text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Joseph V. FERRANTI, Appellee.
    State Farm Mutual Automobile Insurance Company, Appellant, v. Joseph V. Ferranti, Appellee.
    Case No. 5D16-3980 Case No. 5D17-756
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 28, 2018
    Rhonda B. Boggess and Gina P. Grimsley, of Taylor, Day, Grimm & Boyd, Jacksonville, for Appellant.
    Christopher V. Carlyle, of The Carlyle Appellate Law Firm, Orlando, and O. John Alpizar and Andrew B. Pickett, of Alpizar Law, LLC, for Appellee.
   COHEN, C.J.

State Farm appeals from a jury verdict in favor of Joseph Ferranti. State Farm raises several issues, arguing that the trial court erred in granting partial summary judgment regarding causation, granting Ferranti's motion in limine pertaining to his prior lower back injury, failing to give a special jury instruction concerning diagnostic expenses, and awarding costs and attorney's fees. We reverse and remand for a new trial.

In 2013, a negligent driver struck Ferranti's vehicle from behind while he was driving. Ferranti filed suit against State Farm based on an automobile insurance contract between the parties that provided uninsured/underinsured motorist coverage ("UM/UIM coverage"). Ferranti alleged severe permanent injury to his "head, neck, body, limbs and nervous system," aggravation of preexisting conditions, pain and suffering, and property damage. Through pleadings and discovery, Ferranti asserted injuries to his neck, lower back, and hip.

Ferranti moved for partial summary judgment on the issues of liability and causation. In doing so, he relied on Pack v. Geico General Insurance Co., 119 So.3d 1284 (Fla. 4th DCA 2013), in which the court noted, "Generally, a plaintiff may recover the medical expenses for diagnostic testing which were reasonably necessary to determine whether the accident caused her injuries. This is true whether or not the jury finds the accident to be the legal cause of the injury." 119 So.3d at 1286 (citation omitted).

State Farm conceded negligence was not at issue but disputed causation and damages. State Farm relied upon Ferranti's deposition testimony to establish issues of material fact regarding his pre-existing medical conditions, which included lower back pain from a prior car accident. State Farm argued that the issue of causation presented a jury question and that the motion was premature. The trial court granted Ferranti's motion, ruling that causation was established as a matter of law because "the tortfeasor ... was a legal cause of some loss, injury or damages." (emphasis added). We disagree.

Ferranti's reliance on Pack to support the summary judgment is unavailing because the procedural posture of Pack was the denial of a motion for new trial after the jury returned a verdict for zero damages on undisputed evidence that the plaintiff suffered, minimally, a neck sprain as a result of the accident. Id. at 1285. In denying a new trial, the court noted that the insurer "admitted the negligence of the driver; therefore, the issue for the jury was whether that negligence was the legal cause of the loss, injury, or damage sustained by" the plaintiff. Id. (emphasis added). In this case, despite the trial court's finding that Ferranti suffered "some" injury, Ferranti did not seek summary judgment on the limited issue of diagnostic expenses; rather, Ferranti moved on the entire issue of causation. The limited holding in Pack, that diagnostic expenses are recoverable even if the jury finds the accident was not the legal cause of the plaintiff's injury, does not control the resolution of the summary judgment issue.

Rather, a review of Ferranti's deposition supports State Farm's position. In his deposition, Ferranti indicated that he had been in a prior car accident in 2004 from which he suffered back, arm, leg, and knee injuries and pain. Ferranti confirmed that he had lower back pain due to the 2004 accident, which required him to walk with a cane because he could "hardly walk at that time." Ferranti dealt with lower back issues as late as January 2008, and he was still taking pain medication for the injuries related to the 2004 accident up to the date of the 2010 accident.

In addition, Ferranti arguably recognized these issues of material fact, as he voluntarily dismissed any claim for damages to his lower back just before trial. He then sought by motion in limine to exclude any evidence relating to his lower back, arguing that such was "no longer relevant or material to any issue in the case." At the hearing on the motion, Ferranti acknowledged that there was "overwhelming evidence that ... he had preexisting low back problems." However, at the time the trial court ruled on the summary judgment motion, those claims were alive and well.

By granting partial summary judgment, the trial court improperly removed the issue of whether the 2010 accident caused Ferranti's claimed injuries from the jury's consideration. See Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla. 2003) ("A summary judgment deprives a party of his or her right to trial and must be exercised with restraint; any doubts must be resolved in favor of the nonmoving party."). We find the trial court erred in granting partial summary judgment regarding causation and damages when Ferranti's deposition testimony revealed, and he himself later conceded, that there was overwhelming evidence of preexisting conditions which directly related to the issue of causation.

Because we are remanding this case for a new trial, we find it appropriate to discuss other evidentiary issues which are likely to reoccur. The trial court conditionally granted Ferranti's motion in limine precluding evidence of his lower back injuries unless that evidence became relevant during Ferranti's case. In granting the motion, the court concluded that State Farm had not demonstrated a nexus between the lower back injuries and the injuries for which Ferranti was seeking to recover at trial, which included a neck injury causing herniation of multiple cervical discs, and upper and mid-back damage. State Farm defended on the theory that the injuries for which Ferranti was seeking to recover were not causally related to the 2010 accident.

On appeal, State Farm argues that the trial court abused its discretion in granting the motion in limine preventing State Farm from introducing evidence of Ferranti's prior injuries and treatments relating to his lower back. State Farm contends that Ferranti's lower back injuries were intertwined with medical causation and directly related to the issues of legal causation and damages. State Farm also contends that the lower back injuries and treatments were relevant to the issue of permanency, pain and suffering, causation, and disability because that evidence would have supported State Farm's argument that Ferranti suffered from a degenerative disc condition and that his neck issues were unrelated to the accident. Lastly, State Farm argues that the evidence was admissible because Ferranti presented some evidence relating to lower back injuries, thus opening the door to such evidence.

In turn, Ferranti relies on Health First, Inc. v. Cataldo, 92 So.3d 859 (Fla. 5th DCA 2012), in which this Court held that because the plaintiff dropped a claim for specified damages, evidence that the plaintiff "allegedly misrepresented her ... injuries generally is inadmissible because it constitutes impeachment on a collateral issue." 92 So.3d at 861. However, Ferranti's reliance on Cataldo in moving in limine to exclude evidence regarding his prior lower back injury is unpersuasive. While we did hold in Cataldo that evidence regarding the plaintiff's dropped claim was inadmissible based on the facts of the case, we also recognized that "there might be circumstances under which the evidence in this case might be relevant and thus admissible." Id. at 866. Here, State Farm was not attempting to use Ferranti's lower back injury for impeachment purposes; instead, it sought to establish that Ferranti's injuries were preexisting and that his pain and suffering was unrelated to the claims asserted at trial. Thus, Cataldo is inapposite.

Ferranti's testimony and answers to certain interrogatories demonstrated that his neck, upper and mid-back, and lower back injuries were interconnected, as those injuries affected Ferranti's daily life. For example, Ferranti testified at trial that his neck injury affected his ability to drive, use a computer, or sit in a movie because he becomes numb and has sharp pain in his shoulders. However, in answers to interrogatories, he attributed his inability to sit for long periods to his lower back injury as well as the related injuries:

I am in constant pain in my neck and back. At times I experience leg weakness and give way. I frequently experience muscle spasms in my neck and back and have restricted range of motion in all areas of my spine as a result of the injuries sustained in the accident. I also experience numbness, tingling, weakness and cramping in my hands. The pain in my mid back is constant and it radiates into the low back and chest, causing me shortness of breath. I have constant low back pain and am unable to do many activities that I previously was able to do. I am limited in the amount of time that I can stand, sit or lay in one position. The pain in my low back radiates into my legs and knees. It hurts when I stand. I have numbness and tingling in both of my feet.

State Farm's proffer of Ferranti's treating physician's deposition testimony indicated the interconnection between all of Ferrari's injuries. Dr. Weiss acknowledged that after the 2010 accident, Ferranti's complaints of lower back pain were equal in severity to the complaints regarding his neck. Dr. Weiss also indicated that Ferranti has preexisting lower back issues, had received steroidal injections for those issues, and that the lower back pain affected Ferranti's ability to do everyday tasks. He further testified in deposition that Ferranti's subjective complaints were all interrelated:

Q. He reports constant low-back pain that has increased in severity. States he can't do anything. He reports shortness of breath from the pain. He cannot stand up straight. He keeps a cane by his bed to help lift him up. He's been spending a lot of time in bed due to increased low-back pain. Pain radiates to lower extremities with pain in his knees; hurts to try to stand; reports bilateral numbness and tingling to feet.
A. That's a combination of all those. The MRIs showed just small herniations in the back, so I don't think that all of those are due to the back. They're due to the knees and the hip and to the herniated disc in the thoracic spine. Those attribute to not being able to stand up straight.

