LLP, Miami, for respondent E.I. Du Pont De Nemours and Company.
   PER CURIAM.

The petition for writ of certiorari is hereby denied.

GROSS, C.J., and FARMER, J., concur.

WARNER, J., dissents with opinion.

WARNER, J.,

dissenting.

Petitioner brings for review on certiorari an order entered vacating a stay and entitling the respondents to depose petitioner, a non-party. The order entered makes multiple factual “findings” without having provided the petitioner, a non-party, with the opportunity of an evidentiary hearing to contest the facts found by the court and upon which the stay was lifted. Because of this basic denial of due process, I would grant the petition.


text:
    Anna Dora TURNER, n/k/a Anna Dora Thomas, Appellant, v. David W. TURNER, Sr., Appellee.
    No. 4D09-3463.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2010.
    Margaret M. Anderson, Vero Beach, for appellant.
    No brief filed on behalf of appellee.
   PER CURIAM.

We dismiss for lack of jurisdiction. See Kincade v. Sanders, 909 So.2d 413 (Fla. 5th DCA 2005).

Appeal dismissed.

GROSS, C.J., MAY and CIKLIN, JJ., concur.


text:
    In re Charles R. WHITEHEAD, III.
    No. 2009-B-1868.
    Supreme Court of Louisiana.
    Jan. 29, 2010.

      Charles Bennett Plattsmier, Baton Rouge, Damon Shawn Manning, for applicant.
    The Schiff Law Corporation, Leslie J. Schiff, Opelousas; The Whitehead Law Offices, Charles Raymond "Whitehead, III, Natchitoches, for respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| jThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Charles R. Whitehead, III, an attorney licensed to practice law in Louisiana.

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 1986. In 1995, respondent was admonished by the disciplinary board for neglecting a succession matter, attempting to cover up his misconduct by misrepresenting facts to his client, failing to refund an unearned fee, and failing to cooperate with the ODC.

In 2002, this court considered a proceeding involving respondent’s neglect of three client matters, failure to communicate with three clients, failure to refund unearned fees owed to at least one client, and failure to cooperate with the ODC in two disciplinary investigations. The substantive misconduct occurred between 1995 and 1997, with the failure to cooperate occurring largely in 1998. After hearing oral argument in the matter, we suspended respondent from the practice of law for one | gyear, with six months deferred, followed by a one-year period of probation with conditions. In re: Whitehead, 01-3071 (La.4/12/02), 816 So.2d 284 (“Whitehead I”).

Thereafter, we considered additional misconduct by respondent which occurred during the same time frame as the complaints resolved in Whitehead I. In In re: Whitehead, 04-2862 (La.1/7/05), 890 So.2d 569 (‘Whitehead II ”), we accepted a petition for consent discipline stemming from respondent’s neglect of his client’s legal matter and failure to communicate with his client. We publicly reprimanded respondent, subject to the conditions set forth in the petition for consent discipline.

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

FORMAL CHARGES

Count 1(a)

State v. Michael Hayes, No. 58161, Sabine Parish

In January 2004, Michael Hayes was charged in Sabine Parish with identity theft. In February 2004, respondent enrolled as Mr. Hayes’ counsel of record. Respondent was subsequently present with Mr. Hayes in March 2004 when he waived arraignment and entered a plea of not guilty to the criminal charge. The case was fixed for trial on June 14, 2004, with a pre-trial conference on May 24, 2004. Respondent and Mr. Hayes were instructed to return to court without further notice. However, on May 24, 2004, neither respondent nor Mr. Hayes appeared in court, and the trial judge issued a bench warrant for Mr. Hayes’ arrest.

On August 24, 2004, the trial court recalled the bench warrant and placed the case on the docket for trial on October 11, 2004. On October 1, 2004, Mr. Hayes appeared in court with respondent and entered into a plea agreement. Mr. Hayes pleaded guilty to the charge of identity theft and was sentenced to five years at hard 1 .¡labor, suspended, and was placed on supervised probation for five years. He was also ordered to pay restitution.

On March 10, 2005, the State filed a motion to revoke probation, following Mr. Hayes’ arrest on two counts of principal to issuing worthless checks. Mr. Hayes’ court-ordered restitution was also in arrears. The court appointed respondent to represent Mr. Hayes in the probation matter and set a hearing for April 18, 2005. On the date of the hearing, respondent appeared in court, but Mr. Hayes did not, and the court issued a bench warrant for his arrest. The State then filed an amended motion to revoke probation, which was set for hearing on October 14, 2005. On that date, neither respondent nor Mr. Hayes appeared. However, another attorney, Ginger Vidrine, filed a motion to enroll as Mr. Hayes’ counsel and moved for a continuance of the hearing on the motion to revoke probation. The continuance was granted and the matter was reset for November 7, 2005. Respondent was no longer involved as Mr. Hayes’ attorney after Ms. Vidrine enrolled.

