author: COHEN, C.J.

text:
    Joseph S. KNECHT, Appellant, v. Evangelina PALMER, Appellee.
    Case No. 5D17-553
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 3, 2018
    Michael M. Giel, of Giel Family Law, P.A., Jacksonville, for Appellant.
    Michael J. Korn, of Korn & Zehmer, P.A., Jacksonville, and Dennis E. Guidi, of Harris Guidi Rosner, P.A., Jacksonville, for Appellee.
   COHEN, C.J.

Joseph Knecht ("Former Husband") appeals the final judgment dissolving his three-year marriage to Evangelina Palmer ("Former Wife"), arguing that the trial court erred in its classification of certain assets as marital or nonmarital, its equitable distribution of the marital property, and its denial of his request for attorney's fees. He also challenges certain language in the final judgment retaining jurisdiction to modify the final judgment. We affirm in part, reverse in part, and remand for reconsideration of Former Husband's request for attorney's fees and to strike the language in the final judgment retaining jurisdiction.

Both parties were previously married. Former Wife, a self-employed realtor, entered this marriage with significant assets, while Former Husband, a Certified Public Accountant ("CPA"), entered with significant debt. The primary issue on appeal is the characterization of appreciation in a home purchased during the marriage for $412,000. The down payment for the home came exclusively from Former Wife's premarital assets, the title to the home and accompanying debt were exclusively in Former Wife's name, and during the marriage, all the mortgage payments were made from Former Wife's premarital assets.

The parties remodeled the home, spending more than $500,000 on the project. Despite having over $912,000 invested in the home, the parties agreed that its value at the time of the divorce was $575,000. Former Husband claimed entitlement to one-half of the $163,000 appreciated value of the home, the difference between the agreed value and the purchase price. Even though he acknowledged that virtually all the money used for the renovations came from Former Wife's nonmarital assets, Former Husband argued that those monies had been commingled into a joint account before being used on the renovations. Specifically, the funds used to pay for the renovations were taken from Former Wife's premarital trust and deposited into a business account that she owned individually but on which Former Husband was an authorized signer. The funds were then transferred from the business account into a joint checking account, from which the funds were used to pay for the renovations. Former Wife testified that she transferred the funds in that manner at Former Husband's direction. Furthermore, the evidence is undisputed that Former Husband deposited some monies into the joint checking account, albeit a relatively small amount.

Another issue on appeal is the classification of what was termed the "Church Art Note." Former Wife's first husband, who passed away, had accumulated a substantial art collection. Before the parties in this case married, Former Wife had negotiated with a church to purchase certain artwork. The negotiations resulted in Former Wife holding a note for monthly payments from the church. Former Husband claimed that he assisted in negotiating the terms of the note, and that, in return, Former Wife agreed to pay him twenty percent of the value of the note.

The trial court entered a final judgment dissolving the marriage and rejecting Former Husband's claims for additional alimony, one-half of the appreciated value in the home, a percentage of monies owed to Former Wife on the note, and request for attorney's fees. In doing so, the court found that: Former Wife entered the marriage with substantial nonmarital assets; Former Husband entered the marriage with substantial nonmarital debt; the marriage was short term; Former Wife purchased the home and funded the renovations with her premarital assets; and it would be inequitable to award Former Husband one-half of the appreciation in the home.

Former Husband subsequently moved for rehearing. The trial court entered a written order denying the motion and making the following additional findings: Former Husband spent over $200,000 on his personal living expenses during the marriage while earning only $30,000 to $40,000 per year; Former Wife's liquid assets decreased from $1.1 million to $350,000 during the marriage; the funds deposited into the joint checking account used to pay for the renovations were entirely from Former Wife's separate, nonmarital accounts; and Former Husband clearly took financial advantage of Former Wife. This appeal followed.

We agree with Former Husband that the trial court incorrectly characterized the funds used for the renovations as nonmarital. Former Wife commingled those monies by placing them into a joint checking account she held with Former Husband from which the renovations were then funded. "All personal property titled jointly by the parties as tenants by the entireties [sic], whether acquired prior to or during the marriage, shall be presumed to be a marital asset." § 61.075(6)(a)3., Fla. Stat. (2015). It was also undisputed that Former Husband contributed some monies into the joint checking account. "[W]hen one spouse deposits funds into a joint account where they are commingled with other funds so as to become untraceable, a presumption is created that the spouse made a gift to the other spouse of an undivided one-half interest in the funds." Sorgen v. Sorgen, 162 So.3d 45, 47 (Fla. 4th DCA 2014) (quoting Williams v. Williams, 686 So.2d 805, 808 (Fla. 4th DCA 1997) ). In making its findings, the court failed to apply the proper burdens of proof.

Nonetheless, we affirm on this issue because this was a case which called for the unequal distribution of marital assets effectuated in the final judgment. Section 61.075(1), Florida Statutes (2015), provides in pertinent part:

[I]n distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including:
(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.
(b) The economic circumstances of the parties.
(c) The duration of the marriage.
(d) Any interruption of personal careers or educational opportunities of either party.
(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.
(f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.
(g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring liabilities to, both the marital assets and the nonmarital assets of the parties.
(h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.
(i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.
(j) Any other factors necessary to do equity and justice between the parties.

When a trial court orders an unequal distribution of marital assets, "it is required to justify such an award based on all relevant factors listed in section 61.075(1)(a)-(j)," which "serves to advise the reviewing court of the trial court's rationale." Gilliard v. Gilliard, 162 So.3d 1147, 1151 (Fla. 5th DCA 2015) (citing Staton v. Staton, 710 So.2d 744, 745 (Fla. 2d DCA 1998) ).

The better practice is for trial courts to specifically address the statutory criteria and make findings of fact as to each element. The trial court's failure to do so here has made our review that much more difficult. However, it is clear enough that the trial court believed an unequal distribution of the marital assets was required to do equity in this case, and the court's findings are sufficient to justify an unequal equitable distribution of the parties' assets.

Likewise, we find no abuse of discretion in the trial court's characterization of the proceeds due on the "Church Art Note" as Former Wife's nonmarital asset. Former Husband claimed that he and Former Wife had a contract providing that Former Husband was entitled to twenty percent of the payments on the note for his help in structuring the sale of the artwork. While there was testimony that Former Wife gave Former Husband checks consistent with such an agreement, Former Husband failed to produce a copy of the written contract he claimed that the parties signed. Any monies paid to Former Husband occurred well after the sale of the artwork, and the testimony as to the reasons for those payments was disputed.

We affirm the remainder of the equitable distribution issues raised without comment. However, we do find two issues require reversal. Former Husband correctly argues that the trial court abused its discretion in denying his request for attorney's fees. Specifically, Former Husband asserts that the court failed to consider Former Wife's ability to pay attorney's fees or her superior financial position, instead finding that Former Husband had no need for a fee award because he was capable of earning more income than he currently earned as a CPA. We agree that the court abused its discretion in failing to make findings as to Former Wife's total income and each party's respective net worth, which constitutes a failure to consider the parties' relative financial resources. The court's implicit imputation of income to Former Husband does not remedy this error, especially considering that the court failed to set forth any findings in support. See Freilich v. Freilich, 897 So.2d 537, 543 (Fla. 5th DCA 2005) ("Reversal is required ... when there are no specific findings in the final judgment regarding imputation of income and there is no competent, substantial evidence in the record to support the trial court's decision."). Therefore, we reverse the denial of Former Husband's request for attorney's fees and remand for the trial court to make sufficient findings and to consider the parties' relative financial resources in reviewing his request.

Lastly, Former Husband contests the inclusion of the following provision in the final judgment:

Jurisdiction shall be retained for enforcement of any provision of the final judgement herein or for modification of any provision. Upon application by either party for enforcement or modification of any provision of the Final Judgment notice of such application may be served by United States Mail, return receipt requested, and such service shall be adequate and sufficient to subject that served party to the Court's continuing jurisdiction.

The trial court's blanket reservation of jurisdiction for any modification of the final judgment is erroneous as a matter of law and legally unnecessary. See Encarnacion v. Encarnacion, 877 So.2d 960, 963 (Fla. 5th DCA 2004) ("At the time a judgment of dissolution of marriage becomes final, the parties' property rights, if determined by the judgment, are fixed as a matter of law ... [and] a trial court lacks jurisdiction ... to determine property rights, unless the final judgment reserves jurisdiction for a specific purpose regarding identified property." (citations omitted) ). On remand, the trial court is directed to strike the entirety of the above provision from the final judgment.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

LAMBERT and EDWARDS, JJ., concur.

