text:
    Nicholas PAULETTE, Appellant, v. Danielle ROSELLA, Appellee.
    Case No. 5D18-264
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 5, 2019
    Sonica R. Cinami, of McMichen, Cinami & Demps, PLLC, Orlando, for Appellant.
    No Appearance for Appellee.
   EDWARDS, J.

The parties' original child support obligations were set forth in a mediated settlement agreement ("MSA") which was incorporated into a final order. The MSA called for Appellant ("Father") to support the children, who would stay with him for 300 nights per year, while Appellee ("Mother") was not required to pay child support "at this time" because she was not employed "at this time." The MSA required Mother to advise Father within ten days of her obtaining full-time employment. Father subsequently moved to modify Mother's support obligations after she became employed on a full-time basis. The trial court denied Father's motion to modify, finding that the change in circumstances, i.e. Mother becoming employed, had been contemplated by the MSA, and thus did not constitute an "unanticipated" change in circumstances justifying modification. We find that the trial court erred and reverse for further proceedings.

When Father moved to modify the original child support order, his financial affidavit indicated a monthly gross income of $2773 with childcare expenses of $962. Mother's financial affidavit indicated her monthly gross income was $2000 with childcare expenses of $520 per month that included $150 per month in clothing expenses and $300 per month as expenses for holiday gifts for the children. Mother agreed in her pleadings and in her opening statement at the hearing on this matter that she was obligated to pay child support; she only objected to the amount of support that Father requested. Although the trial court found that there was a substantial change in circumstances, it denied the motion, finding that Father failed to prove that this change was "unanticipated" because the parties had contemplated that Mother "would obtain employment" at some point in the future.

The trial court's ruling overlooked controlling Florida law. First, section 61.14(1)(a), Florida Statutes (2017), provides in pertinent part:

When the parties enter into an agreement for payments for ... support, ... and the circumstances or the financial ability of either party changes ... after the execution of the agreement or the rendition of the order, either party may apply to the circuit court ... for an order decreasing or increasing the amount of support ... and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the parties or the child, decreasing, increasing, or confirming the amount of separate support ... provided for in the agreement or order.

Second, section 61.13(1)(a)2. provides in pertinent part that:

The court initially entering an order requiring one or both parents to make child support payments has continuing jurisdiction after the entry of the initial order to modify the amount and terms and conditions of the child support payments if the modification is found by the court to be in the best interests of the child ... [or] if there is a substantial change in the circumstances of the parties ....

Third, the trial court's ruling is contrary to Florida law as declared by the supreme court case Miller v. Schou , which held that "an increase in ability to pay is itself sufficient to warrant an increase in child support" and disapproved of any district court opinion "contrary to this holding." 616 So.2d 436, 438 (Fla. 1993) ; s ee, e.g. , Knapp v. Knapp , 778 So.2d 475, 477 (Fla. 3d DCA 2001) ("An increase in the ability to pay may be sufficient to increase child support payments." (citing Miller , 616 So.2d at 438 ) ); Riggs v. Lowrance , 766 So.2d 1102, 1102-03 (Fla. 2d DCA 2000) (reversing denial of request for increased child support due to the "undisputed evidence that Father's income and assets had increased"); Sotnick v. Sotnick , 650 So.2d 157, 159 (Fla. 3d DCA 1995) ("Modification [of child support] should be granted as the husband's income increases.").

Finally, the parties' MSA, when read in its entirety, obviously contemplated that upon becoming employed Mother would notify Father of that fact so her child support obligation could be established. It is difficult to understand how this could be read otherwise, especially in light of the fact that Mother agreed in her pleadings and in her opening statement to the court that since she was now employed, she would be obliged to pay child support.

Accordingly, we reverse and remand for the trial court to consider the evidence before it, take additional evidence if necessary, and enter an order modifying the parties' child support obligations "as equity requires, with due regard to the ... changed financial abilities of the parties" in accordance with section 61.14(1)(a). On remand, the trial court should keep in mind that "[w]hen child support is modified, retroactivity is the rule rather than the exception." Levi v. Levi , 780 So.2d 261, 263 (Fla. 3d DCA 2001). Moreover, it is an abuse of discretion not to make a child support award retroactive to the date of the petition for modification, where the conditions supporting modification existed when the petition for modification was filed. Id.

REVERSED AND REMANDED WITH INSTRUCTIONS.

BERGER and HARRIS, JJ., concur.

      The "requirements" that a change in financial circumstances be unanticipated and involuntary best apply when a party attempts to reduce his or her ability to pay child support by voluntarily becoming unemployed or underemployed. Applying those "requirements" to ignore significant increases in the parents' ability to provide financial support for their children would, in most cases, make no sense.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eric Lucaine WARD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2441
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 5, 2019
    James S. Purdy, Public Defender, and Ali L. Hansen, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Eric Lucaine Ward, appeals his convictions on two counts of aggravated child abuse, in violation of section 827.03(1)(a) and (2), Florida Statutes (2015), following a jury trial. His only argument on appeal is that the trial court erred when it excluded a defense witness as a sanction for failing to disclose the witness. We agree and reverse for a new trial.

A person commits aggravated child abuse when he or she:

1. Commits aggravated battery on a child;
2. Willfully tortures, maliciously punishes, or willfully and unlawfully cages a child; or
3. Knowingly or willfully abuses a child and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the child.

§ 827.03(1)(a), Fla. Stat. (2015).

The State alleged that Appellant committed aggravated child abuse against his fifteen-year-old twin sons by violating section 827.03(1)(a) 2. and 3. Appellant participated in discovery but did not turn over a witness list as required by Florida Rule of Criminal Procedure 3.220(d)(1)(A). At trial, after the State rested, Appellant sought to call a witness. The State objected, even though the witness appeared on its own witness list and had been deposed, arguing that it would be prejudiced because it would have called the witness in its case-in-chief had it known that Appellant planned to call her.

In an effort to cure this alleged prejudice, Appellant suggested that the State reopen its case to call the witness. However, the State rejected this remedy, stating only that it "made a strategic decision about how to present" its case. In essence, the State argued that it was prejudiced because it would not have ended with the testimony of this witness-but failed to explain how calling the witness out of its intended order caused prejudice.

The trial court found that Appellant's failure to list the witness was not willful, but nevertheless excluded the witness, concluding that the State would suffer prejudice by having to call the witness out of order. This was error.

Exclusion of a Defense Witness

While a trial court may exclude a witness as a sanction for a discovery violation pursuant to Florida Rule of Criminal Procedure 3.220(n), the court must first conduct a Richardson hearing to determine if sanctions are necessary. However, the "trial court's discretion can be properly exercised only after an adequate inquiry is made into three areas: (1) whether the discovery violation was willful or inadvertent; (2) whether it was trivial or substantial; and (3) whether it had a prejudicial effect on the opposing party's trial preparation." McDuffie v. State , 970 So.2d 312, 321 (Fla. 2007) (citing Richardson , 246 So.2d at 775 ); see also McBride v. State , 913 So.2d 696, 698-99 (Fla. 1st DCA 2005). "Prejudice in this context means procedural prejudice materially affecting the opposing parties' preparation for trial." State v. Rolack , 104 So.3d 1286, 1288 (Fla. 5th DCA 2013) (citing McDuffie , 970 So.2d at 321 ; State v. Farley , 788 So.2d 338, 339 n.2 (Fla. 5th DCA 2001) ).

Importantly, a defendant has a constitutional due process right to call witnesses. Dawson v. State , 20 So.3d 1016, 1022 (Fla. 4th DCA 2009). Therefore, before excluding a defense witness, the trial court must also "consider a fourth factor and explore whether any other reasonable alternatives can be employed to overcome ... possible prejudice, including the declaration of a mistrial." Id. (citation and internal marks omitted).

The trial court erred in excluding the witness in this case for two reasons. First, based on the record before us, the State did not suffer any procedural prejudice.

The State essentially argues for a per se finding of prejudice any time it would be required to call a witness out of its preferred order. We decline the invitation.

Second, exclusion of the witness was error because, even if the State did suffer substantial procedural prejudice, the trial court did not consider sanctions less severe than excluding relevant evidence. See id. at 1020-21.

Harmless Error Analysis

Finally, we cannot conclude that the error was harmless. "[T]he harmless error test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test." McDuffie , 970 So.2d at 328 (citation and internal marks omitted). Rather, before error can be deemed harmless, we must determine that there is no reasonable possibility that the error contributed to the verdict. Id.

The excluded testimony would have supported Appellant's defense at trial and would have contradicted the testimony of the victims. While the State points to a long list of evidence it asserts supports the convictions, the harmless error test does not allow us to resolve conflicts in the evidence by substituting ourselves for the trier of fact. See State v. DiGuilio , 491 So.2d 1129, 1139 (Fla. 1986). Given the nature of the excluded testimony, we cannot say that the error is harmless beyond a reasonable doubt.