The ODC alleges that respondent failed to act with reasonable diligence and promptness in representing Mr. Hayes. On at least one occasion (the May 24, 2004 pre-trial conference), respondent failed to appear in court despite notice, as did his client, and a bench warrant was issued for his client’s arrest. This conduct violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client) and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct. The ODC further alleges that Mr. Hayes was employed as a long-distance truck driver and was often out of state on business. Despite Mr. Hayes’ repeated calls to respondent’s office, respondent failed to properly communicate with his client regarding the status of the representation and failed to provide his client with sufficient information so that he could reasonably |4participate in decisions regarding his case, in violation of Rule 1.4 (failure to communicate with a client).

Count 1(b)

State v. Michael Hayes, Docket No. 59734, Sabine Parish

In 2005, Mr. Hayes was charged in Sabine Parish with forgery and felony theft. Respondent enrolled as Mr. Hayes’ counsel of record. In February 2005, respondent was present with Mr. Hayes when he waived arraignment and entered a plea of not guilty to the criminal charges. The case was fixed for trial on June 13, 2005, with a pre-trial conference on May 23, 2005. Respondent and Mr. Hayes were instructed to return to court without further notice.

In March 2005, respondent filed motions for preliminary examination, discovery, and inspection on behalf of Mr. Hayes, which were set for hearing on April 21, 2005. Respondent appeared in court on that date and moved to dismiss the motion for preliminary examination. He further informed the court that the motion for discovery and inspection had been satisfied.

On the date of the pre-trial conference, May 23, 2005, neither respondent nor Mr. Hayes appeared in court, and the trial judge issued a bench warrant for Mr. Hayes’ arrest. Likewise, neither respondent nor Mr. Hayes appeared on the date of trial, June 13, 2005. On that date, the court ordered that a Judgment of Bond Forfeiture be issued.

On October 13, 2005, attorney Ginger Vidrine filed a motion to enroll as Mr. Hayes’ counsel of record. The motion was granted and respondent was no longer involved as Mr. Hayes’ attorney after that date. Thereafter, Ms. Vidrine wrote to the trial judge to request that he recall the bench warrants issued in Mr. Hayes’ various Leases pending in Sabine Parish. On November 30, 2005, the trial court recalled the bench warrants, noting, “Defendant is in jail ...”

The ODC alleges that respondent failed to act with reasonable diligence and promptness in representing Mr. Hayes. On at least one occasion (the May 23, 2005 pre-trial conference), respondent failed to appear in court despite notice, as did his client, and a bench warrant was issued for his client’s arrest. On another occasion (the June 13, 2005 trial date), respondent failed to appear in court despite notice, and a judgment of bond forfeiture was issued. This conduct violated Rules 1.3 and 8.4(d) of the Rules of Professional Conduct.

Count 1(c)

State v. Michael Hayes, Docket No. 228954, Caddo Parish

Mr. Hayes was charged in Caddo Parish with first degree injuring public records. In June 2003, a motion to appoint counsel was filed by the District Attorney. On July 7, 2003, attorney Ron Miciotto was present and enrolled as counsel of record for Mr. Hayes. The case was set for arraignment on September 17, 2003 and later continued to October 2, 2003. On that date, Mr. Hayes appeared in court without counsel, waived arraignment, and entered a plea of not guilty to the criminal charge. The ease was then set for a pretrial hearing on January 15, 2004. On that date, Mr. Hayes was not present in court; however, respondent appeared and enrolled as Mr. Hayes’ counsel of record. Discovery responses were filed by the parties, and a hearing was set for March 16, 2004.

On the date of the hearing, neither respondent nor Mr. Hayes appeared in court, and the trial judge issued a bench warrant for Mr. Hayes’ arrest. Bond was set at $30,000. On April 5, 2004, respondent appeared in court on behalf of Mr. Hayes. |f;The bench warrant was recalled and Mr. Hayes’ case was continued to May 18, 2004. The matter was apparently later continued to July 29, 2004.

On that date, neither respondent nor Mr. Hayes appeared in court, and the case was continued to August 24, 2004. On the date of the hearing, neither respondent nor Mr. Hayes appeared in court, and the case was continued to October 25, 2004. On that date, attorney Ben Politz, standing in for respondent, appeared in court on behalf of Mr. Hayes. The case was then continued to December 9, 2004. On December 9, 2004, both Mr. Hayes and respondent appeared in court and the case was fixed for trial on March 14, 2005.

On the date of trial, neither respondent nor Mr. Hayes appeared in court, and the trial judge issued a bench warrant for Mr. Hayes’ arrest. Bond was set at $35,000, and a bond forfeiture hearing was scheduled for May 6, 2005.

On May 6, 2005, neither Mr. Hayes nor respondent appeared in court. The case was taken up on bond forfeiture, evidence adduced, and the matter was submitted. The court ordered Mr. Hayes’ bond forfeited, and a judgment of bond forfeiture was signed.

