author: KELLY, Judge.

text:
    STATE of Florida, Appellant, v. Darion A. CARTER, Appellee.
    No. 2D08-5449.
    District Court of Appeal of Florida, Second District.
    March 19, 2010.

      Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellant.
    James F. Manderscheid, Gulfport, for Appellee.
   KELLY, Judge.

The State appeals an order that dismissed the information against Darion Carter after the State was unable to produce the confidential informant who was present when Carter sold cocaine to an undercover police officer. In support of his claim that he was entitled to disclosure of the informant’s identity, Carter filed a motion stating: (1) the informant was “not only a material fact witness and potentially an exculpatory witness, but is a witness to the events that are alleged as probable cause for the arrest of the defendant”; and (2) disclosure is “essential to the preparation of [his] defense of misiden-tification.” Based on these allegations, the trial court ordered the State to produce the informant for an in-camera hearing. When the State was not able to produce the informant, the trial court dismissed the charges against Carter.

The State has the privilege to withhold the identity of a confidential informant, and the defendant has the burden to show why disclosure should be compelled. State v. Borrego, 970 So.2d 465 (Fla. 2d DCA 2007). The State’s privilege of nondisclosure may be overcome if the State plans to call the informant as a witness at trial or when disclosure is “ ‘essential to a fair determination of the cause at issue.’ ” Id. at 467 (quoting McCray v. State, 730 So.2d 817, 817 (Fla. 2d DCA 1999)); see also Fla. R.Crim. P. 3.220(g)(2). Carter contends disclosure is essential to his ability to establish his defense of mis-identification.

“When asserting that disclosure of information is necessary to establish a specific defense, ‘[t]he defendant must make a preliminary showing of the colora-bility of the defense prior to disclosure.’ ” Bailey v. State, 994 So.2d 1256, 1257 (Fla. 2d DCA 2008) (quoting State v. Hernandez, 546 So.2d 761, 762 (Fla. 2d DCA 1989)). If a defendant files a sworn motion or affidavit alleging facts regarding the informant’s involvement that, if true, would support the possibility of a legally cognizable defense, before ordering disclosure, the trial court is required to conduct an in-camera hearing to consider the necessity of the informant’s testimony and the State’s interest in nondisclosure. Id., State v. Zamora, 534 So.2d 864, 869 (Fla. 3d DCA 1988). On the other hand, if a defendant fails to make that initial showing, an in-camera hearing is not required. Munford v. State, 343 So.2d 67 (Fla. 2d DCA 1977), quashed on other grounds, 357 So.2d 706 (Fla.1978); see also Zamora, 534 So.2d at 869.

Carter failed to make the initial showing that would have triggered the need for an in-camera hearing. His motion was devoid of facts and in no way demonstrates that he may have a colorable claim of misidentification. Compare State v. Carnegie, 472 So.2d 1329, 1330 (Fla. 2d DCA 1985) with McCray, 730 So.2d at 817. In addition, the record indicates that the transaction was videotaped by law enforcement, a fact that suggests the informant’s testimony would not be material to Carter’s defense. Finally, Carter’s bare allegation that the informant is a “potentially exculpatory witness” is entirely speculative and hence insufficient to otherwise establish that the informant’s testimony is essential to a fair determination of the cause. See State v. Mashke, 577 So.2d 610, 612 (Fla. 2d DCA 1991) (holding that mere speculation that an informant’s testimony would be useful is insufficient to overcome the State’s privilege of nondisclosure).

The trial court erred when it ordered the State to produce the confidential informant for an in-camera hearing. Accordingly, we reverse the order dismissing the information and remand with instructions to reinstate the charges against Carter.

Reversed and remanded.

DAVIS, J., and FULMER, CAROLYN K., Senior Judge, Concur.

      . In its brief, the State points out that Carter's motion was not properly sworn. While we agree, we note that the State did not object in the trial court; thus, this poinl is not preserved for appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Susan E. DICTOR, Appellant, v. Wayne S. DICTOR, Appellee.
    No. 2D09-3862.
    District Court of Appeal of Florida, Second District.
    March 19, 2010.

      Jeanne L. Coleman, Tampa, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

Dismissed for lack of jurisdiction.

WHATLEY, KELLY, and VILLANTI, JJ., Concur.


text:
    Raul LIRANZO-CRUZATA, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4332.
    District Court of Appeal of Florida, Second District.
    March 19, 2010.
    Raul Liranzo-Cruzata, pro se.
   KELLY, Judge.

Raul Liranzo-Cruzata appeals the denial of his motion to mitigate sentence pursuant to Florida Rule of Criminal Procedure 3.800(c), as well as an order denying a motion to disqualify the successor judge who ruled on the motion. The denial of a motion to mitigate a sentence is not ap-pealable, Brown v. State, 707 So.2d 1191 (Fla. 2d DCA 1998); accordingly that aspect of this appeal is dismissed. However, the denial of the motion to disqualify the successor judge is reviewable under this court’s jurisdiction to issue writs of prohibition. See Lusskin v. State, 717 So.2d 1076 (Fla. 4th DCA 1998).

The petition for writ of prohibition is denied.

LaROSE and CRENSHAW, JJ., Concur.


text:
    Robert Lewis BURNS, as Personal Representative of the Estate of Hazel Burns McClain, deceased, Appellant, v. Mary Louise WENGER, as Personal Representative of the Estate of Houston S. McClain, deceased, Appellee.
    No. 1D09-5325.
    District Court of Appeal of Florida, First District.
    March 19, 2010.
    John G. Grimsley of Grimsley, Marker & Iseley, P.A., Jacksonville, for Appellant.
    Kevin S. Sanders, Jacksonville, for Ap-pellee.
   PER CURIAM.

DISMISSED. See In re Estate of Nolan, 712 So.2d 421 (Fla. 2d DCA 1998).

WEBSTER, PADOVANO, and ROBERTS, JJ., concur.


author: WHATLEY, Judge. SILBERMAN, Judge,

text:
    The FOUNDATION FOR the DEVELOPMENTALLY DISABLED, INC., Appellant, v. STEP BY STEP EARLY CHILDHOOD EDUCATION AND THERAPY CENTER, INC., and The Bower Foundation, Appellees.
    No. 2D09-686.
    District Court of Appeal of Florida, Second District.
    March 26, 2010.

      Roger G. McMorrow of The McMorrow Law Firm, P.A., Naples, for Appellant.
    Marve Ann M. Alaimo and Christopher L. Ulrich of Cummings & Lockwood, LLC., Bonita Springs, for Appellee Step By Step Early Childhood Education and Therapy Center, Inc., Lawrence A. Farese and Erica L. Airsman of Robins, Kaplan, Miller & Ciresi, L.L.P., Naples, for Appel-lee The Bower Foundation.
    Bill McCollum, Attorney General, and Blaine H. Winship, Assistant Attorney General, Tallahassee, as Amicus Curiae for Appellees.
   WHATLEY, Judge.

The Foundation for the Developmentally Disabled, Inc. (the “Foundation”), appeals a final judgment imposing a resulting trust and a constructive trust in favor of the operator of Step By Step Early Childhood Education and Therapy Center, Inc. (“Step By Step”). At the center of this dispute are donations made during the 1980s to the Foundation by Edwin Bower through his charitable foundation, The Bower Foundation. Mr. Bower intended that his donations be used to acquire land and construct a facility to benefit preschool-aged children with disabilities who participated in a program referred to as Step by Step. However, he never created a written trust agreement when he made those donations.

At the time the donations were made to the Foundation, the Step By Step program was not a separate corporate entity. It was one of two programs operated by the Foundation. The appellee, the Step By Step Early Childhood Education and Therapy Center, Inc., was not formed until 2003. The Bower Foundation had been previously dissolved in 1995, and Mr. Bower passed away in 2003.

A facility was constructed as planned and Step By Step operated a program for pre-school-aged children with disabilities in the facility for over fifteen years. However, when a lease on the property expired, the Foundation notified Step By Step that it intended to collect rent for the use of the property. Step By Step thereafter filed a complaint asking the trial court to find that it was entitled to rent free use and occupancy of the property. The Bower Foundation, although it had been dissolved for more than a decade, joined the suit by filing a complaint in intervention, asking the trial court to impose a constructive trust and a resulting trust on the real property for the benefit of Step By Step.

In its final judgment, the trial court ruled in favor of Step By Step and The Bower Foundation and imposed constructive and resulting trusts on the real property for the benefit of Step By Step. The trial court held that no rent, other than nominal rent, may be charged of the operator of the Step By Step program without an agreement.

We reverse because we conclude that The Bower Foundation did not have standing to bring its claim, where the corporation was dissolved more than a decade before the filing of the complaint. We further conclude that the evidence did not support the imposition of a constructive or a resulting trust where the testimony at trial established that The Bower Foundation never intended to create a trust.

I. Circuit Court Proceedings

In Step By Step’s complaint for declaratory judgment against the Foundation, it asked the trial court to determine Step By Step’s beneficial interest in real property located in Collier County, Florida, specifically requesting that the trial court find that Step By Step is entitled to rent free use and occupancy of the property. In an amended complaint, Step By Step asked the trial court to determine the relationship between the Foundation and Step By Step and further asked it to find a constructive trust, resulting trust, or other fiduciary or confidential relationship. In addition to rent free use of the property, Step By Step asked that any rent received by the Foundation for the property be awarded to Step By Step, that the sale of the property be prohibited and, if a sale were to be permitted, any proceeds from the sale be awarded to Step By Step.

