author: Wolf, J.

text:
    Darrion R. KITCHEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3309
    District Court of Appeal of Florida, First District.
    March 13, 2019
    Darrion R. Kitchen, pro se, Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Wolf, J.

Appellant challenges the summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to ground 1 without comment. We reverse and remand for further proceedings for grounds 2 and 3.

In ground 2, appellant argued his counsel was ineffective for failing to sufficiently advise him regarding a plea offer for 7 years in prison. He asserted counsel failed to tell him that 7 years in prison was the minimum sentence that he could receive under the guidelines if he were found guilty. If he had been properly advised, he argued he would have accepted the offer, the State would not have revoked the offer, the trial court would have accepted the offer, and he would have received a lesser sentence than he ultimately received.

Appellant's claims were legally sufficient. Defense counsel is required to "advise the defendant of ... all pertinent matters bearing on" the decision to accept or reject a plea offer, including the possible range of sentencing. Fla. R. Crim. P. 3.171(c)(2)(B). See also Depriest v. State , 177 So.3d 701 (Fla. 1st DCA 2015) ; Robinson v. State , 148 So.3d 535, 537 (Fla. 2d DCA 2014). Thus, we remand either for the court to attach portions of the record conclusively refuting these claims or to conduct an evidentiary hearing.

For ground 3, appellant alleged counsel was ineffective for misadvising him that his testimony was not needed. Appellant was charged with sexual battery, and his theory of defense was that the sexual encounter was consensual. However, he argued counsel failed to appreciate that the defense lacked any direct evidence of consent apart from appellant's testimony. Appellant argued if he had been properly advised, he would have testified that the sex was consensual, that the victim initiated the sex, and that she expressed regret afterwards because she was afraid her boyfriend would find out. He argues his testimony probably would have resulted in a different verdict.

The postconviction court found the record conclusively refuted appellant's claim because during a colloquy, appellant stated he understood that it was his decision whether or not to testify. However, the supreme court has clarified that even where the record conclusively demonstrates that "the defendant knowingly and voluntarily decided not to testify.... [a] separate question is whether [counsel's] advice [to the defendant], even if voluntarily followed, was nevertheless deficient because no reasonable attorney would have discouraged [the defendant] from testifying." Lott v. State , 931 So.2d 807, 818-19 (Fla. 2006).

Here, appellant did not challenge the voluntariness of his decision not to testify. Instead, he argued counsel's advice that he should choose not to testify was deficient performance. The postconviction court did not address this argument. We reverse and remand for the court either to attach portions of the record refuting this claim or to hold an evidentiary hearing.

AFFIRMED in part, REVERSED and REMANDED in part.

Lewis and Ray, JJ., concur.

      Appellant explicitly alleged that he rejected the State's offer: "Mr. Kitchen alleges that he rejected the State's plea offer and proceeded to trial because he was not fully informed ." (Emphasis added).

      We note the State argues that appellant could not show prejudice as to this ground because even if he had testified, his theory of defense that the sexual encounter was consensual would not have been successful. The State asserts he was charged with the sexual battery of a minor, and consent is not a defense to that charge. The State is mistaken. Appellant was charged with sexual battery on a person twelve years of age or older as prohibited by section 794.011(5), Florida Statutes. However, the State did not allege that the victim was less than 18 years old. The victim testified that she was 21 years old at the time of trial, which occurred 6 months after the incident took place.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Vivalyn ROBINSON, Appellant, v. HOUSEHOLD FINANCE CORPORATION, III, U.S. Bank Trust, N.A., as Trustee for LSF8 Master Participation Trust and Harold A. Robinson, Appellees.
    Case No. 5D18-410
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 12, 2019
    Beau Bowin, of Bowin Law Group, Satellite Beach, for Appellant.
    David Rosenberg, Cynthia L. Comras and Jarrett Cooper, of Robertson, Anschutz & Schneid, P.L., Boca Raton, for Appellee, U.S. Bank Trust, N.A., as Trustee for LSF8 Master Participation Trust.
    No Appearance for Other Appellees.
   PER CURIAM.

AFFIRMED. See PMT NPL Fin. 2015-1 v. Centurion Systems, LLC, 257 So.3d 516, 519 (Fla. 5th DCA 2018).

ORFINGER, WALLIS and EDWARDS, JJ., concur.


text:
    Freddy Dwane WADDELL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3373
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 15, 2019
    Freddy Dwane Waddell, Crawfordville, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Freddy Dwane Waddell appeals the summary denial of his amended motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, wherein he alleged his trial counsel was ineffective for failing to file a motion to disqualify the trial court on the basis that the trial court had prejudged his case. Specifically, Waddell claimed that the trial court informed him at a pretrial hearing, during which he rejected the State's plea deal, that if he proceeded to trial and lost, he would receive the maximum sentence. According to Waddell, those words proved prophetic. In denying the Motion, the trial court stated, "[a] review of the records shows no such statements made by the Court." The trial court, however, declined to share those records with us. Accordingly, because the record does not conclusively refute Waddell's claim, we reverse the summary denial and remand for attachment of portions of the record conclusively refuting his claim or for an evidentiary hearing. See Freeman v. State, 761 So.2d 1055, 1061 (Fla. 2000) ("[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient." (citing Maharaj v. State, 684 So.2d 726 (Fla. 1996) ) ).

REVERSED and REMANDED.

COHEN, BERGER and EDWARDS, JJ., concur.


text:
    James LUNDGREN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3303
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 15, 2019
    James Lundgren, Zephyrhills, pro se.
    No Appearance for Appellee.
   PER CURIAM.

We affirm the dismissal of Appellant's petition for writ of mandamus seeking records pursuant to section 119.07, Florida Statutes (2018), because Appellant's argument on appeal necessarily relies on subsequent facts that were not raised in the petition below. Our affirmance is therefore without prejudice.

AFFIRMED, without prejudice.

EDWARDS, EISNAUGLE and SASSO, JJ., concur.


text:
    Stephen Vincent BARONE, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-2999
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 15, 2019
    Stephen Vincent Barone, Trenton, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Bonnie Jean Parrish and Kaylee D. Tatman, Assistant Attorneys General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the January 30, 2018 order regarding restitution, filed in Case No. 2014-CF-000593-A-O, Ninth Judicial Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

EDWARDS, HARRIS and SASSO, JJ. concur.


author: LAMBERT, J.

text:
    Paul Frederick KNAPP, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2596
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 15, 2019
    William R. Ponall, of Ponall Law, Maitland, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee
   LAMBERT, J.

Paul Frederick Knapp appeals the summary denial of his motion for postconviction relief alleging ineffective assistance of trial counsel filed under Florida Rule of Criminal Procedure 3.850. For the following reasons, we reverse the denial of ground one in the motion and remand for the trial court to conduct an evidentiary hearing. We affirm as to the remaining grounds raised without further discussion.

Knapp was convicted following a jury trial of traveling to meet a minor for unlawful sexual acts and solicitation of a minor via a computer. Knapp's initial strategy at trial, as explained in his trial counsel's affidavit attached to Knapp's postconviction motion, was to both raise the defense of subjective entrapment and to deny the actual commission of the crimes because the State could not prove that Knapp had the requisite intent to commit these offenses. While these positions may seem contradictory, the Florida Supreme Court has held:

[W]here the circumstances are such that there is no inherent inconsistency between claiming entrapment and yet not admitting commission of the criminal acts, certainly the defendant must be allowed to raise the defense of entrapment without admitting the crime. ... Asserting the entrapment defense is not necessarily inconsistent with denial of the crime even when it is admitted that the requisite acts occurred, for the defendant might nonetheless claim that he lacked the requisite bad state of mind.

Wilson v. State , 577 So.2d 1300, 1302 (Fla. 1991) (quoting W. LaFave & J. Israel, Criminal Procedure § 5.3, 254-55 (1985) ).

Knapp's trial counsel further averred that despite this intended and permissible strategy, the trial court informed him at an unrecorded bench conference, held during voir dire, that counsel would be precluded from raising the defense of entrapment unless Knapp admitted guilt on all elements of the charged offenses. Based upon the ruling, trial counsel discontinued discussing issues of entrapment during voir dire and did not raise this defense any further.

On direct appeal, our court relinquished jurisdiction to the trial court for the purpose of reconstructing the record of this unrecorded bench conference. By this time, the judge who had presided over the trial retired. The successor judge conducted several hearings and, after considering the conflicting affidavits from the prosecutor and Knapp's counsel, as well as the testimony of the trial judge, ultimately determined that the record of the bench conference could not be reconstructed. After the case was returned to our court, Knapp's judgment and sentence were affirmed without opinion. Knapp v. State , 181 So.3d 506 (Fla. 5th DCA 2015).

In ground one of his motion, Knapp argued that his trial counsel was ineffective for failing to object properly to the trial court's ruling requiring Knapp to choose between raising the defense of subjective entrapment or arguing that he lacked the requisite state of mind to commit the charged offenses. The postconviction court, now the third judge on this case, summarily denied this ground for two reasons. First, the court concluded, based upon a brief colloquy between the trial judge, Knapp, and his defense counsel just prior to Knapp testifying at trial, that Knapp had not been precluded from pursuing the entrapment defense. Rather, the court found that Knapp and his counsel had made a strategic decision not to use this defense. Second, the postconviction court concluded that the entrapment defense "would not have been reasonably supported by the [trial] evidence."

"To be entitled to an evidentiary hearing on a claim of ineffective assistance, the defendant must allege specific facts that are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant." Jones v. State , 845 So.2d 55, 65 (Fla. 2003). Where, as here, there was no evidentiary hearing, a court must accept the factual allegations made by the defendant to the extent that they are not conclusively refuted by the record. Freeman v. State , 761 So.2d 1055, 1061 (Fla. 2000). Our review of the postconviction court's decision to summarily deny the motion without an evidentiary hearing is de novo. Owen v. State , 986 So.2d 534, 543 (Fla. 2008).

We conclude that the postconviction court erred in summarily denying the first ground of the motion. First, Knapp and his counsel's statement to the trial court just prior to putting on their defense that they would not be arguing entrapment did not conclusively negate Knapp's assertion in his motion that the trial court had required him to choose either presenting an entrapment defense or denying the commission of the charged crimes. Knapp's response to the court's later inquiry at trial may have simply reflected Knapp's recognition that he had to decide between the two defenses and that he chose to defend the case (and to testify) on the premise that the State did not prove beyond a reasonable doubt his intent to commit the crimes. Thus, Knapp's argument in ground one that his trial attorney was ineffective at trial for not objecting to this ruling and arguing that Knapp could legitimately pursue both defenses has not been negated. Second, it is premature for the postconviction court to have conclusively determined from the record that an entrapment defense would not have been reasonably supportable when Knapp put forth no evidence of entrapment based upon what he alleges to be the trial court's earlier ruling.