In addition, State Farm's expert, Dr. Foley, opined that Ferranti's current injuries resulted from a preexisting spinal condition and degeneration of the spine. Dr. Foley opined that Ferranti's injuries were not causally related to the 2010 accident but rather, were "a typical appearance of a chronic disease." Introduction of Ferranti's prior lower back injuries would have supported State Farm's defense that Ferranti's degenerative disc condition, and not the 2010 accident, caused the injuries for which he sought to recover at trial.

JVA Enterprises, I, LLC v. Prentice, 48 So.3d 109 (Fla. 4th DCA 2010), is instructive to the issue. In Prentice, the plaintiff filed a negligence suit based on a herniated disc in his neck at the C6-C7 level resulting from injuries suffered in 2003 and 2004. Id. at 111. The plaintiff denied that he was seeking to recover for any preexisting injuries, but the defendants discovered that he had a 1991 worker's compensation claim for injuries to his back, neck, and shoulder, including "a degenerative disc disease at C5-6 and disc bulges at C3-4 and C4-5." Id. at 111-12. Prior to trial, the plaintiff filed a motion in limine, seeking to preclude admission of the 1991 worker's compensation records "because they were unrelated to the 2003 and 2004 injuries." Id. at 112. The plaintiff contended that those records revealed a completely different injury that was unrelated to his current claim. Id. The trial court granted the motion. Id. The defense proffered testimony at trial that the plaintiff's preexisting injuries were permanent in nature. Id. The Fourth District Court of Appeal reversed for a new trial, finding that the plaintiff's argument that his 1991 injuries were wholly unrelated to his current claim, despite the similarity in injury, "was a matter of argument for trial, as opposed to exclusion from evidence." Id. at 114. The court further noted that "[t]he improper exclusion of evidence thwarted the defense efforts to attack [the plaintiff's] credibility and challenge the cause of his current physical complaints and limitations." Id.

Here, Ferranti's lower back injury was relevant to his other claims for neck and back injuries as it related to overall damages for permanency as well as pain and suffering. Ferranti's injuries and complaints were virtually identical to those suffered and compensated in the prior accident. A preexisting condition similar to that suffered in a later accident is relevant to the jury's determination of a plaintiff's claim of permanency and for pain and suffering. See id. Thus, the trial court abused its discretion in excluding evidence of Ferranti's prior lower back injuries.

REVERSED AND REMANDED.

EDWARDS, J., and PLEUS, R., Senior Judge, concur.

      We reject Ferranti's jurisdictional challenge. See Fla. R. App. P. 9.110(l ).

      While State Farm noted that discovery was ongoing, it did not file a motion to continue the hearing.

      However, we decline to reach the jury instruction issue raised by State Farm because, on remand, the causation issue will be framed differently.

      Because this last issue is unlikely to reoccur at the new trial, it does not merit discussion.

      The reversal of the jury's verdict results in reversal of the judgment on attorney's fees and costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Miguel Angel RIOS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2679
    District Court of Appeal of Florida, First District.
    September 25, 2018 Rehearing Denied November 13, 2018
    Miguel Angel Rios, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED . See Fla. R. App. P. 9.141(d)(5) and 9.141(d)(6)(C).

Makar, Osterhaus, and Jay, JJ., concur.


author: SLEET, Judge.

text:
    Travis HUNT, DOC #H34487, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2932
    District Court of Appeal of Florida, Second District.
    Opinion filed October 5, 2018.
    Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   SLEET, Judge.

Travis Hunt challenges his convictions and sentences in circuit court case number 2016-CF-002702 for armed trafficking in twenty-eight grams or more of amphetamine, possession of a firearm by a convicted felon, possession of drug paraphernalia, and possession of a conveyance used for the trafficking of controlled substances. He also challenges the resulting revocation of the probation he had been serving in circuit court case number 2015-CF-004832. Because the State's evidence did not establish a sufficient nexus between the vehicle in his possession when he was arrested and his trafficking in methamphetamines, we reverse his conviction and sentence on the possession of a conveyance count only. We affirm in all other respects without further comment.

The charges against Hunt arose when officers went to the Royal Inn Motel looking for Hunt, who had an outstanding warrant. Although the officers obtained a room number for Hunt, they encountered him in the parking lot where he was working on a motorcycle that was parked next to a Chevy Impala. The driver's side door of the Impala was open, and Hunt was going back and forth as if retrieving tools out of the car. When he saw the officers, Hunt ducked down behind the car and went to get into the driver's seat. The key was in the ignition, and according to one officer's testimony, it appeared that Hunt was attempting to flee. Officers detained Hunt, and a K-9 unit did an exterior sniff of the Impala and alerted in the area near the driver's door. A subsequent search of the vehicle revealed a backpack on the front passenger seat. A digital scale and a trafficking amount of methamphetamines were discovered in the top compartment of the backpack. Hunt was read his Miranda rights, after which he told officers that all of the contents of the Impala were his. He further stated that he kept the methamphetamines in the backpack and took it with him wherever he goes to keep it safe. Officers later learned that Hunt did not own the vehicle.

On appeal, Hunt argues that the trial court erred in denying his motion for judgment of acquittal as to possession of a conveyance used for trafficking of controlled substances. He maintains that the State failed to establish that the car would be used for trafficking. We agree.

Section 893.1351(2), Florida Statutes (2016), provides that "[a] person may not knowingly be in actual or constructive possession of any ... conveyance with the knowledge that the ... conveyance will be used for the purpose of trafficking in a controlled substance." (Emphasis added.) " '[W]ill be used' is the operative language of section 893.1351(2). Thus ... the focus should be on the use of the vehicle in the sale. In other words, the true intent at issue under the statute is the use the accused intended for the vehicle."

Delgado-George v. State, 125 So.3d 1031, 1033-34 (Fla. 2d DCA 2013) (alteration in original).

Here, the State maintains that Hunt's placing the backpack containing the methamphetamines on the passenger seat in the car was enough to infer his intent to use the car for trafficking the drugs. We cannot agree. The only evidence of trafficking here is the amount of the drugs discovered. There was no evidence that a sale had occurred or was going to occur during the time Hunt possessed the car. In fact, the State presented no evidence of a sale at all. All of the officers who testified stated that at the time they made contact with Hunt, he was busy repairing a motorcycle. Additionally, he testified that he kept the methamphetamines with him at all times in order to keep the drugs safe. As such, there was nothing about the use of the car that was specific to Hunt's trafficking in a controlled substance; he just happened to set the drugs down there while he worked on the motorcycle. See Delgado-George, 125 So.3d at 1034 ("[T]he State provided no evidence that Delgado-George's intended sale (or sales) had any nexus to his vehicle.").

Accordingly, the trial court erred in denying Hunt's motion for judgment of acquittal as to the possession of a conveyance charge. We therefore reverse that conviction and sentence only. We affirm Hunt's judgment and sentences in all other respects, as well as the resulting revocation of the probation he had been serving in circuit court case number 2015-CF-004832.

Affirmed in part; reversed in part.

VILLANTI and LUCAS, JJ., Concur.

      Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Gary WINTERS, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D17-4971
    District Court of Appeal of Florida, First District.
    October 4, 2018 Rehearing Denied November 8, 2018
    Gary Winters, pro se, Petitioner.
    Rana Wallace, General Counsel, and Mark Hiers, Assistant General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
   Per Curiam.

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

Rowe, Osterhaus, and Kelsey, JJ., concur.


author: SALTER, J.

text:
    BRICKELL HARBOUR CONDOMINIUM ASSOCIATION, INC., Appellant, v. HAMILTON SPECIALTY INSURANCE COMPANY, Appellee.
    No. 3D17-2761
    District Court of Appeal of Florida, Third District.
    Opinion filed October 10, 2018
    Kramer, Green, Zuckerman, Greene and Buchsbaum and Robert I. Buchsbaum, for appellant.
    Kelley Kronenberg and Kimberly J. Fernandes (Tallahassee), for appellee.
    Before ROTHENBERG, C.J., and SALTER, and LOGUE, JJ.
   SALTER, J.

Brickell Harbour Condominium Association, Inc. ("Association"), appeals a non-final order granting Hamilton Specialty Insurance Company's ("Insurer's") motion for a summary judgment compelling appraisal. The underlying circuit court lawsuit concerns a major water damage claim by the Association under its commercial insurance policy ("Policy") issued by the Insurer. We affirm.

The Association's claims of error on appeal are: (1) the Insurer failed to comply with its post-loss obligations under the Policy, a condition precedent to its demand for appraisal; (2) the Insurer's appointment of one of the appraisers violated the Policy provision, as the appraiser was not impartial; and (3) the trial court order was premature, as the Association had been prohibited from completing depositions regarding the alleged breaches of the Policy by the Insurer.

We reject each of these arguments for the reasons which follow.

I. Post-Loss Obligations

The undisputed facts establish that a water valve leak caused major water damage at the Association's property in December 2015. The Association made a claim under the Policy, and the Insurer sent a property claim analyst and adjuster to investigate the claim. In February 2016, the Insurer issued an advance payment of $150,000.00 to the Association regarding the claim, and the Insurer made a further payment of $300,000.00 to the Association in May 2016. Based on the Association's refusal to agree that the claim had been fully adjusted and paid, the Insurer sought appraisal under the terms of the Policy.