      Former Husband also argued that he was entitled to one-half of the appreciation in the home based on his supervision over the remodeling project, which the court characterized as "sweat equity." Former Wife disputed his role, testifying that they both supervised the project. Former Wife also claimed that Former Husband siphoned money from her during the remodel. Former Husband failed to produce documentation for any alleged cash payments made.

      There was no dispute that the artwork itself constituted a nonmarital asset.

      A general master previously awarded Former Husband $20,000 for moving expenses and $5,000 for temporary attorney's fees, and awarded Former Wife exclusive use of the home.

      In the interest of brevity, we do not enumerate all of Former Husband's financial misdeeds. However, the facts underlying the purchase of a $115,000 Mercedes-Benz vehicle are illustrative. After Former Husband's application for a loan was denied at one bank (even using Former Wife's credit information), Former Husband, without Former Wife's knowledge, went to another bank, applied for a loan in Former Wife's name, and obtained the loan by significantly exaggerating her income on the application.

      " 'Marital assets and liabilities' include ... [t]he enhancement in value and appreciation of nonmarital assets resulting from either the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both." § 61.075(6)(a)1.b., Fla. Stat. (2015). The spouse asserting a marital claim to the appreciation in value of the other spouse's separate, nonmarital property bears the initial burden of proving "that marital labor or funds were used to improve [the] asset[ ]," but once that burden is met, "the burden [shifts] to the [owner-spouse] to show that some, if any, portion of the enhanced value [is] exempt from equitable distribution." Yitzhari v. Yitzhari, 906 So.2d 1250, 1254 (Fla. 3d DCA 2005). In totality, Former Wife's testimony supports Former Husband's argument as to the commingling of funds.

      We recognize that the court's findings regarding the note in the final judgment and the order on rehearing are inconsistent. While the order on rehearing attempted to clarify the court's rationale for distributing the proceeds of the note, it did the opposite. However, the court did not enter an amended final judgment, and our review on appeal concludes that the court correctly classified the note as Former Wife's nonmarital asset.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Marcus Keyton JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1111
    District Court of Appeal of Florida, First District.
    August 3, 2018
    Andy Thomas, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Marcus Keyton Jones appeals his convictions and sentences for attempted second-degree murder and two counts of aggravated assault. He raises several issues, only one of which has merit. Jones asserts the trial court improperly imposed a twenty-year mandatory-minimum sentence for his conviction for aggravated assault because the evidence and arguments at trial did not support a finding that he discharged a firearm during the commission of the felony.

During the episode which formed the basis for the charges against him, Jones discharged a firearm. In the charging document and at trial, the State distinguished between the conduct that supported the charges of attempted second-degree murder and aggravated assault. In connection with the attempted second-degree murder charge, the information charged Jones with the discharge of a firearm during the offense, and the State argued at trial that the discharge of the weapon related to the attempted second-degree murder charge.

In contrast, with respect to the aggravated assault charge, Jones was charged with possessing a firearm during the commission of the offense. And the State argued at trial that it was the possession of the firearm and not the discharge of the firearm that related to the aggravated assault charge. The State specified that "[i]t's not shooting [the victims]," "[i]t's threatening [the victims] with it." Despite the charging documents and the arguments advanced at trial, the verdict form permitted the jury to find, and the jury did find, that Jones discharged a weapon when he committed the offense of aggravated assault. Based on our review of the record, Jones is entitled to relief. See Arnett v. State , 128 So.3d 87, 88 (Fla. 1st DCA 2013) (holding that in order for a defendant's sentence to be enhanced under the 10-20-Life statute, the jury must make factual findings supporting the enhancement, and the State must specifically allege the grounds for enhancement in the charging document).

Accordingly, we reverse Jones's sentence on Count 2, and remand for the trial court to correct the sentence on this count so that it reflects a sentence of twenty years' imprisonment with a three-year mandatory-minimum sentence because Jones was charged with and found by the jury to have had actual possession of a firearm during the commission of the offense.

AFFIRMED in part, REVERSED in part.

Rowe, Ray, and Makar, JJ., concur.


author: B.L. Thomas, C.J.

text:
    ORLANDO HEALTH CENTRAL, INC., Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Adventist Health System/Sunbelt, Inc., d/b/a Florida Hospital, and Central Florida Health Services, LLC, Appellees.
    No. 1D17-2463
    District Court of Appeal of Florida, First District.
    August 3, 2018
    Karen A. Putnal and Jon C. Moyle of Moyle Law Firm, P.A., Tallahassee, for Appellant.
    Tracy Cooper George, Chief Appellate Counsel, and Amy E. Miles, Senior Attorney, Agency for Health Care Administration, Tallahassee, for Appellee Agency for Health Care Administration.
    Tiffany A. Roddenberry and Jerome W. Hoffman of Holland & Knight LLP, Tallahassee, for Appellee Adventist Health System/Sunbelt, Inc., d/b/a Florida Hospital.
    Stephen A. Ecenia, Tana D. Storey, Craig D. Miller, and Jennifer F. Hinson of Rutledge Ecenia, P.A., Tallahassee, for Appellee Central Florida Health Services, LLC.
   B.L. Thomas, C.J.

This appeal concerns a rule challenge to the procedure through which healthcare providers apply for and challenge the award of a Certificate of Need, a written statement "evidencing community need for a new, converted, expanded, or otherwise significantly modified health care facility, health service, or hospice." § 408.032(3), Fla. Stat. (2017). The Agency for Health Care Administration is responsible for issuing or denying Certificates, and has adopted rules to implement the program. § 408.033(3), Fla. Stat. (2017) ; Chapter 59C, Fla. Admin. Code (2017).

The Agency accepts and considers Certificate applications in "batching cycles," in which all applications seeking approval for the same type of healthcare facility or expansion are subject to "comparative review." § 408.039, Fla. Stat. (2017). When review is complete, the Agency issues a State Agency Action Report or Notice of Intent stating whether it will grant or deny each application, and this notice is published in the Florida Administrative Register. Id.

Section 408.039(5)(c), Florida Statutes, states that applicants in the same batching cycle are entitled to a "comparative hearing" on their applications, in which the Agency comparatively reviews all pending applications. Section 408.039(5)(a) provides that applicants in the same batching cycle must request the hearing within twenty-one days from publication of the Notice of Intent or State Agency Action Report.

In 1992, the Agency promulgated a rule, which states in pertinent part:

If a valid request for administrative hearing is timely filed challenging the noticed intended award of any certificate of need application in the batch, that challenged granted applicant shall have ten days from the date the notice of litigation is published in the Florida Administrative Register to file a petition challenging any or all other cobatched applications.

Fla. Admin. Code R. 59C-1.012(2)(a) (2017).

The 1997 Legislature enacted section 408.0455, Florida Statutes, which read as follows:

Rules; pending proceedings.-The rules of the agency in effect on June 30, 1997, shall remain in effect and shall be enforceable by the agency with respect to ss. 408.031-408.045 until such rules are repealed or amended by the agency, and no judicial or administrative proceeding pending on July 1, 1997, shall be abated as a result of the provisions of ss 408.031-408.043(1) and (2); s. 408.044; or s. 408.045.

Ch. 97-270, § 9, at 19, Laws of Fla. In 2004, section 408.0455 was amended in relevant part as follows:

Rules; pending proceedings.-The rules of the agency in effect on June 30, 2004 1997, shall remain in effect and shall be enforceable by the agency with respect to ss. 408.031-408.045 until such rules are repealed or amended by the agency, and no judicial or administrative proceeding pending on July 1, 1997, shall be abated as a result of the provisions of ss 408.031-408.043(1) and (2); s. 408.044; or s. 408.045.

Ch. 2004-838, § 12, at 26, Laws of Fla.

The statute today reads as it did after the 2004 reenactment. § 408.0455, Fla. Stat. (2017).

Appellant, Orlando Health Central, Inc., holds the license for Health Central Hospital, a not-for-profit, full-service Class I general hospital in Orange County. Appellee Adventist Health System/Sunbelt, Inc., d/b/a Florida Hospital ("Florida Hospital," intervenor below), is a not-for-profit, full-service, Class I general hospital with seven campuses located throughout the greater Orlando area. Appellee Central Florida Health Services, LLC ("CFHS," intervenor below), is a developmental-stage entity affiliated with Hospital Corporation of America, North Florida Division.