Based upon the circumstances of this case, it does not appear that any additional court records could be attached to the denial order that could conclusively refute Knapp's claims asserted in ground one. Accordingly, an evidentiary hearing will be necessary to resolve this ground. At this hearing, the postconviction court will be required to make credibility determinations regarding the testimony from Knapp, his trial counsel, the prosecutor, and any other witness as to whether the trial judge precluded Knapp from pursuing both theories of defense at trial. See Shere v. State , 742 So.2d 215, 218 n.8 (Fla. 1999). The court must then decide whether Knapp has established that his counsel's performance was deficient and that he was prejudiced as a result. See Grosvenor v. State , 874 So.2d 1176, 1178 (Fla. 2004).

AFFIRMED, in part; REVERSED, in part; and REMANDED for an evidentiary hearing.

ORFINGER and EDWARDS, JJ., concur.

      The solicitation conviction was set aside and dismissed by the trial court on double jeopardy grounds prior to sentencing.

      The trial judge testified that he had no independent recollection of the details of the discussions at the bench conference and that his memory was not refreshed by his review of the relevant portions from the trial transcript.


text:
    Lynn Anne POIRIER, Petitioner, v. Laurier POIRIER, III, AS TRUSTEE OF the POIRIER FAMILY TRUST, Respondent.
    Case No. 5D19-394
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 15, 2019
    Christie Mitchell, of The CLM Law Firm, P.A., Orlando, for Petitioner.
    Margaret A. Wharton and Lisa C. McCrystal, of Wharton Law Group, P.A., Oviedo, for Respondent.
   PER CURIAM.

Petitioner, Lynn Anne Poirier, petitions this Court for a writ of prohibition to quash the trial court's February 11, 2019 "Order Denying Defendant's Verified Motion to Disqualify Trial Judge." We find that the facts alleged in Petitioner's motion would place a reasonably prudent person in fear of not receiving a fair and impartial hearing. See MacKenzie v. Super Kids Bargain Store, Inc. , 565 So.2d 1332, 1335 (Fla. 1990). Furthermore, we find that the trial court's statement that the allegations in the motion were factually baseless went beyond a determination of the legal sufficiency of the motion, contrary to the procedure set forth in Florida Rule of Judicial Administration 2.330(f). See Messianu v. Pigna , 180 So.3d 229, 230 (Fla. 3d DCA 2015). Accordingly, we grant the petition, quash the February 11, 2019 order denying Petitioner's motion to disqualify, and remand the case with directions that the underlying case be reassigned to a different judge.

PETITION FOR WRIT OF PROHIBITION GRANTED.

EVANDER, C.J., WALLIS and EDWARDS, JJ., concur.


text:
    William KEMPTON, Appellant, v. Lawrence MCCOMB, Gregory Davis and Marianne Carter, Appellees.
    Case No. 5D18-1021
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 15, 2019
    Matthew G. Struble and Christine D. Skubala, of Struble, P.A., Ft. Lauderdale, for Appellant.
    Angela C. Flowers, of Kubicki Draper, P.A., Ocala, for Appellee, Lawrence McComb.
    David C. Knapp and James A. Coleman, of James A. Coleman, P.A., Orlando, for Appellee, Marianne Carter.
    No Appearance for Appellee, Gregory Davis.
   PER CURIAM.

William Kempton appeals the trial court's order awarding attorney's fees and costs to Lawrence McComb, pursuant to section 768.79, Florida Statutes (2015), and Florida Rule of Civil Procedure 1.442. The award of attorney's fees and costs was based on the trial court's entry of a final judgment in favor of Mr. McComb after applying section 768.36, Florida Statutes (2015), to completely bar recovery by Mr. Kempton. We recently reversed the final judgment in favor of Mr. McComb with directions to enter a final judgment awarding damages to Mr. Kempton in accordance with the jury's apportionment of fault. See Kempton v. McComb, 264 So.3d 1180, 2019 WL 982849 (Fla. 5th DCA Mar. 1, 2019).

Given our reversal of the final judgment, we must reverse the trial court's order awarding attorney's fees and costs in Mr. McComb's favor. See Hodge v. Cichon, 79 So.3d 950 (Fla. 5th DCA 2012) (reversing order granting attorney's fees pursuant to section 768.79 where appellate court reversed trial court's order granting final summary judgment in favor of appellees); City of Hollywood v. Witt, 939 So.2d 315, 319 (Fla. 4th DCA 2006) ("[W]here an award of attorney's fees is dependent upon the judgment obtained, the reversal of the underlying judgment necessitates the reversal of the fee award.").

REVERSED.

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


author: EDWARDS, J.

text:
    Sarah Renee FRERKING f/k/a Sarah Renee Stacy, Appellant, v. Steven Douglas STACY, Appellee.
    Case No. 5D18-2327
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 15, 2019
    Brandon M. Tyson, of Tyson Law Firm, LLC, Altamonte Springs, for Appellant.
    Robert Byther, and Patrick Michael Megaro, of Halscott Megaro, P.A., Orlando, for Appellee.
   EDWARDS, J.

Sarah Frerking, Appellant, appeals the final judgment of dissolution of marriage, arguing that the trial court erred in denying her request for permanent periodic alimony and in imputing the income of a public school teacher to her. We agree and reverse for further proceedings.

Appellant and Appellee, Steven Douglas Stacy, had been married for nearly nineteen years when, in 2014, she filed her petition for dissolution of marriage, which included a demand for permanent alimony. The final judgment was rendered a little more than a year after the last day of trial. Regarding the issues on appeal, the trial court found that Appellant had a present need for $ 1250 per month in alimony and that Appellee had the ability to pay. Instead of awarding permanent alimony as Appellant requested, the trial court ordered durational alimony of $ 1250 per month for six years. The trial court's decision to award durational rather than permanent alimony was based upon imputing $ 43,000 in annual income to Appellant, the salary of a full-time public school teacher.

Permanent periodic alimony is intended "to provide for the needs and necessities of life as they were established during the marriage ... for a party who lacks the financial ability" to meet those needs "following a dissolution." § 61.08(8), Fla. Stat. (2018). Durational alimony, on the other hand, "is to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration or following a marriage of long duration if there is no ongoing need for support on a permanent basis." § 61.08(7).

Permanent alimony is presumed to be appropriate after a long-term marriage, and a marriage lasting seventeen years or more is presumed to be long-term. Hedden v. Hedden , 240 So.3d 148, 151 (Fla. 5th DCA 2018) ; see also § 61.08(4). The failure of a trial court to acknowledge the presumption in favor of permanent alimony, if it applies, often coincides with a finding that the trial court erred by not awarding permanent periodic alimony. See Hua v. Tsung , 222 So.3d 584, 588 (Fla. 4th DCA 2017) ("The trial court's judgment erroneously fails to make any reference to [the permanent alimony] presumption."); see also Bruce v. Bruce , 243 So.3d 461, 463 (Fla. 5th DCA 2018) ("The evidence was also undisputed that the parties had been married for twenty years.... However, the trial court's final judgment does not mention the long-term marriage presumption."); Berger v. Berger , 201 So.3d 819, 824 (Fla. 4th DCA 2016) ("The trial court erred in not awarding the wife permanent alimony because: (1) even though the marriage was a long term marriage, the court did not find that a rebuttable presumption existed in favor of permanent alimony ...."). Here, in its final judgment, the trial court mentioned Appellant's request for permanent alimony, but failed to mention the presumption in favor of permanent alimony in this marriage of nearly nineteen years. It is an abuse of discretion to not award permanent periodic alimony in a long-term marriage unless the presumption favoring such an award is overcome by competent, substantial evidence. Motie v. Motie , 132 So.3d 1210, 1214 (Fla. 5th DCA 2014). Thus, we must examine whether that presumption was indeed rebutted in this case.

Apparently, the trial court chose to award durational alimony in lieu of permanent alimony based upon its conclusion that Appellant could be immediately employed as public school teacher earning an annual salary of $ 43,000, which the trial court found would be sufficient to provide for her current needs. In reaching this conclusion, the trial court overlooked the fact that Appellant had never been a full-time teacher and had never earned an annual salary equal to even half that amount.

The evidence showed that Appellant had rarely worked full time during their marriage; instead she had primarily been a homemaker focused on the couple's children. During their nineteen-year marriage, Appellant had twice worked as a part-time community college instructor, for approximately one year each time, with about ten years between those jobs. Appellant had worked in several other temporary and part-time positions during their marriage, including as a data-entry clerk, an academic adviser and test proctor, a tutor, and a piano teacher. On occasion, she worked as a substitute teacher earning $ 75 per day, but she had never been a permanent school teacher. As far as her actual earnings from employment, the evidence presented at trial showed that the most she made was $ 14 per hour, working eighty hours per month, for a maximum historical income of less than $ 14,000 per year. When Appellee was required to move as part of his employment with the Air Force, Appellant's employment would cease. The evidence showed that during the pendency of the suit she submitted many job applications but had not obtained full-time employment.

Balanced against this evidence of Appellant's actual work history and employment efforts was the testimony of Appellee's vocational expert. This expert hypothesized that Appellant's educational background, a bachelor's degree in public relations and a master's degree in communications, qualified her to teach either elementary or high school, where he believed she could earn between $ 43,000 and $ 50,000 per year. Appellee's expert conceded that before she could teach certain subjects, Appellant would have to pass subject matter exams, but he had no information about the likelihood of her success on those exams. The expert also conceded that to complete her certification, Appellant would have to take college-level education courses. Finally, the expert testified that in order to teach kindergarten through fifth grade, Appellant did not need to pass a subject matter exam, and that she was qualified for those teaching positions at the time of trial.