The ODC alleges that respondent failed to act with reasonable diligence and promptness in representing Mr. Hayes. On as many as five separate occasions, respondent failed to appear in court, as did his client. On some occasions, bench warrants were issued, while on other occasions, the matter was continued. This conduct violated Rules 1.3 and 8.4(d) of the Rules of Professional Conduct.

Count II

In April 2007, the ODC sent respondent a letter requesting that he provide a written response regarding his handling of the Michael Hayes criminal matters. The 17deadline for the response was April 19, 2007, which at respondent’s request was subsequently extended to May 4, 2007. Respondent failed to provide the response, necessitating the issuance of a subpoena for his sworn statement on July 24, 2007. Despite being personally served with the subpoena, respondent failed to appear for the sworn statement as scheduled. Respondent did appear at a later date and agreed under oath that he would provide the ODC with the promised written response by August 31, 2007. Respondent failed to submit the response.

The ODC alleges that respondent failed to cooperate in the investigation of this matter, in violation of Rules 8.4(a) (violation of the Rules of Professional Conduct) and 8.1(c) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS

In May 2008, the ODC filed two counts of formal charges against respondent, as set forth above. Respondent failed to answer or otherwise reply to the formal charges. 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 consideration of the ODC’s submission in response to the deemed admitted order, the hearing committee found that the factual allegations of the formal ^charges have been deemed admitted and proven by clear and convincing evidence. Respondent failed to act with reasonable diligence and promptness in representing Mr. Hayes in three different criminal proceedings. On several occasions, respondent failed to appear in court despite notice, as did his client. On three different occasions a bench warrant was issued for Mr. Hayes’ arrest and he spent time in jail because respondent failed to notify him of a court date. Based on these findings, the committee found that respondent violated Rules 1.3 and 8.4(d) of the Rules of Professional Conduct. The committee further found that respondent’s conduct caused actual harm to Mr. Hayes, who was jailed as a result of the lack of diligence on the part of respondent.

In Count II, the committee found that respondent failed to cooperate in the ODC’s investigation of the complaint, a violation of Rule 8.1(c), by ignoring deadlines to respond to the complaint, failing to appear after having been subpoenaed to give his statement, and failing to fulfill promises made under oath to respond to requests for information. Respondent’s lack of diligence in his own matter is further evidenced by his failure to respond to the formal charges filed against him or to make any effort to do so after the deemed admitted order was entered.

The committee determined that respondent violated duties owed to his client, the legal system, and the legal profession. He acted knowingly, if not intentionally, causing actual harm to his client, who had bench warrants issued for his arrest and whose multiple criminal matters were delayed or potentially delayed. Mr. Hayes was also forced to retain other counsel to conclude the criminal matters. Respondent also wasted the time and resources of the trial court by failing to attend multiple hearings and likewise wasted the time and resources of the disciplinary agency by failing to [^cooperate with the ODC in its investigation of this matter. The baseline sanction for respondent’s misconduct is suspension.

The committee found the following aggravating factors apply: prior disciplinary offenses, a pattern of misconduct, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law (admitted 1986). The committee found there are no mitigating factors present.

Under these circumstances, and considering the prior jurisprudence of this court involving misconduct similar to respondent’s, the committee recommended that respondent be suspended from the practice of law for two years. The committee acknowledged that a one-year suspension is generally appropriate in cases involving a single count of lack of diligence, failure to communicate, and failure to properly withdraw from the representation of a client. See In re: Trichel, 00-1304 (La.9/1/00), 767 So.2d 694. However, the committee stated that a harsher sanction is warranted in this case, given respondent’s prior disciplinary history for similar misconduct. Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

A panel of the disciplinary board heard oral argument in this matter on January 29, 2009. Days before oral argument, on January 22, 2009, respondent filed a Motion for Remand, requesting that the board remand this case to the hearing committee “for a compilation of a full and complete record concerning the underlying Hayes case and the failure to cooperate charges.... ” The ODC opposed respondent’s motion, asserting that he had received every pleading filed in the course of the proceeding and nevertheless had failed to participate. Thus, the ODC argued that respondent failed |10to demonstrate good cause why the case should be remanded. The board denied the motion for remand but allowed respondent fifteen days to submit a memorandum in mitigation.

In response to the board’s order, respondent submitted the following mitigating evidence: (1) his own affidavit, in which he stated that (a) he did not have a dishonest or selfish motive in handling Mr. Hayes’ cases, (b) he has good character and a reputation for diligently prosecuting his clients’ legal matters, (c) he has a long history of pro bono legal service, (d) there have been no other complaints of this type against him since the Hayes matter, (e) he has changed the way he notifies clients of court dates, (f) he will work diligently to ensure that an incident of this type will not recur, and will accept a period of supervised probation, and (g) he regrets any hardship this matter has caused Mr. Hayes, the ODC and the system of justice as a whole; and (2) the affidavits of eight personal and professional acquaintances who generally attested to respondent’s good character and to his work in the Natchitoches area.