The Bower Foundation thereafter filed a complaint in intervention also asking the trial court to impose a constructive trust and a resulting trust on the real property for the benefit of Step By Step. The complaint alleged that between 1985 and 1989, The Bower Foundation made restrictive and conditional gifts totaling approximately $165,000 to the Foundation for the sole and express purpose of acquiring land and constructing a facility to be used by the Step By Step program to benefit preschool-aged children who participated in the program.

After a bench trial, the trial court entered a final judgment finding that both Step By Step and The Bower Foundation had standing to bring their claims and that the Foundation held the property subject to a constructive trust and a resulting trust in favor of Step By Step. The trial court based this finding on its determination that The Bower Foundation gave the Foundation $165,000 to purchase the property and construct a building for the exclusive use and benefit of Step By Step and that the Foundation would be unjustly enriched if it were permitted to use the property to benefit a different program.

II. The Bower Foundation’s Standing

The trial court specifically found that The Bower Foundation had standing to file its complaint in intervention. We note that a trial court’s decision regarding a party’s standing to file suit is reviewed using the de novo standard of review. Fox v. Prof'l Wrecker Operators of Fla., Inc., 801 So.2d 175, 178 (Fla. 5th DCA 2001). The Bower Foundation was a Michigan corporation which was dissolved in 1995. As to dissolved corporations, Michigan law provides as follows:

[A] dissolved corporation, its officers, directors and shareholders shall continue to function in the same manner as if dissolution had not occurred. Without limiting the generality of this section: ... (e) The corporation may sue and be sued in its corporate name and process may issue by and against the corporation in the same manner as if dissolution had not occurred.

Mich. Comp. Laws § 450.1834 (2008). However, language included in section 450.1834 notes that it is subject to what is now titled section 450.1833, which provides limitations on the actions of a dissolved corporation:

[A] dissolved corporation shall continue its corporate existence but shall not carry on business except for the purpose of winding up its affairs by: ...
(a) Collecting its assets.
(b) Selling or otherwise transferring, with or without security, assets which are not to be distributed in kind to its shareholders.
(c) Paying its debts and other liabilities.
(d) Doing all other acts incident to liquidation of its business and affairs.

Mich. Comp. Laws § 450.1833 (2008).

In the present case, The Bower Foundation was dissolved thirteen years before it filed the suit in intervention. The suit involved money which The Bower Foundation had donated for the benefit of Step By Step in the 1980s. Therefore, the complaint was not filed for the purpose of winding up the affairs of the corporation by collecting assets, selling or transferring assets, paying debts or other liabilities, or doing any act incident to liquidating its business and affairs. Id. As a result, The Bower Foundation lacked standing to file the complaint in intervention, and the trial court should have dismissed the complaint.

III. The Constructive and Resulting Trusts

We also conclude that the trial court erred in imposing a constructive trust and a resulting trust where the testimony at trial established that The Bower Foundation never intended to create a trust. Typically, a trust involving land must be in writing to be valid. § 689.05, Fla. Stat. (2008). Nevertheless, a resulting trust or a constructive trust may be created based on the conduct of the parties. At trial, George A. Wilson testified that the Foundation was originally formed in 1983 to limit the liability associated with operating a program referred to as the Training and Educational Center for the Handicapped, Inc. (“TECH”), and to conduct fundraising for TECH. At that time, TECH had two departments: Step By Step, which helped pre-school-aged children with disabilities; and Strive, which helped adults with disabilities. In 2003, the Step By Step Early Childhood Education and Therapy Center, Inc., was formed to operate the Step By Step program.

Mr. Wilson testified that when The Bower Foundation donated $165,000 to TECH, Mr. Bower made it clear both orally and in letters that he intended that the donation be used exclusively to purchase and construct a facility that would be used for only the Step By Step program. However, Mr. Wilson, an attorney who drafted Mr. Bower’s personal trusts, also testified that he did not draft a trust agreement with regard to The Bower Foundation and the property at issue, because Mr. Bower did not intend that his gifts to the Foundation be held in trust. Mr. Wilson testified, “[Mr. Bower] did not want the Foundation to create a trust to hold title to the real estate or the facility.” Another witness, Charles M. Kelly, Jr., who was the secretary on the Foundation’s Board of Directors from 1986 until 1993, testified that Mr. Bower never expressed an intent to create a trust with regard to his contributions to the Foundation.

The Fifth District addresses a similar situation in Persan v. Life Concepts, Inc., 738 So.2d 1008, 1009 (Fla. 5th DCA 1999), where a group of about twenty donors gave land to the Central Florida Sheltered Workshop, Inc. (“CFSW”), so that living facilities could be constructed for disadvantaged adults. CFSW also solicited the community for $200,000 to pay for the construction of the homes. Id. After the homes were operated for approximately fifteen years, a decision was made to sell the property. Id. As in the present case, there was evidence presented at trial that the donors gave the land with the intent that the land be used for the specific purpose of providing living facilities for disadvantaged adults, but a written trust was never created. Id. at 1010. In Persan, the court noted that there was no evidence of an intent to create any type of trust and that the evidence established only an intent to donate land and money for the homes to be constructed. Id. In holding that a charitable trust was not created, the court stated as follows:

Making a gift to a charity for a specific project or purpose does not create a charitable trust. For this court to suggest that it does would create havoc for charitable institutions. A charity has to be able to know when a donation is a gift and when it is merely an offer to fund a trust for which the charity is taking on fiduciary responsibilities. The creation of such a trust must be express.

Id.

The Fifth District further concluded that a resulting trust was not established. “The evidentiax-y burden to prove a resulting trust is ‘clear, strong and unequivocal,’ beyond a reasonable doubt.” Id. To establish a resulting trust, the parties must “actually intend to create the trust relationship but fail to execute documents or establish adequate evidence of the intent.” Wadlington v. Edwards, 92 So.2d 629, 631 (Fla.1957). A typical example of a resulting trust is where one party “furnishes the money to buy a parcel of land in the name of another with both parties intending at the time that the legal title is held by the named grantee for the benefit of the unnamed beneficiary.” Id.

A i*esulting trust arises when the legal estate in property is disposed of, conveyed or transferred, but the intent appears or is inferred from the terms of the disposition, or from accompanying facts and circumstances, that the beneficial interest is not to go to or be enjoyed with the legal title. In such a case a trust is implied or results in favor of the person whom equity deems to be the real owner.

Howell v. Fiore, 210 So.2d 253, 255 (Fla. 2d DCA 1968).

In the case at bar, there was no evidence that the parties intended to create a trust relationship. In fact, the evidence was to the contrary — that Mr. Bower did not intend that his gifts to the Foundation be held in trust. Consequently, the trial court erred in finding that Step By Step established that there was a resulting trust as to the property.

Unlike a resulting trust, a constructive trust does not have the element of intent or an agreement, either oral or written, to create a trust relationship. Wadlington, 92 So.2d at 631. “The trust is ‘constructed’ by equity to prevent an unjust enrichment of one person at the expense of another as the result of fraud, undue influence, abuse of confidence or mistake in the transaction that originates the problem.” Id. Here, there was no evidence of fraud, undue influence, abuse of confidence or mistake in the transaction. As a result, the trial court also erred in finding that there was a constructive trust between the parties.

We note the inherent problems that would be created if an individual who donates to a charitable organization with merely a stated intent that the donation be used for a specific purpose were able to control, or their heirs were able to control, that corporation in perpetuity. Although The Bower Foundation donated a significant amount of money to the Foundation, it was a small percentage of the money the Foundation used to construct and expand the facility. The board of directors of a nonprofit corporation has the responsibility to determine what is in the best interest of the corporation going forward, and therefore, absent a written trust agreement, it should not be bound by the intent of donors who gave many years ago when such is no longer in the best interest of the corporation.

Accordingly, we reverse the final judgment imposing a resulting trust and a constructive trust in favor of the operator of the Step By Step program and remand with directions that judgment be entered in favor of the Foundation.

Reversed and remanded with directions.

ALTENBERND, J., Concurs.

SILBERMAN, J., Concurs specially with opinion.

SILBERMAN, Judge,

Concurring specially.

I agree that reversal is required and make the following observations.

In Wadlington v. Edwards, 92 So.2d 629 (Fla.1957), the Florida Supreme Court discussed resulting and constructive trusts, as distinguished from express trusts. A resulting trust “automatically arises by operation of law out of certain circumstances.” Id. at 631. The parties must “actually intend to create the trust relationship but fail to execute documents or establish adequate evidence of the intent.” Id. Here, the evidence outlined the understanding between Mr. Bower and the Foundation but did not demonstrate their intent to create a trust relationship. To the contrary, the evidence confirmed that they did not wish to form a trust for specified reasons. Thus, the evidence did not support the creation of a resulting trust.

A constructive trust differs from a resulting trust in that

it is a relationship adjudicated to exist by a court of equity based on particular factual situations created by one or the other of the parties. The element of intent or agreement either oral or written to create the trust relationship is totally lacking. The trust is “constructed” by equity to prevent an unjust enrichment of one person at the expense of another as the result of fraud, undue influence, abuse of confidence or mistake in the transaction that originates the problem.

Id,. The party seeking a constructive trust must prove the elements by clear and convincing evidence. Gersh v. Cofman, 769 So.2d 407, 409 (Fla. 4th DCA 2000); Abreu v. Amaro, 534 So.2d 771, 772 (Fla. 3d DCA 1988).