Both Appellee's expert and the trial court overlooked the legal requirement that Appellant would have to be certified before she could become a permanent, full-time public school teacher, even at the elementary school level. In order to be professionally certified as an elementary school teacher, one must either have a bachelor's or higher degree with a major in elementary education or have a bachelor's or higher degree in another subject with thirty semester hours in elementary education. Fla. Admin. Code R. 6A-4.0151(1)-(2). A temporary three-year certificate to teach elementary school is available upon proper application to anyone who passes the elementary education subject matter exam, after which professional certification can be achieved through additional training and a demonstration of the "mastery of general knowledge." § 1012.56(2)(a)-(i), (5), (7)(b), Fla. Stat. (2018) ; Fla. Admin. Code R. 6A-4.0021(9)(c). Based on the evidence presented at trial, Appellant had no teaching certificate and did not meet the educational requirements to hold a public school teacher's job in Florida.

Trial courts can impute income to an unemployed or underemployed spouse, but they must make the following findings: first, that any "termination of income was voluntary"; and second, that the spouse's underemployment was owing to "less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received." Schram v. Schram , 932 So.2d 245, 249-50 (Fla. 4th DCA 2005) (quoting Konsoulas v. Konsoulas , 904 So.2d 440, 443 (Fla. 4th DCA 2005) ). The burden of proving underemployment rests with the party moving for imputation. Andrews v. Andrews , 867 So.2d 476, 478 n.2 (Fla. 5th DCA 2004).

When imputing income, trial courts must consider the spouse's "recent work history, occupational qualifications, and prevailing earnings level in the community." § 61.30(2)(b), Fla. Stat. (2018) ; see Freilich v. Freilich , 897 So.2d 537, 543 (Fla. 5th DCA 2005) ("Borrowing from this [child support] statute, the courts consider the same factors in determining the amount to impute for alimony awards and attorney's fees."); see also Broga v. Broga , 166 So.3d 183, 185 (Fla. 1st DCA 2015) ("For purposes of alimony awards, courts reviewing imputation of income have applied the same factors as those applied to imputing income for child support." (quoting Gray v. Gray , 103 So.3d 962, 967 (Fla. 1st DCA 2012) ) ).

Before imputing income, a trial court must make a finding that the party has not used its best efforts to secure income "at a level equal to or better than that formerly received." Schram , 932 So.2d at 249-50. A party's best efforts to find work "do not include retraining, but only finding a job for which one is already qualified." Castaldi v. Castaldi , 968 So.2d 713, 715 (Fla. 2d DCA 2007). For example, in Hinton v. Smith , the trial court imputed $ 30,000 in annual income to the former wife "based on the conclusion that she could have earned [that amount] if she had completed her degree." 725 So.2d 1154, 1156 (Fla. 2d DCA 1998). While she promised in her marital settlement agreement "to complete her last two courses" needed to obtain her accounting degree, the trial court found she had "refused to comply with [this] agreement by willfully failing" to complete the coursework. Id. On appeal, the Second District reversed, reasoning that the "statute directs the trial court to consider the spouse's 'occupational qualifications,' not potential occupational qualifications." Id. at 1157.

Likewise, in Berger , the Fourth District reversed a trial court's imputation of a teacher's salary based on a vocational expert's testimony that the former wife "could earn a starting teachers [sic] salary [within] two years." 201 So.3d at 823 (Fla. 4th DCA 2016). Because the wife did not "have teaching credentials," the Fourth District reasoned that the expert's testimony "was based on mere speculation" and thus was "not a proper consideration." Id. ; see also Morin v. Morin , 923 So.2d 582, 584 (Fla. 5th DCA 2006) (holding that imputed income must be based on jobs for which the spouse "is adequately trained").

Here, the trial court's focus was not on whether Appellant used her best efforts to secure income "at a level equal to or better than that formerly received." See Schram , 932 So.2d at 249-50. Instead, it improperly focused on Appellee's expert's testimony that Appellant could maximize her income if she pursued teaching, even though it would require further education or retraining.

In Alcantara v. Alcantara , the Third District found the trial court erred in awarding bridge-the-gap alimony to the former wife in a nineteen-year marriage based on the speculative testimony of the husband's expert of what wife's financial circumstances would have been if she moved to Hawaii. 15 So.3d 844, 845-46 (Fla. 3d DCA 2009). As here, the former husband in Alcantara was a career member of the military who was able to "pursue college and graduate degrees" during the marriage, and who entered private employment earning considerably more near the end of their nineteen-year marriage than he earned earlier. Id. at 845-47. Like Appellant here, Ms. Alcantara was a homemaker caring for the couple's children during most of the marriage, while her husband was the primary breadwinner. Id. at 844-45. The Third District found that the presumption of entitlement to permanent periodic alimony was not overcome by the husband's expert's speculative testimony. Thus, Alcantara , Castaldi , Hinton , Morin , and Berger all support Appellant's argument that the trial court abused its discretion in failing to award permanent alimony, and in imputing income of $ 43,000 to her based on speculation as to what Appellant might earn if she were to receive additional training and education.

Accordingly, we hold that the evidence did not overcome the presumption in favor of permanent alimony, nor did the evidence support imputing an annual income of $ 43,000 to Appellant. Because the trial court abused its discretion in awarding durational rather than permanent periodic alimony to Appellant, and because the trial court did not base its imputation of income on Appellant's "recent work history, occupational qualifications, and prevailing earnings level in the community," we reverse and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED for further proceedings.

COHEN and LAMBERT, JJ., concur.


author: Per Curiam.

text:
    Allen James HOWARD, Jr. and Georgia Inez Howard, Appellants, v. Carla ALGER, et al., Appellee.
    No. 1D18-4649
    District Court of Appeal of Florida, First District.
    March 18, 2019
    Mitch Dever, Panama City Beach, for Appellants.
    No appearance for Appellee.
   Per Curiam.

Pursuant to the notice of settlement and request for remand, the final judgment is quashed, and the cause is remanded for further proceedings on the issue of attorney's fees.

Wetherell, Osterhaus, and Winokur, JJ., concur.


text:
    FCCI COMMERCIAL INSURANCE COMPANY, Appellant, v. PULTE HOME CORPORATION, a Michigan Corporation, Appellee.
    No. 1D18-2103
    District Court of Appeal of Florida, First District.
    March 18, 2019
    Robert M. Darroch, Brett A. Smith and Cathi M. Carson-Freymann of Goodman McGuffey LLP, Sarasota, for Appellant.
    Mark A. Boyle and Amanda K. Anderson of Boyle & Leonard, P.A., Fort Myers, for Appellee.
   Per Curiam.

The Court has determined that the order on appeal is not a final, appealable order as it fails to complete the judicial labor in the case. Accordingly, Appellee's motion to dismiss the appeal is granted and the appeal is dismissed.

Appellee's motion for attorney's fees based on section 627.428, Florida Statutes, is provisionally granted. In the event Appellee prevails before the trial court, the trial court shall determine Appellee's entitlement to fees for this appeal pursuant to section 627.428. If the trial court finds Appellee is entitled to fees, the trial court shall assess fees against Appellant pursuant to section 627.428.

In light of the dismissal, all other pending motions are denied as moot.

Rowe, Bilbrey, and Kelsey, JJ., concur.


text:
    Joseph L. MCDANIELS, Petitioner, v. Margaret A. MCDANIELS, Respondent.
    No. 1D19-0338
    District Court of Appeal of Florida, First District.
    March 15, 2019
    Joseph L. McDaniels, pro se, Petitioner.
    Beth M. Terry of the Law Office of Beth M. Terry, P.A., Jacksonville, for Respondent.
   Per Curiam.

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

Roberts, Ray, and Winsor, JJ., concur.


text:
    Mark A. MERRILL, Petitioner, v. STATE of Florida; Mark S. Inch, Florida Department of Corrections, Respondents.
    No. 1D18-3998
    District Court of Appeal of Florida, First District.
    March 18, 2019
    Mark A. Merrill, pro se, Petitioner.
    Ashley B. Moody, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Respondents.
   Per Curiam.

Because this amended petition seeks belated appeal of a lower tribunal order in a civil matter, the amended petition is denied. See Powell v. Fla. Dep't of Corrections , 727 So.2d 1103 (Fla. 1st DCA 1999) (stating that because the proceedings below were civil in nature, the provisions of Florida Rule of Appellate Procedure 9.141(c) are not applicable). Petitioner may seek relief in the lower tribunal by a motion pursuant to Florida Rule of Civil Procedure 1.540. See Welch v. Department of Corrections , 238 So.3d 1281 (Fla. 1st DCA 2018).

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


text:
    Jerry GILBERT, Appellant, v. DOR CHILD SUPPORT ENFORCEMENT, Appellee.
    No. 1D18-0152
    District Court of Appeal of Florida, First District.
    March 18, 2019
    Jerry Gilbert, pro se, Appellant.
    Ashley B. Moody, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Upon consideration of Appellee Department of Revenue's confession of error, we vacate the final order and remand for further proceedings.

Makar, Winsor, and M.K. Thomas, JJ., concur.


author: PER CURIAM:

text:
    STATE of Louisiana v. Roderic K. GRANT
    No. 2018-KP-1437
    Supreme Court of Louisiana.
    March 18, 2019
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

Denied. Untimely filed pursuant to La.S.Ct.R. X § 5.

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


text:
    STATE of Louisiana v. Jimmie SPRATT
    No. 2018-KP-1436
    Supreme Court of Louisiana.
    March 18, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

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

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


author: WEIMER, J., would grant.

text:
    Andre AARON, et al. v. EXXON MOBIL CORPORATION, f/k/a Exxon Company U.S.A., Exxon Corporation
    No. 2019-CC-0161
    Supreme Court of Louisiana.
    March 18, 2019
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
    Writ denied.
   WEIMER, J., would grant.

CRICHTON, J., would grant and docket and assigns reasons.

CRICHTON, J., would grant and docket and assigns reasons:

I would grant and docket the writ application by Exxon Mobil Corporation f/k/a Exxon Company U.S.A. See Howard v. Union Carbide Corporation , 09-2750, pp. 1-3 (La. 10/19/10), 50 So.3d 1251.


author: PER CURIAM

text:
    WORKBOX, LLC v. KENWORTH OF SOUTH LOUISIANA, LLC
    No. 2019-C-132
    Supreme Court of Louisiana.
    March 18, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF WEST BATON ROUGE
   PER CURIAM

Writ granted. The court of appeal erred in substituting its findings for that of the trial court in the absence of manifest error. Arceneaux v. Domingue , 365 So.2d 1330, 1333 (La. 1978). The trial court's reasonable evaluations of credibility and reasonable inferences of fact are supported by the evidence. Id . Accordingly, the decision of the court of appeal is vacated. The judgment of the trial court is reinstated and amended to reduce the award of damages from $ 49,453.33 to $ 33,510.74.