REVERSED and REMANDED for further proceedings.

EVANDER, C.J., EISNAUGLE and HARRIS, JJ., concur.

      Richardson v. State , 246 So.2d 771 (Fla. 1971).


author: Ray, J.

text:
    J.B., Father of M.L.B., Minor Child, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    No. 1D19-109
    District Court of Appeal of Florida, First District.
    April 11, 2019
    Jason A. Cobb, DeFuniak Springs, for Petitioner.
    Sarah J. Rumph of Children's Legal Services, Tallahassee, for Respondent.
   Ray, J.

The father of M.L.B., a minor child, filed a petition for writ of certiorari in this Court seeking review of a post-disposition dependency order that placed the minor child in the sole custody of the child's mother, modified the father's visitation, and terminated protective services supervision. Of the issues presented, we find merit in the father's argument that he was denied due process when the trial court terminated protective services supervision at a hearing for which the father was not given notice that the matter would be considered. We reject the father's other arguments without further comment.

Florida Rule of Juvenile Procedure 8.345(b) provides that any party requesting termination of agency supervision must do so by written motion or in a written report to the court. No such request was filed in this case. Instead, the termination-of-services issue was first raised by the agency in an ore tenus motion at a hearing on custody and visitation. The court granted the requested relief, over the father's objection.

Due process in dependency proceedings requires "fair notice and a real opportunity to be heard." Dep't of Children & Families v. T.S. , 154 So.3d 1223, 1226 (Fla. 4th DCA 2015). Because neither was provided in this case, we grant certiorari relief and quash the portion of the order that terminates the agency's protective services supervision. See R.H. v. Dep't of Children & Families , 948 So.2d 898, 899 (Fla. 5th DCA 2007) (noting that it was error and a violation of a parent's due process rights to terminate protective supervision without prior notice that the issue would be decided); A.W.P. v. Dep't of Children & Family Servs. , 10 So.3d 134, 135-36 (Fla. 2d DCA 2009) (issuing a writ of certiorari in a dependency proceeding after finding the trial court violated a parent's due process rights by failing to provide "notice and a real opportunity to be heard").

DENIED in part and GRANTED in part.

Wetherell and Winsor, JJ., concur.


author: Per Curiam.

text:
    Kenyanna Racquel CHEEKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2994
    District Court of Appeal of Florida, First District.
    April 9, 2019
    Andy Thomas, Public Defender, and Maria Ines Suber, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Kenyanna Racquel Cheeks seeks relief from her judgment and sentence for sale of cocaine and solicitation for prostitution. Ms. Cheeks argues that the evidence was insufficient to overcome her defense of entrapment, the trial court erroneously overruled an objection to the admission of a jail call, and the trial court improperly imposed a discretionary fine pursuant to section 775.083, Florida Statutes, and a surcharge pursuant to section 938.04, Florida Statutes. We reject the first two arguments without comment. However, we agree with the State's concession that the trial court erred when it included the discretionary fine and surcharge in the written judgment and sentence because neither was orally imposed at sentencing. Lamoreaux v. State , 88 So.3d 379, 381 (Fla. 1st DCA 2012). Accordingly, we strike the $ 5,000 fine and $ 250 surcharge and remand for entry of a corrected judgment and sentence consistent with this opinion. Id. ; see also Calhoun v. State , 259 So.3d 288, 290 (Fla. 1st DCA 2018).

AFFIRMED in part, REVERSED in part, and REMANDED with directions.

Ray, Kelsey, and Jay, JJ., concur.


text:
    Kurt FALK, Appellant, v. HARRIS CORPORATION and Liberty Insurance Corporation, Appellees.
    No. 1D18-2176
    District Court of Appeal of Florida, First District.
    April 11, 2019
    Brigitta Hawkins of Bogin, Munns & Munns, P.A., Titusville, and Bill McCabe of William J. McCabe, Longwood, for Appellant.
    James M. Hess of Langston Hess & Moyles, P.A., Maitland, for Appellees.
   Per Curiam.

Kurt Falk, a worker's compensation claimant, appeals an order denying permanent total disability benefits and impairment benefits. The Judge of Compensation Claims (JCC) based the denial on the opinion of an expert medical advisor (EMA) who deferred to another physician on the primary issues in disagreement. Although section 440.13(9)(c), Florida Statutes (2011), affords an EMA's opinion a presumption of correctness, here the EMA did not offer an opinion but merely deferred to the opinion of another. We therefore conclude that the JCC should have granted Falk's motion to strike the EMA and appoint another. Accordingly, we reverse the order on appeal.

After three neurologists expressed separate opinions about Falk's head injury and apparent seizure disorder, the JCC appointed Dr. Theofilos, a neurosurgeon, as the EMA to resolve the conflict. Although none of the disagreeing neurologists had addressed Falk's other, less significant, injuries, Dr. Theofilos provided a medical opinion only as to those less significant injuries to Falk's spine. Dr. Theofilos indicated that his diagnosis included post-concussive syndrome, but he expressly deferred to one of the three disagreeing neurologists-Dr. Tatum-concerning all other aspects of the head injury. The JCC ultimately accepted Dr. Theofilos's decision to defer to Dr. Tatum as an "indirect," but nevertheless appropriate, response to the disagreement about the head injury. The JCC then applied the presumption of correctness to Dr. Theofilos's decision to defer to the opinions of Dr. Tatum, finding no clear and convincing evidence to do otherwise.

Section 440.13(9)(c) mandates the appointment of an EMA when a disagreement exists between the opinions of two healthcare providers. See, e.g., Amos v. Gartner, Inc., 17 So.3d 829, 831 (Fla. 1st DCA 2009). The advisor's opinion "is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the [JCC]." § 440.13(9)(c), Fla. Stat. (2011). This court has described the expert medical advisor's opinion as having "nearly conclusive effect." Amos , 17 So.3d at 831-32 (citing Pierre v. Handi Van, Inc. , 717 So.2d 1115, 1117 (Fla. 1st DCA 1998) ). But here, the EMA offered no independent opinion regarding the head injuries or any view that Dr. Tatum's opinion was correct. He simply deferred to Dr. Tatum. A blanket deference is not an EMA opinion for purposes of section 440.13(9)(c). Because Dr. Theofilos declined to express an independent opinion regarding the medical issues in conflict, the JCC should have stricken him as the EMA and appointed another. For all of these reasons, we reverse the order below and remand for the appointment of an alternate EMA and for further consideration of Falk's claims.

REVERSED and REMANDED .

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


text:
    Nicole FRISARD, Appellant, v. Bruce Leon BROWN, Appellee.
    No. 1D18-2481
    District Court of Appeal of Florida, First District.
    April 15, 2019
    Michael R. Yokan, Jacksonville, for Appellant.
    Garry W. Crews of The Law Offices of Ronald E. Sholes, P.A., Jacksonville, for Appellee.
   Per Curiam.

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

Roberts, Ray, and Jay, JJ., concur.


author: PER CURIAM

text:
    IN RE: Sangbahn Y. SCERE
    NO. 2019-B-0082
    Supreme Court of Louisiana.
    April 15, 2019
    ATTORNEY DISCIPLINARY PROCEEDINGS
   PER CURIAM

Respondent was arrested and charged with possession of marijuana, providing a false identity to an arresting officer, and multiple DWIs. Following the filing of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Sangbahn Y. Scere, Louisiana Bar Roll number 31958, be suspended from the practice of law for a period of two years.

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


text:
    Judith RABITO v. MCCLAIN INVESTMENTS, LLC, Sylvia McClain, Douglas Cook Enterprises, ABC Subcontractor, John Doe and XYZ Insurance Company
    No. 2019-C-0314
    Supreme Court of Louisiana.
    April 15, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS
    Writ denied.
    Crichton, J., would grant the writ and reinstate the judgment of the trial court.


text:
    IN RE: COOPERATIVE ENDEAVOR AGREEMENT BETWEEN 42ND JUDICIAL DISTRICT DISTRICT ATTORNEY'S OFFICE AND 42ND JUDICIAL DISTRICT PUBLIC DEFENDER'S OFFICE
    No. 2018-C-1644 No. 2018-C-1654
    Supreme Court of Louisiana.
    April 15, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND CIRCUIT, PARISH OF DESOTO
   PER CURIAM

In these consolidated applications, the District Attorney's Office for the 42nd Judicial District and the Public Defender's Office for the 42nd Judicial District (collectively referred to hereinafter as "relators") seek review of a judgment of the court of appeal affirming a judgment of the district court which declared a cooperative endeavor agreement between relators to be unconstitutional.