After review of the entire record, the disciplinary board found that the hearing committee’s factual findings are supported by the factual allegations asserted in the formal charges, which are deemed admitted, and/or by the documentary evidence submitted in support of the allegations. The board also determined that the committee correctly concluded respondent violated Rules 1.3,1.4, 8.1(c), 8.4(a), and 8.4(d) of the Rules of Professional Conduct as charged.

lnThe board determined that respondent violated duties owed to his client, the legal system, and the legal profession. He acted knowingly, if not intentionally, causing actual harm to his client. Considering the ABA’s Standards for Imposing Lawyer Sanctions, the baseline sanction for respondent’s misconduct is suspension.

The board found the following aggravating factors apply: prior disciplinary offenses, a pattern of misconduct, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law. Based upon the evidence submitted by respondent in mitigation, the board found the mitigating factor of good character or reputation is present.

Turning to the issue of an appropriate sanction, the board considered the court’s prior jurisprudence involving similar misconduct, and observed that sanctions ranging from lengthy suspensions to disbarment have been imposed in cases involving multiple instances of neglect and failure to communicate, aggravated by a prior disciplinary history and failure to cooperate in the disciplinary process. In light of these cases, the board determined that a lengthy suspension is appropriate for respondent’s misconduct, and recommended that respondent be suspended from the practice of law for three years, with one year deferred.

Respondent filed an objection to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

I 1 ¿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: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992).

Prior to discussing the merits, we first address the argument made by respondent in brief and argument to this court that the disciplinary board erred in denying his motion to remand this matter for an evidentiary hearing. We have generally given a very liberal interpretation to the provisions for setting aside deemed admitted orders, especially when there is evidence that the respondent-attorney has made a good faith effort to present a response. See, e.g., In re: Gardner, 98-1476 (La.10/9/98), 719 So.2d 400; In re: Tosh, 98-2152 (La.10/9/98), 719 So.2d 396. Nonetheless, deemed admitted orders have not been set aside in cases where the failure to respond timely is attributable to the respondent-attorney’s own actions or inactions. See, e.g., In re: Morphis, 01-2803 (La.12/4/02), 831 So.2d 934.

In the instant case, the record reflects that respondent received service of the formal charges as well as every pleading and notice in the case. However, he purposefully chose to ignore the disciplinary proceeding and simply waited until the eleventh hour to ask the board to remand the matter for a hearing. That was respondent’s choice, and we will not relieve him of the consequences of it.

Turning to the merits, Supreme Court Rule XIX, § 11(E)(3) provides that in cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have |T!ibeen 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 deemed admitted facts indicate that respondent neglected his client’s legal matters, failed to communicate with his client, and failed to cooperate with the ODC in its investigation. This conduct violated the Rules of Professional Conduct as charged in the formal charges.

Respondent acted knowingly, if not intentionally, causing actual harm to his client, who had bench warrants issued for his arrest and whose multiple criminal matters were delayed or potentially delayed. The baseline sanction for respondent’s misconduct is suspension.

The following aggravating factors apply: prior disciplinary offenses, a pattern of misconduct, and substantial experience in the practice of law (admitted 1986). The mitigating factors present are absence of a dishonest or selfish motive, good character or reputation, and remorse.

The hearing committee suggested that were it not for his extensive prior disciplinary record, respondent’s misconduct would likely have warranted a sanction in the range of a one-year suspension. The disciplinary board cited cases in which this court has imposed a more substantial period of suspension. Nevertheless, both the committee and the board increased the discipline they would have otherwise recommended because respondent has previously been sanctioned for misconduct similar to that at issue in this ease.

114We likewise find it disturbing that respondent has failed to correct his behavior despite the numerous opportunities he has been given to do so. As previously discussed, since 1995, respondent has been admonished by the disciplinary board, suspended by this court for an actual period of six months, and publicly reprimanded by this court, all without apparent effect. Instead of learning from his prior discipline, respondent has continued to engage in the same behavior, causing harm to yet another client.

These factors warrant imposition of a significant suspension. However, we are also mindful that mitigating factors exist in this case, the most important of which is respondent’s lack of a dishonest or selfish motive. Considering the totality of the circumstances, we conclude the appropriate discipline in this case is a three-year suspension from the practice of law with all but one year and one day deferred, thereby necessitating an application for reinstatement. Hopefully, this sanction will impress upon respondent the importance of his obligation to scrupulously conform his conduct to the Rules of Professional Conduct.

DECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Charles R. Whitehead, III, Louisiana Bar Roll number 17862, be and he hereby is suspended from the practice of law for a period of three years. It is further ordered that all but one year and one day of the suspension shall be deferred. |15A11 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.

       Chief Justice Kimball not participating in the opinion.

      . One of the affidavits, executed by Don Burk-ett and Anna Garcie, the District Attorney and an Assistant District Attorney for the 11th Judicial District, respectively, specifically comments upon the factual allegations of the formal charges, and offers the affiants' opinion of the credibility of respondent’s client. This portion of the affidavit is beyond the scope of the board’s order permitting respondent to supplement the record with appropriate mitigating evidence.