On September 7, 2016, all three entities submitted Certificate of Need applications to establish new hospitals in Orange County. The three parties were "co-batched" and comparatively reviewed.

On December 2, 2016, the Agency issued its State Agency Action Report and Notice of Intent to simultaneously approve the applications of Appellee Florida Hospital and Appellee CFHS. Thus, the twenty-one-day window in which co-batched applicants could request an administrative hearing under section 408.039(5)(a), Florida Statutes, closed on December 27, 2016. Within that twenty-one-day window, Florida Hospital filed a request for hearing to contest the intended approval of CFHS' application, and Appellant filed a request for hearing to contest the intended approval of Florida Hospital's application.

On January 5, 2017, CFHS filed a petition contesting the approval of Florida Hospital's application, and on January 11, 2017, Florida Hospital filed a petition challenging Appellant's application. Though these petitions were filed outside the twenty-one-day window established by section 408.039, the petitions were filed within ten days of the notice of a challenge by a co-batched applicant, and were purportedly timely filed under rule 59C-1.012(2)(a).

On March 30, 2017, Appellant filed a Petition to Determine the Invalidity of Existing Rule, arguing that rule 59C-1.012(2)(a) was an invalid exercise of delegated legislative authority, in violation of section 120.52(8)(b-c), Florida Statutes. In its summary final order, the Administrative Law Judge concluded that rule 59C-1.012(2)(a) exceeded the Agency's delegated legislative authority by granting challenged applicants an additional ten days to request a comparative hearing. Despite this conclusion, however, the Administrative Law Judge determined that the legislature had authorized and adopted the Agency's administrative interpretation of the applicable statutes, including section 408.039, because section 408.0455 states that the Agency's rules that were in effect on June 30, 2004, are to remain in effect and enforceable until the Agency amends or repeals them.

The order concluded that the legislature is presumed to know of all prior administrative constructions and interpretations of a law it reenacts. Because a 2002 administrative decision determined that section 408.0455"in essence, ratified" rule 59C-1.012(2)(a), and because the legislature amended section 408.0455 in 2004, retaining the "saving" language in question, the order determined that section 408.0455 ratifies rule 59C-1.012(2)(a).

Analysis

Because this issue presents a pure question of law, this court reviews the order of the lower tribunal de novo. Sw. Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc. , 773 So.2d 594, 597 (Fla. 1st DCA 2000).

A reviewing court's "statutory analysis begins with the plain meaning of the actual language of the statute, as we discern legislative intent primarily from the text of the statute." Diamond Aircraft Indus., Inc. v. Horowitch , 107 So.3d 362, 367 (Fla. 2013). "If statutory language is 'clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.' " Id. (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) ). Appellant argues that, although section 408.0455 ensures the rules at issue "remain in effect and ... enforceable ... until ... repealed or amended by the agency," this statute does not grant those rules immunity to challenges under section 120.56, Florida Statutes.

Chapter 120 does not define "enforceable," and only uses a variant of the term in section 120.536, when discussing rules of "uncertain enforceability." § 120.536(2)(c), Fla. Stat. (2017). Section 120.536(2)(c) states that if the repeal of law creates doubt as to whether a rule is enforceable, the Department of State shall treat the rule as provided by section 120.555, Florida Statutes. In turn, section 120.555 states that, if the Department of State doubts whether a rule "is still in full force and effect," it shall request a determination from the administering agency or the Governor as to whether the rule "is in full force and effect." § 120.555(1) - (2), Fla. Stat. (2017). Failure to respond to such request constitutes an acknowledgement that the rule is "no longer in effect," and the agency or Governor must also publish a notice of repeal if the rule is deemed to be "no longer in effect." § 120.555(2), (4), Fla. Stat. (2017). A rule's enforceability ultimately turns on the administering entity's determination of whether the rule is "in effect," a phrase used interchangeably with "in force" and "enforceable" in section 120.555. As rules "in effect" are still subject to challenge pursuant to section 120.56(3), it follows that "enforceable" rules are also subject to challenge.

Appellant thus persuasively argues that a legislative mandate that certain rules are "in effect" does not render them immune from section 120.56 challenges; this would likely resolve this issue in Appellant's favor, if not for the legislature's 2004 reenactment of section 408.0455 and presumptive adoption of prior administrative constructions of its language. "When the legislature reenacts a statute, it is presumed to know and adopt the construction placed thereon by courts or administrators, except to the extent to which the new enactment differs from prior constructions." Peninsular Supply Co. v. C.B. Day Realty of Fla., Inc. , 423 So.2d 500, 502 (Fla. 3d DCA 1982) ; accord Cole Vision Corp. v. Dep't of Business & Prof'l Regulation, Bd. of Optometry , 688 So.2d 404, 408 (Fla. 1st DCA 1997) (citing Peninsular Supply Co. , 423 So.2d at 502 ) ); see also State ex rel. Szabo Food Servs., Inc. of N.C. v. Dickinson , 286 So.2d 529, 531 (Fla. 1973) (holding that "[w]hen the Legislature reenacts a statute, it is presumed to know and adopt the construction placed thereon by" administrators).

In 2002, the specific issue of "[w]hether Section (2) of Rule 59C-1.012, Florida Administrative Code... constitutes an invalid exercise of delegated legislative authority" was addressed in Southern Baptist Hospital of Florida, Inc. v. Agency for Health Care Administration . Case No. 02-0575RX at 2 (DOAH Apr. 30, 2002). In Southern Baptist Hospital , the Administrative Law Judge analyzed the 1997 iteration of section 408.0455, which contained language identical to the current version, providing that the relevant rules were "in effect" and "enforceable" until repealed by the Agency. Id. at 33. The Administrative Law Judge concluded that any argument as to whether rule 59C-1.012(2)(a) exceeded delegated authority was immaterial, as the legislature, through section 408.0455, "ratified, validated and declared saved the Rule and its Section (2) ...." Id. at 34.

When the legislature reenacted section 408.0455 in 2004 without altering the "saving" language at issue here, it did so while presumptively adopting this construction of the language in Southern Baptist Hospital , and therefore "ratified, validated and declared saved" rule 59C-1.012(2)(a). Thus, despite Appellant's persuasive argument, the legislature adopted the opposite construction with its 2004 reenactment. Appellant's argument that section 408.0455 does not "save" rule 59C-1.012(2)(a) must therefore fail.

AFFIRMED.

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

      "A petition alleging the invalidity of an existing rule may be filed at any time during which the rule is in effect." § 120.56(3)(a), Fla. Stat. (2017).


author: Per Curiam. Winsor, J., concurring.

text:
    Arthur Bernard SOREY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-901
    District Court of Appeal of Florida, First District.
    August 10, 2018
    Andy Thomas, Public Defender, and Kevin Steiger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant Arthur Bernard Sorey challenges his convictions and sentences for possession with intent to sell a controlled substance within 1,000 feet of a place of worship and possession of drug paraphernalia. The first two issues raised on appeal are affirmed without further comment. We write to address the third issue in which Sorey alleges trial counsel was ineffective on the face of the record for failing to move for judgment of acquittal, where the State failed to prove the offense was committed within 1,000 feet of a church which regularly conducted religious services.

Section 893.13(1)(e), Florida Statutes (2016), provides that it is unlawful for any person to "sell, manufacture, or deliver, or possess with intent to sell, manufacture or deliver, a controlled substance not authorized by law in, on, or within 1,000 feet of a physical place for worship at which a church or religious organization regularly conducts religious services...." As this Court noted in Fletcher v. State , 168 So.3d 330, 331 (Fla. 1st DCA 2015), the statute in question has frequently been construed to require the State to prove that regular religious services were being held at the time of the offense. The instant case is almost identical to Fletcher with one important distinction. Unlike Fletcher trial counsel for Sorey failed to argue, as a basis for judgment of acquittal, that the State failed to prove the offense occurred within 1,000 feet of a place of regular worship.