Pretermitting the merits, we find the district court erred in rendering a judgment in this matter because there was no justiciable controversy before the court.

We have defined a justiciable controversy as "an existing actual and substantial dispute, as distinguished from one that is merely hypothetical or abstract, and a dispute which involves the legal relations of the parties who have real adverse interests, and upon which the judgment of the court may effectively operate through a decree of conclusive character." Abbott v. Parker , 259 La. 279, 249 So.2d 908, 918-19 (1971). A justiciable controversy must "be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." St.Charles Parish School Board. v. GAF Corp. , 512 So.2d 1165, 1171 (La. 1987) (on rehearing). In order to avoid deciding abstract, hypothetical or moot questions, courts require that cases submitted for adjudication be justiciable, ripe for decision, and not brought prematurely. Id.

In the instant matter, relators did not file any action for declaratory relief to determine the validity or constitutionality of the agreement. There was no criminal proceeding before the court and no criminal defendant raised any Sixth Amendment issues arising from the agreement. Rather, the district court, acting sua sponte , ordered the parties into court, created a proceeding on the docket, and issued an order that the clerk create a record. In the absence of any actual or substantial dispute between real parties, we find there was no justiciable controversy presented to the court.

Moreover, our well-settled jurisprudence, dating back over a century, makes it clear that a district court lacks standing to invoke constitutional concerns on its own initiative. See State ex rel. Hall v. Judge of the Tenth Judicial District , 33 La. Ann. 1222, 1881 WL 8805, at *1 (1881). As we explained in Greater New Orleans Expressway Comm'n v. Olivier , 2004-2147 (La. 1/19/05), 892 So.2d 570, 575-76, "it was better left to criminal defendants actually charged with violating a statute, and not to judges in a criminal cases, to raise the issue of a statute's constitutionality."

Accordingly, without expressing any opinion on the merits, we find that the district court erred in passing on the constitutionality and validity of relators' agreement in the absence of a justiciable controversy. Therefore, we must vacate and set aside the judgments of the lower courts in their entirety.

DECREE

For the reasons assigned, the writs are granted. The judgment of the court of appeal affirming the judgment of the district court is vacated and set aside.


author: PER CURIAM:

text:
    STATE of Louisiana v. Brittany TYSON
    No. 2018-KP-1475
    Supreme Court of Louisiana.
    April 22, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-SIXTH JUDICIAL DISTRICT COURT, PARISH OF WEBSTER
   PER CURIAM:

Granted. The district court's ruling dismissing petitioner's actual innocence and ineffective assistance of counsel claims is reversed, and the claims are remanded for consideration after an evidentiary hearing. See La.C.Cr.P. art. 930.8(A)(1) ; see also State v. Pierre , 13-0873, p. 4 (La. 10/15/13), 125 So.3d 403, 409 (new evidence of actual innocence must be so compelling that no reasonable juror could have voted to convict with knowledge thereof); State v. Conway , 01-2808, p. 1 (La. 4/12/02), 816 So.2d 290, 291 (assuming post-conviction claims of actual innocence not based on DNA evidence are cognizable, they must be supported by new, material, noncumulative and conclusive evidence which meets an extraordinarily high standard, and which undermines the prosecution's entire case).

CLARK, J., would deny.

CRICHTON, J., would deny and assigns reasons.

I would deny the defendant's writ application. Following inculpatory statements to law enforcement officers coupled with a demonstration of how she shook her infant son (to death), Relator Brittany Tyson was charged with First Degree Murder. She pled guilty to a reduced charge of manslaughter; in doing so, she waived all non-jurisdictional defects. See State v. McKinney , 406 So.2d 160 (La. 1981). She did not seek direct review and later filed an untimely application for post-conviction relief which alleges non-DNA claims of actual innocence and ineffective assistance of counsel. I would deny both on untimeliness grounds and alternatively on the merits under the rationale set forth in State v. Pierre , 13-0873 (La. 10/15/13), 125 So.3d 403 and State v. Conway , 01-2808 (La. 4/12/02), 816 So.2d 290.


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

text:
    STATE of Louisiana v. Jeffery Lynn JONES
    No. 2018-KO-1828
    Supreme Court of Louisiana.
    April 15, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF RAPIDES
    Writ denied.
   Hughes, J., would grant the writ.

The lower courts have allowed the testimony of a police officer, that he "believed what D.C. said during the forensic interview." This was error and undermines confidence in the verdict.


text:
    Samuel BARKER v. Judge Karen HERMAN, et al.
    No. 2018-CC-1725
    Supreme Court of Louisiana.
    April 22, 2019
   PER CURIAM:

Writ granted. The "Civil District Court has jurisdiction over civil issues only, and the Criminal District Court has criminal jurisdiction only." Cannizzaro ex rel. State v. Am. Bankers Ins. Co. , 12-1455, pp. 3-4 (La. App. 4 Cir. 7/10/13), 120 So.3d 853, 856, writ denied , 13-1929 (La. 2/21/14), 133 So.3d 680. In this case, the Civil District Court has no jurisdiction to review the acts of the Criminal District Court. Thus, we reverse the lower courts and grant defendants' exception of lack of subject matter jurisdiction.


text:
    STATE of Louisiana v. Grover CANNON
    No. 2019-KD-590
    Supreme Court of Louisiana.
    April 18, 2019
    ON SUPERVISORY WRIT TO THE FIRST JUDICIAL DISTRICT COURT FOR THE PARISH OF CADDO
   PER CURIAM

Stay lifted. Writ granted. Defendant has shown that, under the system employed in East Baton Rouge Parish, persons born after June 2, 1993, otherwise qualified to serve on the jury, were never given an opportunity to serve, because their names were excluded from the general venire as a result of a significant error in the process by which the general venire was composed. That exclusion resulted in a general venire that was improperly constituted under Code of Criminal Procedure articles 401 etseq. and Louisiana Constitutional Articles I, § 3 ("No person shall be denied the equal protection of the laws.") and V, § 33 ("A citizen of the state who has reached the age of majority is eligible to serve as a juror within the parish in which he is domiciled."). Accordingly, we grant defendant's application to reverse the rulings of the courts below, grant defendant's motion to quash the general venire, and remand to the district court for further proceedings so that a petit jury can be chosen from a general venire that is selected according to law. See State v. Jacko , 444 So.2d 1185 (La. 1984) ; State v. Procell , 332 So.2d 814 (La. 1976).

Guidry, J., concurs in the result and assigns reasons.

Given the unique posture and circumstances of this case, I agree that commencing jury selection from a newly-constituted venire is prudent, both out of an abundance of caution and to prevent a possible waste of judicial resources. Notwithstanding, this court, in my view, has not been directed to any constitutional provision or jurisprudence, whether federal or state, that would mandate quashing the general jury venire because of a software glitch that unintentionally excluded potential jurors born after June 2, 1993, and I withhold my judgment on that issue.


text:
    IN RE: Richard Joseph DEAGUERO
    NO. 2019-B-0187
    Supreme Court of Louisiana.
    April 22, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

Pursuant to Supreme Court Rule XIX, § 21, the Office of Disciplinary Counsel ("ODC") has filed a petition seeking the imposition of reciprocal discipline against respondent, Richard Joseph Deaguero, an attorney licensed to practice law in Louisiana and Texas, based upon discipline imposed in three separate proceedings in Texas UNDERLYING FACTS AND PROCEDURAL HISTORY

The first Texas proceeding stemmed from respondent's criminal representation of Brandy Lynn Pierre in 2015. Respondent neglected Ms. Pierre's legal matter and failed to refund the unearned fee upon termination of the representation. For this misconduct, respondent was suspended from the practice of law for eighteen months, beginning April 16, 2018 and ending October 15, 2019. The suspension was fully probated, subject to several conditions, including paying $ 1,500 in restitution to Ms. Pierre on or before June 1, 2018. Commission for Lawyer Discipline v. Deaguero , No. 201701838 on the docket of the District 6 Grievance Committee, Evidentiary Panel 6-2, of the State Bar of Texas.

In the second Texas proceeding, respondent offered to pay money to a criminal client whenever the client referred other clients or prospective clients to him. For this misconduct, respondent was suspended from the practice of law for three years, beginning November 8, 2018 and ending November 7, 2021. The suspension was fully probated, subject to several conditions. Commission for Lawyer Discipline v. Deaguero , No. 201704963 on the docket of the District 6 Grievance Committee, Evidentiary Panel 3, of the State Bar of Texas.