WEIMER, J., would deny.


text:
    Marsha A. WILLIS v. EAN HOLDINGS d/b/a Enterprise Rent A Car, Elco Insurance Group, Inc., Toyota Motor Corporation and Troy David Thibodeaux
    No. 2019-C-0139
    Supreme Court of Louisiana.
    March 18, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE
    Writ denied.
    CRICHTON, J., additionally concurs and assigns reasons.
    CRICHTON, J., additionally concurs and assigns reasons:
   I agree with the denial of plaintiff's writ application. I write separately to reiterate my view that plaintiff's arguments, which have previously been denied but are nonetheless repeated here, "lack any iota of legal merit" and are a troubling cause of unnecessary litigation. See Willis v. EAN Holdings , 17-0789 (La. 9/22/17), 226 So.3d 438 (J. Crichton additionally concurring). Plaintiff's application is once again an egregious waste of judicial resources, and I find that her frivolous appeal warranted the damages imposed upon plaintiff therefor.


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

text:
    Charles Henry JACKSON v. Simona D. MORTON
    No. 2019-C-0121
    Supreme Court of Louisiana.
    March 18, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON
    Writ denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant and assigns reasons.

Hughes, J., would grant the writ.

The mortgage was recorded before the donation. Therefore the donated property was subject to the mortgage. While the donee cannot be held personally responsible for payment of the debt secured by the mortgage, or made to reimburse the donor for payments on the mortgage, when the property is sold the mortgage must be satisfied prior to the claim of the donee, as the mortgage primes the donation. Thus the donee is entitled to one-half of the net proceeds from the sale.

The post-sale distribution, after the mortgage is satisfied, is a claim different from the matters previously litigated between the parties, and is not subject to the exception of res judicata.


author: GUIDRY, J., recused.

text:
    Gina MCCLAIN v. NMP, LLC and Jessica Haggard
    No. 2019-C-0059
    Supreme Court of Louisiana.
    March 18, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON
    Writ denied.
   GUIDRY, J., recused.

HUGHES, J.,

Hughes, J., would grant the writ.

The Notice of Lis Pendens , in proper form containing the caption of the litigation and complete property description, was recorded in the public records before the sale to VJI occurred. A title examination would have revealed the litigation involving the vendor's predecessor-in-title.


text:
    STATE of Louisiana v. Dexter ALLEN
    NO. 2018-KH-1963
    Supreme Court of Louisiana.
    February 18, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Hakeem J. MARTIN
    NO. 2018-KH-2040
    Supreme Court of Louisiana.
    February 18, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Christopher WATSON
    NO. 2018-KH-2080
    Supreme Court of Louisiana.
    February 18, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Ruben VAN DYKE
    NO. 2018-KO-0622
    Supreme Court of Louisiana.
    February 18, 2019
    Denied.


author: HUGHES, J., would grant the writ.

text:
    STATE of Louisiana v. Orlin ALVAREZ-CHAVEZ
    NO. 2019-KK-0285
    Supreme Court of Louisiana.
    February 22, 2019
    Stay denied. Writ denied.
   HUGHES, J., would grant the writ.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-534568
    NO. 2019-BA-0291
    Supreme Court of Louisiana.
    February 22, 2019
    Petition to transfer bar exam fees denied.
   JOHNSON, C.J., would grant.

WEIMER, J., would grant.

HUGHES, J., would grant.


text:
    Richard CREED v. DOLPHIN SERVICES, L.L.C., Masse Contracting, Inc., Suncoast Fabrication Services, Inc., ABC Insurance Company, EFG Insurance Company and XYZ Insurance Company
    NO. 2018-C-1557
    Supreme Court of Louisiana.
    February 18, 2019
    Denied.
   WEIMER, J., would grant.

GUIDRY, J., would grant.


text:
    STATE of Louisiana v. Darrell Toubya THOMAS
    NO. 2017-KP-0649
    Supreme Court of Louisiana.
    February 25, 2019
    Granted. See Order Attached.
    And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit-"It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified."
    Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, in accordance with Supreme Court Rule 1, at the City of New Orleans, the record in duplicate of the above-entitled case.


text:
    STATE of Louisiana v. Nathaniel CLIMES Thibeaux a/k/a Nathaniel Thibeaux
    NO. 2017-KO-1914
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


text:
    STATE of Louisiana v. Reginald WILLIAMS
    NO. 2018-K-0937
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


text:
    STATE of Louisiana v. Dalando GARNER
    NO. 2018-KO-1290
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


author: WEIMER, J., would consider the merits.

text:
    STATE of Louisiana v. David MARX
    NO. 2018-KP-0585
    Supreme Court of Louisiana.
    February 25, 2019
    Not considered. Not timely filed. See Louisiana Supreme Court Rule X, § 5(a) and Rule XLII, § 6(e).
   WEIMER, J., would consider the merits.

HUGHES, J., would consider the merits.


text:
    STATE of Louisiana v. Benjamin Michael FLOYD
    NO. 2018-KO-1292
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


text:
    STATE of Louisiana v. Nathaniel Climes THIBEAUX a/k/a Nathaniel Thibeaux
    NO. 2017-K-1909
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.
    JOHNSON, C.J., would grant and docket.
    WEIMER, J., would grant and docket.
    CLARK, J., would grant and docket.


author: WEIMER, J., recused.

text:
    STATE of Louisiana v. Michael Joseph BROOKS, Jr.
    NO. 2018-KO-1718
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.
   WEIMER, J., recused.


text:
    STATE of Louisiana v. Joseph NORAH
    NO. 2018-KH-1567
    Supreme Court of Louisiana.
    February 25, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Lawrence NIXON
    NO. 2018-KH-0591
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


text:
    Michael BRANTLEY, Jr., et al. v. CITY OF GRETNA and Redflex Traffic Systems, Inc.
    NO. 2018-CC-2115
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


text:
    IN RE: Medical Review Panel Proceedings for the Claim of Misty L. MONES
    NO. 2019-CC-0041
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


text:
    STATE of Louisiana v. Alfred Jones SIMMONS
    NO. 2018-KO-1547
    Supreme Court of Louisiana.
    February 25, 2019
    Not considered. Not timely filed. See La.S.Ct.R. X, § 5.


text:
    STATE of Louisiana v. Terrance F. HUDSON a.k.a. "Pepper"
    NO. 2018-KO-1152
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


text:
    STATE of Louisiana v. Glenn DAMOND
    NO. 2019-KK-0020
    Supreme Court of Louisiana.
    February 25, 2019
    Stay denied. Writ denied.


text:
    Laura Meine DUNCAN v. Scott Furm Mofford DUNCAN
    NO. 2019-CJ-0119
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


text:
    SUCCESSION OF Bernadette Gaines GILBERT
    NO. 2019-CC-0050
    Supreme Court of Louisiana.
    February 25, 2019
    Not considered; not timely filed. See State v. Crandell, 05-1060 (La. 3/10/06), 924 So.2d 122 ; Morris v. Stueben, 01-0137 (La. 3/16/01), 781 So. 2d 1220.


text:
    STATE of Louisiana v. Obadiah FRANCOIS
    NO. 2018-KD-1982
    Supreme Court of Louisiana.
    February 25, 2019
    Denied as moot. The state dismissed the charges against defendant on October 15, 2018.


text:
    STATE of Louisiana v. Kevin PITTS
    NO. 2018-KH-0415
    Supreme Court of Louisiana.
    February 25, 2019
    Denied. Applicant has previously exhausted his right to state collateral review and fails to show that any exception permits his successive filing. See State ex rel. Pitts v. State, 15-0329 (La. 11/20/15), 178 So.3d 984.


text:
    STATE of Louisiana v. Andrew D. CRITTON
    NO. 2018-KO-1515
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


text:
    BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY and Agricultural and Mechanical College v. Marshall F. GERSON, Ellvog, Inc. and City of New Orleans
    Board of Supervisors of Louisiana State University and Agricultural and Mechanical College v. Marshall F. Gerson, et al.
    NO. 2018-C-2054
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.
   WEIMER, J., would grant.


text:
    STATE of Louisiana v. Kenneth W. HARPER
    NO. 2018-KO-1533
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


text:
    STATE of Louisiana v. Lawrence NIXON
    NO. 2018-KO-1631
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


text:
    STATE of Louisiana v. Robert SILVERI
    NO. 2019-KK-0033
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


text:
    STATE of Louisiana v. Irwin GOMEZ-COLON
    NO. 2019-KK-0035
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.
   GUIDRY, J., recused.


text:
    STATE of Louisiana v. Calvin Bernard JEFFERSON
    NO. 2018-KO-1671
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


text:
    STATE of Louisiana v. Jerry Jon KAN
    NO. 2018-K-1733
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.
   WEIMER, J., would grant.