The following month, the Association sued the Insurer. The Association claimed that the Insurer breached the Policy, demanded appraisal prematurely, and was liable for money damages exceeding the sums previously advanced by the Insurer.

The Policy provision regarding appraisal included these pertinent terms:

If we and you disagree on the value of the property or the amount of loss, either may make written demand for an appraisal of the loss. In this event, each party will select a competent and impartial appraiser. The two appraisers will select an umpire. If they cannot agree, either may request that selection be made by a judge of a court having jurisdiction. The appraisers will state separately the value of the property and amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding.

As its first issue on appeal, the Association argues that the Insurer did not comply with its post-loss obligations by (1) adjusting the claim within 90 days of receipt, and (2) providing a "meaningful exchange of information," regarding the Insurer's calculation of the claim amount, conditions precedent to a party's right to demand appraisal. See also State Farm Fla. Ins. Co. v. Hernandez, 172 So.3d 473, 476-77 (Fla. 3d DCA 2015) ("the party seeking appraisal must comply with all post-loss obligations before the right to appraisal can be invoked under the contract.").

The Insurer made a payment within 90 days of receipt of the claim (the $150,000.00 advancement), and the Policy does not contain a "time is of the essence" provision. The Insurer contends, and the trial court agreed, that under those circumstances the parties would have a reasonable time within which to tender performance after the ninety-day period specified in the Policy. Command Sec. Corp. v. Moffa, 84 So.3d 1097, 1099 (Fla. 4th DCA 2012). It defies reason to construe the Policy provisions to require the Insurer to pay the entire claim amount demanded by the Association or lose the right to demand an appraisal.

Turning to the exchanges of information between the parties before the Insurer demanded appraisal, the adjusters and consultants for the parties met for inspections of the damaged areas and exchanged photographs, labor and materials estimates, and updates regarding the claim. For example, the record includes an email of January 7, 2016, from a consultant for the Association to a consultant for the Insurer, transmitting a "drop box link" enabling the parties to share the loss incident report, job notes, estimates, invoices, and photos assembled by the Association.

One of the responses, an email dated March 3, 2016, from Matthew Flax (an inspector on behalf of the Insurer) to Daniel Odess (the Association's public adjuster and contractor), includes photos of the damage and loss estimates for emergency services, reconstruction, and elevator repairs. These exchanges of information meet the test of "meaningful" exchanges.

But a part of the Association's response, two weeks later, was an affidavit from Mr. Odess, together with fraud and civil remedy notices filed by him against the Insurer and its consultants with the Florida Department of Financial Services. Unsurprisingly, this put a serious crimp in further professional exchanges of repair costs and estimates of the loss.

The trial court correctly concluded that these exchanges and other communications in the record satisfied the appraisal provision's condition for an appraisal demand-the parties unquestionably disagreed regarding the amount of the loss, and each had provided "meaningful information" to the other.

II. "Impartial" Appraiser Issue

The Association contends that the Insurer's appointment of Randy Ison as its party-designated appraiser (of the three to conduct the appraisal) was a breach of the Policy requirement that each appraiser be "impartial." Mr. Ison is an employee of J.S. Held, a building consultant hired by the Insurer. There is no indication in the record, however, that Mr. Ison himself was directly paid by the Insurer, or that any part of Mr. Ison's or J.S. Held's compensation for work on the appraisal or the Association's claim would include a contingent fee.

The Association's argument that Mr. Ison should be disqualified because he's the boss of Mr. Flax (an employee of J.S. Held involved in actually considering the Association's claim) and "Mr. Flax is the subject of a fraud inquiry with the [Florida Department of Financial Services]" is transparently circular. The Association's public adjuster, having launched the "fraud inquiry," now claims its own action defeats Mr. Ison's impartiality.

There is little case law on this issue, and what little case law is available involves arbitrators rather than appraisers. The Association argues that the analogy fails because arbitrators have a code of ethics and appraisers do not.

But tellingly, the appraisal provision in the Policy states that "Each party will: a. Pay its chosen appraiser; and b. Bear the other expenses of the appraisal and umpire equally." The tie-breaking third appraiser-often referred to as the "umpire" (as in the Policy before us) or "neutral"-provides the real impartiality. If an appraiser acts unprofessionally, skews what should be objective calculations regarding materials and labor costs, and puts the proverbial thumb on the scale, the umpire is the safeguard empowered to reject such efforts by siding with the other party-appointed appraiser. Alternatively, a professionally-qualified umpire may negotiate one or both of the party-appointed appraisers into a reasonable compromise.

We conclude, after consulting our own decision in Rios v. Tri-State Insurance Co., 714 So.2d 547 (Fla. 3d DCA 1998), and the other authorities cited to us by the parties, that "impartiality" means something other than the "dictionary definition" as it relates to appraisers appointed and paid by the parties. In Rios, the policy provision required each party to select a competent "independent" appraiser.

Following a survey of decisions in other jurisdictions and a review of the Code of Ethics for Arbitrators in Commercial Disputes, this Court concluded that an appraiser's "direct or indirect financial interest in the outcome of the arbitration," including an arrangement for a contingent fee, requires disclosure rather than disqualification in the case of an appraiser. This Court then ordered the appraisers to make the disclosures to each other and the parties as provided by the Code. Id. at 550.

We conclude that this remains a "workable approach to this issue," id., and encourage such disclosures in the present case before the confirmation of the appraisal. On the record before us, we agree with the trial court that the Insurer's appointment of Mr. Ison did not warrant disqualification.

III. Depositions

The trial court's order limiting the Association's right to depose several of the Insurer's consultants is outside our limited review of the non-final order before us. Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) is jurisdictional; it limits the scope of our review of other proceedings and orders preceding the summary judgment granting the Insurer's motion to compel appraisal. Interlocutory discovery orders are ordinarily subject to the rigorous requirements of certiorari-a departure from the essential requirements of law, material injury for the remainder of the case, and the absence of an available remedy on appeal. Bd. of Trs. of Internal Improvement Fund v. Am. Educ. Enters., LLC, 99 So.3d 450, 454 (Fla. 2012).

Insofar as the Association attempts to raise such discovery issues as a bar to the Insurer's demand for appraisal, however, we will address the Association's argument.

The discovery sought by the Association and denied by the trial court is directed to the merits of the parties' positions regarding the insurance claim. The trial court had before it ample evidence that the parties disagreed with each other regarding the allowable claim amount, and that they had exchanged meaningful information regarding those positions. In the appraisal process, each side will be incented to share information supporting its computation of the labor costs and materials that will be required to compensate the Association for its loss in accordance with the Policy provisions. The trial court did not err in declining to allow the extensive discovery sought by the Association as a precondition to the actual appraisal process.

IV. Conclusion

For these reasons, we reject the Association's arguments on appeal and affirm the circuit court order directing the parties to proceed with appraisal of the Association's property damage claim.

      The Policy carried a deductible of $50,000.00 applicable to the Insurer's evaluation of the claim. The second payment thus reflected full payment (in the Insurer's view) of a total claim of $500,000.00. The Insured disputed that evaluation and commenced the underlying circuit court lawsuit in June 2016.

      The term in quotation marks is the condition described by this Court in United States Fidelity & Guaranty Co. v. Romay, 744 So.2d 467, 470 (Fla. 3d DCA 1999).

      The Policy's period of 90 days for payment of covered damage was subject to exceptions for the denial of part of a claim "or factors beyond our control" preventing payment.

      The existence of a contingent fee payable to the party-appointed appraiser has been identified as a "factor" in assessing partiality; see Verneus v. Axis Surplus Ins. Co., 2018 WL 3417905 (S.D. Fla. 2018).

      See Florida Ins. Guar. Ass'n v. Branco, 148 So.3d 488, 495 (Fla. 5th DCA 2014) ("Our research has revealed no Florida case that has squarely addressed whether a party's attorney may serve as a 'disinterested appraiser.' "). In Branco, our sibling court held that an attorney's fiduciary duty to the party seeking to appoint him or her violated the policy's requirement for "disinterested" appraisers.


author: Rowe, J.

text:
    Justin COWART-DARLING, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5076
    District Court of Appeal of Florida, First District.
    October 18, 2018
    Andy Thomas, Public Defender, and Laurel Niles, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Tabitha Herrera and Kaitlin Weiss, Assistant Attorneys General, Tallahassee, for Appellee.
   Rowe, J.

Justin Cowart-Darling challenges his convictions and sentences for possession of cocaine and possession of drug paraphernalia. He entered a plea but reserved the right to appeal the trial court's denial of his dispositive motion to suppress items seized from his vehicle following a traffic stop and a sniff test of his vehicle by a drug detection dog. For the reasons that follow, we find that the trial court correctly denied the motion to suppress, and affirm.