The third Texas proceeding stemmed from respondent's representation of Jean Martinez in a lawsuit against her employer. On April 5, 2017, Ms. Martinez' husband, Joe Martinez, paid respondent $ 1,500 to represent his wife. Respondent failed to keep the fee in a separate trust account and failed to withdraw from the representation when he was fired. For this misconduct, respondent was suspended from the practice of law for two years, beginning December 1, 2018 and ending November 30, 2020. All but three months of the suspension was probated, subject to several conditions, including paying $ 1,500 in restitution to Mr. Martinez on or before February 28, 2019. If respondent complied with all of the conditions, his active period of suspension was ordered to begin on December 1, 2018 and end on February 28, 2019, with the probated portion beginning on March 1, 2019 and ending on November 30, 2020. Commission for Lawyer Discipline v. Deaguero , No. 201703997 on the docket of the District 6 Grievance Committee, Evidentiary Panel 6-4, of the State Bar of Texas.

After receiving notice of the Texas orders of discipline, the ODC filed a petition for reciprocal discipline in Louisiana, pursuant to Supreme Court Rule XIX, § 21. Copies of the three judgments issued by the State Bar of Texas were attached to the petition. On February 6, 2019, this court rendered an order giving respondent thirty days to demonstrate why the imposition of identical discipline in this state would be unwarranted. Respondent failed to file any response in this court.

DISCUSSION

The standard for imposition of discipline on a reciprocal basis is set forth in Supreme Court Rule XIX, § 21(D). That rule provides:

Discipline to be Imposed. Upon the expiration of thirty days from service of the notice pursuant to the provisions of paragraph B, this court shall impose the identical discipline ... unless disciplinary counsel or the lawyer demonstrates, or this court finds that it clearly appears upon the face of the record from which the discipline is predicated, that:
(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) Based on the record created by the jurisdiction that imposed the discipline, there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) The imposition of the same discipline by the court would result in grave injustice or be offensive to the public policy of the jurisdiction; or
(4) The misconduct established warrants substantially different discipline in this state; ...
If this court determines that any of those elements exists, this court shall enter such other order as it deems appropriate. The burden is on the party seeking different discipline in this jurisdiction to demonstrate that the imposition of the same discipline is not appropriate.

In the instant case, respondent has made no showing of infirmities in the Texas proceedings, nor do we discern any from our review of the record. Furthermore, we find there is no reason to deviate from the sanctions imposed in Texas as only under extraordinary circumstances should there be a significant variance from the sanction imposed by the other jurisdiction. In re: Aulston , 05-1546 (La. 1/13/06), 918 So.2d 461. See also In re Zdravkovich , 831 A.2d 964, 968-69 (D.C. 2003) ("there is merit in according deference, for its own sake, to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory authority").

Under these circumstances, it is appropriate to defer to the Texas judgments imposing discipline upon respondent. Accordingly, we will impose reciprocal discipline in the form of (1) a fully deferred eighteen-month suspension from the practice of law, subject to the terms of probation set forth in the Texas judgment; (2) a fully deferred three-year suspension from the practice of law, subject to the terms of probation set forth in the Texas judgment; and (3) a two-year suspension from the practice of law, with all but three month deferred, subject to the terms of probation set forth in the Texas judgment.

DECREE

Considering the Petition for Reciprocal Discipline filed by the Office of Disciplinary Counsel and the record filed herein, it is ordered that respondent, Richard Joseph Deaguero, Louisiana Bar Roll number 17939, be suspended from the practice of law for a period of eighteen months, beginning April 16, 2018 and ending October 15, 2019. This suspension shall be deferred in its entirety, subject to the terms of probation set forth in Commission for Lawyer Discipline v. Deaguero , No. 201701838 on the docket of the District 6 Grievance Committee, Evidentiary Panel 6-2, of the State Bar of Texas.

It is further ordered that respondent be suspended from the practice of law for a period of three years, beginning November 8, 2018 and ending November 7, 2021. This suspension shall be deferred in its entirety, subject to the terms of probation set forth in Commission for Lawyer Discipline v. Deaguero , No. 201704963 on the docket of the District 6 Grievance Committee, Evidentiary Panel 3, of the State Bar of Texas.

It is further ordered that respondent be suspended from the practice of law for a period of two years, beginning December 1, 2018 and ending November 30, 2020. All but three months of this suspension shall be deferred, subject to the terms of probation set forth in C ommission for Lawyer Discipline v. Deaguero , No. 201703997 on the docket of the District 6 Grievance Committee, Evidentiary Panel 6-4, of the State Bar of Texas.

It is further ordered that any violation of the terms of probation may result in the deferred portion of these suspensions becoming executory, or the imposition of different discipline, as appropriate.


text:
    STATE of Louisiana v. David KERSEY
    No. 2018-KH-0204
    Supreme Court of Louisiana.
    April 22, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF LIVINGSTON
   PER CURIAM:

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

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


text:
    STATE of Louisiana v. Devin PERKINS
    No. 2018-KH-0299
    Supreme Court of Louisiana.
    April 22, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Applicant fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, applicant fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

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


text:
    IN RE: Rebecca Lynn VISHNEFSKI
    NO. 2019-B-0137
    Supreme Court of Louisiana.
    April 22, 2019
    ATTORNEY DISCIPLINARY PROCEEDINGS
   PER CURIAM

Respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rules 1.3 and 8.4(b) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Rebecca Lynn Vishnefski, Louisiana Bar Roll number 26965, be suspended from the practice of law for a period of one year and one day. This suspension shall be deferred in its entirety, subject to respondent's successful completion of a two-year period of unsupervised probation. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

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

GENOVESE, J., would reject the joint petition to accept consent discipline.


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

text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-534568
    NO. 2019-BA-0291
    Supreme Court of Louisiana.
    April 22, 2019
    ORDER
   Treating petitioner's "Request for Written Reasons" as a petition for reconsideration of this court's February 22, 2019 order,

IT IS ORDERED that reconsideration be and hereby is denied.

JOHNSON, C.J., would grant.

Hughes, J., would grant.


text:
    STATE of Louisiana v. Marcus RICHARDSON
    No. 2018-KH-0353
    Supreme Court of Louisiana.
    April 22, 2019
    ON SUPERVISORY WRITS TO THE EIGHTEENTH JUDICIAL DISTRICT COURT, PARISH OF WEST BATON ROUGE
   PER CURIAM:

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

Applicant has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Applicant's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final.

Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant the writ.


text:
    STATE of Louisiana IN the INTEREST OF A.N.
    NO. 2018-CK-1571
    Supreme Court of Louisiana.
    March 25, 2019
    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. Demond D. SANDIFER, Sam Newman, Tyron Harden
    NO. 2018-KO-1316
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.


author: GUIDRY, J., would grant.

text:
    STATE of Louisiana v. John SMITH
    NO. 2019-KK-0437
    Supreme Court of Louisiana.
    March 20, 2019
    Stay denied. Writ denied.
   GUIDRY, J., would grant.

CLARK, J., would grant.

CRICHTON, J., would grant.


author: CRICHTON, J., recused.

text:
    STATE of Louisiana v. Stephen Michael MCGILL
    NO. 2018-KO-1552
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.
   CRICHTON, J., recused.


text:
    STATE of Louisiana v. Michael Anthony LITTLE, Jr.
    NO. 2018-KO-1582
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.


author: HUGHES, J., would grant.

text:
    STATE of Louisiana v. Germylun K. HAWKINS
    NO. 2018-KO-1590
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.
   HUGHES, J., would grant.


author: HUGHES, J., would grant

text:
    The MIDDLEBERG RIDDLE GROUP v. 201 ST. CHARLES PLACE, LLC
    NO. 2019-C-0206
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.
   HUGHES, J., would grant


text:
    STATE of Louisiana v. Eric PETSCH
    NO. 2018-KH-0654
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.


text:
    STATE of Louisiana v. Earton Lynn SMITH
    NO. 2018-KH-0697
    Supreme Court of Louisiana.
    March 25, 2019
    Denied. Applicant has previously exhausted his right to state collateral review. See State ex rel. Smith v. State, 15-1346 (La. 11/7/16), 203 So.3d 1042.


text:
    STATE of Louisiana v. Leonard COLLINS
    NO. 2018-KH-0800
    Supreme Court of Louisiana.
    March 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. Collins v. State, 15-1876 (La. 12/16/16), 207 So.3d 1047.


text:
    STATE of Louisiana v. Germaine GUMMS
    NO. 2018-K-0999
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.


text:
    STATE of Louisiana v. Mark Edward COLBY
    NO. 2018-K-1256
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.


text:
    STATE of Louisiana v. Jonathan Daniel JACKSON
    NO. 2018-KO-1558
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.


text:
    STATE of Louisiana v. Thairie Xavier ROBINSON
    NO. 2018-KO-1708
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.


text:
    STATE of Louisiana v. Janero L. MCBRIDE
    No. 2018-KO-0580
    Supreme Court of Louisiana.
    March 25, 2019
    Not considered. See La.S.Ct.R. IX, § 6.


text:
    STATE of Louisiana v. Steve E. BODINE
    NO. 2018-KO-1756
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.


text:
    STATE of Louisiana v. Kelvin Demarcus BROWN, II
    NO. 2018-KO-1797
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.


text:
    STATE of Louisiana v. Donald BOSWELL
    NO. 2018-KH-0350
    Supreme Court of Louisiana.
    March 25, 2019
    Denied. Applicant has previously exhausted his right to state collateral review. See State ex rel. Boswell v. State, 16-0855 (La. 5/19/17), 219 So.3d 1077.


text:
    STATE of Louisiana v. William BROWN, Jr.
    NO. 2018-KH-0453
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.


text:
    STATE of Louisiana v. Cameron LEWIS
    NO. 2018-KO-1811
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.


text:
    Edward SIMMONS v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2018-CI-0488
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Joseph Michael KURZ
    NO. 2018-K-0529
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.


author: WEIMER, J., would grant.

text:
    STATE of Louisiana v. Tyrek MARTIN
    NO. 2019-KK-0008
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.
   WEIMER, J., would grant.

HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    STATE of Louisiana v. Cevero GARCIA
    NO. 2018-KH-0577
    Supreme Court of Louisiana.
    March 25, 2019
    Denied. Applicant has previously exhausted his right to state collateral review. See State ex rel. Garcia v. State , 16-1137 (La. 11/7/16), 204 So.3d 612.


text:
    STATE of Louisiana v. Brian K. BANKS
    NO. 2018-KO-0586
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.


text:
    STATE of Louisiana v. Demond D. SANDIFER, Sam Newman, Tyron Harden
    NO. 2018-K-1261
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.


text:
    STATE of Louisiana v. Demond D. SANDIFER, Sam Newman, Tyron Harden
    NO. 2018-KO-1310
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.


text:
    STATE of Louisiana v. Tracy KENT
    NO. 2018-KH-1491
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.


author: HUGHES, J., recused.

text:
    STATE of Louisiana v. Terri COX
    NO. 2018-KP-1526
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.
   HUGHES, J., recused.


text:
    STATE of Louisiana v. Leeland HAWKINS
    NO. 2019-KK-0201
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.


text:
    Greg A. DEICHMANN, Sr. v. Mark A. MOELLER
    NO. 2019-C-0162
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.


author: GUIDRY, J., recused.

text:
    STATE of Louisiana v. Jakorey WILLIAMS
    NO. 2019-KK-0395
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.
   GUIDRY, J., recused.


text:
    STATE of Louisiana v. Anthony FARRIER
    NO. 2018-KH-1944
    Supreme Court of Louisiana.
    March 25, 2019
    Reconsideration denied.


text:
    STATE of Louisiana IN the INTEREST OF K.D.L., et al.
    No. 2018-CJ-1933
    Supreme Court of Louisiana.
    March 25, 2019
    Not considered. See Louisiana Supreme Court Rule IX, § 6.


text:
    STATE of Louisiana v. Danny WEST
    NO. 2018-KH-0710
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.


author: WEIMER, J., recused.

text:
    STATE of Louisiana v. Kassim M. NAGI
    NO. 2018-K-0739
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.
   WEIMER, J., recused.


text:
    Kerri A. LATOUR, et al. v. ALLSTATE INS. CO., et al.
    NO. 2019-CC-0168
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    Angela Menzer Kilian RASBERRY v. Casey KILIAN and ABC Insurance Company
    NO. 2019-C-0182
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.


text:
    Jo Ann W. VILLENEUVE, a/k/a Jo Ann Villeneuve, a/k/a Joanna Villeneuve v. Katie ODOM
    NO. 2019-CC-0178
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.


text:
    Tena DANOS, et al. v. LAMORAK INSURANCE COMPANY, et al.
    NO. 2019-CC-0180
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.


text:
    STATE of Louisiana v. Joshua GATLIN
    NO. 2019-KK-0190
    Supreme Court of Louisiana.
    March 25, 2019
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Gage MICHEL
    NO. 2019-KK-0517
    Supreme Court of Louisiana.
    March 30, 2019
    Stay denied; writ denied.
    GUIDRY, J., would deny stay and grant the writ.


text:
    IN RE: Daniel E. BECNEL, III
    NO. 2018-B-0848
    Supreme Court of Louisiana.
    March 26, 2019
    Rehearing denied.
   WEIMER, J., would grant.

HUGHES, J., would grant.


text:
    Tasha GRIGGS, Individually and on Behalf of Her Minor Son, Austin Griggs v. BOUNCE N' AROUND INFLATABLES, L.L.C. and Jack Alan Leblanc
    NO. 2018-C-0726
    Supreme Court of Louisiana.
    March 26, 2019
    Rehearing denied.
    JOHNSON, C.J., would grant for the reasons previously assigned.
   HUGHES, J., would grant.


text:
    Claude Mitchell KERRIGAN O/B/O Blake Mitchell KERRIGAN v. Jason E. HOLLOWAY
    NO. 2019-CJ-0428
    Supreme Court of Louisiana.
    March 26, 2019
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana IN the INTEREST OF K.L.
    NO. 2019-CK-0549
    Supreme Court of Louisiana.
    April 7, 2019
    Denied.


text:
    STATE of Louisiana v. Grover D. CANNON
    NO. 2019-KK-0531
    Supreme Court of Louisiana.
    April 6, 2019
    Granted in part, denied in part. This matter is remanded and the district court is ordered to expeditiously conduct an evidentiary hearing on the age-based claims in defendant's motion to quash.
    In all other respects, defendant's writ is denied. Defendant's request for a stay of the proceedings is also denied.


text:
    STATE of Louisiana v. Grover D. CANNON
    NO. 2019-KK-0518
    Supreme Court of Louisiana.
    March 30, 2019
    Stay denied; writ denied.


text:
    STATE of Louisiana v. Roy R. DIXON
    NO. 2018-KH-1909
    Supreme Court of Louisiana.
    April 8, 2019
    Reconsideration granted. Writ denied.


text:
    STATE of Louisiana v. Jackie Lynn PRUITT aka Jackie L. Pruitt
    NO. 2018-K-1399
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.


text:
    STATE of Louisiana v. Dewayne SYLVESTER
    NO. 2018-KO-1742
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.
   HUGHES, J., would grant.


text:
    Lisa TAYLOR v. CHIPOTLE MEXICAN GRILL, INC., Lauricella Land Company, LLC, Elmwood Village Center, LLC, Lauricella & Associates, Inc., Elmwood Retail Properties, LLC and Travelers Insurance Company
    NO. 2019-C-0154
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.
   JOHNSON, C.J., would grant.

GUIDRY, J., recused.

GENOVESE, J., would grant.


text:
    STATE of Louisiana v. Roderick Jermaine CAWTHORNE, Jr.
    NO. 2018-KO-1899
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.


text:
    STATE of Louisiana, BY AND THROUGH Its Attorney General James CALDWELL v. FOURNIER INDUSTRIE ET SANTE and Laboratories Fournier, S.A., Abbott Laboratories, AbbVie, Inc.
    NO. 2018-C-2065
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.
   HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    Thomas Pike BARKERDING v. Scott WHITTAKER, William Bishop and the Law Firm of Stone Pigman Walther Wittman, LLC, et al.
    NO. 2019-C-0166
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.


text:
    STATE of Louisiana v. Henry F. WEBER
    NO. 2019-KH-0177
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.


author: JOHNSON, C.J., recused.

text:
    INTERDICTION OF Irma D. HUNTER
    NO. 2019-C-0208
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.
   JOHNSON, C.J., recused.


text:
    STATE of Louisiana v. Brandon JONES and Terrance Coe
    NO. 2019-KK-0218
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.


text:
    Virginia A. GREEN v. LOUISIANA WORKFORCE COMMISSION ÄND MINDEN MEDICAL CENTER
    NO. 2019-C-0286
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.


author: GENOVESE, J., recused.

text:
    IN RE: HARRIER TRUST
    NO. 2019-CC-0236
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.
   GENOVESE, J., recused.


author: GENOVESE, J., would grant.

text:
    Susan LAFAYE v. SES ENTERPRISES, LLC, et al.
    NO. 2019-CC-0258
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.
   GENOVESE, J., would grant.


text:
    Louisiana Board of Ethics in the MATTER OF Clarence SAVOIE, II
    Louisiana Board of Ethics in the Matter of C.J. Savoie Consulting Engineers, Inc.
    Louisiana Board of Ethics in the Matter C.J. Savoie Consulting Engineers, Inc.
    NO. 2019-C-0273
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.
   WEIMER, J., recused.


text:
    Darleen LEVY v. Jack E. TRUITT and The Truitt Law Firm, LLC
    NO. 2019-CC-0293
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.
   GUIDRY, J., would grant.