The trial court determined that the Foundation “would be unjustly enriched if it is now permitted to use the proceeds of the gifts of The Bower Foundation for its other charitable purpose, benefiting the adult disabled, or for any purpose other than the purpose which was intended.” However, the court did not make any findings that the Foundation committed fraud, exercised undue influence, or abused Mr. Bower’s confidence or that there was a mistake in the transaction between Mr. Bower and the Foundation. Further, the evidence would not support such conclusions. And absent evidence of that nature, the trial court’s finding of unjust enrichment is also unsupported.

Mr. Bower and the Foundation agreed that his donations would be for the benefit of the Step By Step program and would help to establish a facility for the use of the program. This intention was carried out, and Step By Step benefited for many years, but the Foundation eventually determined that it could not continue to provide rent-free use of the building to Step By Step.

Nothing in the record suggests that the Foundation obtained Mr. Bower’s donations through the use of fraud, undue influence, abuse of confidence, or mistake in the transaction. Instead, the record establishes that circumstances relating to the Foundation’s work and to the Step By Step program changed through the years. The operator of the Step By Step program had changed several times; the needs and goals of the Foundation had changed; and the continued influx of funds from other sources was required to maintain and operate the building in which Step By Step was located. The fact that these changes occurred does not support a conclusion that the Foundation acted improperly when it agreed with Mr. Bower as to the use of his donations. Because the evidence did not establish that the Foundation would be unjustly enriched absent the creation of a constructive trust, the trial court’s imposition of a constructive trust must fail.

Both the Foundation and Mr. Bower had expectations as to the use of his donations and the ongoing work of the Foundation and the Step By Step program. Unfortunately, long after Mr. Bower’s death and the dissolution of his own organization through which he undertook charitable works, a dispute arose as to the Foundation’s obligation to continue supporting the Step By Step program. This type of dispute may have been avoided through a more detailed understanding, appropriately documented, as to the parties’ intentions and expectations and the duration of any agreement obligating the Foundation to continue supporting the Step By Step program. Instead, this dispute has led to undoubtedly expensive, time-consuming litigation, which diverted precious resources from the charitable programs that the Foundation and Mr. Bower supported.

      . The facility was built and operated as planned and was expanded in 1994. The cost of expansion, which was approximately $700,000, was paid for with contributions from the community and a mortgage and note signed by the Foundation.

      . Mr. Wilson eventually became chairman of the board of directors of both TECH and Step By Step.

      . In its amicus brief, the State contends that Persan v. Life Concepts, Inc., 738 So.2d 1008, 1009 (Fla. 5th DCA 1999), was wrongly decided. However, it acknowledges that in the ten years following the decision in Persan, the legislature has made no changes to Florida law regarding constructive and resulting trusts.


author: KHOUZAM, Judge.

text:
    Jose Oscar PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5647.
    District Court of Appeal of Florida, Second District.
    March 26, 2010.
    Jose Oscar Perez, pro se.
   KHOUZAM, Judge.

Jose Oscar Perez challenges the trial court’s order dismissing as untimely his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.

With exceptions that are not applicable here, rule 3.850(b) provides that in a non-capital case, a motion for postconviction relief is timely if filed within the two-year period following the date on which the judgment and sentence become final. If the defendant files an appeal, the judgment and sentence become final when the appellate court issues its mandate — not its decision — on the direct appeal. See Anton v. State, 976 So.2d 6, 8 (Fla. 2d DCA 2008) (citing Ward v. Dugger, 508 So.2d 778, 779 (Fla. 1st DCA 1987)).

This court affirmed Mr. Perez’s direct appeal on August 10, 2007. See Perez v. State, 964 So.2d 744 (Fla. 2d DCA 2007). The mandate, however, did not issue until October 15, 2007. Thus, Mr. Perez’s motion for postconviction relief, which was filed on September 17, 2009, was timely.

Accordingly, we reverse the postconviction court’s order and remand for the court to consider the timely-filed motion on its mei-its.

DAVIS and WALLACE, JJ., Concur.


author: ROTHENBERG, J.

text:
    Tyrone HUTCHINSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1639.
    District Court of Appeal of Florida, Third District.
    March 31, 2010.

      Tyrone Hutchinson, in proper person.
    Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.
    Before ROTHENBERG, LAGOA, and SALTER, JJ.
   ROTHENBERG, J.

On Rehearing

Upon this Court’s own motion, we grant rehearing, withdraw this Court’s opinions issued on August 12, 2009, and February 3, 2010, and issue the following opinion in its stead.

Tyrone Hutchinson (“the defendant”) appeals from an order denying his motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800. Although we affirm, we do so without prejudice to the defendant’s right to pursue the remedy he seeks through an alternate means.

In October 2001, pursuant to a negotiated plea, the defendant pled guilty to the charge of robbery while armed with a weapon and was sentenced as a youthful offender to one year of community control followed by thirty months of probation. In conjunction with this plea, the trial court’s supervision order unambiguously provided that a violation of its terms would result in a five-year prison sentence.

In December 2001, an affidavit of violation of community control was filed against the defendant when he absconded from his supervision and his whereabouts became unknown. Although a warrant was issued for the defendant’s arrest, he was not immediately apprehended. In July 2002, the defendant was convicted of three counts of burglary in Illinois.

In September 2005, the defendant was returned to the Florida trial court, where he entered into a negotiated plea wherein he pled guilty to the community control violations alleged in the affidavit and he was sentenced to ten years incarceration despite the unambiguous language in the 2001 supervision order stating that upon a violation of the defendant’s supervision, he would be sentenced to a term of five years incarceration.

Nearly two years after accepting the ten-year plea offer, in July 2007, and within two years from the date his sentence became final, the defendant filed a motion to correct illegal sentence pursuant to rule 3.800, alleging that he should have been sentenced to five years in prison in accordance with his October 2001 plea and the supervision order. The trial court denied the motion as legally insufficient. The defendant did not appeal that order.

In October 2007, the defendant filed a second motion to correct his sentence pursuant to rule 3.800. Approximately two months later, the trial court denied the motion upon the same grounds as the first (July 2007) motion. Again, the defendant did not appeal the trial court’s order.

In March 2008, the defendant filed the instant motion to correct illegal sentence pursuant to rule 3.800. Once again, the trial court denied the motion. The defendant appeals from that decision.

The defendant claims that the trial court failed to impose the sentence the original sentencing judge agreed would be imposed upon a violation of the defendant’s supervision. Thus, what the defendant is seeking is the enforcement of his October 2001 plea. Under the facts of this case, we conclude that rule 3.800 is, however, not the appropriate avenue to address the defendant’s claim.

First, we note that there is nothing “illegal” about the sentence imposed in 2005. The trial court imposed a ten year sentence. The maximum penalty for the offense of armed robbery is life imprisonment. The sentence imposed was based on a negotiated plea wherein the defendant waived his right to a hearing in exchange for the ten year sentence.

Second, and perhaps more importantly, the trial court could not logistically “enforce the terms of the 2001 plea” without allowing the defendant to withdraw his subsequent 2005 plea on the basis of ineffective assistance of counsel or because it was not a knowing, free and voluntary plea. A motion to vacate a plea under any of these grounds must be filed pursuant to rule 3.850, not rule 3.800. Rule 3.800 is not the proper remedy where issues of waiver, effectiveness of defense counsel, or voluntariness of a plea are involved. See Elbert v. State, 20 So.3d 961, 962 (Fla. 2d DCA 2009) (noting that post-conviction court properly treated portions of “motion to correct illegal sentence” as motion filed under rule 3.850 as claims alleged ineffective assistance of trial counsel and involuntariness of plea); Collins v. State, 859 So.2d 1244, 1245 (Fla. 5th DCA 2003) (noting that claims of ineffective assistance of trial counsel and involuntariness of plea are properly raised in a timely 3.850 motion for postconviction relief); Patterson v. State, 664 So.2d 31, 32 (Fla. 4th DCA 1998) (holding that issues relating to ineffective assistance of trial counsel and involuntariness of plea should be raised in a rule 3.850 motion, not a petition for habeas corpus relief).

Lastly, for a sentence to be subject to correction under rule 3.800, the illegality must be revealed by the face of the record and determinable without an evi-dentiary hearing. State v. Mancino, 714 So.2d 429 (Fla.1998); Hopping v. State, 708 So.2d 263 (Fla.1998). Here, we are unable to determine the validity of the defendant’s claim by the record provided.

Thus, we conclude that although the original sentencing judge allegedly agreed in 2001 to sentence the defendant to five years upon a violation of the defendant’s supervision, because: (1) the defendant subsequently agreed in 2005 to the ten year sentence imposed when he violated his supervision; (2) he was represented by counsel when he accepted the ten year sentence; and (3) the sentence does not exceed the statutory maximum and is not otherwise an “illegal sentence,” the defendant may not seek relief from the 2005 negotiated plea by way of rule 3.800. The defendant must, instead, seek a remedy pursuant to rule 3.850 on the basis of ineffective assistance of counsel or the vol-untariness of the plea. Accordingly, we affirm the trial court’s order denying the defendant relief under rule 3.800.

Although the two-year time limitation for filing a motion pursuant to rule 3.850 has long passed, the defendant may not be without a remedy as our decision is without prejudice to the defendant’s right to seek habeas corpus relief if he can establish a manifest injustice. See Adams v. State, 957 So.2d 1183 (Fla. 3d DCA 2006).