Facts

Deputy Kevin Kinik conducted a traffic stop of Cowart-Darling's vehicle at 10:28 p.m. on February 17, 2017. When the deputy asked for his license and registration, Cowart-Darling gave the deputy his registration and informed the deputy that he did not have his driver's license on him. Deputy Kinik conveyed Cowart-Darling's legal name and date of birth to dispatch to verify Cowart-Darling's identity and to check for outstanding warrants.

Deputy Kinik observed that Cowart-Darling's hands were shaking and that he kept moving his right hand towards his right hip area. This conduct prompted the deputy to call for assistance while he wrote Cowart-Darling a traffic citation. While writing the ticket, Deputy Kinik explained to Cowart-Darling that he was a K-9 officer and asked if there was anything in the car that could cause a drug detection dog to alert. Cowart-Darling shook his head up and down in an affirmative gesture. When the deputy asked about the nature of the illegal substance, Cowart-Darling denied having anything illegal in the vehicle.

Deputy Jeremiah Roe responded to Deputy Kinik's call for assistance at 10:40 p.m. At this point, Deputy Kinik still had not heard back from dispatch about whether Cowart-Darling had any outstanding warrants. Deputy Kinik retrieved his canine, "Zombie," from the car and proceeded to conduct a sniff search of Cowart-Darling's vehicle. Zombie alerted to the driver's side door, where a syringe and a spoon with a powdery residue were located. The powdery substance was field tested and tested positive for cocaine.

Following his arrest, Cowart-Darling moved to suppress the evidence seized during the sniff search, arguing that Deputy Kinik did not have reasonable suspicion to delay the traffic stop or to take his canine around the vehicle for a sniff search. The trial court denied the motion to suppress, finding that Cowart-Darling's nervousness combined with the fact that he did not have his driver's license was sufficient to give Deputy Kinik reasonable suspicion to conduct a search of the vehicle. The trial court further found that Cowart-Darling's conflicting answers about whether there were illegal substances within the vehicle gave Deputy Kinik reasonable suspicion to conduct a sniff search. Finally, the trial court attributed any delay in the stop to Cowart-Darling's failure to have his driver's license.

Cowart-Darling pleaded no contest to possession of cocaine and possession of drug paraphernalia and was placed on drug offender probation for eighteen months. This timely appeal follows.

Analysis

A trial court's factual findings on a motion to suppress are afforded a presumption of correctness. Rigterink v. State , 66 So.3d 866, 884 (Fla. 2011). The trial court's application of the law to the facts is reviewed de novo. Id.

Cowart-Darling argues that his motion to suppress should have been granted because the traffic stop was prolonged merely to effectuate a dog sniff of the vehicle. The United States Supreme Court has held that, absent reasonable suspicion of criminal activity, a traffic stop may last no longer than necessary for an officer to address the traffic violation that warranted the stop and attend to related safety concerns. Rodriguez v. United States , --- U.S. ----, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015). A stop may last long enough for an officer to check drivers' licenses, search for outstanding warrants, and inspect registrations and proofs of insurance. Id. at 1615. But a traffic stop may not be prolonged to conduct a dog sniff unless the officer has reasonable suspicion of criminal activity. Id. at 1616.

Here, the traffic stop was still in progress when the deputy conducted the dog sniff of Cowart-Darling's vehicle. Because Cowart-Darling did not have his driver's license, Deputy Kinik was required to call dispatch with Cowart-Darling's identifying information to determine whether he was in fact the person he claimed to be and whether he had any outstanding warrants. The trial court found from the testimony presented at the suppression hearing that Deputy Kinik did not hear back from dispatch before he deployed Zombie to conduct a sniff search of Cowart-Darling's vehicle. Thus, the trial court properly attributed the prolonging of the traffic stop to Cowart-Darling's failure to have his driver's license, not the deputy's decision to conduct a search of the car. Id. (holding that verifying a driver's identity is an ordinary inquiry in a traffic stop).

Further, Deputy Kinik had a reasonable, well-founded suspicion of criminal activity to justify detaining Cowart-Darling. A reasonable suspicion is a particularized and objective basis for suspecting the person stopped of criminal activity. Brown v. State , 224 So.3d 806, 809 (Fla. 2d DCA 2017). It cannot be based on mere nervousness. Cf. Maldonado v. State , 992 So.2d 839 (Fla. 2d DCA 2008) (holding that the facts the defendant lied about the origin of his trip, exhibited signs of nervousness, and traveled on a known drug corridor in the early hours of the morning were insufficient to give rise to a reasonable suspicion of criminal activity). Further, an investigative detention is valid as long as a reasonable suspicion exists, but if the investigation dispels the concern that gave rise to the investigation, the suspect may no longer be detained. Ikner v. State , 756 So.2d 1116, 1119 (Fla. 1st DCA 2000).

This was not a case of mere nervousness. While Cowart-Darling exhibited signs of nervousness (his hands were shaking and he kept moving his hand to his right hip area), this was not the sole reason Deputy Kinik decided to search the vehicle. Deputy Kinik developed reasonable suspicion when Cowart-Darling moved his head up and down indicating an affirmative response to the deputy's inquiry about whether there were illegal substances in the vehicle. Cowart-Darling's subsequent verbal denial that there were illegal substances in the car was insufficient to dispel the deputy's concern. If anything, Cowart-Darling's conflicting answers heightened the deputy's suspicion that criminal activity was afoot.

Accordingly, because Deputy Kinik had a reasonable suspicion of criminal activity sufficient to detain Cowart-Darling, and because the traffic stop was not unlawfully prolonged, we find that the trial court properly denied the motion to suppress, and we AFFIRM the judgment and sentence.

Kelsey and M.K. Thomas, JJ., concur.


text:
    Jonathan GLASS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2436
    District Court of Appeal of Florida, First District.
    October 31, 2018
    Jonathan Glass, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of prohibition is denied on the merits. Petitioner is warned that any future filings that this Court determines to be frivolous may result in the imposition of sanctions, including a prohibition against any further pro se filings in this Court and a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes (2018) (providing that a prisoner who is found by a court to have brought a frivolous suit, action, claim, proceeding, or appeal is subject to disciplinary procedures pursuant to the rules of the Department of Corrections).

Wolf, Rowe, and Bilbrey, JJ., concur.


author: PER CURIAM.

text:
    Michael J. JACKSON, Doc #H23792, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-5039
    District Court of Appeal of Florida, Second District.
    Opinion filed October 24, 2018
    Michael J. Jackson, pro se.
   PER CURIAM.

We treat Michael J. Jackson's appeal from an order denying his motion to modify the financial conditions of his probation as a petition for writ of certiorari, see Wesner v. State, 843 So.2d 1039, 1040 (Fla. 2d DCA 2003) (recognizing that an order denying a motion to modify probation is not appealable but may be subject to review under our certiorari jurisdiction), and we dismiss the petition, see Spaulding v. State, 93 So.3d 473, 476 (Fla. 2d DCA 2012) (recognizing that certiorari review of orders denying a motion to modify sentence is limited to errors in jurisdiction, clear violations of due process, and application of the wrong law).

Dismissed.

BLACK, SALARIO, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Raymond L. ROBERTSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1250
    District Court of Appeal of Florida, First District.
    October 31, 2018
    Raymond L. Robertson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Barbara Debelius, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Raymond L. Robertson challenges the trial court's denial of his petition for writ of habeas corpus. We affirm the denial of the petition and caution Robertson that abusive, repetitive, malicious, or frivolous filings will result in sanctions such as a bar on pro se filing in this Court or referral to prison officials for disciplinary proceedings, which may include forfeiture of gain time. See State v. Spencer , 751 So.2d 47 (Fla. 1999) ; § 944.279(1), Fla. Stat (2018).

AFFIRMED .

Rowe, Osterhaus, and Kelsey, JJ., concur.


text:
    Adrian WEBB, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D17-5319 1D18-0150 1D18-0151
    District Court of Appeal of Florida, First District.
    October 31, 2018
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, for Appellee.
   Per Curiam.

Appellant challenges three orders revoking his probation in three separate cases. We consolidate these cases for purposes of this opinion, as all three orders stem from the same hearing and the same allegations presented by the State. We affirm but write only to address an error in the written orders revoking appellant's probation.

Appellant contested the State's allegations that he violated his probation by committing five new law offenses and violating a special condition of his probation. After a hearing the trial court found appellant only committed three new law violations and did not violate the special condition. However, the trial court's three revocation of probation orders state that appellant admitted to all five new law violations and a violation of the special condition.

We AFFIRM the trial court's orders without further comment, and REMAND the cases for entry of corrected revocation of probation orders. Enno v. State , 59 So.3d 149 (Fla. 1st DCA 2011).