GENOVESE, J., would grant.


text:
    Murphy J. PAINTER v. STATE of Louisiana, THROUGH the OFFICE OF THE GOVERNOR, The Department of Revenue and Taxation, Alcohol Tobacco Control Commission, Cynthia Bridges, in Her Official Capacity as Secretary of the Department of Revenue and Taxation, The Office of State Inspector General, and, Stephen Street, in His Official Capacity as State Inspector General
    NO. 2019-CC-0283
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.
   HUGHES, J., would grant.


text:
    Darleen JACOBS v. Jack E. TRUITT, et al.
    NO. 2019-CC-0294
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.
   GUIDRY, J., would grant.

GENOVESE, J., would grant.


text:
    James WILLIAMS v. Paul BOLOTOVSKY, James River Insurance Company, and XYZ Insurance Company
    NO. 2019-CC-0213
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.
   HUGHES, J., would grant.


text:
    Edward MORGAN v. Darrel VANNOY, Warden Louisiana State Penitentiary
    NO. 2018-KH-0935
    Supreme Court of Louisiana.
    April 8, 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. Morgan v. State, 16-0471 (La.6/16/17), 221 So.3d 838.


text:
    STATE of Louisiana v. Lloyd CARR
    NO. 2018-KO-1815
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.
   HUGHES, J., would grant.

CRICHTON, J., recused.


text:
    GREEN ACRES LANDSCAPE & MAINTENANCE, LLC v. NOTTOWAY PLANTATION, INC.
    NO. 2019-C-0207
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO: 18-PDB-085
    NO. 2019-OB-0195
    Supreme Court of Louisiana.
    April 8, 2019
    Leave to appeal denied.


text:
    Linda BARCELONA v. Anthony BROWN
    NO. 2019-CC-0226
    Supreme Court of Louisiana.
    April 8, 2019
    Not considered. Not timely filed. See Louisiana Supreme Court Rule X, § 5.


text:
    STATE of Louisiana v. Andrew J. HUNTER, Jr.
    NO. 2018-KO-1583
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.


text:
    STATE of Louisiana v. Carlos LAMPLEY
    NO. 2018-KO-1965
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.


text:
    STATE of Louisiana v. Lance COWANS
    NO. 2018-K-1302
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.
   GUIDRY, J., would grant.

CLARK, J., would grant.


text:
    Sandra BONE v. OTIS ELEVATOR COMPANY, et al.
    NO. 2019-CC-0063
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.


text:
    STATE of Louisiana v. Charles R.J. LANE
    NO. 2019-KK-0280
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.
   HUGHES, J., would grant.


text:
    Jordan BRYANT v. State of Louisiana, DEPARTMENT OF HEALTH AND HOSPITALS, et al.
    NO. 2019-C-0264
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.


text:
    STATE of Louisiana v. Juan SALINAS
    NO. 2018-K-1301
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.
   GUIDRY, J., would grant.

CLARK, J., would grant.


text:
    Kristin PEARCE v. ROSS FORREST LAGARDE, Jones Lagarde, LLC, and ABC Insurance Company
    NO. 2019-CC-0281
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.


text:
    Melonie Daunie COMEAUX Wife of/and Michael Jerome Comeaux v. AMERICAN HOME SHIELD CORPORATION, et al.
    NO. 2019-CC-0256
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.


text:
    STATE of Louisiana v. Johnny Ray COLLINS
    NO. 2018-KH-0801
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.


text:
    STATE of Louisiana v. Brandon Nycole ROBINSON
    NO. 2018-KO-1951
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.
   WEIMER, J., recused.


text:
    Leon J. ARCENEAUX, et al. v. CITGO PETROLEUM CORPORATION, et al.
    NO. 2019-00228
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.


author: HUGHES, J., would grant in part.

text:
    STATE of Louisiana v. Ryan JACKSON
    NO. 2019-KK-0260
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.
   HUGHES, J., would grant in part.


text:
    BRETON SOUND OYSTER COMPANY, LLC v. STIEL INSURANCE CO. OF NEW ORLEANS INC., et al.
    NO. 2019-C-0251
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.


text:
    W.A. LUCKY, III v. Barbara Marie Carey CARR
    NO. 2019-C-0261
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.


text:
    Timothy SMITH v. Derrick KERNEY and Ean Holdings, LLC and Bernard Kinsey And Safeway Insurance Company of Louisiana
    NO. 2019-C-0268
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.


text:
    STATE of Louisiana v. Wayne TERRIO
    NO. 2019-KK-0491
    Supreme Court of Louisiana.
    April 10, 2019
    Stay denied. Writ denied.
   WEIMER, J., would grant.


text:
    In the MATTER OF the SUCCESSION OF Wayne Edmond BREEN
    NO. 2C19-OC-0292
    Supreme Court of Louisiana.
    April 8, 2019
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana IN the INTEREST OF A.A., A.A., A.W.
    No. 2018-CJ-2060
    Supreme Court of Louisiana.
    April 8, 2019
    Not considered. See Louisiana Supreme Court Rule IX, § 6.


author: CHUTZ, J.

text:
    Gregory ARRINGTON Husband of/and Clarnetta Arrington v. ST. TAMMANY PARISH HOSPITAL SERVICE DISTRICT NO. 1 d/b/a St. Tammany Parish Hospital and Currie Medical Specialties, Inc.
    2018 CA 0215
    Court of Appeal of Louisiana, First Circuit.
    DATE OF JUDGMENT: OCTOBER 31, 2018
    Shawn C. Reed, Sean E. Williams, Covington, Louisiana, Counsel for Plaintiffs-Appellants Gregory Arrington husband of/and Clarnetta Arrington
    Crystal E. Domreis, Bradley R. Belsome, John B. Stanton, New Orleans, Louisiana, Counsel for Defendant-Appellee St. Tammany Parish Hospital Service District No. 1 d/b/a St. Tammany Parish Hospital
    BEFORE: PETTIGREW, WELCH AND CHUTZ, JJ.
   CHUTZ, J.

Plaintiffs-appellants, Gregory Arrington and his wife, Clarnetta, appeal the trial court's actions of sustaining a dilatory exception raising the objection of prematurity and dismissing, without prejudice, their claims against St. Tammany Parish Hospital Service District No. 1 (STPH), based on the conclusion that the hospital's alleged negligent purchase, selection, and implementation of a medical device used postoperatively on Mr. Arrington fell within the purview of the Louisiana Medical Malpractice Act (LMMA), La. R.S. 40:1231.1 et seq., thus, requiring a decision of the medical review panel prior to the institution of their lawsuit against STPH. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

According to the allegations of the Arringtons' petition, Mr. Arrington was admitted to STPH on May 2, 2016 for lumbar surgery. Because he was at risk for deep vein thrombosis (DVT) due to his prior medical history, Mr. Arrington was postoperatively provided with an Alternating Leg Pressure (ALP) wrap medical device, which was manufactured by Currie Medical Specialties, Inc. (Currie).

The Arringtons averred that during his admission at STPH, wraps from the ALP wrap medical device were placed on his lower extremities bilaterally from his calves to his thighs. Based on information and belief, the Arringtons described the ALP wrap medical device as consisting of "bladders in sleeves that were secured around each leg and were attached to a compressor-type machine that pumped and suctioned air out of the bladders to mimic muscular activity and facilitate blood flow" in an effort to prevent DVT while Mr. Arrington was postoperatively bedridden. Also based on information and belief, the Arringtons claimed that on May 4, 2016, Mr. Arrington fell asleep with the ALP wrap medical device bladders around his legs and "awoke suddenly in excruciating pain in both of his legs due to over compressing by the ALP device." Mr. Arrington thereafter immediately attempted to extricate himself from "the crushing sensation," and while he was able to "get the right leg freed quickly... the left leg proved to be more difficult to remove." The Arringtons alleged that the difficulty of removal of the wrap bladder from the left leg "caused occlusions, vascular damage, [DVT,] and other disabling injuries to the left lower extremity."

After the Arringtons filed their petition for damages, STPH asserted a dilatory exception raising the objection of prematurity, contending that it was a qualified health care provider entitled to protection under the LMMA, including a decision by a medical review panel as a condition precedent to the institution of the Arringtons' lawsuit. Because no medical review panel decision had been rendered at the time the Arringtons filed their petition, STPH maintained it was entitled to dismissal of their claims against it. After a hearing, the trial court agreed and, on September 12, 2017, signed a judgment sustaining the exception of prematurity and dismissing, without prejudice, the Arringtons' claims against STPH. This appeal followed.