Sorey now raises the issue on direct appeal as an ineffective assistance of counsel claim. The State argues this is not the proper vehicle for the challenge, and that Sorey is required to file a postconviction motion pursuant to Florida Rule of Criminal Procedure 3.850. We recognize that "[a]s a general rule, claims asserting ineffective assistance of defense counsel are not cognizable on direct appeal 'because the trial court never had the opportunity to consider the issue below, and the issue often involves collateral questions of fact that cannot be determined by the trial record,' alone." Fox v. State , 104 So.3d 371, 371-72 (Fla. 1st DCA 2012) (quoting Loren v. State , 601 So.2d 271, 272 (Fla. 1st DCA 1992) ). "The 'rare' exception to this general rule exists where '(1) the ineffectiveness is apparent on the face of the record, and (2) it would be 'a waste of judicial resources to require the trial court to address the issue.' " Id. at 372 (quoting Ellerbee v. State , 87 So.3d 730, 739 (Fla. 2012) ).

Sorey relies on Monroe v. State , 191 So.3d 395, 402 (Fla. 2016), in which the Florida Supreme Court held, "the failure of [defendant's] trial counsel to preserve the sufficiency of the evidence issue for appellate review constitute[d] ineffective assistance of counsel that is apparent from the face of this record." However, Monroe is limited to its facts and constitutes a rare example of ineffective assistance of counsel that should have been remedied on direct appeal. Id. at 404. In Monroe , the Florida Supreme Court found the failure of trial counsel to move for judgment of acquittal during or after trial was "patently unreasonable." Id. at 403. Furthermore, the court detailed, "[w]e can think of no plausible justification for these decisions of trial counsel, and during oral argument, neither could [defendant's] appellate counsel nor the State." Id. Here, the facts do not constitute the rare circumstance where ineffective assistance of counsel is evident on the face of the record.

On appeal, Sorey does not raise a single claim of preserved error or even a claim that any error below was fundamental. The trial court is the more appropriate forum to present claims of ineffective assistance of counsel where evidence may be reviewed to determine why actions were taken or omitted by counsel. McKinney v. State , 579 So.2d 80, 82 (Fla. 1991). An appellate court "normally considers the merits of ineffective assistance of counsel claims after a postconviction motion has been filed under the applicable rule of criminal procedure and ruled upon by the trial court following the completion of any necessary evidentiary proceedings." Robards v. State , 112 So.3d 1256, 1266 (Fla. 2013). An appellant should not be permitted to circumvent the standard of fundamental error by claiming that the failure to raise the issues constitutes ineffective assistance, "which entails a different standard that could provide an easier path to reversal, and which deprives trial counsel of the opportunity to defend themselves against allegations of unprofessional conduct." Latson v. State , 193 So.3d 1070, 1074 (Fla. 1st DCA 2016) (Winokur, J., concurring).

Accordingly, we affirm Sorey's conviction and sentence for possession with intent to sell a controlled substance within 1,000 feet of a place of worship. This does not preclude his ability to file a motion pursuant to rule 3.850.

Jay and M.K. Thomas, JJ., concur; Winsor, J., concurs with written opinion.

Winsor, J., concurring.

Ineffective-assistance claims rarely succeed on direct appeal. To prevail, an appellant must show "indisputable prejudice," among other things. Morales v. State , 170 So.3d 63, 67 (Fla. 1st DCA 2015). Here, Sorey has shown the possibility of insufficient evidence on a somewhat technical point, but he has not shown indisputable prejudice.

Sorey faced charges of possessing drugs "within 1,000 feet of a physical place for worship at which a church or religious organization regularly conducts religious services." See § 893.13(1)(e)2, Fla. Stat. And although a church pastor testified about regular services in the place at issue, the pastor neglected to say there also had been regular services months earlier, at the time of the offense. See Fletcher v. State , 168 So.3d 330, 331 (Fla. 1st DCA 2015) (noting that the "statute has been construed to require the State to prove at trial that regular religious services were being held at the time of the offense " (emphasis added) ). Sorey's counsel made no issue of this.

In Monroe v. State , on which Sorey relies, the Florida Supreme Court found "one of the rare examples in which the ineffectiveness of trial counsel is cognizable on direct appeal." 191 So.3d 395, 404 (Fla. 2016). There had been a failure of evidence on a critical point (the victim's age), and although defense counsel "vigorously disputed" the age during closing arguments, counsel did not move for a judgment of acquittal. The Florida Supreme Court held that counsel's failure was inexplicable and caused "indisputable prejudice." Id. But the court reached that conclusion only after explaining that the State did everything it could to present the missing evidence: "Despite the best efforts of the State during trial, the prosecutor was unable to elicit testimony from [the victim] regarding the exact date that Monroe assaulted him." Id. at 403.

Here, there was no comparable effort. For all we know, had Sorey's counsel raised the issue of past religious services, the State would have reopened its case and called the pastor for one more question and answer. Cf. Dees v. State , 357 So.2d 491, 491 (Fla. 1st DCA 1978) (noting trial court's discretion to allow State to reopen case after defense moves for judgment of acquittal). And for all we know, Sorey's counsel knew that-and therefore did not bother raising the issue. Accordingly, we have no record basis to label Sorey's counsel constitutionally ineffective or to find indisputable prejudice.


author: KHOUZAM, Judge.

text:
    Morris CRENSHAW, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4187
    District Court of Appeal of Florida, Second District.
    Opinion filed August 15, 2018
    Morris Crenshaw, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Morris Crenshaw appeals the postconviction court's denial of his petition for writ of habeas corpus, which it treated as a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We treat the appeal as an original petition for writ of habeas corpus to correct a manifest injustice. See Carswell v. State, 23 So.3d 195, 196 (Fla. 4th DCA 2009).

Crenshaw correctly argued in past proceedings in this court that the trial court committed fundamental error in giving an erroneous instruction on manslaughter when he was convicted of second-degree murder, a crime one step removed from manslaughter. See State v. Montgomery, 39 So.3d 252, 254, 257 (Fla. 2010) (holding that standard jury instruction on second-degree murder improperly imposed intent as an additional element on the lesser-included offense of manslaughter and constituted fundamental error); see also Griffin v. State, 160 So.3d 63, 68-69 (Fla. 2015) (holding that if a defendant claims he is not the perpetrator, intent is still at issue and thus, erroneous jury instruction is fundamental error); Daniels v. State, 121 So.3d 409, 418-19 (Fla. 2013) (holding that giving of erroneous manslaughter instruction was fundamental error because the record reflected that the issue of whether Daniels intentionally caused decedent's death was disputed and was pertinent and material to what the jury had to consider in reaching its verdict). This court, however, denied him relief in those earlier proceedings. See Crenshaw v. State, 211 So.3d 1036 (Fla. 2d DCA 2016) (denying petition for writ of habeas corpus); Crenshaw v. State, 129 So.3d 1073 (Fla. 2d DCA 2013) (denying petition alleging ineffective assistance of appellate counsel); Crenshaw v. State, 49 So.3d 754 (Fla. 2d DCA 2010) (per curiam affirmance). But an appellate court has the power to reconsider and correct its erroneous rulings made in earlier appeals and original proceedings to prevent a manifest injustice. See State v. Akins, 69 So.3d 261, 268 (Fla. 2011) ; Wardlow v. State, 212 So.3d 1091, 1093-94 (Fla. 2d DCA 2017).

Crenshaw's argument has merit because it would be manifestly unjust to deny him relief under these circumstances where this court and other district courts have given similarly situated appellants the benefit of Montgomery and have reversed for a new trial. See Cummings v. State, 103 So.3d 1048, 1048 (Fla. 2d DCA 2013) (reversing denial of petition alleging ineffective assistance of appellate counsel for failing to argue that the manslaughter instruction was fundamental error where the initial brief was filed after the supreme court's decision in Montgomery issued); Curry v. State, 64 So.3d 152, 155 (Fla. 2d DCA 2011) (granting postconviction relief because appellate counsel did not request supplemental briefing to raise improper jury instruction after supreme court issued Montgomery ); Del Valle v. State, 52 So.3d 16, 18-19 (Fla. 2d DCA 2010) (holding appellate counsel provided ineffective assistance by failing to argue that giving the then-standard manslaughter by act was fundamental error when initial brief was filed after the First District's opinion in Montgomery was issued); Kerney v. State, 217 So.3d 138, 143 (Fla. 3d DCA 2017) (vacating conviction for second-degree murder and remanding for a new trial to prevent a manifest injustice under similar facts); Paul v. State, 183 So.3d 1154, 1156 (Fla. 5th DCA 2015) (reversing order denying Paul a new trial when his brother was granted a new trial "based on the significant similarities in their cases" where a manifest injustice would occur if Paul were not granted relief).