HUGHES, J., would grant.


text:
    June COOLEY and Dwayne Cooley v. Dr. Ernesto KUFOY, et al.
    NO. 2019-C-0036
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


text:
    Nicole SIMONE v. CITY OF BATON ROUGE, Marvin D. Frazier, State Lumber and Supply Company, Inc., and the State of Louisiana Through the Department of Transportation
    Marvin D. Frazier v. Nicole Simone, State Farm Mutual Automobile Insurance Company, City of Baton Rouge, State of Louisiana, Through the Department of Transportation and Development, and Pennsylvania & Indiana Lumbermens Mutual Insurance Company
    NO. 2019-CC-0037
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


author: JOHNSON, C.J., recused.

text:
    Sheiia GUIDRY v. DOW CHEMICAL COMPANY, et al.
    NO. 2018-CC-2116
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.
   JOHNSON, C.J., recused.


text:
    Cora NEALOND v. Akwasi SEFA, M.D.
    NO. 2019-CC-0042
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


text:
    Robert L. WATTIGNY, Sr. v. HOSKIN HOMES L.L.C., and BS Rentals of Louisiana, L.L.C.
    NO. 2019-C-0044
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


text:
    Patrick BOWLING, et al. v. CITGO PETROLEUM CORPORATION, et al.
    NO. 2018-C-2117
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


text:
    Bettie KEESE v. SEDGWICK CLAIM MANAGEMENT SERVICES, INC. and Walgreens Drug Store
    NO. 2019-CC-0005
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


text:
    Heather GOELOE, et al. v. ABC INSURANCE COMPANY, et al.
    NO. 2019-CC-0010
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


text:
    Arnold D. FELDMAN, MD v. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS
    NO. 2019-00011
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


text:
    Donald PONSETI, Individually and as Administrator and Succession Representative of the Succession of Marvin Ponseti and Theodore Ponseti, et al. v. TOURO INFIRMARY, Ghi Insurance Company, Nurse Jane Doe, Doctor John Doe, and XYZ Insurance Company
    NO. 2019-00012
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


text:
    Michael BRANTLEY, Jr., et al. v. The CITY OF GRETNA and Red Flex Traffic Systems, Inc.
    NO. 2019-CC-0015
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


text:
    Donald Paul ARDOIN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., et al.
    NO. 2019-C-0016
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


text:
    Alvin MCBRIDE, et al. v. Bryan LICHTENSTEIN, et al.
    NO. 2019-C-0023
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


text:
    MIDLAND FUNDING, LLC v. Carol GUILLORY
    NO. 2019-CC-0027
    Supreme Court of Louisiana.
    February 25, 2019
    Denied.


author: CRAIN, J. GUIDRY, J., dissenting.

text:
    Benny HERNANDEZ v. ASAP EMPLOYMENT SERVICE, INC., Louisiana Construction & Industry, CF Industries, and Excel Fab
    NUMBER 2017 CA 1436
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: OCTOBER 18, 2018
    Benny Hernandez, Downsville, Louisiana, Claimant/Appellant, In Proper Person
    Mark C. Dodart, Jeffrey A. Clayman, New Orleans, Louisiana, Counsel for Defendant/Appellee, CF Industries Nitrogen, LLC
    BEFORE: GUIDRY, PETTIGREW, McDONALD, HIGGINGOTHAM, AND CRAIN, JJ.
   CRAIN, J.

In this workers' compensation proceeding, Benny Hernandez appeals a judgment sustaining a peremptory exception of prescription and dismissing his claims against CF Industries Nitrogen, LLC. We affirm.

On September 16, 2014, Hernandez was injured while working at a plant in Donaldsonville. Hernandez, represented by counsel, filed a disputed claim for compensation against his employer, ASAP Employment Services, Inc., and ASAP's insurer, Louisiana Construction and Industry Self Insurers Fund ("LCI"). The parties negotiated a settlement, which was approved by the workers' compensation judge (WCJ), and Hernandez's claim was dismissed with prejudice on May 16, 2016.

Four months later, on September 15, 2016, Hernandez, appearing in proper person, filed another disputed claim for compensation based on the same accident, again naming ASAP and LCI as defendants, but also adding several new parties, including CF Industries. CF Industries responded with a peremptory exception of prescription, which, following a hearing, was granted. In a judgment signed on June 16, 2017, Hernandez's claims against CF Industries were dismissed with prejudice. Hernandez appeals.

A claim for workers' compensation indemnity benefits prescribes one year from the date of the accident or, if benefits have been paid, one year from the last payment or, for a claim for supplemental earnings benefits, three years from the last payment. See La. R.S. 23:1209A; Putman v. Quality Distribution, Inc. , 11-0306 (La. App. 1 Cir. 9/30/11), 77 So.3d 318, 321. A claim for medical benefits prescribes one year after the accident or, if such payments have been made, three years from the date of the last payment. See La. R.S. 23:1209C. Prescription is interrupted by filing a formal claim with the office of workers' compensation. See La. R.S. 23:1209A(1) and B.

Hernandez's claim against CF Industries was filed about two years after the accident and does not allege the payment of any benefits. The claim is thus prescribed on its face. When a workers' compensation claim is prescribed on its face, the claimant bears the burden of showing prescription was suspended or interrupted in some manner. Borja v. FARA , 16-0055 (La. 10/19/16), 218 So.3d 1, 11. When, as here, evidence is received at the hearing on the exception, the appellate court reviews the WCJ's factual findings under the manifest error-clearly wrong standard of review. Theodore v. Iberville Parish School Board , 12-0746 (La. App. 1 Cir. 1/8/13), 112 So.3d 270, 271.

The evidence introduced at the hearing by Hernandez is limited to three exhibits: a radiology report for a chest x-ray taken shortly after the accident, a memorandum filed by Hernandez in opposition to the exception of prescription, and a letter from Hernandez's attorney in the original proceeding summarizing a mediation conducted in that proceeding. None of this evidence establishes an interruption or suspension of the prescriptive period applicable to Hernandez's claim against CF Industries. Having failed to satisfy his burden of proof, Hernandez's claim against CF Industries is prescribed. See La. R.S. 23:1209A(1); Gomez v. Our Lady of the Lake Regional Medical Center , 05-1916 (La. App. 1 Cir. 9/15/06), 943 So.2d 499, 499 ; Ward v. McDermott , 04-1189 (La. App. 1 Cir. 6/10/05), 916 So.2d 246, 250. The WCJ did not err in sustaining the exception of prescription and dismissing Hernandez's claims against CF Industries with prejudice. This memorandum opinion is issued in accordance with Uniform Rules-Courts of Appeal, Rule 2-16.1B. Costs of this appeal are assessed to Benny Hernandez.

AFFIRMED.

Guidry, J, Dissents and assigns reasons.

Pettigrew, J. dissents

GUIDRY, J., dissenting.

It is a well-settled principle that the provisions of the workers' compensation scheme should be liberally interpreted in favor of the worker. Gomon v. Melancon, 06-2444, p. 4 (La. App. 1st Cir. 3/28/07), 960 So.2d 982, 984, writ denied, 07-1567 (La. 9/14/07), 963 So.2d 1005. The standard controlling review of an objection of prescription requires that the court of appeal strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished. Bernard v. Lafayette City-Parish Consolidated Government, 11-816, p. 5 (La. App. 3d Cir. 12/7/11), 80 So.3d 665, 669. Louisiana Revised Statute 23:1317(A) provides that a workers' compensation judge is not bound by technical rules of evidence or procedure other than as provided by workers' compensation law. So while all findings of fact must be based upon competent evidence, the judge is to decide the merits of a controversy equitably, summarily, and simply. The jurisprudence states that the legislative intent behind La. R.S. 23:1317 is to materially relax evidentiary and procedural rules and subordinate procedural considerations to discovery of the truth and protection of substantial rights. Peters v. Ruskin Manufacturing, 39,535, p. 4 (La. App. 2d Cir. 4/6/05), 899 So.2d 780, 782-83.

Thus, considering the summary nature of the proceedings below and the fact that Mr. Hernandez has litigated this matter as a self-represented party, I believe the majority errs in failing to consider the objection of prescription in light of the entire record. See Sprowl v. Taylor, 07-857 (La. App. 3d Cir. 1/30/08), 2008 WL 241574, at *1 (wherein the court stated relative to the appeal of a pro se litigant, "we will examine the record using the applicable standard of review to determine whether the judgment of the trial court was reasonable in light of the record in its entirety"). At the hearing on CF Industries Nitrogen's objection of prescription, it was acknowledged that Mr. Hernandez had a pending tort suit based on the September 16, 2014 accident. The record further reveals that CF Industries Nitrogen is one of several defendants named in the pending tort suit, which CF Industries Nitrogen acknowledged in motions it filed in the underlying proceedings. See Isaac v. Lathan, 01-2639, p. 6 (La. App. 1st Cir. 11/8/02), 836 So.2d 191, 195 (wherein this court concluded that where both the tort action and workers' compensation action against the defendant were based on the same occurrence and where the defendant had notice of the factual elements of the action, the timely-filed tort action against the defendant interrupted prescription as to the subsequent workers' compensation claim against the same defendant). Additionally, a stamped copy of the petition in the tort suit to which CF Industries Nitrogen acknowledged being a party is contained in the record and shows that the tort suit was fax filed on September 16, 2015.

Hence, as the record reveals the existence of a previously-filed, timely tort suit against CF Industries Nitrogen based on the September 16, 2014 accident, I believe the majority's affirmance of the judgment sustaining the peremptory exception raising the objection of prescription is clear error, and for these reasons, I respectfully dissent.

      Certain exceptions, not applicable herein, apply to injuries that do not immediately manifest after the accident. See La. R.S. 23:1209A(3)-(4).

      We note the record contains references to a tort suit filed by Hernandez against CF Industries apparently based on the same accident. Although a timely-filed tort suit may, in some instances, interrupt prescription for a workers' compensation claim arising out of the same circumstances, the record contains no evidence of the filing date for the tort claim against CF Industries. Instead, the record contains only a copy of a petition filed against an unrelated party who was later dismissed from that proceeding. The record does not reveal when CF Industries was added as a party to that suit. Hernandez thus failed to prove he timely filed a tort suit against CF Industries that interrupted prescription for his workers' compensation claim. Compare Isaac v. Lathan , 01-2639 (La. App. 1 Cir. 11/8/02), 836 So.2d 191, 195.

      Notably, in a motion to continue filed by CF Industries Nitrogen, it alleged that "[m]ultiple parties in the tort action have filed dispositive motions on statutory employer grounds."


author: GUIDRY, J.

text:
    IN RE C.L.A.C. Applying for the Intrafamily Adoption of W.K.C., K.P.C., and A.J.C.
    NUMBER 2017 CJ 1703
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: OCTOBER 24, 2018
    Jenel G. Secrease, Jay M. Futrell, Hammond, LA, and Sonja Castella Bradley, Livingston, LA, Counsel for Defendant/Appellant, C.D.J.
    Wyman E. Bankston, Livingston, LA, Counsel for Plaintiff/Appellee, CL.A.C
    Allen Harvey, Livingston, LA, Counsel for minor children, W.K.C., K.P.C., and A.J.C.
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   GUIDRY, J.

C.D.J., the biological mother of the minor children, appeals from a judgment of the district court terminating her parental rights and granting the stepmother's petition for intrafamily adoption of the minor children. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

D.G.C. and C.D.J. were never married; however, they lived together for approximately 14 years and had three children, W.K.C., K.P.C., and A.J.C. Following their separation, D.G.C. and C.D.J. were awarded joint custody of the minor children pursuant to an April 2014 judgment, with D.G.C. designated as the domiciliary parent. According to the judgment, C.D.J.'s custodial periods with the children were to be every other weekend and every Wednesday evening through Thursday morning. The last time C.D.J. exercised her custodial periods with the children was August 2014.