Although the record on appeal is not complete, it appears that in 2001, when the defendant pled guilty to armed robbery, the State and the trial court promised the defendant-, in exchange for his guilty plea, that upon a violation of his supervision order he would receive a five-year term of imprisonment. As it happened, the defendant did violate the conditions of the supervision order. However, he was sentenced to ten years in prison. While the record reflects that the ten-year sentence imposed by the trial court was agreed to by the defendant, who was represented by counsel, it would appear that the defendant’s plea was the result of ineffective assistance of counsel unless there was a knowing and voluntary waiver by the defendant of the five-year sentence he was told he would be sentenced to upon a violation of his supervision.

In conclusion, we affirm the order on appeal denying relief pursuant to rule 3.800. However, if after reviewing the transcripts of the original 2001 plea to community control followed by probation, and the 2005 plea accepting a sentence of ten years, the defendant believes he is entitled to relief, the defendant may file a habeas corpus petition. The trial court is instructed to consider any such petition in a manner consistent with this opinion.

Due to the novelty and complexity of the issues involved in this appeal, we hereby appoint the Public Defender’s Office to represent the defendant and pursue the appropriate relief at the trial level and at the appellate level, if an appeal is taken.

Affirmed with instructions.

      . Neither the 2001 transcript nor the 2005 transcript was provided by the defendant for review on appeal.


text:
    In re Kent Anthony SMITH.
    No. 2009-B-2447.
    Supreme Court of Louisiana.
    March 5, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| tThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Kent Anthony Smith, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS AND DISCIPLINARY PROCEEDINGS

Formal Charges

The formal charges filed by the ODC against respondent allege the following facts:

On March 3, 2008, Respondent took the oath of office as an Assistant District Attorney before the Honorable Frank A. Marullo, Jr., Orleans Parish Criminal District Court. At the time he took the oath of office, Article V, § 26(C), of the Constitution of Louisiana provided that “No district attorney or assistant district attorney shall appear, plead, or in any way defend or assist in defending any criminal prosecution or charge.” In addition, Article 65 of the Louisiana Code of Criminal Procedure makes it unlawful for an assistant district attorney “to defend or assist in the defense of any person charged with an offense in any parish of the state.”
By letter dated June 26, 2008, the Honorable Keva M. Landrum-Johnson, District Attorney of New Orleans, reported acts of misconduct by Respondent in violation of his oath of office.
• Respondent represented the defendant in State of Louisiana v. Felicia D. Knight, case number 473-653: On March 18, 2008, Respondent appeared in criminal district court with and on behalf of Ms. Knight; and on April 8, 2008, Respondent appeared in criminal district court with and on behalf of Ms. Knight.
• Respondent represented the defendant in State of Louisiana v. Donald G. Jones, case number 469-967: On April 17, 2008, Respondent appeared in criminal district court with and on behalf of Mr. Jones.
On July 15, 2008, Donald G. Jones filed a complaint against Respondent. Mr. Jones alleged that he retained Respondent’s services in January 2008 for representation in a criminal matter, and that several weeks before the trial Respondent accepted employment with the Orleans Parish District Attorney’s Office. Respondent did not immediately withdraw from the representation, and did not assist Mr. Jones in substituting counsel. Respondent did not provide Mr. Jones with an accounting for the attorney’s fee.

The ODC alleged respondent’s conduct created a concurrent conflict of interests in violation of Rules 1.7(a) and 1.11(d). It further alleged respondent failed to timely withdraw from the Knight and Jones matters upon taking the oath of office as an assistant district attorney in violation of Rule 1.16(a), and failed to advise the court of his continuing employment with District Attorney’s Office in violation of Rules 3.3(a) and 3.4(c). By continuing to represent criminal defendants after taking his oath of office as an assistant district attorney, the ODC alleged respondent violated his oath of office, as well as the Constitution and laws of the |3State of Louisiana, thereby violating Rules 8.4(a)(b)(c) and (d). Finally, the ODC charged that respondent had been declared ineligible for failure to comply with his bar obligations, resulting in violations of Rules l.l(b)(c) and 8.4(a).

Respondent failed to file an answer to the formal charges. Accordingly, the chair of the hearing committee signed an order providing that factual allegations contained in the formal charges 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 formal charges were deemed admitted and proven by clear and convincing evidence. Based on the deemed admitted facts and additional evidence presented by the ODC, the committee determined that respondent violated the following provisions of the Rules of Professional Conduct: Rules 1.1(b), 1.1(c), 1.7(a), 1.11(d), 1.16(a), 3.3(a), 3.4(c), 8.4(a), 8.4(b), 8.4(c), and 8.4(d).

Lin determining an appropriate sanction, the committee found that respondent violated duties owed to his clients, the legal system, the public, and the legal profession by his violation of his oath of office, and by his permitting conflicts of interest to exist. It found respondent acted knowingly but not intentionally. The committee noted that it appeared respondent “thought there would be no harm in his perfunctory appearances to assist in the winding up of cases against his former clients.” The committee also observed that respondent’s letter to the ODC raised at least the likelihood that disclosures of the conflicts were made and consented to by the courts and by those whose interests were in conflict, although the committee recognized the consents were not in writing as required by Rule 1.7. Finally, the committee stated that while it is possible that the integrity of the district attorney’s office and of the justice system may have been called into question to a limited extent, it appears that no concrete injury was inflicted on anyone concerned. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that a suspension from the practice of law is the baseline sanction for this misconduct.

The committee identified the following aggravating factors: prior disciplinary offenses, and “current ineligibility to practice as a result of his failure to comply with bar membership requirements.” In mitigation, the committee found the absence of a proven dishonest or selfish motive.

After reviewing this court’s jurisprudence, the committee recommended that respondent be suspended from the practice of law for six months, with two months | r,deferred, such suspension to begin when and if respondent becomes eligible to practice law by complying with the bar membership requirements.

The ODC filed an objection to the committee’s recommendation, stating that the committee’s recommended discipline was “unduly lenient in light of the facts and circumstances.” In its brief to the disciplinary board, the ODC suggested that the baseline discipline for respondent’s misconduct ranges from a lengthy suspension to disbarment.

Disciplinary Board Recommendation

After reviewing this matter, the board determined that the deemed admitted facts support the conclusion that respondent violated the Rules of Professional Conduct as alleged in the formal charges. Specifically, the board determined that respondent violated the following Rules of Professional Conduct: Rules 1.1(b), 1.1(c), I.7(a), 1.11(d), 1.16(a), 3.3(a), 3.4(c), 8.4(a), 8.4(b), 8.4(c), and 8.4(d).

Citing the ABA’s Standards for Imposing Lawyer Sanctions, the board concluded that the baseline sanction was suspension. In aggravation, the board recognized the following factors: two pri- or disciplinary offenses, a pattern of misconduct, multiple offenses, and vulnerability of the victims. The board rejected the committee’s conclusion that the absence of a dishonest or selfish motive is an applicable mitigating circumstance.

| (;Based on this analysis, the board recommended that respondent be suspended from the practice of law for one year and one day. The board also recommended that respondent be assessed with all costs and expenses of these proceedings.

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 deemed admitted facts and other evidence in the record of this matter clearly support the conclusion that respondent violated the Rules of Professional Conduct as alleged in the formal charges. Specifically, the record demonstrates that | ^respondent violated both constitutional and statutory prohibitions by serving as an assistant district attorney in Orleans Parish while continuing to represent defendants in criminal cases in that same parish. Respondent’s failure to properly withdraw from representation of these defendants resulted in violations of Rules 1.7(a), 1.11(d), 1.16(a), 3.3(a), 3.4(c), 8.4(a), 8.4(b), 8.4(c), and 8.4(d). Additionally, respondent’s failure to remain current in his bar obligations results in a violation of Rules 1.1(b) and (e).

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. In re Coffman, 09-1165 (La.9/25/09), 17 So.3d 934. 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. In re Smith, 09-1141 (La.9/25/09), 17 So.3d 927.

A review of the court’s prior opinions indicates the court has never addressed the precise misconduct presented in the instant case. However, we find guidance in Standard 5.22 of the ABA’s Standards for Imposing Latvyer Discipline, which states “suspension is generally appropriate when a lawyer in an official or governmental position knowingly fails to follow proper procedures or rules, and causes injury or potential injury to a party or to the integrity of the legal process.” Applying this provision, we find the appropriate baseline sanction for respondent’s misconduct is a suspension from the practice of law.

| sSeveral aggravating factors are present, including respondent’s prior discipline for similar misconduct, a pattern of misconduct, multiple offenses, and vulnerability of the victims. We are unable to discern any mitigating factors from the record.

Considering all the facts of this case, we conclude a suspension from the practice of law for one year and one day, which will necessitate an application for reinstatement, is the appropriate sanction under these facts. Accordingly, we will adopt the disciplinary board’s recommendation and suspend respondent from the practice of law for one year and one day.

DECREE

Upon review of the findings and recommendations of the disciplinary board, and considering the record, it is ordered that Kent Anthony Smith, Louisiana Bar Roll number 25506, be suspended from the practice of law for a period of one year and one day. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10. 1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in this opinion.

      . Rule 1.7(a) requires that an attorney refrain from simultaneously representing clients whose interests are adverse, or when there is a significant risk that tire representation of one client would be materially limited.

      . Rule 1.16(d) makes the conflict of interest provisions of Rule 1.7 and Rule 1.9 applicable to former and current government officers and employees.

      . Rule 1.16(a) requires that a lawyer timely withdraw from representation when continuing the representation would violate the Rules of Professional Conduct or other law.

      . Rule 3.3(a) requires that a lawyer display candor in the lawyer's dealings with a tribunal.

      . Rule 3.4(c)provides a lawyer shall not knowingly disobey an obligation under the rules of a tribunal.