Petition granted, order vacated, conviction and sentence for second degree murder reversed, and case remanded for new trial on that charge only.

LaROSE, C.J., and BADALAMENTI, J., Concur.


author: PER CURIAM.

text:
    Wayne Charles WASHER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1088
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 7, 2018
    Wayne Charles Washer, Cross City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Wayne Charles Washer appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to Grounds Three and Four. However, because the record does not conclusively refute Washer's claims that counsel was ineffective for failing to request a jury instruction on self-defense and failing to secure and introduce exculpatory evidence, namely a GPS device, we reverse the summary denial of Grounds One and Two and remand for attachment of portions of the record conclusively refuting those claims or for an evidentiary hearing. See Freeman v. State, 761 So.2d 1055, 1061 (Fla. 2000) ("[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient." (citing Maharaj v. State, 684 So.2d 726 (Fla. 1996) )).

AFFIRMED in part, REVERSED in part, and REMANDED.

COHEN, C.J., TORPY and BERGER, JJ., concur.


text:
    Foster BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1855
    District Court of Appeal of Florida, First District.
    August 16, 2018 Rehearing Denied September 17, 2018
    Foster Brown, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is dismissed. See Baker v. State , 878 So.2d 1236 (Fla. 2004). Petitioner is cautioned 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.

B.L. Thomas, C.J., and Osterhaus and Bilbrey, JJ., concur.


text:
    Judy Rebecca REHMAN, Appellant, v. Arkam REHMAN, Appellee.
    No. 1D18-2641
    District Court of Appeal of Florida, First District.
    September 14, 2018
    Carrington Madison Mead of Carrington Madison Mead, Jacksonville, for Appellant.
    Lawrence C. Datz of Datz & Datz, P.A., Jacksonville, for Appellee.
   Per Curiam.

The Motion to Dismiss Appeal, filed July 2, 2018, is granted. The appeal is hereby dismissed. See Ward v. Bragg , 957 So.2d 670, 671 (Fla. 1st DCA 2007).

Wolf, Winokur, and Jay, JJ., concur.


text:
    Antonio Antwan WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2302
    District Court of Appeal of Florida, First District.
    September 14, 2018
    Joe Hamrick and Rick A. Sichta of The Sichta Firm, LLC, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Antonio Antwan Williams challenges his multiple convictions arguing the trial court erred in denying his pre-trial motion to exclude from trial any evidence regarding a dispute between Appellant and his wife. The State opposed the motion arguing the domestic dispute was inextricably linked to the charged offenses, and the trial court agreed. The issue is preserved for our review, see section 90.104(1), Florida Statutes (2017), but we find no abuse of discretion on the part of the trial court. See Truehill v. State , 211 So.3d 930, 946 (Fla. 2017).

However, this cause is remanded to the trial court for correction of the judgment of conviction to reflect a conviction as to count three for burglary with an assault or battery while armed with a deadly weapon. The jury found that Appellant actually possessed a firearm and also committed an assault or battery on the victim during the course of the burglary. See § 810.02(2)(a)&(b), Fla. Stat. The judgment in the record erroneously lists this conviction as "armed robbery with assault or battery." Both armed robbery with a firearm and burglary with an assault or battery or while armed with a dangerous weapon are first degree felonies punishable by a sentence up to life imprisonment, which Appellant received for count three. See §§ 812.13(2)(a) & 810.02(2)(a)&(b), Fla. Stat. As correction of the judgment is a ministerial act, Appellant need not be present. See Jordan v. State, 143 So.3d 335, 339 (Fla. 2014) ; Taylor v. State , 185 So.3d 1281, 1282 (Fla. 1st DCA 2016).

Appellant's convictions are AFFIRMED , but the cause is REMANDED with instructions.

Wetherell, Bilbrey, and M.K. Thomas, JJ., concur.


text:
    Heather GRANT, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3226
    District Court of Appeal of Florida, First District.
    September 14, 2018
    James P. Waczewski, Waczewski Law Group, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Holly N. Simcox, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Given the lack of legally sufficient proof to support restitution in the amount of $107,333.00, we reverse the final order of restitution and remand this cause to the trial court to conduct a new evidentiary hearing to determine the appropriate amount of restitution. See Glaubius v. State , 688 So.2d 913, 916 (Fla. 1997) ; D.E.M. v. State , 109 So.3d 1229, 1232 (Fla. 1st DCA 2013).

REVERSED and REMANDED with instructions.

Wolf, Jay, and Winsor, JJ., concur.


text:
    Renaldo Leon WINTERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2253
    District Court of Appeal of Florida, First District.
    September 14, 2018
    Andy Thomas, Public Defender, and Victor Holder, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Renaldo Leon Winters challenges the denial of his motion for postconviction relief. We affirm.

The trial court summarily denied the first seven grounds of his motion but granted an evidentiary hearing on the eighth and final ground. We affirm the summary denial of the initial seven grounds because Winters did not specify facts, unrebutted by the record, demonstrating entitlement to relief. See Rose v. State , 617 So.2d 291, 296 (Fla. 1993) ; see also Cortes v. State , 85 So.3d 1135, 1139 (Fla. 4th DCA 2012). We note that in concluding Winters did not establish a basis for relief, this court consulted our own records, as we are permitted to do. See Loren v. State , 601 So.2d 271 (Fla. 1st DCA 1992).

As for the remaining ground, which alleged trial counsel was deficient in failing to advise Winters of the possibility of sentencing as a Prison Releasee Reoffender, we find no basis to overturn the trial court's findings of fact and credibility determinations following an evidentiary hearing.

Accordingly, the order denying postconviction relief is AFFIRMED .

Wetherell, Bilbrey, and M.K. Thomas, JJ., concur.


author: PER CURIAM

text:
    IN RE: Chantell M. BOUTTÉ
    NO. 2018-B-0901
    Supreme Court of Louisiana.
    September 21, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Chantell M. Boutté, an attorney licensed to practice law in Louisiana, but currently ineligible to practice.

FORMAL CHARGES

Count I

In April 2015, Yolanda Williams hired respondent to represent her in a claim for injuries she sustained following a slip and fall accident at Abbeville General Hospital. Respondent advised Ms. Williams that she would contact the hospital on her behalf and work with attorney David Rutledge to file a lawsuit against the hospital. Thereafter, respondent abandoned her law practice without notice to her client. She failed to return Ms. Williams' telephone calls, e-mails, or correspondences. Mr. Rutledge also attempted to contact respondent, but received no response. Mr. Rutledge eventually had to file a protective suit on behalf of Ms. Williams. Due to respondent's lack of diligence, Ms. Williams' case was dismissed. The ODC attempted to contact respondent about this matter on numerous occasions, to no avail.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.2 (scope of the representation), 1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(a) (violation of the Rules of Professional Conduct).

Count II

In July 2015, Angie Perkins hired respondent to represent her in a child custody and support matter, for which she paid a $3,000 flat fee. Ms. Perkins also engaged respondent to handle a community property matter, for which she paid an advanced deposit in the amount of $3,500, to be billed at a rate of $225 per hour. A written fee agreement was signed on July 21, 2015.

Thereafter, respondent filed a petition to modify child custody and support, a motion to recuse the hearing officer, and a memo in support of recusal. In addition, respondent submitted correspondence to the court, in lieu of attendance, and a proposed judgment on the recusal. Respondent also filed a motion to reset the custody hearing, which was returned because she failed to sign the motion. Respondent performed no other work related to the child custody and support matter. Respondent performed no work in the community property matter.

After becoming frustrated with respondent's failure to communicate with her, Ms. Perkins, through her new attorney, formally discharged respondent in May 2016. Ms. Perkins requested a copy of her file, the unearned portion of the fee in the child custody and support matter, and a full refund for the community property matter. Respondent did not respond to these requests.

The ODC's investigation revealed that respondent had received the advanced deposit in the amount of $3,500 on July 21, 2015. The contract between respondent and Ms. Perkins clearly states that respondent would charge an hourly rate and deduct from this deposit. Accordingly, the funds should have been deposited into a client trust account. However, respondent's trust account disclosure form, which was updated on August 14, 2015, states that she did not handle client funds and did not have a trust account. A review of the endorsement on the back of the check reflects that the check was cashed at Woodforest National Bank on July 29, 2015, not deposited into a client trust account. In addition, Woodforest National Bank is not on the list of approved/qualified banks for trust accounts, and attorneys are prohibited from maintaining a trust account with any banking institution that is not on the list of approved/qualified banks.