Thereafter, on November 14, 2015, D.G.C. married C.L.A.C. Following the filing by C.D.J. of a motion to enforce custody judgment on March 16, 2017, C.L.A.C., joined by D.G.C., filed a petition for intrafamily adoption on April 24, 2017. C.L.A.C. asserted that the consent of C.D.J. is not required pursuant to La. Ch. C. art. 1245(C)(2) because C.D.J. has refused and/or failed to visit, communicate, or attempt to communicate with the minor children without just cause for a period of at least six continuous months since the custody judgment was rendered in April 2014. C.L.A.C. further asserted that it was in the best interest of the children that they be adopted by her.

C.D.J. answered the petition on May 8, 2017, generally denying the allegations in the petition and stating that she opposed the adoption of her children. C.D.J. also asserted that she has attempted to contact the children, and that adoption of the children by C.L.A.C. is not in their best interest. An attorney who was appointed by the district court to represent the interests of the minor children also filed a statement into the record.

The matter proceeded to trial on September 12, 2017, wherein the parties presented testimony and introduced evidence. At the conclusion of trial, the district court stated that he "[did] not find [C.D.J.'s] failure to visit with the children was with [just] cause for a period exceeding six months." The district court found that C.D.J. had opportunities to visit the children but for whatever reason chose not to exercise those opportunities. Accordingly, the district court found that C.D.J.'s consent was not required and that it was in the best interest of the children that her parental rights be terminated. The district court further found, based upon the factors in La. C.C. art. 134 and considering the evidence and testimony submitted, that it is in best interest of the children that the petition for intrafamily adoption be approved.

The district court signed a final decree in conformity with its oral ruling on September 12, 2017. C.D.J. now appeals from the district court's judgment, asserting that: (1) the district court did not have jurisdiction over this matter; (2) the district court incorrectly applied La. Ch. C. art. 1245(C)(2) ; (3) the district court erred in finding that her consent to the intrafamily adoption was not needed; and (4) the district court erred in finding that the adoption was in the best interest of the children.

DISCUSSION

Jurisdiction

Louisiana Revised Statutes 13:621.21 abolished Division G and Division H of the Twenty-First Judicial District Court effective midnight, December 31, 2014, and provided for the creation of two new judgeships in their place, Division J and Division K, respectively, effective January 1, 2015. La. R.S. 13:621.21(B)-(C). The subject matter jurisdiction of Division J and Division K is limited to family and juvenile matters, which include adoptions arising under the Louisiana Civil Code and the Louisiana Children's Code. La. R.S. 13:621.21(B)(2) and (C)(2).

In the instant case, the petition for intrafamily adoption was randomly allotted to Division K, and according to La. R.S. 13:621.21(C)(2), Division K had subject matter jurisdiction to hear this matter. However, C.D.J. contends for the first time on appeal that the district court lacked jurisdiction or authority to hear and/or rule on the intrafamily adoption because the district court judge in Division K had previously recused himself in the initial custody proceeding, which had been allotted to Division G where he then presided.

Louisiana Code of Civil Procedure article 154, however, provides that in order to seek recusation of a judge of the district court, the party must file a written motion prior to trial or hearing, unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after the facts are discovered but prior to judgment. As previously noted, C.D.J. did not raise the issue of recusation in the district court nor did she seek recusal of the district court judge by filing a written motion prior to the district court's judgment in this matter. Therefore, the issue of recusation is untimely and not properly before this court.

Adoption

Generally, a parent's consent is required for an intrafamily adoption.

La. Ch. C. art. 1193. However, pursuant to La. Ch. C. art. 1245, consent of a parent is not necessary if the petitioner proves that the parent has forfeited his right to consent, as follows:

A. The consent of the parent as required by Article 1193 may be dispensed with upon proof by clear and convincing evidence of the required elements of either Paragraph B or C of this Article at the hearing on the opposition and petition.
B. When a petitioner authorized by Article 1243 has been granted custody of the child by a court of competent jurisdiction and any one of the following conditions exists:
(1) The parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
(2) The parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.
C. When the spouse of a stepparent petitioner has been granted sole or joint custody of the child by a court of competent jurisdiction or is otherwise exercising lawful custody of the child and any one of the following conditions exists:
(1) The other parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
(2) The other parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.

Although the initial burden of proving that a parent's consent to an adoption is not required lies with the party seeking the adoption, once a prima facie case is proven, the burden shifts to the nonconsenting parent to show that his or her failure was due to factors beyond his or her control. In re T.A.S., 04-1612, p. 6 (La. App. 1st Cir. 10/29/04), 897 So.2d 136, 140.

In the instant case, the parties do not dispute that the last time C.D.J. exercised physical custody of the minor children was in August 2014. Thereafter, the record demonstrates that C.D.J. did not attempt to communicate with her children until March 2015, over six months from her last communication or attempted communication with the children, when C.D.J. sent Facebook messages to D.G.C. stating that she did not want to hurt the kids and wanted to be a good mother. C.D.J. stated that she had applied for a job and was looking for a place to live. She also offered to buy school clothes or shoes for K.P.C. However, D.G.C. stated that K.P.C. had clothes and cautioned C.D.J. that she cannot "play mommy" when she feels like it. In April 2015, C.D.J. continued to send Facebook messages to D.G.C. C.D.J. stated that she had bought Easter baskets for the children and wanted to know where she could drop them off. She also stated that she wanted to buy them clothes, and asked D.G.C. what K.P.C. wanted for her birthday. D.G.C., however, told C.D.J. that he would talk to her when she finished rehab and parenting classes and until then, to leave them alone. Thereafter, in June 2015, Facebook messages between D.G.C. and C.D.J. indicate that C.D.J. had sent a birthday card to W.K.C. D.G.C. stated that he gave W.K.C. the card. Additionally, D.G.C. told C.D.J. to leave them alone and they were all better off without her "garbage." C.D.J. did not thereafter attempt to contact the children until December 2015, approximately six months later, when she called D.G.C., asked how the children were, and was told that they were already asleep.

D.G.C. stated that he received a text message from C.D.J. in February 2016, religious in nature and stating that she really wanted to get the children. There is no evidence of any further attempted communication between C.D.J. and her children until late August 2016. In August 2016 through December 2016, C.D.J. sent several Facebook messages to W.K.C. stating that she was thinking about him and his sisters, that she loved him and missed him, that she wanted to restore their relationship, and asked to talk to him on phone. W.K.C. did not respond to C.D.J.'s attempted communications.

Accordingly, based on the evidence in the record, C.L.A.C. and D.G.C. demonstrated that C.D.J. did not communicate or attempt to communicate with her children from August 2014 to March 2015, which is a period in excess of six months, and thereafter failed to communicate or attempt to communicate with her children between June 2015 and December 2015 and February 2016 and August 2016. Therefore, there was at least one time period, and potentially three time periods, where C.D.J. failed to visit, communicate, or attempt to communicate with her children for at least six months. See In re C.E.M., III, 09-787, p. 9 (La. App. 5th Cir. 1/26/10), 31 So.3d 1138, 1143 ; see also In re MDA, 427 So.2d 1334, 1336 (La. App. 2nd Cir. 1983) (finding under the prior law that the one-year period of non-support need not immediately precede the filing of the petition for adoption).

C.D.J. contends, however, that the provisions of La. Ch. C. art 1245 do not apply to the instant matter because custody litigation was ongoing. In support of her argument, C. D.J. cites to C.D.J. v. B.C.A., 11-378, p. 3 (La. App. 3rd Cir. 10/5/11), 74 So.3d 300, 302, wherein the court stated that "it was not the intent of the law for the provisions of [ La. Ch. C. art. 1245 ] to apply to the case where there is on-going litigation relating to custody." However, we note in C.D.J., the court had ordered the father to pay child support but there was no order as to custody. After the father failed to pay child support as ordered for a period of at least six months, the stepfather filed a petition for intrafamily adoption, to which the father objected, asserting that the stepfather had no cause of action and the petition was premature because no custody order was in effect. The district court sustained the exception raising the objection of no cause of action and signed a stipulated judgment as to custody, and the third circuit affirmed the district court's judgment. C.D.J., 11-378 at pp. 3-4, 74 So.3d at 302.

This court distinguished C.D.J. in In re R.P.D., 14-1539, p. 2, 2015 WL 1880489 (La. App. 1st Cir. 4/22/15), (unpublished opinion), because in that case, there was an interim order of custody and no pleading had been filed in the custody suit nor had the parent exercised any custody or visitation with the child in over four years. Accordingly, this court found that the parties were not involved in "on-going" custody litigation that would prevent the stepparent from filing for intrafamily adoption. In re R.P.D., 14-1539 at p. 2.

Furthermore, we note that in In re A.M.B., 06-1114, p. 5, 2006 WL 3813728 (La. App. 1st Cir. 12/28/06) (unpublished opinion), a father who was awarded joint custody in 2002 and had not seen his children since the same year, filed a rule to implement visitation with his children one month prior to the stepfather's filing of a petition for intrafamily adoption in 2005. This court applied La. Ch. C. art. 1245 and affirmed the district court's judgment granting the petition for adoption.

In the instant case, the record demonstrates that the district court signed a custody judgment awarding the parties joint custody in April 2014. The last time C.D.J. exercised physical custody of the children was August 2014. C.D.J. did not file a motion to enforce custody until March 16, 2017, almost three years after the initial custody judgment and over two and a half years since she had last exercised custody pursuant to that judgment. Accordingly, while there may be instances where "on-going" custody litigation may prevent the application of La. Ch. C. art. 1245, based on the facts of this case and the jurisprudence detailed above, we find no error in the district court's finding that La. Ch. C. art. 1245 applies to the instant matter.

Therefore, because C.L.A.C. and D.G.C. made a prima facie case that C.D.J.'s consent to the adoption is not required in accordance with La. Ch. C. art. 1245(C)(2), the burden shifted to C.D.J. to show that her failure was beyond her control. In re T.A.S., 04-1612 at p. 6, 897 So.2d at 140. In opposing the petition for adoption, C.D.J. asserted that she attempted to communicate with her children, but that D.G.C. refused to facilitate a relationship between C.D.J. and her children and indicated that he would not cooperate with any effort by C.D.J. to see and/or communicate with her children.