DISCUSSION

The dilatory exception of prematurity provided for in La. C.C.P. art. 926(1) questions whether the cause of action has matured to the point where it is ripe for judicial determination. Under the LMMA, a medical malpractice claim against a qualified health care provider is subject to dismissal on a timely exception of prematurity if the claim has not first been reviewed by a pre-suit medical review panel. See La. R.S. 40:1231.8.

When an exception of prematurity challenging the failure of the plaintiff to submit his claim to a medical review panel is raised, the defendant neither challenges nor attempts to defeat any of the elements of the plaintiff's cause of action, but instead asserts that the plaintiff has failed to take some preliminary step necessary to make the controversy ripe for judicial involvement. Dupuy v. NMC Operating Co., L.L.C., 2015-1754 (La. 3/15/16, 3), 187 So.3d 436, 438-39.

The burden of proving prematurity is on the moving party, in this case STPH, which must show that it is entitled to a medical review panel, because the allegations fall within the LMMA. See Dupuy, 187 So.3d 438-39. Where no evidence is presented at the trial of a dilatory exception of prematurity, the court must render its decision on the exception based upon the facts as alleged in the petition, and all allegations therein must be accepted as true; however, this latter principle applies only to properly pleaded material allegations of fact, as opposed to allegations deficient in material detail, conclusory factual allegations, or allegations of law. Bonilla v. Jefferson Par. Hosp. Serv. Dist. # 2 , 2016-0234 (La. App. 1st Cir. 12/28/16), 210 So.3d 540, 545, writ denied. 2017-0187 (La. 4/7/17), 215 So.3d 235 (citing Hamilton v. Baton Rouge Health Care, 2009-0849 (La. App. 1st Cir. 12/8/10), 52 So.3d 330, 333 ).

The LMMA and its limitations on tort liability for a qualified health care provider apply strictly to claims "arising from medical malpractice," and all other tort liability on the part of the qualified health care provider is governed by general tort law. Dupuy, 187 So.3d 439. Because the LMMA's limitations on the liability of health care providers are special legislation, in derogation of the rights of tort victims, the coverage of the act should be strictly construed. Billeaudeau v. Opelousas Gen. Hosp. Auth., 2016-0846 (La. 10/19/16), 218 So.3d 513, 520. The issue of whether a claim sounds in medical malpractice is a question of law conducted under a de novo standard of review. See Rivera v. Bolden's Transp. Serv., Inc., 2011-1669 (La. App. 1st Cir. 6/28/12), 97 So.3d 1096, 1100.

Preliminarily, we note that the Arringtons do not dispute in this appeal that STPH is a qualified health care provider. Acknowledging that some of their claims "would relate to medical malpractice and ... that those claims would be subject to procedures required by the LMMA if [they] decided to pursue them," the Arringtons assert that the trial court erred insofar as its dismissal of their claims against STPH for its negligent selection, purchase, and implementation of the ALP wrap medical device that they emphasize are "claims against STPH in [its] administrative capacity." They suggest that the trial court was at liberty to determine which of their claims fall outside of the parameters of the LMMA. See e.g., Blevins v. Hamilton Med. Ctr., Inc., 2007-127 (La. 6/29/07), 959 So.2d 440, 442 (where the Louisiana Supreme Court reinstated trial court's determination, severing the three of plaintiff's allegations that sounded in general negligence and sustaining an exception of prematurity that dismissed the six remaining allegations that sounded in medical malpractice). The Arringtons urge that the trial court erred by dismissing their claims that STPH negligently selected, purchased, and implemented the ALP wrap medical device as subject to the pre-suit medical review panel decision required under the LMAA.

According to La. R.S. 40:1231.1(A)(13) of the LMMA:

"Malpractice" means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient.

"Health care," in turn, is defined by the LMMA as "any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement." La. R.S. 40:1231.1 (A)(9).

Under the plain language of these definitions, we find that the selection, purchase, and implementation of the ALP wrap medical device constitute acts performed or furnished by STPH, a qualified health care provider, for, to and, on behalf of Mr. Arrington during his postoperative recovery to avoid DVT, a risk for which he was assessed by his doctor. Thus, the allegations that STPH negligently selected, purchased, and implemented the ALP wrap medical device constituted "[h]ealth care" as defined by the LMMA. Moreover, the Arringtons have averred that STPH either committed an unintentional tort or a breach of contract based on that health care or based on the professional services of selecting, purchasing, and implementing the ALP wrap medical device, which was rendered, or which should have been rendered, by STPH to Mr. Arrington so as to fall within the definition of "[m]alpractice" set forth in the LMMA. Therefore, under the plain language of the malpractice and health care definitions provided for in the LMMA, the Arringtons' claims that STPH's negligent selection, purchase, and implementation of the ALP wrap medical device are medical malpractice claims subject to a pre-suit medical malpractice decision.

In addition, the Louisiana Supreme Court has set forth six factors to assist a court in determining whether certain conduct by a qualified health care provider constitutes "malpractice" as defined under the LMMA. See Coleman v. Deno, 2001-1517 (La. 1/25/02), 813 So.2d 303, 315-16. These factors are:

(1) whether the particular wrong is "treatment related" or caused by a dereliction of professional skill;
(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached;
(3) whether the pertinent act or omission involved assessment of the patient's condition;
(4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform;
(5) whether the injury would have occurred if the patient had not sought treatment; and
(6) whether the tort alleged was intentional.

Id.

As explained by the Louisiana Supreme Court in Dupuy, a court analyzes the allegations of the petition under the Coleman factors to determine whether the allegations sound in medical malpractice. If the allegations sound in medical malpractice, the case must proceed in accordance with the protocol set forth in the LMMA. If, on the other hand, the allegations sound in general negligence, the case should proceed under general tort law. See Dupuy , 187 So.3d at 439.

Applying the Coleman factors to the allegations of fact set forth in the Arringtons' petition, we likewise conclude that any liability STPH has for its selection, purchase, and implementation of the ALP wrap medical device sounds in medical malpractice. We note that we do not consider the sixth Coleman factor because there is no allegation that STPH engaged in any intentional wrongdoing.

Under the first factor, i.e., whether the particular wrong is "treatment related" or caused by a dereliction of professional skill, the Arringtons contend that the wrong of which they complain does not require a review of Mr. Arrington's treatment since they are challenging STPH's administrative decision in selecting, purchasing, and implementing the medical device, which they characterize as ministerial services. Relying on Billeaudeau, 218 So.3d at 523, the Arringtons insist that the selection, purchase, and implementation of the medical device did not directly relate to any specific patient's particular treatment.

In Billeaudeau , the plaintiffs brought suit against a hospital for injuries arising from the medical malpractice of a doctor who was an independent contractor working in the hospital's emergency department. Along with the malpractice claims, the plaintiffs specifically alleged that the hospital was negligent in credentialing the doctor. In its application of the Coleman factors, the Billeaudeau court noted that whether a particular wrong should be considered inherently "treatment-related" is a factor that can be artfully argued either way, see Bonilla, 210 So.3d at 550 (citing on Billeaudeau, 218 So.3d at 523 ), but ultimately concluded that the decision to hire a physician in and of itself is administrative and does not directly relate to the treatment of any given patient or involve a dereliction of professional skill. Id. The act of credentialing a physician, which merely allows access to the hospital, does not thereafter dictate to that physician how to practice any aspect of medicine once he or she is credentialed. Bonilla, 210 So.3d at 550.

We do not have before us a claim for negligent credentialing. Here, it is undisputed that it was because Mr. Arrington was at risk for DVT that the ALP wrap medical device was furnished to him. STPH's selection, purchase, and implementation of the ALP wrap medical device necessarily required sufficient efficacy to conform to the physician's orders for Mr. Arrington's use of the device as well as Mr. Arrington's particular needs as a patient at risk for DVT, which are considerations interconnected with Mr. Arrington's medical treatment.

The decision of which ALP wrap medical device a hospital selects, purchases, and implements is sufficiently distinguishable from a hospital's choices in furnishing a bed, see Blevins, 959 So.2d at 446, or a wheelchair, see Williamson v. Hosp. Srvc. Dist. No. 1 of Jefferson, 2004-0451 (La. 12/1/04), 888 So.2d 782, 789-90, as well as its failure to furnish emergency power to maintain life support systems, see Lacoste v. Pendleton Methodist Hosp., LLC, 2007-0008 (La. 9/5/7), 966 So.2d 519, 525-26, for which the Louisiana Supreme Court has determined health care providers are liable in ordinary negligence. An ALP wrap medical device is not medical equipment distributed to all patients or that exposes every patient admitted into the facilities, as well as visitors at the facilities, to the risk of harm that Mr. Arrington has alleged he sustained. Whether an ALP wrap medical device provides the requisite efficacy to conform both to the orders of a physician, who has determined that a patient is at risk for DVT (or other medical conditions) and requires the use of the medical device, as well as to the particular needs of the at-risk patient are concerns tethered to the patient's medical treatment.