Respondent converted client funds to her own use. She also abandoned her law practice, failed to provide notice to her client, and failed to provide her client with a copy of her file so she could hire new counsel. The ODC attempted to contact respondent on numerous occasions, to no avail.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.2, 1.3, 1.4, 1.5(f)(4) (when the client pays the lawyer an advance deposit to be used for costs and expenses, the funds remain the property of the client and must be placed in the lawyer's trust account), 1.15(a) (safekeeping property of clients or third persons), 1.16(d) (obligations upon termination of the representation), 8.1(c), 8.4(a), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

DISCIPLINARY PROCEEDINGS

In April 2017, the ODC filed formal charges against respondent. Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee's consideration.

Hearing Committee Report

After considering the ODC's deemed admitted submission, the hearing committee determined that the factual allegations in the formal charges were deemed admitted and proven by clear and convincing evidence. Based on these facts, the committee determined that respondent violated the Rules of Professional Conduct as charged.

The committee determined that respondent violated duties owed to her clients. Respondent intentionally, knowingly, and recklessly failed to communicate with her clients. She intentionally abandoned her law practice and her clients, without notice. Respondent failed to deposit funds into an approved trust account, intentionally converting client funds to her own use. She also intentionally failed to cooperate with the ODC. Her misconduct caused actual harm. Ms. Williams' case was dismissed and nothing was done in Ms. Perkins' community property matter. Respondent failed to return her clients' files upon demand. Furthermore, she would not cooperate with the attorneys hired to replace her. Particularly troubling is respondent's handling of Ms. Perkins' money, which should have been deposited into an approved trust account. Respondent ignored Ms. Perkins' demand for the return of unearned fees. She provided no explanation or justification for her acts and failures. Based on the ABA's Standards for Imposing Lawyer Sanctions , the committee determined that the applicable baseline sanction is disbarment.

In aggravation, the committee found a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, and indifference to making restitution. The committee found no mitigating factors present.

In conclusion, the committee recommended respondent be disbarred. The committee also recommended respondent be ordered to pay the costs of this proceeding and to pay restitution to Ms. Perkins.

Neither respondent nor the ODC filed an objection to the hearing committee's report.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee's factual findings in this deemed admitted matter are supported by the factual allegations in the formal charges and/or by the evidence submitted in support of those allegations. Based on these findings, the board determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The board determined that respondent intentionally violated duties owed to her clients, the public, the legal system, and the legal profession. She caused actual harm to her clients by neglecting and abandoning their legal matters. She caused further harm to Ms. Perkins by retaining, and essentially converting, the fees advanced by her client. Respondent's failure to fulfill her professional obligations, including her failure to accurately report her trust account information, her failure to cooperate in the ODC's investigation, and her failure to participate in the disciplinary proceedings, violated her duties as a legal professional. Such misconduct damages clients and erodes the public's confidence in lawyers and the legal system. Based on the ABA's Standards for Imposing Lawyer Sanctions , the board determined that the applicable baseline sanction is disbarment. The board agreed with the aggravating factors found by the committee and agreed that no mitigating factors are present.

After further considering the jurisprudence of this court and the multitude of aggravating factors present, the board recommended respondent be disbarred. The board also recommended respondent be ordered to make restitution to Ms. Perkins and/or the Louisiana State Bar Association's Client Assistance Fund, as appropriate. In addition, the board recommended respondent be assessed with the costs and expenses of this proceeding. Two board members dissented and would recommend a three-year suspension from the practice of law.

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.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan , 01-3058 (La. 1/10/03), 838 So.2d 715.

The record in this deemed admitted matter supports a finding that respondent neglected legal matters, failed to communicate with clients, converted client funds, failed to properly disclose her client trust account information, and failed to cooperate with the ODC in its investigation. Based on these facts, respondent has violated 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).

The record further supports a finding that respondent violated duties owed to her clients, the public, the legal system, and the legal profession. Her misconduct was at least knowing, and perhaps intentional, and caused significant actual harm to her clients. The baseline sanction for this type of misconduct is disbarment. The aggravating factors found by the hearing committee and the disciplinary board are supported by the record. Mitigating factors include the absence of a prior disciplinary record and inexperience in the practice of law (admitted 2013).

We recently disbarred an attorney for neglecting legal matters, failing to communicate with clients, failing to account for or refund unearned fees, failing to properly withdraw from a representation, engaging in dishonest conduct, and failing to cooperate with the ODC in its investigations. In re: Gilbert , 16-0044 (La. 3/4/16), 185 So.3d 734. There were several aggravating factors present and the only mitigating factor present was the absence of a prior disciplinary record.

Considering the facts of this case and the prior jurisprudence, the board's recommended sanction is appropriate. Accordingly, we will adopt the board's recommendation and disbar respondent. We will also order respondent to make restitution to Ms. Perkins and/or the Louisiana State Bar Association's Client Assistance Fund, as appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Chantell M. Boutté, Louisiana Bar Roll number 34897, be and she hereby is disbarred. Her name shall be stricken from the roll of attorneys and her license to practice law in the State of Louisiana shall be revoked. It is further ordered that respondent shall make restitution to Angie Perkins and/or to the Louisiana State Bar Association's Client Assistance Fund, 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.

      On September 9, 2016, respondent was declared ineligible to practice law for failure to pay her bar dues and the disciplinary assessment, and for failure to file her trust account registration statement. She is also ineligible to practice law for failure to comply with the mandatory continuing legal education requirements.


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

text:
    STATE of Louisiana v. Nunzio MARCHIAFAVA
    NO. 2017-K-1670
    Supreme Court of Louisiana.
    September 21, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS
    Writ granted. The rulings of the courts below improperly focused upon defendant's alleged pre-fire conduct, upon which the state does not rely as a basis for this prosecution. Further, the court of appeal majority too narrowly construed the state's argument as briefed on appeal. The bill of information and the state's responses to defendant's motion for a bill of particulars sufficiently charge the offense of malfeasance in office-including the underlying affirmative duties in support of that allegation-based on claims concerning defendant's alleged post-fire acts. See State v. Petitto , 10-0581, p. 11 (La. 3/15/11), 59 So.3d 1245, 1252 ("[C]ivil statutes may serve as the source of the duty, the knowing and intentional violation of which may constitute [malfeasance]."); see also State v. Perez , 464 So.2d 737, 742 (La. 1985) ('To intentionally interfere with the execution of any law would be a failure to perform a duty lawfully required of them under their oath and would constitute malfeasance."). Additionally, defendant's claim of double jeopardy is premature. See State v. Hall , 12-0601 (La. 6/29/12), 91 So.3d 302. The judgments of the lower courts are reversed, defendant's motion to quash is denied, and the matter is remanded for further proceedings.
    REVERSED AND REMANDED
   Hughes, J., would deny the writ.


text:
    IN RE: Shelley Ann MARTIN
    NO. 2018-B-0900
    Supreme Court of Louisiana.
    September 21, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Shelley Ann Martin, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Martin , 12-0328 (La. 2/7/12), 82 So.3d 1232.

FORMAL CHARGES

Count I

On September 28, 2009, New Orleans police, while responding to a report of suspicious activity, observed respondent exiting a vehicle with a needle sticking out of her forearm and blood trickling down her arm. After taking possession of the needle and questioning respondent, she acknowledged the presence of additional drug paraphernalia in a bag located under the vehicle's seat. This drug paraphernalia included additional needles, a lighter, a "coppertop" that had been burned on the bottom, and an elastic band that the police confirmed is associated with heroin use.

After respondent's arrest and arraignment for possession with intent to use drug paraphernalia in violation of La. R.S. 40:1033, she was released on bond. Respondent subsequently failed to appear in court for trial, which resulted in a bench warrant for her arrest. The district attorney's office eventually dismissed the charges against respondent when they became stale after not locating her.

The ODC alleged that respondent's conduct violated Rules 8.4(a) (violation of the Rules of Professional Conduct) and 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer) of the Rules of Professional Conduct.

Count II

Respondent represented M.S and her husband W.S in connection with their corporate farming enterprise and business. During the representation, respondent commenced a sexual relationship with W.S. and introduced him to the drug culture in which she was engaged. Respondent's conduct with W.S. resulted in the acrimonious divorce of M.S. and W.S.