Louisiana courts have found that when a stepparent and the parent with custody have hindered the attempts of the natural parent from visiting or communicating with their child, the natural parent may be excused from otherwise failing to do so. See In re Puckett, 49,046, pp. 14-15 (La. App. 2nd Cir. 4/17/14), 137 So.3d 1264, 1273. However, C.D.J. does not dispute that she failed to visit, communicate, or attempt to communicate with her children from August 2014 to March 2015, a period in excess of six months, and she offered no evidence that the reason she failed to visit and/or communicate with her children during that time period was due to the lack of cooperation from D.G.C.

Therefore, based on our thorough review of the record, we find no error in the district court's judgment that C.L.A.C. and D.G.C. met their burden of proving that C.D.J.'s consent to the adoption was not necessary based on her failure to visit, communicate, or attempt to communicate with the children without just cause for a period of at least six months.

However, even where the other parent's consent is obviated by failure to visit or communicate with his child, there still must be a showing that terminating the natural parent's parental rights and granting the intrafamily adoption is in the best interest of the child. See In re C.E.F., 07-0992, p. 6 (La. App. 1st Cir. 9/14/07), 977 So.2d 1, 5-6. In intrafamily adoption cases, this court has held that several factors must be considered when determining the best interest of the child. See In re C.E.F., 07-0992 at p. 7, 977 So.2d at 6 ; In re Miller, 95-1051, 95-1052, p. 6 (La. App. 1st Cir. 12/15/95), 665 So.2d 774, 777, writ denied, 667 So.2d 541 (La. 1996). The most important factors are the child's relationship with the stepparent and the natural parent not married to the stepparent. It is not enough to examine the love and home environment provided by the petitioner/stepparent. The court must also examine the depth of closeness of the child's ties with the noncustodial natural parent, and the effect which the loss of this relationship would have on the child. Further, the court must consider the seriousness and finality of the severing of the relationship between the parent and child, as well as the importance and benefit to the child of a continued relationship with the parent. In re C.E.F., 07-0992 at p. 7, 977 So.2d at 6.

In the instant case, the trial court in its oral ruling found "based upon the testimony and evidence presented and in reviewing Civil Code Article 134 regarding the [factors] for the best interest of the minor children that it is in the best interest of the minor children that [C.D.J.'s] parental rights be terminated; I further find based upon factors contain[ed] in Civil Code Article 134 together with the testimony and evidence submitted that it is in the best interest of the minor children that the Petition for Intra Family Adoption be approved...." Louisiana Civil Code article 134, however, details the factors a court should consider in determining the best interest of a child as related to custody in divorce proceedings. Accordingly, by considering the factors detailed in La. C.C. art. 134 rather than the special factors detailed above specifically related to termination of parental rights and adoption by a stepparent, the district court legally erred. When a legal error occurs and a trial court applies incorrect principles of law, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. In re C.E.M., III, 09-787 at p. 7, 31 So.3d at 1142. Because the record is otherwise complete, we will therefore review de novo whether the adoption by C.L.A.C. is in the children's best interest.

At trial, D.G.C. stated that C.D.J. had not seen the children since August 2014. According to D.G.C., when C.D.J. picked up the children in August 2014, she was gone only about three hours when she got into an argument with W.K.C. and brought him back home. C.D.J. then left with the youngest child, and D.G.C. did not hear from C.D.J. for three days. D.G.C. subsequently received a call from C.D.J.'s niece at 3:00 a.m., stating that C.D.J. and the baby were walking down the state highway and he needed to go pick them up. D.G.C. thereafter picked up the baby. D.G.C. stated that prior to this incident, C.D.J. was involved in a lot of drug activity when she exercised physical custody of the children, and that had not changed over the last few years. D.G.C. stated that C.D.J. had also been in legal trouble.

C.D.J. also testified at trial. C.D.J. acknowledged that after her separation from D.G.C., there was a period where she was doing things that she was not supposed to do. C.D.J. also acknowledged that she had not seen the children since August 2014 and only recently attempted to reenter the children's lives. C.D.J. stated that she did not recall the August 2014 incident where D.G.C. had to come pick up the youngest child from the side of the road. However, C.D.J. acknowledged that she had been in legal trouble since 2014, for which she was currently on probation. C.D.J. also admitted to seeking rehab. According to C.D.J., however, she recently submitted to a drug test, the results of which were negative.

C.L.A.C. stated that when she first met D.G.C., the children were scattered and not well behaved. However, C.L.A.C. stated that her presence in the children's lives has led to their improvement. C.L.A.C. stated that the children are now happy and healthy and one hundred percent better than the day she met them. C.L.A.C. stated that she has taken on the role of mother one hundred percent, including attending school functions for the kids. Particularly, with regard to A.J.C., C.L.A.C. stated that she has been in A.J.C.'s life since she was two, and A.J.C. does not even remember her biological mother. In fact, C.L.A.C. stated that A.J.C. thinks that C.L.A.C. is her biological mother because she is the only mother she has ever known. Additionally, C.L.A.C. stated that K.P.C. also now calls her mom, because she has been in the children's lives for three years and they do not think of her as a stepmom.

The district court also conducted an interview of W.K.C. W.K.C., who was sixteen at the time of trial, stated that he was "all right" with C.L.A.C. adopting him and that it is something he would like. Further, W.K.C. stated that he did not recall C.D.J. reaching out to him on Facebook, as he does not check Facebook often, but even if she had tried to reach out to him, it would not make a difference.

Finally, the attorney representing the minor children submitted a statement after conducting an interview with D.G.C., C.L.A.C., W.K.C., K.P.C., and A.J.C. According to the statement, W.K.C. had been expelled from his old school and had been in trouble at his current school for fighting. The attorney stated that C.L.A.C. believes that W.K.C. has anger issues related to his biological mother, and D.G.C. agreed, noting that W.K.C. had been abandoned by C.D.J. at a Dollar General Store while she was buying controlled substances. According to the attorney, C. L.A.C. and W.K.C. get along. With regard to K.P.C. and A.J.C., the attorney noted that the girls were by C.L.A.C.'s side with seeming affection and feelings of inclusion. The attorney stated that C.L.A.C. told her that K.P.C. has memory of being in a crack house with her mother, and K.P.C. fears Wednesdays because her mother might decide to pick her up from school. The attorney further stated that D. G.C. and C.L.A.C. stated that K.P.C. and A.J.C. are aware of the proceedings and are enthusiastic and impatient about C.L.A.C.'s proposed adoption.

Based on the foregoing, we find that the record demonstrates the minor children have not had a relationship with C.D.J. due to C.D.J.'s absence from their lives since 2014. In fact, the youngest child does not even remember C.D.J. and recognizes C.L.A.C. as the only mother she has ever had. Furthermore, the minor children have improved since C.L.A.C.'s presence in their lives and are eager to finalize their relationship with her. Therefore, based on the foregoing and our thorough review of the record, we find that it is in the best interest of the children that the court approve the intrafamily adoption by C.L.A.C.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal are assessed to C.D.J.

AFFIRMED.

Pettigrew, J. concurs

      Likewise, other courts have found that a parent's filing of a rule for visitation did not interrupt the six month time period set forth in La. Ch. C. art. 1245. See In re C.E.M., III, 09-787 at pp. 9-10, 31 So.3d at 1143 ; see also In re B.L.M., 13-0448, p. 9 (La. App. 1st Cir. 11/1/13), 136 So.3d 5, 6.

      We also note that while D.G.C. and C.L.A.C. moved with the children to Loranger in November 2015, and enrolled the children in new schools without notifying C.D.J., this too occurred after C.D.J. had already failed to visit and/or communicate with the children for a period in excess of six months. Therefore, this evidence fails to demonstrate how the act of moving and failing to notify her of the children's residence and/or new school prohibited her from exercising physical custody of the children prior to that time.


text:
    Benny HERNANDEZ v. ASAP EMPLOYMENT SERVICE, INC., Louisiana Construction & Industry, CF Industries, and Excel Fab
    NUMBER 2017 CA 0868
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: OCTOBER 26, 2018
    Benny Hernandez, Downsville, Louisiana, Claimant/Appellant, In Proper Person.
    Nathan L. Schrantz, New Orleans, LA, Counsel for Defendants/Appellees, ASAP Employment Services, Inc. and Louisiana Construction and Industry Self Insurer's Fund.
    BEFORE: GUIDRY, PETTIGREW, CRAIN, HOLDRIDGE, AND CHUTZ, JJ.
   CRAIN, J.

In this workers' compensation proceeding, Benny Hernandez appeals a judgment sustaining a peremptory exception of res judicata and dismissing his claims against his employer and its insurer. We affirm.

FACTS AND PROCEDURAL HISTORY

On September 16, 2014, Hernandez was injured while working at a plant in Donaldsonville. Hernandez, represented by counsel, filed a disputed claim for compensation against his employer, ASAP Employment Services, Inc., and its insurer, Louisiana Construction and Industry Self Insurers Fund (LCI). The parties negotiated a settlement, which was approved by the workers' compensation judge (WCJ), and Hernandez's claim was dismissed with prejudice on May 16, 2016.

On September 15, 2016, Hernandez, appearing in proper person, filed another disputed claim for compensation based on the same incident, again naming ASAP and LCI as defendants, as well as other companies not parties to this appeal. ASAP and LCI responded with a peremptory exception of res judicata, which, following a hearing, was granted. In a judgment signed on March 22, 2017, Hernandez's claims against ASAP and LCI were dismissed with prejudice. Hernandez appeals.

DISCUSSION

Under the doctrine of res judicata , a valid, final judgment precludes a second action when (1) the parties are the same, (2) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first suit, and (3) the cause or causes of action asserted in the second suit arose out of the same transaction or occurrence that was the subject matter of the first suit. See La. R.S. 13:4231 ; Burguieres v. Pollingue , 02-1385 (La. 2/25/03), 843 So.2d 1049, 1053. Similarly, a compromise precludes the parties from bringing a subsequent action based upon the matter that was compromised. La. Civ. Code art. 3080. Thus, a valid compromise may form the basis for an objection of res judicata. Garrison v. James Construction Group, LLC , 14-0761 (La. App. 1 Cir. 5/6/15), 174 So.3d 15, 18 (en banc ), writ denied , 15-1112 (La. 9/18/15), 178 So.3d 146.

The burden of proving the facts essential to sustaining the objection is on the party pleading the objection.