      . Although the committee did not make a specific finding that Rule 1.4 was violated, the board noted the committee appeared to find a violation of this rule in another part of its report. Specifically, in making its determination that respondent violated a duty owed to his client, the committee found that he failed to properly communicate with Michael Hayes about the status of his respective cases or the means by which his objectives were to be met.

      . Because the active portion of respondent's suspension exceeds one year and will therefore require a formal application for reinstatement under Supreme Court Rule XIX, § 24, we will not impose any condition whereby the deferred portion of the suspension would become executory in the event of future misconduct by respondent. If and when respondent applies for reinstatement, the board may consider recommending appropriate conditions for reinstatement, including conditions for the triggering of the deferred portion of the suspension. See In re: Hansen, 04-1988 (La. 11/19/04), 888 So.2d 172.


text:
    WEST JEFFERSON MEDICAL CENTER STAFF, through Jonathan C. BORASKI, M.D., K. Barton Farris, M.D., Pablo J. Labadie, M.D., and David C. Treen Jr. v. STATE of Louisiana and The Louisiana Department of Health & Hospitals.
    No. 2009-CC-1365.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   PER CURIAM.

|! Plaintiffs filed the instant suit in the 24th Judicial District Court for the Parish of Jefferson against the State of Louisiana and the Louisiana Department of Health and Hospitals (collectively referred to hereinafter as “State”). Essentially, plaintiffs, who identified themselves as “three hundred and eighty-one (381) Louisiana licensed physicians who treat individuals at West Jefferson Medical Center,” alleged that the closure of Charity Hospital following Hurricane Katrina caused them to suffer certain economic losses resulting from an increased demand for medical care by the indigent and uninsured.

In response, the State filed various exceptions, including exceptions of no cause of action, lack of subject matter jurisdiction, improper venue, no right of action, failure to join an indispensable party, and lack of procedural capacity. The district court denied these exceptions, and the State sought supervisory review. The court of appeal denied writs.

The State then sought writs in this court. We granted the writ and remanded the case to the court of appeal for briefing, argument, and opinion. West Jefferson Medical Center Staff v. State of Louisiana, 08-1045 (La.8/29/08), 989 So.2d 86. On remand, the court of appeal granted the State’s exception of lack of indispensable party, but denied the writ in all other respects. The State now seeks relief in this court.

At the time the court of appeal rendered its disposition, it did not have the benefit of our opinion in LeBlanc v. Thomas, 08-2869 (La.10/20/09), 23 So.3d 241, which may have a bearing on the venue issues raised in this case. Therefore, considering this issue only, we find it necessary to remand the case to the court of appeal for reconsideration of the State’s venue exception in light of LeBlanc.

At this time, we are not addressing the merits of the State’s remaining exceptions. However, nothing in this order shall preclude the court of appeal from reconsidering other aspects of the case, as appropriate. In particular, we note an appellate court may address the issue of subject matter jurisdiction, even if this issue is not properly raised by the parties. See Whittenberg v. Whittenberg, 97-1424 at p. 3 (La.App. 1st Cir.4/8/98), 710 So.2d 1157, 1158 (“it is the duty of a court to examine subject matter jurisdiction sua sponte, even when the issue is not raised by the litigants”).

DECREE

For the reasons assigned, the writ is granted. The case is remanded to the court of appeal for further proceedings consistent with this opinion.

WEIMER, J., would grant and docket.

       Chief Justice Kimball not participating in this opinion.


text:
    In re Leo D. LAWRENCE.
    No. 2010-B-0028.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent failed to act with reasonable diligence and promptness in representing a client, and failed to communicate with a client. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted, and that Leo D. Lawrence, Louisiana Bar Roll number 18686, be suspended from the practice of law in Louisiana for a period of ninety days, fully deferred.

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

       Chief Justice Kimball not participating in this opinion.


text:
    STATE of Louisiana v. Tim MISKELL.
    No. 2010-KK-0366.
    Supreme Court of Louisiana.
    Feb. 19, 2010.
   In re Miskell, Tim; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No.; to the Court of Appeal, Fourth Circuit, No. 2010-K-0202.

Denied.


text:
    STATE of Louisiana v. Dwayne Henry ISOM.
    No. 2010-KK-0371.
    Supreme Court of Louisiana.
    Feb. 19, 2010.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. B, Nos. 090042, 095091; to the Court of Appeal, First Circuit, No. 2010KW.

Denied on the showing made. The court of appeal majority’s ruling evidently turned on the sufficiency of the probable cause affidavit submitted after the defendant was ordered released on the violation of La.Code Crim. Proc. art. 230.2. Because relator has not provided this Court with the affidavits for the initial arrest and the re-arrest following the order of release, there is nothing for this Court to review at this time to determine the correctness of the court of appeal’s ruling. We make no comment on whether the court of appeal correctly applied State v. Wallace, 09-1621 (La.11/6/09), 25 So.3d 720.