The ODC alleged that respondent's conduct violated Rules 1.7 (conflict of interest: current clients) and 8.4(a) of the Rules of Professional Conduct.

Count III

Respondent has been ineligible to practice law since September 10, 2010 for failing to pay her bar dues and the disciplinary assessment. Additionally, as a result of her conduct in Count I above, respondent was interimly suspended from the practice of law by order of this court effective February 7, 2012. Notwithstanding her status, in December 2011, respondent continued to represent W.S. and his farming enterprise.

The ODC alleged that respondent's conduct violated Rules 5.5 (engaging in the unauthorized practice of law) and 8.4(a) of the Rules of Professional Conduct.

Count IV

In September 2010, respondent was arrested on an attachment for contempt of court arising from her failure to appear in response to a speeding citation. Months later, respondent appeared and paid her court fine.

In October 2012, respondent was involved in a motor vehicle accident and was cited for driving with a suspended driver's license and failure to maintain control. Respondent failed to appear for her arraignment, and an attachment was issued, which attachment remains open.

The ODC alleged that respondent's conduct violated Rules 8.4(a), 8.4(b), and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

Count V

In March 2013, respondent and W.S. were arrested in Ascension Parish when they were caught by police in a bathroom of the Lamar Dixon Center in possession of cocaine, crack cocaine, and a crack pipe. Respondent was released on bond but failed to appear for her arraignment. A bench warrant was issued for her arrest, and she is currently a fugitive from justice.

The ODC alleged that respondent's conduct violated Rules 8.4(a), 8.4(b), and 8.4(d) of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS

In March 2016, the ODC filed formal charges, as set forth above, against respondent. Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee's consideration.

Hearing Committee Report

After considering the ODC's submission on sanctions, the hearing committee acknowledged that the factual allegations in the formal charges were deemed admitted. The committee found that those deemed admitted facts, as supplemented and supported by the ODC's documentary submissions, demonstrate clear and convincing evidence of respondent's violation of the Rules of Professional Conduct as alleged in the formal charges.

The committee then determined that respondent intentionally violated duties owed to her clients and the legal profession. While her conduct may have been fueled by drugs, it nonetheless caused significant harm to both her clients and the legal profession. In aggravation, the committee found a pattern of misconduct and bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency. In mitigation, the committee found only the absence of a prior disciplinary record.

After considering this court's prior jurisprudence addressing similar misconduct, the committee recommended respondent be disbarred.

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

Disciplinary Board Recommendation

After acknowledging the deemed admitted facts, the disciplinary board determined that the hearing committee's factual findings are supported by those facts and by the evidence submitted in support thereof. The board also determined the record supports the committee's findings that respondent violated the Rules of Professional Conduct as charged.

The board then determined that respondent knowingly and intentionally violated duties owed to her clients, the public, the legal system, and the legal profession. After considering the ABA's Standards for Imposing Lawyer Sanctions , the board concluded that the committee's recommendation of disbarment is appropriate.

In aggravation, the board found the following: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, and illegal conduct, including that involving the use of controlled substances. In mitigation, the board found the absence of a prior disciplinary record and inexperience in the practice of law (admitted 2007), although the board gave little weight to the latter factor since much of respondent's misconduct was unrelated to the actual practice of law.

Turning to the issue of an appropriate sanction, the board considered the following case law: In re: Placer , 16-1590 (La. 11/7/16), 216 So.3d 787, and In re: Brunet-Robert , 13-2929 (La. 5/7/14), 145 So.3d 1018. In Placer , we disbarred an attorney for presenting fabricated evidence to a tribunal in her own divorce proceeding, shoplifting merchandise valued in excess of $300, her arrest for multiple traffic violations including DWI, and a charge of possession of cocaine. In Brunet-Robert , an attorney issued sixteen checks totaling $2,000 drawn on her brother's checking account without his authorization, cashed four checks totaling $700 and made payable to her father without his authorization, possessed methamphetamine, pleaded guilty to possession of a Schedule II controlled dangerous substance, and was found in contempt of court for failing to appear in court on three occasions. Because the attorney's misconduct was largely attributable to her chemical dependency, we deviated downward from the baseline sanction of disbarment and instead suspended her from the practice of law for three years. The board, however, distinguished the instant matter from Brunet-Robert , explaining that the attorney in Brunet-Robert cooperated with the disciplinary process, stipulated to the misconduct, made full restitution to her brother, and made efforts to get treatment for her chemical dependency. In light of these differences, the board concluded that disbarment was the more appropriate sanction for respondent's misconduct.

Accordingly, the board recommended respondent be disbarred.

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.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan , 01-3058 (La. 1/10/03), 838 So.2d 715.

The record of this deemed admitted matter supports a finding that respondent possessed drug paraphernalia associated with heroin use, possessed cocaine, engaged in a sexual relationship with a client and introduced the client to drugs, represented the client while she was ineligible to practice law, was involved in a motor vehicle accident while driving with a suspended driver's license, and is a fugitive from justice with multiple warrants issued for her arrest. This conduct amounts to 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).

Respondent knowingly and intentionally violated duties owed to her clients, the public, the legal system, and the legal profession, causing significant actual harm. The baseline sanction for this type of misconduct is disbarment. The record supports the aggravating and mitigating factors found by the disciplinary board. Additionally, the mitigating factor of personal or emotional problems is present because evidence in the record indicates respondent has a severe drug problem.

Regarding the appropriate sanction for respondent's misconduct, in addition to the cases cited by the board, we find guidance from In re: Blanche , 12-0552 (La. 6/22/12), 90 So.3d 1034. In Blanche , an attorney neglected a legal matter, failed to communicate with a client, and was convicted of three drug- and alcohol-related criminal offenses. For this misconduct, we suspended the attorney from the practice of law for three years. In light of this case law, and given that respondent also practiced law while ineligible to do so and engaged in a sexual relationship with a client, we find disbarment is warranted.

Accordingly, we will adopt the board's recommendation and disbar respondent.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Shelley A. Martin, Louisiana Bar Roll number 31251, be and she hereby is disbarred, retroactive to February 7, 2012, the date of her interim suspension. Her name shall be stricken from the roll of attorneys and her license to practice law in the State of Louisiana shall be revoked. 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.

Hughes, J., dissents in part and would impose a penalty less than disbarment.

      Respondent was first declared ineligible to practice law on June 19, 2010 for failing to comply with mandatory continuing legal education requirements.


text:
    IN RE: John N. BOKENFOHR
    NO. 2018-B-0718
    Supreme Court of Louisiana.
    September 21, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") seeks review of an order of the disciplinary board that the formal charges against respondent, John N. Bokenfohr, be dismissed.

Briefly stated, this case involves the obligations of an attorney who learns his client has failed to produce evidence in response to a search warrant in an ongoing criminal investigation. Upon learning the evidence was in his client's possession, respondent counseled his client on several occasions to turn the evidence over to the authorities. Respondent also informed his client that he was likely to be charged with obstruction of justice. Respondent was ultimately successful in persuading his client to allow him to release the evidence to the authorities; however, this release occurred approximately three months after respondent learned of the existence of the evidence, during which time respondent had an expert retrieve, preserve, and copy the evidence.

After a formal hearing, the hearing committee made a finding that respondent was credible when he testified that he knew he would be bound to inform the court and the prosecutor of the existence of the evidence if he could not convince his client to turn over the evidence. The committee also accepted respondent's testimony that he always believed his client would comply with his legal advice, which the client ultimately did. Based on these findings, the committee recommended the charges be dismissed. The disciplinary board found no manifest error in the committee's findings and also recommended the charges be dismissed.

In its argument to this court, the ODC focuses on the three-month period between the time respondent learned of the evidence and ultimately released it to the authorities. The ODC argues respondent took no action whatsoever to force his client to release the evidence sooner. The ODC contends respondent should have advised his client that he (respondent) would be compelled, as an officer of the court, to go to the authorities if the client did not turn over the evidence. According to the ODC, the delay in production created a possibility that the evidence might be damaged or lost and potentially impaired the prosecution.

The primary provision of the Rules of Professional Conduct at issue in this case is Rule 3.3(b), which provides:

A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. [emphasis added].

As the board observed, this rule does not contain any temporal elements, but instead focuses on the reasonableness of the remedial measures taken by the lawyer. The hearing committee made a factual finding that respondent's actions were reasonable under the circumstances presented.