Wolf, Lewis, and Rowe, JJ., concur.


text:
    Woodrow W. ROSE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3424
    District Court of Appeal of Florida, First District.
    October 31, 2018
    Woodrow W. Rose, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In 1982, Woodrow Rose pleaded guilty to sexual battery and armed burglary of a dwelling. He was sentenced to thirty years for the former and life for the latter. In 2017, he filed a rule 3.800 motion, alleging he was serving an illegal sentence. The trial court denied the motion, and Rose appeals.

Rose argued first that he pleaded guilty to only one count, not two. The plea hearing transcript refutes that claim. But Rose also argued that his life sentence was not orally pronounced. If there is a discrepancy between the sentence orally pronounced and the written sentencing documents, the oral pronouncement controls. Williams v. State , 957 So.2d 600, 603 (Fla. 2007). Here, we cannot determine whether there was any such discrepancy because the record does not include the original sentencing transcript. In this circumstance, we must reverse the order on appeal to the extent it denies with prejudice a claim regarding this discrepancy. Id. at 604 ("If the sentencing transcript is neither in the file nor attached to the motion, the motion should be denied without prejudice to the filing of an amended motion properly attaching the sentencing transcript.").

AFFIRMED in part, REVERSED in part, and REMANDED .

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


text:
    Richard Price TUCKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-0752
    District Court of Appeal of Florida, First District.
    October 31, 2018
    Andy Thomas, Public Defender, and Jasmine Russell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant challenges the trial court's order revoking his probation. Appellant argues that the trial court failed to hold a proper Faretta inquiry after appellant made an unequivocal request to represent himself. The State concedes that reversible error occurred. We agree. Williams v. State , 163 So.3d 740, 741 (Fla. 1st DCA 2015) ; see also Cuyler v. State , 131 So.3d 827, 828 (Fla. 1st DCA 2014) (holding a defendant who chooses to proceed pro se must be offered the assistance of counsel at every critical stage of a criminal proceeding, including the sentencing hearing).

Accordingly, we REVERSEappellant's judgment and sentence and REMANDfor a new revocation of probation hearing with instructions for the trial court to conduct a proper Faretta inquiry at every critical stage of the proceeding if appellant chooses to represent himself.

Wolf, Lewis, and Rowe, JJ., concur.


text:
    INFINITE CUSTOMER SYSTEMS, LLC, Appellant, v. Emil A. ZARCHEV; Kalinka Zarcheva; Young Pest Control of Coastal Florida, Inc.; Bureaus Investment Group Portfolio No. 13, LLC as successor in interest to Washington Mutual, Appellees.
    Case No. 2D17-4564
    District Court of Appeal of Florida, Second District.
    Opinion filed October 31, 2018
    Jennifer Lima-Smith and Christos Pavlidis of Gilbert Garcia Group, P.A., Tampa, for Appellant.
    Shawn G. Brown of Frazier & Brown, Tampa, for Appellees Emil A. Zarchev and Kalinka Zarcheva.
    No appearance for remaining Appellees.
   PER CURIAM.

Dismissed for lack of jurisdiction.

KHOUZAM, LUCAS, and SALARIO, JJ., Concur.


text:
    Patrick FURMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4214
    District Court of Appeal of Florida, First District.
    October 31, 2018
    Patrick Furman, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied.

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


text:
    STATE of Louisiana v. Anthony TIPTON
    NO. 2018-KK-1376
    Supreme Court of Louisiana.
    November 14, 2018
    Writ denied.
    GENOVESE, J., would grant and assigns reasons.
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE
   GENOVESE, J., would grant this writ for the following reasons:

This case presents an allotment issue. Because the victim in this rape case was unable to articulate the exact date(s) of the offense, the judge handling the defendant's bond review hearing directed the clerk of court to randomly allot the case pursuant to a local court rule in the Nineteenth Judicial District Court calling for random allotment when the date of the offense is indeterminate.

Six months later, a grand jury indicted the defendant reciting the offense to have occurred "between the approximate dates of September 1, 2015[,] through May 28, 2016." With the approximate dates now established, defendant filed a "Motion for Proper Allotment of a Felony Criminal Case."

According to Rule No. 14.0, Appendix 14.14.0A, of the Nineteenth Judicial District Court Local Rules, the reallotment of this case is to go "to the section of court on duty on the determined date." In adhering to the mandate of this local rule, the presiding trial judge correctly allotted the case to the judge "on duty on the determined date."

The court of appeal disregarded said local rule and reversed the trial court, thereby injecting a non-existent timeline into the local rule and requiring the defendant to show bias. The local rule speaks for itself and does not set forth any timeline nor does it require any showing of bias. Because the court of appeal failed to adhere to the Nineteenth Judicial District Court's local rule on allotment, I would reverse the court of appeal and reinstate the trial court's ruling.


author: HUGHES, J., would grant.

text:
    STATE of Louisiana v. Jacob WESTBROOK
    NO. 2018-KK-1385
    Supreme Court of Louisiana.
    November 14, 2018
    Writ. denied.
   HUGHES, J., would grant.

CRICHTON, J., concurs and assigns reasons.

CRICHTON, J., concurs, and would deny on the showing made. See La. S.Ct. R. X, § 4(6)(c).


text:
    Robert J. BROUSSARD, et al. v. MULTI-CHEM GROUP, LLC
    NO. 2018-C-1347
    Supreme Court of Louisiana.
    November 14, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF IBERIA
    Writ denied.
    CRICHTON, J., would grant and assigns reasons.
   I would grant and docket this application to examine the standard for awarding damages for fear of developing cancer in toxic tort cases.


text:
    Lance SHELTON v. SMITTY'S SUPPLY, INC.
    No. 2018-C-1195
    Supreme Court of Louisiana.
    November 14, 2018
    Writ denied.
    CRICHTON, J., would grant in part and deny in part and assigns reasons.
    GENOVESE, J., would grant in part and deny in part for the reasons assigned by Judge McDonald and Justice Crichton.
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, OFFICE OF WORKERS' COMPENSATION, DISTRICT 6
    CRICHTON, J., would grant in part and deny in part and assigns reasons:
   I would grant the writ application in part for the reasons assigned by Judge McDonald. Specifically, I disagree with the lower courts' findings that defendant did not reasonably controvert plaintiff's claim for disputed compensation, where defendant presented a surveillance video arguably showing inconsistencies in plaintiff's version of events, medical records countering a work-related accident, and confirmation of those medical records by a doctor in his deposition. Thus, I agree with Judge McDonald that defendant did reasonably controvert plaintiff's claim in this instance through its factual and medical evidence, and plaintiff is not entitled to the award of penalties and attorney's fees as awarded by the court below. See La. R.S. R.S. 23:1201(F)(2) ("[t]his Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control."). In all other respects, I would deny this application.


author: PER CURIAM

text:
    IN RE: Tyrone F. WATKINS
    NO. 2018-B-1332
    Supreme Court of Louisiana.
    November 14, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Tyrone F. Watkins, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

On August 7, 2015, Shawn Sanne hired respondent to represent him in expungement proceedings of his three felony and one misdemeanor convictions. Mr. Sanne paid respondent $4,300 for attorney's fees and court costs associated with all four expungements.

On August 14, 2015, respondent filed a motion for expungement in one of the felony cases. On September 30, 2015, he filed a motion for expungement in the misdemeanor case. The State filed objections to both motions and sought contradictory hearings. Respondent moved to continue both proceedings. However, one of the cases was rescheduled for hearing on December 14, 2015, and the court again continued the proceeding because no one appeared on Mr. Sanne's behalf.

Thereafter, respondent took no further action to advance the two pending expungement proceedings. He also failed to take any action regarding the two other expungements he was hired to handle. Furthermore, respondent did not respond to numerous telephone calls and e-mails from Mr. Sanne and his office assistant, Penny O'Neal, including a final e-mail dated May 23, 2016, which reported that Mr. Sanne was "thoroughly fed up with the lack of communication and information." Then, on August 17, 2016, Mr. Sanne sent a letter to respondent via certified mail, which respondent failed to claim.

DISCIPLINARY PROCEEDINGS

In August 2017, the ODC filed formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5 (fee arrangements), 1.16 (declining or terminating representation), and 3.2 (failure to make reasonable efforts to expedite litigation). In his answer, respondent stated:

I have received the formal charges that were filed against me in the above referenced matter and I admit that I dropped the ball on this one. However, while the majority of the charges are accurate I believe that [there] is a material issue of fact regarding the violation of Rules of Professional Conduct rule 1.4 (lack of communication) that I need to explain.
Please allow me an opportunity to be heard in person in a mitigation hearing.

Hearing Committee Report

Following the mitigation hearing, the hearing committee noted that Mr. Sanne testified regarding his great difficulty, over an extended period of time, in getting a status update from respondent. Ms. O'Neal corroborated Mr. Sanne's testimony and additionally testified that, after respondent received the full payment on August 7, 2015, he did not initiate any contact with either her or Mr. Sanne. Ms. O'Neal further stated that they first learned respondent had filed the motions for expungement when they received subpoenas from the court. They then called respondent, who advised them of the State's objections, of the continuance of the hearings, and of his intention to pursue the expungements at a later date.