Additionally, there is a clear utilization of professional skill in the selection, purchase, and implementation of an ALP wrap medical device in that, to ensure efficacy of the device, input from the physician as to his or her orders and the at-risk patient's condition is necessary. Thus, we conclude that STPH's selection, purchase, and implementation of the ALP wrap medical device constituted decisions made in conjunction with Mr. Arrington's treatment as a patient at a higher risk for DVT postoperatively and, thus, under the first Coleman factor, favors a finding that these claims by the Arringtons fall within the ambit of the LMMA.

We turn next to second Coleman factor: whether the wrong requires expert medical evidence to determine if the appropriate standard of care was breached. Mindful that the Arringtons have averred "[on] information and belief" that the malfunction of the ALP wrap medical device was the cause of the injuries to Mr. Arrington's lower left leg, clearly expert medical testimony is required to demonstrate causation. The more difficult inquiry is whether medical expertise is needed to explain to the trier of fact whether a hospital was negligent in selecting, purchasing, and implementing a particular ALP wrap medical device. The Arringtons suggest that non-medical technical expertise is all that may be needed. But this overlooks the interdependency of the physician's medical order for the use of an ALP wrap medical device for an at-risk patient, the at-risk patient's needs, and the particular device selected. Without medical expertise to explain the correlations between the medical order, the at-risk patient's needs, and the selected choice of device, the trier of fact will be unable to determine the efficacy of the hospital's selection, purchase, and implementation of the ALP wrap medical device. Therefore, STPH's decision-making in its selection, purchase, and implementation of the ALP wrap medical device requires expert medical evidence to determine whether the appropriate standard of care was breached.

As to whether the pertinent act or omission involved assessment of the patient's condition, the Arringtons urge that there is no need to make any particularized assessments of a patient's condition in selecting, purchasing, and implementing the ALP wrap medical device other than "to make the decision to strive for the general prevention of circulatory complications in surgery patients." We disagree. Without assessments of at-risk patients' conditions, the general prevention of circulatory complications in those patients simply cannot occur. Whether a particular ALP wrap medical device vis-a-vis another ALP wrap medical device better serves the needs of the physicians ordering its use for at-risk patients and the scope of the various at-risk patients' conditions require assessments of the medical conditions of those requiring use of the device. The third Coleman factor favors finding that the selection, purchase, and implementation of an ALP wrap medical device falls within the ambit of the LMMA.

The fourth Coleman factor is whether the incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform. Clearly, without a physician's order of the use of an ALP wrap medical device, a patient will not have occasion to utilize it. Although the selection, purchase, and implementation of the ALP wrap medical device is not dependent on a particular patient's use, which ALP wrap medical device to select, purchase, and implement is a decision that requires physician input to ascertain whether it will comply with physicians' orders and patients' needs. This factor favors finding STPH's decision regarding which ALP wrap medical device to select, purchase, and implement is within the scope of the LMMA.

We find the fifth Coleman factor, whether the injury would have occurred if the patient had not sought treatment, also favors STPH. It is axiomatic that not every patient who is admitted into STPH for surgery is required to use an ALP wrap medical device. And it is also apparent that not every event in an at-risk patient's life will require use of an ALP wrap medical device. Clearly, the injury would not have occurred absent Mr. Arrington's consent to have the lumbar surgery at STPH.

The Arringtons ask that we distinguish the hospital's decision to select, purchase, and implement the ALP wrap medical device from "any wrong that a patient suffers in a hospital," which they acknowledge generally would not occur if the patient had not first entered the facility. They urge that the decision of the choice of ALP wrap medical device a hospital provides to at-risk patients does not directly relate to the patient's treatment or involve a dereliction of professional skill and, therefore, the fifth Coleman factor should favor finding their administrative decision-making claims sound in ordinary negligence. But as we have already concluded, there is a nexus between the selection of the ALP wrap medical device and the orders of the physicians who decide the device is needed for their patients as well as the particularized needs of the individual at-risk patients.

The selection, purchase, and implementation of an ALP wrap medical device is not akin to the selection, purchase, and implementation of a hospital bed, see Blevins , 959 So.2d at 446-47, or a wheel chair, see Williamson, 888 So.2d at 791, or the lack of emergency power needed to maintain life support systems, see Lacoste, 966 So.2d at 528-29, which are instances where no particularized medical knowledge regarding the patients' medical conditions is needed. Based on our application of the relevant Coleman factors, we find the Arringtons' claims for negligent selection, purchase, and implementation of the ALP wrap medical device sound in medical malpractice. See Dupuy, 187 So.3d at 440-45, (applying the Coleman factors to plaintiff's allegations that the health care provider failed to properly maintain and service equipment utilized in the sterilization of surgical instruments, the court concluded that the claims fell within the ambit of the LMMA).

Accordingly, under both the plain language of the definitions of health care and medical malpractice set forth in the LMMA and an application of the Coleman factors, we conclude that the Arringtons' claims of negligent selection, purchase, and implementation of an ALP wrap medical device by STPH require a pre-suit decision from the medical review panel in accordance with the LMMA. Therefore, the trial court correctly sustained the exception of prematurity and dismissed the Arringtons' claims against STPH without prejudice.

DECREE

For these reasons, we affirm the trial court's judgment. Appeal costs are assessed against plaintiffs-appellants, Gregory and Clarnetta Arrington.

AFFIRMED.

      The Arringtons also named Currie as a defendant in this lawsuit, raising products liability claims against the ALP wrap medical device manufacturer. After the dismissal of STPH from the lawsuit, Currie removed the matter to federal court based on allegations of diversity of citizenship between the parties. Although a state appellate court generally cannot proceed any further after the removal of a case to federal court, see Ward v. Resolution Trust Corp., 972 F.2d 196 (8th Cir. 1992), cert. denied, 507 U.S. 971, 113 S.Ct. 1412, 122 L.Ed.2d 783 (1993), citing 28 U.S.C. § 1446(d), because the only appealable issue in the judgment under review from the Arringtons' point of view is the dismissal of their suit against STPH (a Louisiana citizen) on an exception of prematurity pursuant to an order of appeal entered prior to removal, we find that we have jurisdiction over the appeal. See Scott v. American Tobacco Co., Inc., 97-1973 (La. App. 4th Cir. 10/8/97), 700 So.2d 1324, 1325.

      We disagree with the Arringtons that "brevity" supports their failure to list "each and every allegation in the [p]etition which should have been severed[,]" as well as their assertion that a remand to the trial court to determine "the allegations that should have been severed" is warranted. The Arringtons' claim that STPH is liable to them for the unreasonable risk of harm presented by the malfunction of the ALP wrap medical device is merely a conclusion without any facts suggesting that STPH, as owner or custodian, knew or in the exercise of reasonable care should have known of the defect that caused the damage as required under La. C.C. art. 2317.1 so as to impose liability. Similarly, the Arringtons have simply averred that STPH is liable to them in products liability for the failure to warn, without setting forth any factual allegations from which to conclude that STPH either manufactured the ALP wrap medical device so as to be a manufacturer under La. R.S. 9:2800.53(1) or qualified as a seller under La. R.S. 9:2800.53(2). And while the Arringtons claimed that STPH breached an express warranty, no facts regarding the scope of the guarantee or that it was voluntarily made by STPH and extended to Mr. Arrington have been alleged. See Hopkins v. American Cyanamid Co. , 95-1088 (La. 1/16/96), 666 So.2d 615, 623 (an express warranty is a guarantee that the manufacturer or seller of a good voluntarily undertakes and extends to its customer). Lastly, the Arringtons' suggestion that STPH's liability for the improper maintenance of the ALP wrap medical device sounds in ordinary negligence is without merit because the act of improperly maintaining the medical device, which is an unintentional tort or breach of contract based on health care or professional services rendered by a health care provider, necessarily arises from acts or omissions in the supervision of STPH employees, i.e., health care providers, and, therefore, constitutes malpractice as defined under La. R.S. 40:1231.1(A)(13) of the LMMA. Because "[a] plaintiff cannot control the progress and procedure of his claim by semantically designating one capacity of two or more belonging to the defendant as the desired one" in order to avoid the medical review panel procedure, see Cashio v. Baton Rouge Gen. Hosp. , 378 So.2d 182, 184 (La. App. 1st Cir. 1979), we limit our review of the propriety of the trial court's dismissal of the Arringtons' administrative claims, i.e., STPH's alleged negligent selection, purchase, and implementation of the ALP wrap medical device. See Bonilla , 210 So.3d at 545.