JOHNSON, J., concurs in the denial of the writ application.


text:
    STATE of Louisiana v. Curtis EVERY.
    No. 2010-KK-0416.
    Supreme Court of Louisiana.
    Feb. 23, 2010.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 477-336; to the Court of Appeal, Fourth Circuit, No. 2010-K-0268.

Stay denied. Writ denied.


text:
    Francis TOUCHET, Jr. v. Ernal J. BROUSSARD.
    No. 2010-C-0380.
    Supreme Court of Louisiana.
    Feb. 24, 2010.
   In re Touchet Jr., Francis; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Vermilion, 15th Judicial District Court Div. C, No. 91665-L; to the Court of Appeal, Third Circuit, No. 10-188.

Granted and docketed.


text:
    STATE of Louisiana v. Morris PATIN.
    No. 2010-KK-0335.
    Supreme Court of Louisiana.
    Feb. 24, 2010.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 434-092; to the Court of Appeal, Fourth Circuit, Nos. 2010-K-0206, 2010-K-0205.

Granted. We continue the stay issued by this Court on February 12, 2010, pending the state’s appeal in the Fourth Circuit. Given the long delays in this case, the state is directed to file its appeal forthwith and the court of appeal is ordered to provide the appeal expedited consideration.


text:
    In re Christopher SUBA.
    No. 2009-OB-2769.
    Supreme Court of Louisiana.
    Feb. 24, 2010.
   In re Suba, Christopher; — Plaintiff; Applying For Reinstatement Office of the Disciplinary Board, No. 08-DB-106.

Readmission denied. Petitioner may not reapply for readmission until one year has passed from the date of this judgment. Supreme Court Rule XIX, Section 24(1).


text:
    STATE of Louisiana v. Lawrence NELSON.
    No. 2010-KK-0295.
    Supreme Court of Louisiana.
    Feb. 24, 2010.
   In re Nelson, Lawrence; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 480-018; to the Court of Appeal, Fourth Circuit, No. 2009-K-1587.

Denied.


text:
    STATE of Louisiana v. Gregory Lee FRAZIER.
    No. 2010-KK-0399.
    Supreme Court of Louisiana.
    Feb. 24, 2010.
   In re Frazier, Gregory Lee; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, Nos. 281,755, 281,756, 281,757, 259,182; to the Court of Appeal, Second Circuit, Nos. 45300-KW, 45301-KW, 45302-KW, 45303-KW.

Denied.


text:
    Donald MARIN, Sr., Engsfeld F. Marin, III, Clyde J. Breaux and Veronica Marin Breaux v. EXXON MOBIL CORPORATION, Formerly Known as and Successor in Interest to Exxon Corporation and Humble Oil & Refining Company, Atlantic Richfield Company, Legacy Resources Co., L.P., MJF Property Management, L.L.C. and Mike Bourgeois.
    No. 2009-C-2368.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Exxon Mobil Corporation; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. E, No. 112908-E; to the Court of Appeal, First Circuit, No. 2008 CA 1724.

Granted.


text:
    Donald MARIN, Sr., Engsfeld F. Marin, III, Clyde J. Breaux and Veronica Marin Breaux v. EXXON MOBIL CORPORATION, formerly known as and Successor in Interest to Exxon Corporation and Humble Oil & Refining Company, Atlantic Richfield Company, Legacy Resources Co., L.P., MJF Property Management, L.L.C. and Mike Bourgeois.
    No. 2009-C-2371.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Breaux, Clyde J.; Breaux, Veronica Marin; Marin III, Engsfeld F.; Marin Sr., Donald et ah; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. E, Nos. 112908, 112908; to the Court of Appeal, First Circuit, No. 2008-CA-1724.

Granted.


text:
    Mark H. FOSHEE v. GEORGIA GULF CHEMICALS & VINYLS, L.L.C.
    No. 2009-C-2477.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Foshee, Mark H.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. C, No. 62551; to the Court of Appeal, First Circuit, No. 2009 CA 0530.

Granted.


text:
    David HOGG, John Hogg, George Hogg III, Stephen Hogg and Sandra Defreese Hogg v. CHEVRON USA, INC. f/k/a Gulf Oil Company, E. Lee Young and E. Lee Young and Company, Inc., William Burt and ABC Insurance Company.
    No. 2009-CC-2632.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re E. Lee Young and Co.; Young, E. Lee; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Lincoln, 3rd Judicial District Court Div. A, No. 52,286; to the Court of Appeal, Second Circuit, No. 45131-CW.