With respect to respondent's testimony, the committee noted that he stipulated to violating Rules 1.4, 1.5, 1.16, and 3.2 of the Rules of Professional Conduct but not Rule 1.3. Respondent also testified that he considered mediation to determine the portion of the fee he needed to return to Mr. Sanne but abandoned the effort because he did not have the funds available to provide a refund. Nevertheless, he committed to refunding the portion of the fee the committee deemed unearned. Respondent then indicated that he took preliminary steps to complete the expungements, paying $25 for a background check on Mr. Sanne and paying $550 in court costs. However, he admitted he "dropped the ball" after the expungements proved more complex than he anticipated. Respondent then testified that, although he had handled approximately a dozen expungements previously, they were all routine and unopposed. When the State objected to the two expungements he filed, respondent became aware of a change in law that posed additional obstacles to the relief sought. Respondent further testified that he did not intend to neglect Mr. Sanne's expungements but ultimately forgot about them with the passage of time and the press of other work. He also claimed he did not intentionally evade Mr. Sanne's and Ms. O'Neal's communication efforts.

Based on this testimony and the other evidence in the record, the committee made factual findings consistent with the underlying facts set forth above. The committee determined that those facts prove respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee then determined respondent negligently violated duties owed to his client, and his conduct caused actual harm to Mr. Sanne. After considering the ABA's Standards for Imposing Lawyer Sanctions , the committee determined the baseline sanction is suspension.

The committee found no aggravating factors present. However, it found several mitigating factors present, including the absence of a prior disciplinary record, the absence of a dishonest or selfish motive, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and remorse. Additionally in mitigation, the committee found that respondent "accepted responsibility for his failings and made... a genuine offer to make amends."

After further considering this court's prior jurisprudence addressing similar misconduct, the committee recommended respondent be suspended from the practice of law for three months, fully deferred, subject to one year of probation with the conditions that he refund $3,625 to Mr. Sanne and work with the Louisiana State Bar Association ("LSBA") Practice Assistance Counsel to create a proper law office management system with particular emphasis on client communication.

Neither respondent nor the ODC objected to the hearing committee's report.

Disciplinary Board Recommendation

After review, the disciplinary board determined the hearing committee's factual findings do not appear to be manifestly erroneous and are supported by the record. Accordingly, the board adopted said findings. Based on those facts, the board determined the committee correctly concluded that respondent violated the Rules of Professional Conduct as charged.

The board then determined respondent negligently violated duties owed to his client, causing actual harm to Mr. Sanne. The board agreed with the committee that no aggravating factors are present and found the following mitigating factors present: the absence of a prior disciplinary record, the absence of a dishonest or selfish motive, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and remorse.

Based upon the above findings, the board recommended respondent be suspended from the practice of law for three months, fully deferred, subject to one year of probation with the conditions that he make restitution to Mr. Sanne in the amount of $3,625 and consult with the LSBA Practice Assistance Counsel to create a proper law office management system with particular emphasis on client communication.

Neither respondent nor the ODC filed an objection to the disciplinary board's recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks , 09-1212 (La. 10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield , 96-1401 (La. 11/25/96), 683 So.2d 714 ; In re: Pardue , 93-2865 (La. 3/11/94), 633 So.2d 150.

The record of this matter supports a finding that respondent neglected a legal matter, failed to communicate with a client, and failed to refund an unearned fee. This misconduct is a violation of the Rules of Professional Conduct as alleged in the formal charges.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct.

Louisiana State Bar Ass'n v. Reis , 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington , 459 So.2d 520 (La. 1984).

We agree with the hearing committee and the disciplinary board that respondent acted negligently and violated duties owed to his client, causing actual harm to Mr. Sanne. However, we disagree with the committee and the board that the baseline sanction is suspension. Instead, we find the baseline sanction for respondent's misconduct is a public reprimand based upon Standard 4.43 of the ABA's Standard for Imposing Lawyer Sanctions , which states that "[r]eprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client."

Mitigating factors include the absence of a prior disciplinary record, the absence of a dishonest or selfish motive, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and remorse. The only aggravating factor is respondent's substantial experience in the practice of law (admitted 2001).

In determining an appropriate sanction for respondent's misconduct, we found guidance from In re: Donald , 13-2056 (La. 11/1/13), 127 So.3d 918, wherein an attorney neglected a legal matter, failed to communicate with his clients, and failed to refund the clients' $600 unearned fee. For this knowing, if not intentional, misconduct, we suspended the attorney from the practice of law for six months, fully deferred, subject to one year of supervised probation with conditions. In light of this case law and the fact that respondent has not yet refunded the unearned fee, we find an upward deviation from the baseline sanction is warranted.

Accordingly, we will adopt the board's recommendation and suspend respondent from the practice of law for three months, fully deferred, subject to one year of probation with the conditions that he make restitution, with legal interest, to Mr. Sanne in the amount of $3,625 and consult with the LSBA Practice Assistance Counsel to create a proper law office management system with particular emphasis on client communication. We will further assess respondent with the costs and expenses of the disciplinary proceeding pursuant to Supreme Court Rule XIX, § 10.1.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Tyrone F. Watkins, Louisiana Bar Roll number 27321, be and he hereby is suspended from the practice of law for a period of three months. This suspension shall be deferred in its entirety, subject to a one-year period of probation with the conditions set forth in this opinion. The probationary period shall commence from the date respondent and the ODC sign a formal probation plan. Any failure of respondent to comply with these conditions, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. 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.

      Both the committee and the board recommended that we defer costs for six months in light of respondent's financial status. While we decline to adopt this recommendation, we note respondent has the option of negotiating a periodic payment plan with the disciplinary board pursuant to Supreme Court Rule XIX, § 10.1(D).


text:
    In re: Medical Review Panel re: Thomas SMITH, Sr. v. Dr. David C. PELLEGRIN, et al.
    No. 2018-CC-1288
    Supreme Court of Louisiana.
    November 14, 2018
    ON SUPERVISORY WRITS TO THE 32nd JUDICIAL DISTRICT COURT, PARISH OF TERREBONNE
    Writ denied.
    HUGHES, J., concurs and assigns reasons.
   I concur with the writ denial in this case. We declined to exercise our supervisory jurisdiction in this case because relator has an adequate remedy on appeal. Once the district court rendered a final judgment, any interlocutory judgments, including the rulings on relator's pauper status, were merged into the final judgment and are reviewable on appeal. See La. Code Civ. P. art. 1915(B)(2).


text:
    IN RE: Larry CURTIS
    NO. 2018-B-1553
    Supreme Court of Louisiana.
    November 14, 2018
    ATTORNEY DISCIPLINARY PROCEEDINGS
   PER CURIAM

Respondent and the Office of Disciplinary Counsel ("ODC") submitted a joint petition for consent discipline, in which respondent acknowledges that he filed into the court record an affidavit which he knew was improperly notarized. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Larry Curtis, Louisiana Bar Roll number 4678, be suspended from the practice of law for a period of six months, fully deferred.

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


author: PER CURIAM:

text:
    STATE of Louisiana v. Eugene SCARBOROUGH
    No. 2018-KK-1791
    Supreme Court of Louisiana.
    November 14, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Writ granted. As a general matter, at a hearing on a motion to suppress a statement given while in custody, the state bears the burden of proving the free and voluntary nature of the confession. State v. Hills , 354 So.2d 186, 188 (La. 1977). To meet that burden, the state must show that the defendant knew of his right to remain silent and his right to counsel and that he intelligently waived those rights. La.C.Cr.P. art. 703(D) ; La.R.S. 15:451 ; State v. Seward , 509 So.2d 413, 417 (La. 1987). Whenever a defendant alleges police misconduct in eliciting a confession, the state must rebut these allegations specifically. State v. Davis , 380 So.2d 607, 610 (La. 1980). Additionally, the district judge's conclusions on the credibility and weight of testimony relating to the voluntariness of a confession for the purpose of admissibility will not be overturned unless they are not supported by the evidence. State v. Jackson , 381 So.2d 485, 488 (La. 1980).

Here, no officer testified at the suppression hearing who had any knowledge of whether defendant was given his Miranda warnings or was present when defendant was questioned. Although a detective with pertinent knowledge was subpoenaed by both parties, he was out of state and unable to attend. Therefore, the district court erred in finding the state carried its burden and in denying defendant's motion to suppress. Accordingly, we vacate the district court's ruling and remand with instructions that the district court conduct a new suppression hearing at which, at the minimum, the detective who was previously unavailable can testify.