      . Rule 8.4(a) prohibits a lawyer from violating, or even attempting to violate, the Rules of Professional Conduct. Rule 8.4(b) prohibits a lawyer from committing a criminal act. Rule 8.4(c) prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Rule 8.4(d) prohibits conduct that is prejudicial to the administration of justice.

      . Rule 1.1(b) requires that a lawyer comply with continuing legal education requirements. Rule 1.1(c) requires that an attorney mainlain current bar registration, which requires reporting trust account information and payment of dues, among other requirements.

      . In response to the disciplinary complaint, respondent sent a letter to the ODC in which lie stated, "all of my appearances in court were prior to me accepting employment with the Orleans Parish District attorney's Office, except for April 17, 2008, whereby I appeared with the intention of protecting myself because of the possible conflict issues." Nonetheless, respondent failed to file an answer to the formal charges.

        . See footnote 8, supra.

      . In May 2003, the disciplinary board admonished respondent based on his failure to act with reasonable diligence, and his failure to adequately communicate with his clients. In November 2004, this court imposed a fully-deferred one year suspension on respondent based on a finding respondent failed to explain his fee to his client, misrepresented the status of a case, and failed to cooperate with the ODC in its investigation. In re: Smith, 04-1918 (La. 11/15/04), 887 So.2d 449.

      . The board cited Standard 5.22 ("suspension is generally appropriate when a lawyer in an official or governmental position knowingly fails to follow proper procedures or rules, and causes injury or potential injury to a party or to the integrity of the legal process"), and Standard 6.22 ("suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding”).

      . The board explained that the committee indicated that "[a] possible mitigating factor is the absence of a proven dishonest or selfish motive.” The board notes that the ODC does not have the burden of disproving the existence of a dishonest/selfish motive because respondent has the burden of proof to show defenses or exceptions to the charges of misconduct. Thus, the board determined that the mitigating factor was never actually proven.

      . We note that the records of this court indicate respondent regained eligibility as of October 2, 2009.


author: PER CURIAM

text:
    In re The Minors Donnisha Le’Jah WILLIAMS and Ronnishaia Tatyana Thomas. [In re Motion to Recuse].
    No. 2010-OC-0023.
    Supreme Court of Louisiana.
    March 5, 2010.
   PER CURIAM

This matter arises from a motion filed by a litigant in an appeal seeking to recuse all judges of the Court of Appeal, First Circuit. The judges of that court issued an order declining to voluntarily recuse themselves and transferring the matter to this court for “further processing or consideration, including the rendering of any necessary orders.” Attached to the order was a certified copy of the original motion to recuse. Acting pursuant to the authority provided by La. Const. Art. V, § 5(5), we filed this order and motion into the records of this court for consideration on the merits.

Having considered the motion to recuse on the merits, we find it does not set forth affirmative allegations of fact stating valid grounds for recusation. In particular, the allegations of the bias or prejudice presented by the mover are not of an extrajudicial nature as would warrant recusal. See State v. Williams, 601 So.2d 1374 (La.1992).

Accordingly, the motion to recuse all judges of the Court of Appeal, First Circuit is denied, and the case is remanded to the court of appeal for further proceedings.

       Chief Justice Kimball not participating in this opinion.


text:
    In re Eric Fitzgerald WRIGHT, Sr.
    No. 2006-OB-2395.
    Supreme Court of Louisiana.
    March 5, 2010.
   PER CURIAM.

11Petitioner, Eric Fitzgerald Wright, Sr., applied to this court after the Committee on Bar Admissions declined to certify him for admission to the bar based on character and fitness concerns. On December 12, 2007, this court admitted petitioner on a conditional basis for a period of two years. In re: Wright, 06-2395 (La.12/7/07), 969 So.2d 1250.

Prior to the expiration of petitioner’s two-year conditional admission, the Office of Disciplinary Counsel (“ODC”) filed a report with this court outlining two incidents which occurred in 2008 and 2009. After reviewing the ODC’s report, we ordered petitioner to show cause why his conditional admission should not be extended for an additional two years. Petitioner submitted a brief in response to that order.

Having reviewed petitioner’s brief, we conclude continued monitoring of petitioner is appropriate. Accordingly, we will extend petitioner’s conditional admission for an additional two years, commencing from the date of finality of this judgment.

DECREE

It is ordered that the conditional admission of Eric Fitzgerald Wright Sr. be and hereby is extended for an additional two years, commencing from the date of fínality 12of this judgment. During the extended period of conditional admission, petitioner shall remain subject to all conditions listed in In re: Wright, 06-2395 (La.12/7/07), 969 So.2d 1250.

KNOLL, J., dissents and would allow petitioner’s conditional admission to expire.

       Chief Justice Kimball not participating in the opinion.

      . The 2008 incident involved a charge of domestic violence. The 2009 inciden L arose from an altercation between petitioner and a client.


text:
    In re Tiffany A. MYLES.
    No. 2008-OB-2469.
    Supreme Court of Louisiana.
    March 5, 2010.
   PER CURIAM.

| [After she successfully passed the Louisiana bar examination, petitioner, Tiffany Ann Myles, was advised by the Committee on Bar Admissions (“Committee”) that she would not be recommended for admission until certain financial delinquencies had been adequately addressed. Thereafter, petitioner entered into payment plans with her creditors to address her delinquent obligations, and the Committee agreed to join with petitioner in seeking her conditional admission to the practice of law. On October 16, 2008, we granted the joint petition for conditional admission in In re: Myles, 08-2469 (La.10/16/08), 992 So.2d 922. Pursuant to the court’s order, petitioner was admitted to the practice of law in Louisiana subject to a two-year period of probation. During that period, petitioner was ordered to provide evidence to the Office of Disciplinary Counsel (“ODC”), on at least a quarterly basis, demonstrating that she has made a good faith effort to satisfy her financial obligations. We concluded that should petitioner fail to make a good faith effort to satisfy her financial obligations, or should she commit any misconduct during the period of probation, her conditional right to practice “may be terminated or she may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.”

12On January 13, 2010, the ODC filed a report in this court suggesting that petitioner’s conditional admission should be revoked. The ODC acknowledges that petitioner has submitted the scheduled quarterly financial reports to the ODC for January, April, July, and October 2009. However, the ODC takes issue with petitioner’s failure to obtain mandatory continuing legal education (MCLE) credits for 2009, based upon an exemption for newly admitted lawyers not engaged in the practice of law in this state or in any other state.

After carefully reviewing the ODC’s filing, and petitioner’s response thereto, we see no basis upon which to terminate petitioner’s conditional admission. Petitioner has complied with the requirement that she submit quarterly financial reports to the ODC, and we find that she acted in good faith in seeking the CLE exemption in 2009. However, to clarify any misunderstanding, we direct petitioner to comply with the CLE requirements for 2010.

       Chief Justice Kimball not participating in the opinion.


text:
    In re Alexander D. BATES.
    No. 2008-OB-0551.
    Supreme Court of Louisiana.
    March 5, 2010.
   PER CURIAM.

| tAfter he successfully passed the Louisiana bar examination, petitioner, Alexander D. Bates, was advised by the Committee on Bar Admissions (“Committee”) that he would not be recommended for admission until certain financial delinquencies had been adequately addressed. Thereafter, petitioner entered into a monthly payment plan to repay his debt, and the Committee agreed to join with petitioner in seeking his conditional admission to the practice of law. On March 19, 2008, we granted the joint petition for conditional admission in In re: Bates, 08-0551 (La.3/19/08), 976 So.2d 1272. Pursuant to the court’s order, petitioner was admitted to the practice of law in Louisiana subject to a three-year period of probation. During that period, petitioner was ordered to provide evidence to the Office of Disciplinary Counsel (“ODC”), on at least a quarterly basis, demonstrating that he has made a good faith effort to satisfy his financial obligations. We concluded that should petitioner fail to make a good faith effort to satisfy his financial obligations, or should he commit any misconduct during the period of probation, his conditional right to practice “may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.”

On February 2, 2010, the ODC filed a report in this court suggesting that petitioner should be required to show cause why his conditional admission should not Lbe revoked due to his failure to cooperate in the monitoring of the terms of his conditional admission. After carefully reviewing the ODC’s filing, and petitioner’s response thereto, we decline at this time to terminate his conditional admission.

       Chief Justice Kimball not participating in the opinion.


text:
    Mary Ann Charles CALBERT, et al. v. Orlando J. BATISTE.
    No. 2009-C-2647.
    Supreme Court of Louisiana.
    March 12, 2010.
   PER CURIAM.

|, Finding the Court of Appeal erred in reversing the district court’s judgment sustaining defendants’, Lafayette City-Parish Consolidated Government’s (Lafayette) and State through Department of Transportation and Development’s (DOTD), exceptions of lis pendens, we grant this writ to reinstate the District Court’s judgment.

On July 23, 2007, Raymond Calbert (Raymond) passed away from injuries he sustained earlier that day when struck by a vehicle driven by Orlando Batiste (Batiste). On July 14, 2008, Mary Ann Charles Calbert (Mary Ann), as the surviving spouse and on behalf of Raymond’s and her minor son, Rashaun Calbert, filed the instant wrongful death action against Batiste in the 15th Judicial District Court, docket number 2008M022-B. On August 28, 2008, Major Calbert (Major), as Raymond’s surviving son, filed his own wrongful death and survival action against Batiste, DOTD, and Lafayette in the 15th Judicial District Court, docket number 2008-4932-A. In response, DOTD and Lafayette filed exceptions of prescription, vagueness, and | ¡improper service. Then on December 1, 2008, Major filed a petition of intervention, seeking to intervene in the present suit filed by Mary Ann and to add DOTD and Lafayette as defendants. In response, DOTD and Lafayette brought exceptions of lis pendens, claiming the existence of Major’s first filed suit, docket number 2008-4932-A, prevented him from intervening in the present matter, docket number 2008-4022-B.