Granted.


text:
    David HOGG, John Hogg, George Hogg III, Stephen Hogg and Sandra Defreese Hogg v. CHEVRON USA, INC. f/k/a Gulf Oil Company, E. Lee Young and E. Lee Young and Company, Inc., William Burt and ABC Insurance Company.
    No. 2009-CC-2635.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Chevron USA, Inc. f/k/a; Golf Oil Company; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Lincoln, 3rd Judicial District Court Div. A, No. 52,286; to the Court of Appeal, Second Circuit, No. 45131-CW.

Granted.


text:
    STATE ex rel. Virgil Lorenzo SMITH v. STATE of Louisiana.
    No. 2009-KH-0567.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Smith, Virgil Lorenzo; — Plaintiff; Applying for Reconsideration of this Court’s Order, dated December 18, 2009; Parish of St. Tammany, 22nd Judicial District Court, Div. F, No. 357134; to the Court of Appeal First Circuit, No. 2008 KW 2039.

Reconsideration denied.


text:
    STATE ex rel. Spencer HENRY v. STATE of Louisiana.
    No. 2009-KH-0590.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Henry, Spencer; — Plaintiff; Applying for Reconsideration of this Court’s Order, dated December 18, 2009; Parish of Ascension, 23rd Judicial District Court, Div. D, No. 7367; to the Court of Appeal, First Circuit, No. 2008 KW 2101.

Denied.


text:
    STATE ex rel. Sivoris SUTTON v. STATE of Louisiana.
    No. 2009-KH-0489.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Sutton, Sivoris; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 354-161; to the Court of Appeal, Fourth Circuit, No. 2008-K-1197.

Denied.


text:
    STATE of Louisiana v. Sivoris SUTTON.
    No. 2009-KP-0561.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Sutton, Sivoris; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 354-161; to the Court of Appeal, Fourth Circuit, No. 2008-K-1197.

Denied.


text:
    STATE ex rel. Christopher BARNETT v. STATE of Louisiana.
    No. 2009-KH-0922.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Barnett, Christopher; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 399496; to the Court of Appeal, First Circuit, No. 2008 EW 2462.

Denied.


text:
    STATE ex rel. Marvin COBB v. STATE of Louisiana.
    No. 2009-KH-0999.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Cobb, Marvin; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 08-WCR-409; to the Court of Appeal, First Circuit, No. 2009 CW 0162.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 351; cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Taurius Marques HOLMES v. STATE of Louisiana.
    No. 2009-KH-1000.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Holmes, Taurius Marques; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. A, No. 05-CR3-92375; to the Court of Appeal, First Circuit, No. 2008 KW 2517.

Denied.


text:
    STATE ex rel. Stacey CARTER v. STATE of Louisiana.
    No. 2009-KH-1001.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Carter, Stacey; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. C, No. 163757; to the Court of Appeal, Second Circuit, No. 44,-572-KH.

Denied.


text:
    STATE ex rel. Delmar COX v. STATE of Louisiana.
    No. 2009-KH-1004.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Cox, Delmar; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. B, No. 111667; to the Court of Appeal, First Circuit, No. 2009 KW 0042.

Denied.


text:
    STATE ex rel. Michael Chris JACKSON v. STATE of Louisiana.
    No. 2009-KH-1005.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Jackson, Michael Chris; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. F, No. 210,698; to the Court of Appeal, Second Circuit, No. 44,-541-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Kenneth FREEMAN v. Warden N. Burl CAIN.
    No. 2009-KH-1006.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Freeman, Kenneth; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. B, No. 502,985; to the Court of Appeal, First Circuit, No. 2008 KW 2650.

Denied.


text:
    STATE ex rel. Curtis Mathew LILLY v. STATE of Louisiana.
    No. 2009-KH-1009.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Lilly, Curtis Mathew; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 10-06-179; to the Court of Appeal, First Circuit, No. 2008 KA 1201.

Denied.


text:
    STATE ex rel. Kim CARTER v. STATE of Louisiana.
    No. 2009-KH-I011.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Carter, Kim; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. K, Nos. 7-5-309, 4-7-544; to the Court of Appeal, First Circuit, No. 2008 KW 2511.

Denied.


text:
    STATE ex rel. Jerrod A. WILSON v. STATE of Louisiana.
    No. 2009-KH-1016.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Wilson, Jerrod A.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 08-WCR-304; to the Court of Appeal, First Circuit, No. 2008 CW 2432.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. Cf. La. C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Vincent ALLNET v. STATE of Louisiana.
    No. 2009-KH-1021.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Allnet, Vincent; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 80,683.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE of Louisiana v. Lee VIDRINE.
    No. 2009-K-1179.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re State of Louisiana; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. C, No. 054593-C; to the Court of Appeal, Third Circuit, No. 08-1059.

Denied.

GUIDRY, J., would grant.

CLARK, J., would grant.


text:
    STATE of Louisiana v. Mozine JOHNSON.
    No. 2009-KO-1394.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Johnson, Mozine; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. C, No. 05-2244; to the Court of Appeal, Fifth Circuit, No. 08-KA-1156.