VACATED AND REMANDED

WEIMER, J., would deny.


text:
    STATE of Louisiana v. Allen JOHNSON
    No. 2018-KH-1114
    Supreme Court of Louisiana.
    November 14, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL, DISTRICT COURT FOR THE PARISH OF ORLEANS
   PER CURIAM

Pursuant to this Court's Order, dated July 13, 2018, the district court notified this Court that defendant's record cannot be located. Additionally, defendant's filings in this Court show that he has previously received copies of his trial transcripts, court minutes, and the records of his mental status report. Defendant has had two appeals of his conviction, and his 37-year-old conviction is beyond the post-conviction limitations period as set out in La.C.Cr.P. art. 930.8. Therefore, defendant's request for transcripts or minute entries from his prosecution is denied.


text:
    Todd BENN v. STATE of Louisiana
    No. 2018-KP-0547
    Supreme Court of Louisiana.
    November 14, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ST. JAMES
   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). In addition, relator fails to show that the state withheld material exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Relator has now fully litigated another application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. 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 EX REL. Robert Stanley LANE, Jr. v. STATE of Louisiana
    No. 2017-KH-1639
    Supreme Court of Louisiana.
    November 14, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   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). Further, relator makes no showing of particularized need for the trial transcript or other supporting documentation. See State ex rel. Bernard v. Cr.D.C. , 94-2247 (La. 4/28/95), 653 So.2d 1174.

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 EX REL. Roger ANCALADE v. STATE of Louisiana
    No. 2017-KH-1584
    Supreme Court of Louisiana.
    November 14, 2018
    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). As to his remaining claims, the application is repetitive. La.C.Cr.P. art. 930.4.

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 EX REL. Rene WILLIAMS v. STATE of Louisiana
    No. 2017-KH-1576
    Supreme Court of Louisiana.
    November 14, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Relator fails to show that he was denied the effective assistance of counsel during plea negotiations 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, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

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 EX REL. Stanley GRIGSBY v. STATE of Louisiana
    No. 2017-KH-1516
    Supreme Court of Louisiana.
    November 14, 2018
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

Denied. Relator shows no lower court error.

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 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 EX REL. Sterling Germane ROBINSON v. STATE of Louisiana
    No. 2017-KH-1499
    Supreme Court of Louisiana.
    November 14, 2018
    ON SUPERVISORY WRITS TO THE THIRTY-SEVENTH JUDICIAL DISTRICT COURT, PARISH OF CALDWELL
   PER CURIAM:

Denied. Relator 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. Relator's application was not timely filed in the district court, and he 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. In addition, relator's sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; see also State v. Cotton , 09-2397 (La. 10/15/10), 45 So.3d 1030. The claims are also repetitive. La.C.Cr.P. art. 930.4(A).

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 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 EX REL. Michael W. WITHERS v. STATE of Louisiana
    No. 2017-KH-1493
    Supreme Court of Louisiana.
    November 14, 2018
    ON SUPERVISORY WRITS TO THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4.

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 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 EX REL. Wilbert WILLIAMS, IV v. STATE of Louisiana
    No. 2017-KH-1487
    Supreme Court of Louisiana.
    November 14, 2018
    ON SUPERVISORY WRITS TO THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU
   PER CURIAM:

Denied. Relator fails to show that he was denied the effective assistance of counsel during plea negotiations 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, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

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 EX REL. Joseph HILLIARD, Sr. v. STATE of Louisiana
    No. 2017-KH-1413
    Supreme Court of Louisiana.
    November 14, 2018
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

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

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a 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 EX REL. Eddie J. MATTHEWS v. STATE of Louisiana
    No. 2017-KH-1279
    Supreme Court of Louisiana.
    November 14, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   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 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: HUGHES, J., would grant in part.

text:
    Darrin COULON and Tess Coulon v. ENDURANCE RISK PARTNERS INC., Lammico Insurance Agency, Inc., West Bank Surgery Center, L.L.C., and Mark Juneau, Jr., M.D.
    NO. 2018-CC-1269
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.
   HUGHES, J., would grant in part.


text:
    Christine BRASHER v. The BOARD OF SUPERVISORS FOR UNIVERSITY OF LOUISIANA AT LAFAYETTE and Jerry Luke LeBlanc, in His Capacity as the Vice President of Administration and Finance of the University of Louisiana at Lafayette
    NO. 2018-CC-1273
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    IN RE: Medical Review Panel Monique THOMPSON, Individually and on Behalf of Don Thompson (D)
    PCF File No. 2017-00759
    NO. 2018-CC-1286
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE EX REL. Jeremy BROWN v. STATE of Louisiana
    NO. 2017-KH-1377
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    STATE of Louisiana v. Steven J. WINDSOR
    NO. 2017-KH-2113
    Supreme Court of Louisiana.
    November 5, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Windsor v. State, 15-1098 (La. 11/6/15), 181 So.3d 695.


text:
    Pero CIBILIC and Mary Ann Cibilic v. COX OPERATING, L.L.C.
    NO. 2018-C-1357
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    STATE of Louisiana v. Fabian CELESTINE
    NO. 2018-KO-0066
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.
   HUGHES, J., would grant in part.


text:
    STATE of Louisiana v. Jämaal R. JOHNSON
    NO. 2017-KH-1459
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    STATE of Louisiana v. Cody R. BROWN
    NO. 2018-KO-0158
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    Pero CIBILIC and Mary Ann Cibilic v. COX OPERATING, L.L.C.
    NO. 2018-C-1293
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    STATE EX REL. Frank BRATTON v. STATE of Louisiana
    NO. 2017-KH-1376
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    STATE of Louisiana v. Cary NOIL
    NO. 2018-KK-1808
    Supreme Court of Louisiana.
    November 9, 2018
    Denied.


text:
    STATE EX REL. Rigoberto F. VENTURA v. STATE of Louisiana
    NO. 2017-KH-1458
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    IN RE: ALR and BAR
    NO. 2018-CJ-0954
    Supreme Court of Louisiana.
    November 5, 2018
    Not considered. See La.S.Ct.R. IX, § 6.


author: HUGHES, J., would grant

text:
    STATE of Louisiana IN the INTEREST OF K.N. 03/12/2012 (Now K.B.)
    NO. 2018-CJ-1043
    Supreme Court of Louisiana.
    November 5, 2018
    Not considered. See La.S.Ct.R. IX, § 6.
   HUGHES, J., would grant


text:
    Gerard BELL, et al. v. MARATHON PIPELINE, LLC, Shell Pipeline
    NO. 2018-C-1366
    Supreme Court of Louisiana.
    November 14, 2018
    Not considered. Not timely filed. See La.S.Ct.R. X, § 5.


text:
    STATE EX REL. Christopher BUCKENBERGER v. STATE of Louisiana
    NO. 2017-KH-0610
    Supreme Court of Louisiana.
    November 14, 2018
    Reconsideration denied.


text:
    Kelvin WELLS v. Kelda Price WELLS
    NO. 2018-CJ-1353
    Supreme Court of Louisiana.
    November 14, 2018
    Stay denied. Writ denied.


text:
    Jerry R. BAGWELL v. UNION CARBIDE CORPORATION, et al.
    NO. 2018-CC-1838
    Supreme Court of Louisiana.
    November 12, 2018
    Denied.


text:
    Larry CULP V. George WALKER
    Jax Development, Inc. V. Ned White a/k/a Harvey Edward White, III and Whiteco Farm Company, LLC
    Ned White and Ashley White V. Larry Culp
    NO. 2018-CC-1786
    Supreme Court of Louisiana.
    Supreme Court of Louisiana November 14, 2018
    Stay denied. Writ denied.


text:
    STATE EX REL. Larry CALLOWAY v. STATE of Louisiana
    NO. 2017-KH-1139
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.


text:
    STATE of Louisiana v. Christopher Bryant GOODLEY -aka- Christopher Bryant Goodly
    NO. 2017-KH-1414
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.


text:
    STATE EX REL. Shawn WICKEM v. STATE of Louisiana
    NO. 2017-KH-1449
    Supreme Court of Louisiana.
    November 14, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Wickem v. State, 15-1276 (La. 5/13/16), 190 So.3d 707.


text:
    STATE EX REL. Randall Wayne WOMACK, Jr. v. STATE of Louisiana
    NO. 2017-KH-1425
    Supreme Court of Louisiana.
    November 14, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Womack v. State, 15-0505 (La. 1/15/16), 182 So.3d 955.


text:
    STATE EX REL. Eric D. LEWIS v. STATE of Louisiana
    NO. 2017-KH-1583
    Supreme Court of Louisiana.
    November 14, 2018
    Denied. Relator has previously exhausted his right to state collateral review. State ex rel. Lewis v. State, 15-1558 (La. 9/16/16), 201 So.3d 242,


text:
    STATE EX REL. Raymond MELANCON v. STATE of Louisiana
    NO. 2017-KH-1635
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.


author: GENOVESE, J., recused.

text:
    STATE EX REL. Jimmy L. BARTIE v. STATE of Louisiana
    NO. 2017-KH-1651
    Supreme Court of Louisiana.
    November 14, 2018
    Denied. Untimely filed pursuant to La.S.Ct.R. X, § 5.
   GENOVESE, J., recused.


text:
    STATE of Louisiana v. Daren Q. KITCHEN
    NO. 2017-K-1983
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.


text:
    STATE of Louisiana v. Cardale GREEN
    NO. 2018-KO-1060
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.
   HUGHES, J., would grant.


author: WEIMER, J., recused.

text:
    STATE EX REL. Clarence SNEEZE v. STATE of Louisiana
    NO. 2017-KH-1514
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.
   WEIMER, J., recused.


text:
    FLORIDA GAS TRANSMISSION COMPANY, LLC v. TEXAS BRINE COMPANY, LLC, et al.
    NO. 2018-CC-1383
    Supreme Court of Louisiana.
    November 14, 2018
    Denied. Moot.