The District Court sustained the exceptions of lis pendens, dismissing Major’s claims with prejudice. The Court of Appeal reversed, finding because the first filed suit existed in name only, multiple suits were not pending.

Under the provisions of La.Code Civ. Proc. art. 531, “[wjhen two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same ca-pacifies, the defendant may have all but the first suit dismissed by excepting thereto....” In the instant matter, Major has pending in the 15th Judicial District Court two virtually identical civil tort suits, alleging the same causes of action on the same occurrence against the same defendants in the same capacities. In accordance with Article 531, DOTD and Lafayette are entitled to have all but the first suit dismissed. Therefore, we find the District Court properly sustained the exceptions of lis pen-dens, and the Court of Appeal erred in its reversal. Accordingly, the judgment of the Court of Appeal is reversed, and the judgment of the District Court sustaining the exceptions of lis pendens is reinstated and rendered.

J^REVERSED and RENDERED.

       Kimball, C.J., did not participate in the deliberation of this opinion.

      . On January 12, 2009, the district court heard these exceptions and ordered the suit be transferred to the instant suit, docket number 2008-4022-B.

      . DOTD and Lafayette also filed exceptions of prescription, vagueness, and no cause of action.

      .The District Court sustained the exceptions of prescription as well. However, our finding the exceptions of Us pendens were properly sustained renders all other issues moot, and therefore, we pretermit discussion of these issues.


author: /s/ Greg G. Guidry

text:
    Herman CARRIER, Individually and in His Capacity as the Administrator of The Estate of his Minor Child, Herman Blake Carrier, and his Wife, Wendy Wallace Carrier v. CITY OF AMITE and Bell Sports, Inc. and Sears Roebuck and Co.
    No. 2010-CC-0007.
    Supreme Court of Louisiana.
    March 12, 2010.
   ORDER

The court hereby informs the parties that it has granted certiorari in this matter. The court has selected this case for possible resolution by summary disposition and per curiam opinion.

Pursuant to Supreme Court Rule VIII, § 5, it is ordered that oral argument be limited to fifteen minutes for each side. During argument, the court ra&y, at its discretion, grant the parties additional time.

/s/ Greg G. Guidry


text:
    The SUCCESSION OF William Edward FAGET c/w Pier Marie Faget Jenkins, as Independent Administratrix of the Succession of William Edward Faget v. Audrey Menard Faget.
    No. 2010-C-0188.
    Supreme Court of Louisiana.
    March 12, 2010.
   In re Faget, Audrey Menard; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. E, Nos. 2005-10183, 2003-30467; to the Court of Appeal, First Circuit, No. 2008 CA 2422.

Granted.


text:
    Anthony ST. PIERRE v. Loretta Ann Rivera ST. PIERRE.
    No. 2010-OC-0587.
    Supreme Court of Louisiana.
    March 17, 2010.
   In re St. Pierre, Loretta Ann Rivera;— Defendant; Applying For Writ of Certio-rari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. A, No. 83,873; to the Court of Appeal, First Circuit, No. 2008 CA 2475.

Not considered. Not timely filed. See Supreme Court Rule X, Section 5(d).


text:
    STATE of Louisiana v. Edmond WALLACE.
    No. 2010-KK-0560.
    Supreme Court of Louisiana.
    March 17, 2010.
   In re Wallace, Edmond; — -Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 492-383; to the Court of Appeal, Fourth Circuit, No. 2010-K-0198.

Denied.

JOHNSON, J., would grant.


text:
    STATE of Louisiana v. Torey GORDON.
    No. 2010-KK-0467.
    Supreme Court of Louisiana.
    March 17, 2010.
   In re Gordon, Torey;- — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 484-206; to the Court of Appeal, Fourth Circuit, Nos. 2010-K-0274, 2010-K-0274.

Denied.


text:
    STATE of Louisiana v. John DUNCAN.
    No. 2010-KK-0607.
    Supreme Court of Louisiana.
    March 17, 2010.
   In re Duncan, John; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 450-320; to the Court of Appeal, Fourth Circuit, No. 2010-K-0395.

Stay denied, writ denied, on the showing made.


text:
    STATE of Louisiana v. Justin M. BARNES.
    No. 2010-KK-0609.
    Supreme Court of Louisiana.
    March 19, 2010.
   In re Barnes, Justin; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 491-952; to the Court of Appeal, Fourth Circuit, No. 2010-K-0252.

Denied.


text:
    STATE of Louisiana v. Derroll GRAVES and Leroy Parish.
    No. 2010-KK-0639.
    Supreme Court of Louisiana.
    March 19, 2010.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 493-779; to the Court of Appeal, Fourth Circuit, No. 2010-K-0425.

Denied.

GUIDRY, J., would grant the writ application.


text:
    STATE of Louisiana v. Roderick BENNETT, et al.
    No. 2010-KK-0594.
    Supreme Court of Louisiana.
    March 19, 2010.
   In re Lynch, Kevin; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 489-372; to the Court of Appeal, Fourth Circuit, No. 2010-K-0051.

Denied.


text:
    B3, L.L.C., et al. v. Troy HENRY, et al.
    No. 2010-CC-0643.
    Supreme Court of Louisiana.
    March 22, 2010.
   In re Henry Consulting L.L.C.; Henry, Troy; Infinity Fuels L.L.C.; — Defendants); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 09-4091; to the Court of Appeal, Fourth Circuit, No. 2010-C-0424.

Granted. It does not appear the district court ruled on relator’s objection asserting the requested discovery regarding records of Henry Consulting L.L.C. was over-broad. Accordingly, the judgment of the district court is vacated, and the case remanded to the district court to make a ruling on this objection. See Stolzle v. Safety & Systems Assurance, 02-1197 (La.5/24/02), 819 So.2d 287.

KNOLL, J., would deny.


text:
    STATE ex rel. Joseph NIXON v. STATE of Louisiana.
    No. 2010-KH-0636.
    Supreme Court of Louisiana.
    March 23, 2010.
   In re Nixon, Joseph; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 06-09-0988; to the Court of Appeal, First Circuit, No. 2010 KW 0041.

Relator represents that the district court has failed to act timely on a writ of habeas corpus filed on or about January 4, 2010. If relator’s representation is correct, the district court is ordered to consider and act on the application. If relator’s representation is incorrect, the district court is ordered to accept, file and act upon the pleading which is herewith transferred to the district court. The district court is ordered to provide this Court with a copy of its judgment.


text:
    Susan ZEUTSCHEL v. BREAUX MART SUPERMARKETS, INC., et al.
    No. 2010-CC-0529.
    Supreme Court of Louisiana.
    March 24, 2010.
   In re Zeutschel, Susan; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 626-642; to the Court of Appeal, Fifth Circuit, No. 10-C-112.

Denied.


text:
    STATE of Louisiana v. Robert COLEMAN.
    No. 2010-KK-0433.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Coleman, Robert; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. F, No. 226,818; to the Court of Appeal, Second Circuit, No. 45,-319-KW.

Denied.


text:
    STATE of Louisiana v. David P. SAMPOGNARO.
    No. 2009-KK-2627.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Sampognaro, David P.; — Defendant; Applying for Reconsideration of this Court’s action dated February 12, 2010; Parish of St. Charles, 29th Judicial District Court Div. C, No. 06-0066; to the Court of Appeal, Fifth Circuit, No. 09-KPI-810.

Reconsideration not considered. See Louisiana Supreme Court Rule DC, Section 6.


text:
    STATE of Louisiana v. Anthony JOHNSON.
    No. 2009-OK-1920.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re State of Louisiana; — Plaintiff; Applying for Reconsideration of this Court’s order dated October 9, 2009; Parish of Washington, 22nd Judicial District Court Div. “A”, No. 39701.

Reconsideration denied.


text:
    STATE of Louisiana v. Steve TAUZIN.
    No. 2009-KP-0891.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Tauzin, Steve; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. B, No. 207,886; to the Court of Appeal, Second Circuit, No. 44,283-KW.

Denied.


text:
    STATE of Louisiana v. Joshua Kenneth HOBSON.
    No. 2009-KP-0993.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Hobson, Joshua Kenneth; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 06-97-0847; to the Court of Appeal, First Circuit, No. 2009 KW 0031.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE of Louisiana v. Melvin Cornell SCOTT.
    No. 2009-K-1502.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Scott, Melvin Cornell; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. B, No. 477,761; to the Court of Appeal, First Circuit, No. 2009 KA 0202.

Denied.


text:
    STATE of Louisiana v. Sedric Levond JACKSON.
    No. 2009-K-1646.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Jackson, Sedric Levond; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 06-05-0961; to the Court of Appeal, First Circuit, No. 2008 KA 2466.

Denied


text:
    STATE of Louisiana v. Darrell Lamont ALGERE.
    No. 2009-KO-1678.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Algere, Darrell Lamont; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. F, No. 07-61; to the Court of Appeal, Third Circuit, No. OS-1443.

Denied.


text:
    STATE of Louisiana v. Ray FAVORS.
    No. 2009-KO-1679.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Favors, Ray; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. C, No. 161,804; to the Court of Appeal, First Circuit, No. 2009 KA 0041.