Denied.


text:
    STATE of Louisiana v. Donald L. SCHALLER.
    No. 2009-K-1406.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Schaller, Donald L.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. J, No. 04-6311; to the Court of Appeal, Fifth Circuit, No. 08-KA-522.

Denied.


text:
    STATE of Louisiana v. Randolph ROBINSON.
    No. 2009-KO-1437.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Robinson, Randolph; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. C, No. 459-101; to the Court of Appeal, Fourth Circuit, No. 2008-KA-0652.

Denied.


text:
    STATE of Louisiana v. Rodney J. TOLLIVER.
    No. 2009-KO-1441.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Tolliver, Rodney J.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. J, No. 101950; to the Court of Appeal, Third Circuit, No. OS-1486

Denied.


text:
    Jennifer GRAY, et al. v. The GRAY INSURANCE COMPANY, et al.
    No. 2009-CC-2351.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Gray Insurance Co. et al.; Preheat Inc.; Trauth, Brent; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 05-13306; to the Court of Appeal, Fourth Circuit, No. 2009-C-0984.

Denied.

GUIDRY, J., would grant.

CLARK, J., would grant.


text:
    STATE of Louisiana v. Darrill HENRY.
    No. 2009-KK-2370.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Henry, Darrill; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 451-696; to the Court of Appeal, Fourth Circuit, No. 2009-K-1087.

Denied.


text:
    Floyd DANS, et al. v. Chris SHUFFLIN d/b/a Shufflin Energy, et al.
    No. 2009-CC-2405.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Shufflin d/b/a, Chris et al.; Shuff-lin Energy; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. B, No. 78,956-B; to the Court of Appeal, Third Circuit, No. CW 09-00837.

Denied.


text:
    Floyd DANS, et al. v. Chris SHUFFLIN d/b/a Shufflin Energy, et al.
    No. 2009-CC-2409.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Shufflin Energy; Shufflin et al., Chris d/b/a; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. B, No. 78,956-B; to the Court of Appeal, Third Circuit, No. CW 09-00836.

Denied.


text:
    Jonnie BUFORD & Jennifer Buford v. Leah BLANCHARD, State Farm Mutual Automobile Insurance Co., Todd Lasseigne & Allstate Insurance Co.
    No. 2009-C-2419.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Safeway Insurance Co. of La.;— Defendant; Applying For Writ of Certio-rari and/or Review, Parish of St. Martin, 16th Judicial District Court Div. D, No. 67041-D; to the Court of Appeal, Third Circuit, No. 09-187.

Denied.


text:
    Donald and Aimee SAUCIER, et al. v. ESSEX INSURANCE COMPANY.
    No. 2009-CC-2427.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Essex Insurance Company; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. B, No. 110-499; to the Court of Appeal, Fourth Circuit, No. 2009-C-1290.

Denied.


text:
    Hazel Shelton ROBISON v. LOUISIANA CVS PHARMACY, LLC.
    No. 2009-CC-2696.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Louisiana CVS Pharmacy, LLC;— Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 552,814; to the Court of Appeal, First Circuit, No. 2009 CW 1552.

Denied.

VICTORY, J., would grant.

WEIMER, J., would grant.


text:
    USI INSURANCE SERVICES, LLC v. Burnett J. TAPPEL, III.
    No. 2009-C-2697.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re USI Insurance Services LLC;— Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. 0, No. 667-156; to the Court of Appeal, Fifth Circuit, No. 09-CA-149.

Denied.

VICTORY, J., would grant.


text:
    Patricia GUIDRY v. The HANOVER INSURANCE COMPANY, 4621 L.L.C., Meltzer Properties, Ltd., Romeche L.L.C. d/b/a Jani-King and ABC Insurance Company.
    No. 2009-C-2701.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Thumbs-Up Telemarketing, Inc.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. B, No. 628-538; to the Court of Appeal, Fifth Circuit, No. 09-CA-220.

Denied.

KNOLL, J., would grant.


text:
    Michael JONES v. WECHEM, INC. and Transportation Insurance Company.
    No. 2009-CC-2703.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Transportation Insurance Company; Wechem Inc. et al.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 644-168; to the Court of Appeal, Fifth Circuit, No. 09-C-793.

Denied.


text:
    Lewis Fitzgerald THOMAS on Behalf of his Minor Children, Harmonee Renee Thomas and Trinity Lashay Thomas v. LOUISIANA TECHNICAL COLLEGE GREATER CAPITAL AREA FOUNDATION, INC.
    No. 2009-CC-2704.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Board of Supervisors of LA Community and Technical Colleges; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. C573335; to the Court of Appeal, First Circuit, No. 2009 CW 1635.

Denied.

CLARK, J., would grant.


text:
    STATE of Louisiana v. Jason Paul BIDOL.
    No. 2009-KK-2706.
    Supreme Court of Louisiana.
    Feb. 26, 2010.
   In re Bidol, Jason Paul;- — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 03-09-0647; to the Court of Appeal, First Circuit, No. 2009 KW 1814.

Denied.