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

text:
    STATE of Louisiana v. Jackie WAFFER
    NO. 2017-KP-0371
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    STATE of Louisiana v. Brandon Michel MOORE
    NO. 2018-KO-0495
    Supreme Court of Louisiana.
    November 14, 2018
    Not Considered. Not timely filed. See La.S.Ct. Rule X, § 5(a).


text:
    STATE of Louisiana v. Johnny Lee YOUNG, Jr.
    NO. 2018-KO-0309
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.


text:
    John L. SOILEAU, et al. v. CHURCHILL DOWNS LOUISIANA HORSERACING COMPANY, LLC, Churchill Down Louisiana Video Poker Company, LLC
    John Soileau, et al. v. Churchill Downs Louisiana Horseracing Company, LLC, Churchill Down Louisiana Video Poker Company, LLC
    NO. 2018-C-1349
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.


text:
    John Brandt BAXTER, in His Capacity as the Independent Administrator of the Succession of August C. Baxter v. Robert C. LEWIS
    NO. 2018-01377
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE EX REL. Larry MITCHELL v. STATE of Louisiana
    NO. 2017-KH-1430
    Supreme Court of Louisiana.
    November 14, 2018
    Denied. Relator has previously exhausted his right to state collateral review.
    See State ex rel. Mitchell v. State, 16-1877 (La. 1/9/18), 232 So.3d 540.


text:
    STATE of Louisiana v. Roy Arlen VANNORTRICK
    NO. 2018-KO-0194
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.
   HUGHES, J., would grant in part.

GENOVESE, J., would grant in part.


text:
    STATE of Louisiana v. Donea L. JACKSON
    NO. 2018-KO-0284
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.


text:
    STATE of Louisiana v. John D. FLOYD
    NO. 2018-KK-1651
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.


text:
    STATE EX REL. Edmond CHAISSON v. STATE of Louisiana
    NO. 2017-KH-1456
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.


text:
    R & N URSULINE FAMILY LIMITED PARTNERSHIP v. PAS A VENDEE, LLC, as Successor in Interest to Matthew B. Moreland, and Norman S. Foster, in His Capacity as Ex-Officio Tax Collector for the City of New Orleans
    NO. 2018-C-1109
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Tyronne PERRY
    NO. 2018-KO-1325
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.
   HUGHES, J., would grant.


text:
    IN RE: Appeal of the Decision of the DISCIPLINARY BOARD NO. 18-PDB-002
    NO. 2018-OB-1283
    Supreme Court of Louisiana.
    November 14, 2018
    Leave to appeal denied.


text:
    STATE of Louisiana v. Brent LEBOUEF
    NO. 2018-KO-1070
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.


text:
    Calvin J. HILL, Individually and as the Executor of the Succession of Elnora Johnson Hill v. TMR EXPLORATION, INC., Park Exploration, Inc. and Vitol Resources, Inc.
    NO. 2018-CC-1363
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.


text:
    Carey DORSEY v. PROTEMP STAFFING SOLUTIONS INC.
    NO. 2018-C-1378
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 17-PDB-115
    NO. 2018-OB-1285
    Supreme Court of Louisiana.
    November 14, 2018
    Leave to appeal denied.
   HUGHES, J., would grant.


text:
    Larry CULP v. George WALKER
    Jax Development, Inc. v. Ned White a/k/a Harvey Edward White, III and Whiteco Farm Company, LLC
    Ned White and Ashley White v. Larry Culp
    NO. 2018-CC-1787
    Supreme Court of Louisiana.
    November 14, 2018
    Stay denied. Writ denied.


text:
    STATE of Louisiana v. Christopher Shon MACE
    NO. 2018-KO-0154
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.


text:
    STATE of Louisiana v. Jamal C. TAYLOR
    NO. 2018-KO-0214
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.


text:
    STATE of Louisiana v. Alvin CHASE
    NO. 2018-KK-1277
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.
   HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    Alvin J. CHAISSON v. Colby Garrett BROUSSARD
    NO. 2018-OC-1388
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.


text:
    Katie Dysart DARDAR v. Jonathan Paul DARDAR
    NO. 2018-CC-1398
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.


text:
    STATE EX REL. Coby Quinton CEASAR a/k/a Coby Quinton Ceaser v. STATE of Louisiana
    NO. 2017-KH-1314
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.
   GENOVESE, J., recused.


text:
    STATE EX REL. Terry L. COOLEY v. STATE of Louisiana
    NO. 2017-KH-1411
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.
   GENOVESE, J., recused.


text:
    STATE of Louisiana v. Matthew Vance SHELTON
    NO. 2018-KK-1407
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Don Michael ANDREW, Jr.
    NO. 2017-KO-0662
    Supreme Court of Louisiana.
    November 14, 2018
    Not considered. See La.S.Ct.R. DC, § 6.


text:
    STATE of Louisiana v. Lamont James NIXON, Jr.
    NO. 2018-KO-0770
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.
   WEIMER, J., recused.


author: GUIDRY, J., would grant.

text:
    STATE of Louisiana v. Norman PEARLEY & Wilson Washington
    NO. 2018-KK-1387
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.
   GUIDRY, J., would grant.

HUGHES, J., would grant.


text:
    Joseph LEVIRE v. CAPITAL AREA TRANSIT SYSTEM AND RELIANT TRANSPORTATION, LLC, et al.
    NO. 2018-CC-1400
    Supreme Court of Louisiana.
    November 14, 2018
    Not considered. Not timely filed. See Louisiana Supreme Court Rule X, § 5(a).


text:
    Lance SHELTON v. SMITTY'S SUPPLY, INC.
    NO. 2018-C-1199
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.


text:
    Shawn P. DOYLE and Thyme B. Doyle, Individually, and on Behalf of Their Minor Children, Brady Doyle, Shawn Michael Doyle and Maggie Grace Doyle v. LONESOME DEVELOPMENT, LIMITED LIABILITY COMPANY, Nautilus Insurance Company, Natchez Trace Property Owners Association Inc., Western World Insurance Company and Renaissance Property Management, a Division of Renaissance Realty Services, LLC
    NO. 2018-C-1369
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.
    JOHNSON, C.J., would grant for the reasons assigned by Judge Holdridge.
    CRICHTON, J., would grant for the reasons assigned by Judge Holdridge.
    GENOVESE, J., would grant for the reasons assigned by Judge Holdridge.


text:
    FLORIDA GAS TRANSMISSION COMPANY, LLC v. TEXAS BRINE COMPANY, LLC, et al.
    NO. 2018-CC-1384
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.


text:
    BIEVER ENTERPRISES A, LLC v. Karen BACHARACH, et al.
    NO. 2018-CC-1371
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.


text:
    Mayo WHITTON, Dea Whitton, Chris Whitton, Cody Whitton, Shiras Whitton, Individually, and on Behalf of His Minor Child, Rylance C. Whitton v. The LOUISIANA HOUSING FINANCE AGENCY, ASD Consultant, Inc., and Louisiana Systems Built Home, LLC
    NO. 2018-CC-1372
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.
   HUGHES, J., would grant.


text:
    Nikolos KOSTOPOULOS v. APOLLO MARINE SPECIALTIES, INC., N & D Industrial Supply, Inc., and Apollo Marine Industrial Supply, Inc.
    NO. 2018-CC-1381
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.
   HUGHES, J., would grant.


text:
    LAFAYETTE CITY-PARISH Consolidated Government v. Bradley S. BROUSSARD, et al.
    Mary Castille v. Starr Indemnity and Liability Insurance Company, et al.
    NO. 2018-CC-13 4 8
    Supreme Court of Louisiana.
    November 14, 2018
    Denied. Moot.
   HUGHES, J., would grant.


text:
    SUCCESSION OF Ethel Lebourgeois DAUTERIVE
    NO. 2018-C-1382
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.


text:
    Susan Russo MARCHAND, et al. v. TEXAS BRINE COMPANY, LLC, et al.
    NO. 2018-00-1419
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.


text:
    John B. TRASK v. Josephine Brown TASK
    NO. 2 018-CC-1423
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.


text:
    STATE of Louisiana v. Elijah MEALANCON
    NO. 2018-KK-1850
    Supreme Court of Louisiana.
    November 15, 2018
    Stay denied. Writ denied.


text:
    STATE of Louisiana v. Calvin C. FREEMAN
    NO. 2018-K-0172
    Supreme Court of Louisiana.
    November 14, 2018
    Denied.