Denied.


text:
    STATE of Louisiana v. John R. CRUMHOLT.
    No. 2009-KO-1680.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Crumholt, John R.;- — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 431,085; to the Court of Appeal, First Circuit, No. 2009 KA 0209.

Denied.


text:
    STATE of Louisiana v. Derrick HOLT.
    No. 2009-KO-1681.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Holt, Derrick; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. O, No. 03-5674; to the Court of Appeal, Fifth Circuit, No. 08-KA-1276.

Denied.


text:
    STATE of Louisiana v. Boris J. STOGNER.
    No. 2009-KO-1682.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Stogner, Boris J.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. J, No. 06-CR10-04953; to the Court of Appeal, First Circuit, No. 2009 KA 0172.

Denied.


text:
    STATE of Louisiana v. Glenn J. CARTER.
    No. 2009-KO-1692.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Carter, Glenn J.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 431086; to the Court of Appeal, First Circuit, No. 2008 KA 2586.

Denied.


text:
    STATE of Louisiana v. Warren COCHRAN.
    No. 2009-KO-1742.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Cochran, Warren; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. M, No. 07-1322; to the Court of Appeal, Fifth Circuit, No. 09-KA-85.

Denied.


text:
    STATE of Louisiana v. Chad BREAUX.
    No. 2009-KO-1744.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Breaux, Chad;- — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. C, No. 469,100; to the Court of Appeal, First Circuit, No. 2009 KA 196.

Denied.


text:
    STATE of Louisiana v. Eddie HARRISON, III.
    No. 2009-KO-1745.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Harrison, Eddie III; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. G, No. 465-700; to the Court of Appeal, Fourth Circuit, No. 2008-KA-1110.

Denied.


text:
    STATE of Louisiana v. Johnny R. WILLIAMS, Jr.
    No. 2009-KO-1746.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Williams Jr., Johnny R.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. D, No. 06-F2694; i.o the Court of Appeal, Second Circuit, No. 44,418-KA.

Denied.


text:
    STATE of Louisiana v. Elliot LAPRAIRIE.
    No. 2010-KK-0053.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Laprairie, Elliot; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 148,817; to the Court of Appeal, Third Circuit, No. KW 09-00864.

Not considered, not timely filed.


text:
    STATE ex rel. Michael G. MORRIS v. STATE of Louisiana.
    No. 2009-KH-1899.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Morris, Michael G.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 425812; to the Court of Appeal, First Circuit, No. 2009 KW 0737.

Denied.


text:
    STATE ex rel. David D. CLIFFORD a/k/a Michael J. Coleman v. STATE of Louisiana.
    No. 2009-KH-1144.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Clifford, David D. a/k/a; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. II, No. 302-377; to the Court of Appeal, Fourth Circuit, No. 2009-K-0373.

Denied.


text:
    STATE ex rel. Ronnie K. HONGO v. STATE of Louisiana.
    No. 2009-KH-1202.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Hongo, Ronnie K.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Sabine, 11th Judicial District Court Div., No. 57538; to the Court of Appeal, Third Circuit, No. KH 08-01537.

Denied.


text:
    STATE ex rel. Derrick ALLEN v. STATE of Louisiana.
    No. 2009-KH-1204.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Allen, Derrick; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 06-04-0828; to the Court of Appeal, First Circuit, No. 2008 KW 1958.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Christopher WHITE v. STATE of Louisiana.
    No. 2009-KH-1206.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re White, Christopher; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 374-791; to the Court of Appeal, Fourth Circuit, No. 2009-K-0385.

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


text:
    STATE ex rel. Rudolph WILLIAMS v. STATE of Louisiana.
    No. 2009-KH-1209.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Williams, Rudolph; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. B, No. 98K-3722B; to the Court of Appeal, Third Circuit, No. KH 08-01404.

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


text:
    STATE ex rel. Stephen JOHNSON v. STATE of Louisiana.
    No. 2009-KH-1221.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Johnson, Stephen; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 295-624; to the Court of Appeal, Fourth Circuit, No. 2009-K-0419.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694. See also La. C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Tony R. EVANS v. STATE of Louisiana.
    No. 2009-KH-1222.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Evans, Tony R.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. H, No. 132,104; to the Court of Appeal, Second Circuit, No. 44,-611-KH.

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


text:
    STATE ex rel. Henry ISSACS v. STATE of Louisiana.
    No. 2009-KH-1225.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Issacs, Henry;. — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, Nos. 85-1027, 85-1027; to the Court of Appeal, Fifth Circuit, Nos. 00-KH-1439, 08-WR-852.

Denied.

GUIDRY, J., recused.


text:
    STATE ex rel. John OVERBEY v. STATE of Louisiana.
    No. 2009-KH-1236.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Overbey, John; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Richland, 5th Judicial District Court Div. B, No. F-96-169; to the Court of Appeal, Second Circuit, No. 44,-716-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE ex rel. Eugene H. MOORE v. STATE of Louisiana.
    No. 2009-KH-1238.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Moore, Eugene H.;- — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Cameron, 38th Judicial District Court Div. A, Nos. 65,337, 65,846; to the Court of Appeal, Third Circuit, Nos. KH 09-00137, KH 08-01472.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE ex rel. Joseph ARMSTRONG v. STATE of Louisiana.
    No. 2009-KH-1239.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Armstrong, Joseph; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. A, No. 40823; to the Court of Appeal, Third Circuit, No. KH 08-01545.

Denied.


text:
    STATE ex rel. Thomas L. PHILLIPS v. STATE of Louisiana.
    No. 2009-KH-1240.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Phillips, Thomas L.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 245-434.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Michael G. MORRIS v. STATE of Louisiana.
    No. 2009-KH-1276.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Morris, Michael G.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 425812; to the Court of Appeal, First Circuit, No. 2009 KW 0384.

Denied.


text:
    STATE ex rel. Victor JOHNSON v. STATE of Louisiana.
    No. 2009-KH-0907.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Johnson, Victor; — Plaintiff; Applying for Reconsideration of this Court’s action dated February 12, 2010; Parish of Webster, 26lh Judicial District Court Div. B, No. 50,494; to the Court of Appeal, Second Circuit, No. 44,511-KH.

Reconsideration denied.


text:
    STATE ex rel. Earnest FONTENOT v. STATE of Louisiana.
    No. 2009-KH-0914.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Fontenot, Earnest; — Plaintiff; Applying for Reconsideration of this Court’s action dated February 12, 2010; Parish of Livingston, 21st Judicial District Court Div. A, Nos. 20289, 20290; to the Court of Appeal, First Circuit, No. 2008 KW 1868.

Denied.


text:
    STATE ex rel. Rodney Wayne MACON v. STATE of Louisiana.
    No. 2009-KH-1010.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Macon, Rodney Wayne; — Plaintiff; Applying for Reconsideration of this Court’s action dated February 12, 2010; Parish of Caddo, 1st Judicial District Court Div. G, No. 112,549.

Denied.


text:
    STATE ex rel. Benjamin WRIGHT v. STATE of Louisiana.
    No. 2009-KH-1215.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Wright, Benjamin; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Webster, 26th Judicial District Court Div. B, No. 69,946; to the Court of Appeal, Second Circuit, No. 44,-671-KH.

Writ granted in part; case remanded to the district court. The district court is ordered to appoint counsel for purposes of holding a hearing at which it will determine whether relator is entitled to an out-of-time appeal of his convictions under docket # 69,946 pursuant to the rule of State v. Counterman, 475 So.2d 336, 340 (La.1985). In all other respects, the application is denied.


text:
    In the Matter of the Succession of Gerald HENDRICKS.
    No. 2010-C-0480.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Hendricks, Melinda Juge;- — Other; Applying For Writ of Certiorari and/or Review, Parish of W. Baton Rouge, 18th Judicial District Court Div. B, No. 6577; to the Court of Appeal, First Circuit, No. 2008 CA 1914.

Not considered; not timely filed.


text:
    In re APPEAL OF DECISION OF the DISCIPLINARY BOARD NO. 09-PDB-023.
    No. 2009-OB-2358.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Pottharst, Russell C.; — Plaintiff; Applying For Appeal of Decision of the Disciplinary Board Office of the Disciplinary Board, No. 09-PDB-02B.

Motion to supplement record and leave to appeal denied


text:
    Catherine COOK v. ASBESTOS CORPORATION, LTD., et al.
    No. 2010-CC-0322.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Aetna Casualty and Surety Co.; American Employers Ins. Co.; Standard Fire Ins. Co.; Travelers Casualty and Surety Co.; United States Fidelity and Guaranty Co.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 09-9598; to the Court of Appeal, Fourth Circuit, No. 2010-C-0003.

Granted. The judgment of the district court denying relator’s exception of improper venue is vacated. The case is remanded to the district court, which is instructed to allow plaintiff to amend her petition to set forth specific factual allegations supporting the claim that venue is proper in Orleans Parish, and to rule on the exception anew in light of the amended petition.

JOHNSON, J., would deny.


text:
    In re MEDICAL REVIEW PANEL PROCEEDINGS FOR The CLAIM of Mary Kathleen BOSARGE and Delmas Bosarge, Jr. v. Depaul/Tulane Behavioral Health Center.
    No. 2009-CC-2710.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Tulane/Depaul Behavioral Center; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 2005-3000; to the Court of Appeal, Fourth Circuit, No. 2009-C-1345.

Granted and remanded to the court of appeal for briefing, argument, and opinion.


text:
    Suresh JARIWALA v. Kishor MADRASI.
    No. 2010-C-0060.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Madrasi, Kishor; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. C, No. 08-C-3561-B; to the Court of Appeal, Third Circuit, No. 08 01522-CA.