Based on our review of the record, we cannot say the hearing committee's factual findings, which were based on credibility determinations, are clearly wrong. In reaching this conclusion, we make it clear that the determination of whether a lawyer has fulfilled the duties imposed under Rule 3.3(b) will turn on the specific facts presented in each individual case, and our ruling today should not be considered as standing for any proposition beyond the stated holding. We caution members of the bar to be very sensitive to their obligations under this rule, as any breach of these duties can have significant adverse impacts on the administration of justice. However, under the specific facts of the case presented, we find the board correctly concluded respondent did not breach his ethical obligations.

DECREE

For the reasons assigned, it is ordered that the formal charges against respondent be and hereby are dismissed.

FORMAL CHARGES DISMISSED.

CRICHTON, J., additionally concurs and assigns reasons:

The ODC has essentially asked this Court to impose a standard - a temporal element - for disclosure under Rule 3.3(b) that is broader than Respondent's obligations under the mandates of discovery statutes and the trial judge's discovery orders. I find this approach substantially similar to ODC's recent position in In re: Seastrunk , 17-0178 (La. 10/18/17), 236 So.3d 509. Specifically, Seastrunk presented the question of whether Rule 3.8(d) (the prosecutor in a criminal case shall make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows, or reasonably should know, either tends to negate the guilt of the accused or mitigates the offense) of the Rules of Professional Conduct was broader than, or co-extensive with, Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This Court ultimately held that they are co-extensive so as to not impose inconsistent disclosure obligations upon prosecutors.

Here, Respondent has argued that to hold that a criminal defense lawyer's disclosure obligations under Rule 3.3(b) are broader than those found in the Code of Criminal Procedure or broader than those ordered by the judge's discovery deadline, would cause the very confusion with which the Court was concerned in Seastrunk . I agree. Whether Rule 3.8(d) is at issue, as in Seastrunk , or Rule 3.3(b), as here, the application of the Rule should be as written. To do otherwise leads to confusion in the practice and, more importantly in this case, an injustice to Respondent.

GENOVESE, J., concurs for the reasons assigned by Justice Crichton


author: PER CURIAM:

text:
    STATE of Louisiana v. Andre FRANCIS, et al.
    No. 2018-KK-1395
    Supreme Court of Louisiana.
    September 21, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Writ granted. The district court's order that the State furnish full transcripts of the grand jury testimony to the codefendants is reversed and the matter is remanded for further proceedings. "[T]he indispensable secrecy of grand jury proceedings must not be broken except where there is a compelling necessity." State v. Trosclair , 443 So.2d 1098, 1103 (La.1983). The party seeking disclosure must demonstrate a particularized need that outweighs the need for continued secrecy. Trosclair , 443 So.2d at 1103. That is, "[h]e must show that, without the material, his case would be greatly prejudiced or that an injustice would be done." State v. Higgins , 03-1980, p. 36 (La. 4/1/05), 898 So.2d 1219, 1241 (citing Trosclair , 443 So.2d at 1103 ; State v. Ates , 418 So.2d 1326, 1328-29 (La. 1982) ). "[A] trial court may act upon a specific request stated with particularity and review grand jury transcripts in camera to determine if information contained therein is favorable to the accused and material to guilt or punishment." Higgins , 03-1980 at 35-36, 898 So.2d at 1241. "If disclosure is permitted, it must be closely confined to the limited portion of the material for which there is particularized need." Trosclair , 443 So.2d at 1103. "In any event, disclosure is left to the sound discretion of the trial court whose ruling will not be reversed absent an abuse of that discretion." Higgins , 03-1980 at 36, 898 So.2d at 1241.

Here, after conducting an in camera review, the district court ordered the State to furnish full transcripts of the grand jury testimony of the cooperating former codefendants because it found their testimony contained material that could be used to impeach these witnesses if they testify at trial. The district court further found that this potential impeachment material must be disclosed now to afford the codefendants sufficient time to use it at trial. The district court erred. This grand jury testimony, which may be useful in impeaching these witnesses if the State calls them to testify at trial, is not material evidence favorable to the defendant, as required to justify breaking grand jury secrecy in accordance with the jurisprudence above and La.C.Cr.P. art. 434.1(B). In addition, Code of Criminal Procedure art. 716(D) applies. This article provides, "The state need not provide the defendant any written or recorded statement of its witnesses until immediately prior to the opening statement at trial." The State assures the court that it will comply with this article by providing transcripts of the grand jury testimony of any of the cooperating former codefendants it intends to call to testify at trial within a reasonable time before trial. Therefore, the district court abused its discretion in ordering that grand jury secrecy be broken at this time in accordance with La.C.Cr.P. art. 434.1(B) and Trosclair and Higgins , and erred in disregarding the timing established by the legislature in La.C.Cr.P. art. 716(D) for disclosure of the State's witness statements. The district court's ruling is reversed and the matter remanded for further proceedings consistent with these views. Nothing in this ruling precludes the district court from ordering the State to disclose carefully limited excerpts of the grand jury testimony that is truly material to the issue of the codefendants' guilt, such as the existence of alternative suspects. However, the district court should be mindful that such a disclosure must be closely confined to the limited portion of the material for which there is particularized need in accordance with Trosclair .

REVERSED AND REMANDED

CRICHTON, J., additionally concurs and assigns reasons:

I join in the per curiam in its entirety. I write separately to note my concerns regarding one of the briefs submitted to this court and to remind counsel to defendant Nelson of La. S.Ct. Rule VII, § 7. It provides:

Section 7. The language used in any brief or document filed in this court must be courteous, and free from insulting criticism of any person, individually or officially, or of any class or association of persons, or of any court of justice, or other institution. Any violation of this rule shall subject the author or authors of the brief or document to the humiliation of having the brief or document returned, and to punishment for contempt of the authority of the court.

In my view, the document (which describes a former codefendant as a "psychopath" and the State's plea agreement with a former codefendant as "a deal with the devil") comes perilously close to violating Rule VII, § 7.


author: GUIDRY, J., would grant.

text:
    Valencia LEWIS v. JAZZ CASINO COMPANY, L.L.C.
    No. 2018-C-0757
    Supreme Court of Louisiana.
    September 21, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS
    Denied.
   GUIDRY, J., would grant.

CLARK, J., would grant.

CRICHTON, J., would grant and assigns reasons.

CRICHTON, J., would grant and assigns reasons:

I would grant the writ application of Jazz Casino Company, L.L.C., for the reasons assigned by Judge Bagneris in his dissent. Specifically, I agree with Judge Bagneris's finding that "[p]laintiff herein presented absolutely no evidence that the substance was on the floor for any length of time." Valencia Lewis v. Jazz Casino Company, L.L.C., 17-0935 (La.App. 4th Cir. 4/26/18) (Bagneris, J., dissenting). Moreover, Judge Bagneris noted that "[t]he videotape shows nothing on the floor prior to the accident, and it is equally possible that the substance was tracked in by plaintiff herself on her shoe, or was tracked in by and fell off of the shoe of one of the individuals who immediately preceded her through the area." Id. As stated in White v. Wal-Mart Stores, Inc., 97-0393, p. 1 (La. 9/9/97), 699 So.2d 1081, 1082, "[w]here a claimant is relying upon constructive notice ... the claimant must come forward with positive evidence showing that the damage-causing condition existed for some period of time, and that such time was sufficient to place the merchant defendant on notice of its existence." In my view, the trial court correctly determined that plaintiff failed to demonstrate that the substance on which she slipped had been on the floor for any period of time, much less a sufficient period of time to meet her burden of proof under La. R.S. 9:2800.6(B). In reversing the trial court's decision, the court of appeal effectively eliminates the temporal element of plaintiff's claim, allowing her to bypass one of the necessary elements she is required to prove under La. R.S. 9:2800.6. Moreover, I find this matter to be a primary reason summary judgment procedure is favored under Louisiana law, as it is "designed to secure the just, speedy, and inexpensive determination of actions." Louisiana High School Athletics Association, Inc., v. State of Louisiana, et al., 12-1471, p. 18 (La. 1/29/13), 107 So.3d 583, 598.

For the aforementioned reasons, I would grant this matter to reverse the court of appeal and reinstate the ruling of the trial court, thereby dismissing plaintiff's lawsuit.

      Plaintiff alleges this food substance on the floor appeared to be a smashed grape.