Cepriano v. B Square Builders, L.L.C. , 14-1568 (La. App. 1 Cir. 4/24/15), 170 So.3d 1043, 1047. Where, as here, an objection of res judicata is raised before the case is submitted, and evidence is received on the objection, factual findings are reviewed under the manifest-error standard of review. See Mitchell v. Aaron's, Inc. , 18-0131 (La. App. 1 Cir. 9/21/18), 257 So. 3d 812 (2018 WL 4519951) ; Cepriano v. B Square Builders, L.L.C. , 14-1568 (La. App. 1 Cir. 4/24/15), 170 So.3d 1043, 1047. However, the res judicata effect of a prior judgment is a question of law that is reviewed de novo on appeal. Mitchell , 257 So. 3d at ---- ; Cepriano , 170 So.3d at 1047 ; Rogillio v. SNL Distribution Services Corp., 13-1449 (La.App. 1 Cir. 3/24/14), 143 So.3d 517, 519.

In a workers' compensation case, the doctrine of res judicata applies to a final judgment denying benefits and a compromise approved by the WCJ pursuant to Louisiana Revised Statutes 23:1271 through 1274. See Borja v. FARA , 16-0055 (La. 10/19/16), 218 So.3d 1, 10. In relevant part, Subsection 23:1272A requires the submission of a proposed settlement to the WCJ for approval through a petition signed by all parties and verified by the employee. When the employee is represented by counsel, the WCJ must approve the settlement if the employee and his counsel certify the following information in affidavits attached to the petition: (1) the attorney explained the rights of the employee and the consequences of the settlement to him, and (2) the employee understands his rights and the consequences of entering into the settlement. See La. R.S. 23:1272B.

In support of their exception, ASAP and LCI introduced the settlement agreement, the joint petition for approval and affidavits attached thereto, the order of approval, and the order of dismissal. In relevant part, the joint petition for approval states:

Benny Hernandez understands that in consideration of [ASAP] and [LCI's] payment of TWENTY-FIVE THOUSAND ($25,000.00) AND NO/100 DOLLARS plus a waiver of its lien in Benny Hernandez's third party tort claim, he releases in full all claims which he has, or may hereafter have, whether for personal injury, retaliatory discharge, or any other cause of action related to his employment at ASAP Employment Services, Inc. and against [ASAP], [LCI], their officers, directors, agents, employees, insurers or representatives for any injuries which he may have sustained during his employment with [ASAP] on or anytime prior thereto or since, as well as for any other accidents or injuries which might be associated with his employment with [ASAP] to the date hereof, including, but not limited to, the development of any disability as a result of any injury to his ribs and back as a result of his September 16, 2014 accident.

In an affidavit attached to the joint petition for approval, Hernandez attested to the terms of the settlement, including the amount thereof and his release of ASAP and LCI from any further liability, and confirmed he read the petition and the allegations contained therein are true and correct to the best of his knowledge, information and belief. Hernandez's counsel likewise signed an attached affidavit wherein he confirmed, in relevant part, Hernandez was advised of the terms of the settlement and agreed to same. Based upon the foregoing, we find no error in the WCJ's determination the parties complied with the requirements of Section 23:1272.

Once the statutory procedural requirements have been satisfied and the WCJ enters an order approving a compromise settlement, the judgment is conclusive and cannot be set aside except for fraud, misrepresentation, or ill practices. See La. R.S. 23.1272B; La. Code Civ. Pro. art. 2002 ; Smith v. Isle of Capri Casino &Hotel , 10-0161 (La. App. 1 Cir. 9/10/10), 47 So.3d 642, 644. Hernandez argues the agreement is "not correct" and was fraudulently confected, although his only specific assertion on appeal is the defendants did not pay his medical bills. At the hearing, Hernandez's evidence was limited to his testimony, which largely consisted of his contention the settlement was "unfair" because the agreed compensation should have been greater. He also stated he signed the agreement while on pain medication and under the duress of a "fraud" accusation by the defendants.

As clarified at the hearing, the mention of a fraud accusation is a reference to the defendants' position, fully disclosed and reiterated in the joint petition to approve the settlement, that Hernandez was not truthful in completing a medical questionnaire administered pursuant to Louisiana Revised Statute 23:1208.1. Hernandez offered no evidence suggesting the defendants' contention lacked a factual basis or was itself fraudulent. As to his medication, Hernandez generally testified it "sometimes" affected his comprehension; however, he acknowledged signing all of the settlement documents, including his affidavit, and never stated the medication prevented him from understanding the settlement or, more to the point, that any impairment was the result of fraud, misrepresentation, or ill practices.

The limited evidence offered by Hernandez does not establish that fraud, misrepresentation, or ill practices influenced the judicially-approved settlement of his claim. Accordingly, the WCJ's determination the compromise is valid is not manifestly erroneous. See Charles v. Lakeside National Bank , 97-812 (La. App. 3 Cir. 12/17/97), 704 So.2d 427, 430 ; Nelams v. Allen's TV Cable , 95-444 (La. App. 3 Cir. 11/2/95), 664 So.2d 563, 566 ; Guidry v. One Source Facility Services , 04-2007 (La. App. 4 Cir. 4/27/05), 901 So.2d 626, 628-29 ; compare McCarroll v. Livingston Parish Council , 13-2120 (La. App. 1 Cir. 10/27/14), 156 So.3d 1173, 1175-78, writ denied , 14-2498 (La. 2/27/15), 159 So.3d 1068.

Hernandez seeks recovery herein of workers' compensation benefits from ASAP and LCI for the injuries allegedly sustained in the same accident that gave rise to his prior claim. Because the parties validly compromised that claim, the WCJ did not err in sustaining the exception of res judicata and dismissing Hernandez's claims with prejudice. See La. R.S. 13:4231 ; Davis v. J.R. Logging, Inc ., 13-0568 (La. App. 1 Cir. 11/8/13), 136 So.3d 828, 831, writ denied , 14-0860 (La. 6/20/14), 141 So.3d 812.

CONCLUSION

The March 22, 2017 judgment is affirmed. All costs of this appeal are assessed to Benny Hernandez.

AFFIRMED; MOTION TO DISMISS DENIED.

Guidry, J. Dissents and assigns reasons

Pettigrew, J. dissents

GUIDRY, J., dissenting.

When an objection of res judicata is raised before the case is submitted and evidence is received on the objection, the standard of review on appeal is traditionally manifest error with regard to factual findings of the trial court. However, the res judicata effect of a prior judgment is a question of law that is reviewed de novo on appeal. Pierrotti v. Johnson, 11-1317, p. 9 (La. App. 1st Cir. 3/19/12), 91 So.3d 1056, 1063.

I believe the WCJ committed legal error in looking solely at whether fraud or misrepresentation occurred pursuant to La. R.S. 23:1272(B), when it has been held that such consideration is only applicable when the mandatory guidelines for approval are met. See Smith v. Cajun Insulation, Inc., 392 So.2d 398, 401 (La. 1980) ; McCarroll v. Livingston Parish Council, 13-2120, pp. 5-6 (La. App. 1st Cir. 10/27/14), 156 So.3d 1173, 1177, writ denied, 14-2498 (La. 2/27/15), 159 So.3d 1068 ; Harrington v. Quality Steel Building Erectors, 95-822, pp. 6-7 (La. App. 3d Cir. 3/6/96), 670 So.2d 1372, 1376, writ denied, 96-1315 (La. 6/28/96), 675 So.2d 1128.

Louisiana Revised Statute 23:1272(B) states that if the employee and his counsel make certain certifications in their affidavits attached to the petition seeking approval of a compromise settlement, the workers' compensation judge is required to issue an order approving the proposed compromise settlement. Once issued, the order can only be set aside or modified upon proof of fraud or misrepresentation of any party. The certifications that both the employee and his counsel are required to make, in their affidavits , are the following: (1) the attorney has explained the rights of the employee and the consequences of the settlement to him; and (2) that such employee understands his rights and the consequences of entering into the settlement. La. R.S. 23:1272(B).

Mr. Hernandez and his counsel both stated in their affidavits that they had read the joint petition and "that all of the facts and allegations contained therein are true and correct to the best of [their] knowledge, information and belief." Paragraph X of the joint petition recites that Mr. Hernandez "understands that in consideration of Employers and Insurer's payment of [$25,000.00] plus a waiver of its lien in Benny Hernandez's third party tort claim, he releases in full all claims which he has, or may hereafter have, ... as a result of any injury to his ribs and back as a result of his September 16, 2014 accident." Despite this "understanding" stated in the petition, I do not believe the sworn statements of the affidavits can be bootstrapped to the identified statement in the petition to establish compliance with La. R.S. 23:1272(B). Moreover, the WCJ, in her reasons for judgment, found that Mr. Hernandez did not understand his rights or the consequences of entering into the settlement.

As there was no strict compliance with La. R.S. 23:1272(B) in the issuance of the order approving the compromise settlement, I believe the majority errs in affirming the WCJ's determination that the settlement and the order approving it are binding and enforceable so as to sustain the objection of res judicata. See Smith v. Isle of Capri Casino & Hotel 10-0161, p. 3 (La. App. 1st Cir. 9/10/10), 47 So.3d 642, 644 (holding that "[t]here can be no settlement of a workers' compensation claim in the absence of compliance with the procedure prescribed by La. R.S. 23:1272 ). And for these reasons, I respectfully dissent.

      The WCJ certified the judgment as final pursuant to Louisiana Code of Civil Procedure article 1915B. Although such certifications are generally not permissible in a workers' compensation proceeding, see Marquez v. Jack Ussery Construction , 06-1852, p. 6 (La. App. 1 Cir. 6/8/07), 964 So.2d 1045, 1049, writ denied , 07-1404 (La. 10/12/07), 965 So.2d 400, the WCJ signed additional judgments shortly thereafter dismissing all of Hernandez's claims against the remaining defendants. For this reason, we find the March 22, 2017 judgment properly appealable and deny the motion to dismiss the appeal filed by Xcel Erectors, Inc.

      In her oral reasons, the WCJ stated:
      At this time the Court stands ready to rule. I understand that you have many questions, Mr. Hernandez, and that's part of the reason why you're bringing it here and you filed your claim because you have some unanswered questions and you have some legal questions, also, as to what your entitlement is. And you have some concerns that you're seeking answers. Your prior attorney is not here. Your prior attorney did represent you.
      ...
      A lot of these questions fall on the shoulders of what that attorney should or should not have done regarding his representation, but we're not here today - - that is not what I need to address directly.