Denied.


text:
    Ellis FALGOUST, et al. v. AVONDALE INDUSTRIES, INC., et al.
    No. 2010-CC-0063.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Whitney Holding Corp.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 2000-11486; to the Court of Appeal, Fourth Circuit, No. 2009-C-1439.

Denied.


text:
    Gregory J. LOGAN v. HIT OR MISS, L.L.C., et al.
    No. 2010-CC-0069.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Travcal Properties L.L.C.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. E, No. 2009-2204; to the Court of Appeal, Third Circuit, No. CW 09-01163.

Denied.


text:
    Mario MASS v. Bradley J. BARTHOLOMEW, M.D. and St. Charles General Hospital.
    No. 2010-C-0072.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Mass, Mario; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 05-12587; to the Court of Appeal, Fourth Circuit, No. 2009-CA-0660.

Denied.


text:
    Jayanne CRAWLEY d/b/a Southlands Premium Tropicals v. COASTAL BRIDGE CO. INC. and Louisiana Grain Services, Inc.
    No. 2010-C-0076.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Crawley d/b/a, Jayanne; South-lands Premium Tropicals; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of St. John, 40th Judicial District Court Div. A, No. 43370; to the Court of Appeal, Fifth Circuit, No. 09-CA-181.

Denied.


text:
    Averis Terrell MANCHESTER, Crystal D. Atkins and Heath Atkins v. Dedrick CONRAD, Circle J Trucking and Gemini Insurance Company.
    No. 2010-CC-0087.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Manchester, Averis Terrell;— Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Pointe Coupee, 18th Judicial District Court Div. D, No. 41,640; to the Court of Appeal, First Circuit, No. 2009 CW 1074.

Denied.


text:
    Heather Cook LEMAN v. Michael David LEMAN, et al. Melvin G. Ripp, Jr.
    No. 2010-CC-0120.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Leman, Heather Cook; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 651-409; to the Court of Appeal, Fifth Circuit, No. 09-C-987.

Denied.


text:
    Alexis MARRERO v. FLOUR MAINTENANCE SERVICES, INC.
    No. 2010-CC-0486.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Marrero, Alexis; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 627-157; to the Court of Appeal, Fifth Circuit, No. 10-C-75.

Denied.


text:
    Elizabeth CONSTANT v. WILLIAMSBURG ASSISTED LIVING.
    No. 2009-CP-2408.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Constant, Elizabeth — Plaintiff; Applying for Reconsideration of this Court’s Order, dated January 22, 2010; Parish of E. Baton Rouge, 19th Judicial District Court, Div. O, No. 577,218; to the Court of Appeal, First Circuit, No. 2009 CW 1025.

Reconsideration denied.


text:
    Antonio TYSON v. Lynn McCLOUD, et al.
    No. 2009-CP-2428.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Tyson, Antonio; — Plaintiff; Applying for Reconsideration of this Court’s Action dated January 29, 2010; Parish of Washington, 22nd Judicial District Court Div. F, No. 98670; to the Court of Appeal, First Circuit, No. 2009-CW-1029.

Reconsideration denied.


text:
    Elliot J. JENKINS, Charles E. Jenkins and Patrick Holden v. Sam B. HAYNES, Jr. d/b/a Haynes Motor Lines, Joe Doe and Legion Insurance Company.
    No. 2010-C-0068.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Holden, Patrick; Jenkins, Charles E.; Jenkins, Elliot J. et ah; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. H, No. 2000-11646; to the Court of Appeal, Fourth Circuit, No. 2008-CA-0783.

Not considered. Not timely filed. See, Supreme Court Rule X, section 5(d).


text:
    Betty Jean Pharis MORRISON, et al. v. ALEXANDRIA COMMONS, LLC, et al.
    No. 2010-C-0082.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Dino, Jorge; First Mercury Insurance Company; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. A, No. 226,200; to the Court of Appeal, Third Circuit, No. 09-652.

Not considered; not timely filed.


text:
    Wanda CHRISTENSEN v. INDEPENDENT INSURANCE ASSOCIATES, INC., Odom Investments, Inc. d/b/a Mercury Underwriters and United National Group d/b/a United National Insurance Company.
    No. 2009-CC-2441.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Christensen, Wanda; — Plaintiff; Applying for Reconsideration of this Court’s action dated January 29, 2010; Parish of Orleans, Civil District Court Div. D, No. 2002-8261; to the Court of Appeal, Fourth Circuit, No. 2009-C-1002.

Reconsideration not considered. See Louisiana Supreme Court Rule IX, Section 6.


text:
    Peggy T. GEREIGHTY wife of/and Tavis Domingue v. Carla FOX, Syndistar, Inc., Educational Publishers and General Insurance Company of America.
    No. 2009-C-2782.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Domingue, Tavis; Gereighty, Peggy T.; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. H, No. 612-899; to the Court of Appeal, Fifth Circuit, No. 09-CA-395.

Denied.


text:
    John DOE VII and John Doe VIII v. Jack DOE, Jack Doe II, Jack Doe III and His Predecessors, Fireman’s Fund Insurance Company and Guideone Insurance Company.
    No. 2009-CC-2795.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Diocese of Baton Rouge; Doe II, Jack; Doe III, Jack; Doe, Jack et al.; Fireman’s Fund Ins. Co.; Guideone Mutual Ins. Co.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, Nos. 550,734, 542,172, 546,-174, 548,847; to the Court of Appeal, First Circuit, No. 2009 CW 1702.

Denied.


text:
    John DOE XIV, John Doe XV and John Doe XVI v. Jack DOE, Jack Doe II, Jack Doe III and his Predecessors and Successors, Fireman’s Fund Insurance Company and Guideone Insurance Company.
    No. 2009-CC-2796.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Diocese of Baton Rouge; Doe II, Jack; Doe III, Jack; Fireman’s Fund Ins. Co.; Guideone Insurance Co.; — Defendant/s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 550,734; to the Court of Appeal, First Circuit, No. 2009 CW 1703.

Denied.


text:
    J. CALDARERA & COMPANY, INC. v. ST. JAMES PARISH HOSPITAL SERVICE DISTRICT and The Board of Commissioners of The St. James Hospital.
    No. 2009-C-2814.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re J. Caldarera & Company Inc.;— Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. James, 23rd Judicial District Court Div. A, No. 31,138; to the Court of Appeal, Fifth Circuit, No. 09-CA-166.

Denied.


text:
    Susan DAIGLE v. The PARISH OF JEFFERSON Individually and/or by and through Appropriate Consolidated Road District, and The State of Louisiana, by and through the Department of Transportation and Development.
    No. 2010-C-0044.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Matei, Susan Daigle; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. J, No. 554-850; to the Court of Appeal, Fifth Circuit, No. 08-CA-1310.

Denied.


text:
    CAILLOU ISLAND TOWING COMPANY, INC. v. MARTIN & PELLEGRIN, CPA’S (A Professional Corporation).
    No. 2010-C-0045.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Caillou Island Towing Company Inc.; — Plaintiff; Applying For Writ of Cer-tiorari and/or Review, Parish of Terre-bonne, 32nd Judicial District Court Div. E, No. 150846; to the Court of Appeal, First Circuit, No. 2009 CA 0795.

Denied.


text:
    Heather Cook LEMAN v. Michael David LEMAN, ABC Insurance Company, Melvin G. Ripp, Jr., DEF Insurance Company, Fred G. Lake and GHI Insurance Company.
    No. 2010-CC-0049.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Ripp Jr., Melvin G.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 651-409; to the Court of Appeal, Fifth Circuit, No. 09-C-871.

Denied.


text:
    Craig Steven ARABIE, et al. v. CITGO PETROLEUM CORPORATION, et al.
    No. 2010-CC-0052.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Citgo Petroleum Corporation et al.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Calca-sieu, 14th Judicial District Court Div. G, No. 2007-2738; to the Court of Appeal, Third Circuit, No. CW 09-01034.

Denied.

CLARK, J., would grant.


text:
    Jeryd ZITO v. ADVANCED EMERGENCY MEDICAL SERVICES, INC. and Empire Indemnity Insurance Company.
    No. 2010-CC-0055.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Advanced Emergency Medical Services Inc. et al.; Empire Indemnity Insurance Co.; — Defendant^); Applying For Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 54-669; to the Court of Appeal, Fourth Circuit, No. 2009-C-1504.

Denied.

CLARK, J., would grant.


text:
    CUNARD LINE LIMITED CO. v. DATREX, INC., et al.
    No. 2010-C-0058.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Hartford; Twin City Fire Insurance Company; — Third Party(s); Applying For Writ of Certiorari and/or Review, Parish of Allen, 33rd Judicial District Court Div. B, No. 2002-140; to the Court of Appeal, Third Circuit, No. 09-656.

Denied.


text:
    BONVILLAIN BUILDERS, LLC and Bonvillain Construction Company, Inc. v. Charon E. GENTILE, M.D. and La Donna, LLC c/w Charon E. Gentile, M.D. and La Donna, LLC v. Bonvillain Builders, LLC and Bonvillain Construction Company, Inc.
    No. 2010-C-0059.
    Supreme Court of Louisiana.
    March 26, 2010.
   In re Bonvillain Builders LLC et al.; Bonvillain Construction Co. Inc.; — Plaintiffs); Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. E, Nos. 145,-123, 151,029; to the Court of Appeal, First Circuit, Nos. 2008 CA 1994, 2008 CA 1995. Denied.