text:
    Orlando BENITEZ, Jr., Appellant, v. EDDY LEAL, P.A., Appellee.
    No. 3D18-771
    District Court of Appeal of Florida, Third District.
    Opinion filed April 10, 2019
    León Cosgrove and Scott B. Cosgrove and Jeremy L. Kahn and Aaron C. Brownell, for appellant.
    Eddy Leal, for appellee.
    Before SALTER, SCALES and LINDSEY, JJ.
   SALTER, J.

Orlando Benitez, Jr. ("Client"), appeals a final order imposing a charging lien asserted by attorney Eddy Leal and his professional association, Eddy Leal, P.A. (collectively, "Attorney"). The order awarded the Attorney a charging lien against the Client for $ 29,459.91, plus interest. For the reasons which follow, we reverse the order and vacate the charging lien, without prejudice to the Attorney's rights to pursue collection of his unsecured claim for fees against his former client.

The underlying circuit court case was a 2012 commercial mortgage foreclosure case brought by the Client, initially represented by the Attorney, against a borrower. The Client obtained a pretrial order requiring the borrower to make monthly payments during the pendency of the foreclosure action, as provided by section 702.10(2)(f), Florida Statutes (2012). The Attorney then successfully represented the Client in an appeal of that pretrial order brought by the mortgagor. On remand, the Client was awarded a final judgment of attorneys' fees and costs in the amount of $ 29,459.91 for the Attorney's successful representation in the appeal.

In October 2016, the Attorney moved to withdraw from further representation of the Client. Neither the motion to withdraw nor the order granting it disclosed any claim for unpaid fees or for a lien on the Client's judgment in the case, any proceeds of collection, or any other property of the Client.

In February 2017, successor counsel for the Client obtained a final judgment of foreclosure against the borrower and two guarantors. A week later, the Attorney filed and served a notice of filing and asserting a charging lien by Attorney "on all judgments rendered in the [foreclosure case], and on all money due from any and all Defendants on any such judgments, and any and all assets, property, money, proceeds retained, receive, or recovered by [the Client] or any of his assigns in connection with this matter."

The Attorney attached to that notice a copy of the Client's answers to interrogatories (executed before the Attorney's withdrawal from representation of the Client) in which the Client disclosed that he had not paid the Attorney the fees and costs incurred in the successful appeal, and that there was no written retainer or fee agreement between the Attorney and the Client regarding the underlying foreclosure and appeal.

In March 2017, the trial court heard the Attorney's motion for a charging lien. The trial court marked up the form of order submitted by the Attorney; rather than granting or denying the motion, the trial court merely "recognize[d]" that the Attorney's motion for charging lien for attorneys'

fees and costs had been filed on February 23, 2017, "as reflected on the docket." The trial court marked out a paragraph in the proposed order which would have specified that the Attorney "does have and recover a charging lien, together with statutory post-judgment interest from today, against [Client] for any and all money recovered from [the obligors in the underlying action] because of judgments assets, property, proceeds retained, received or recovered in this matter."

Seven months later, the Attorney filed an emergency motion for imposition of a charging lien and noticed it for a hearing three business days later. At that hearing, conducted only one day before the trial judge retired, the court proceeded with a non-evidentiary hearing on the motion. The transcript of the hearing indicates that the trial court thought it had already granted a charging lien.

The Client's successor counsel emphasized the need for an evidentiary hearing on the charging lien issues. After the non-evidentiary hearing, the Client submitted a response to the trial court raising various issues of fact: whether the Attorney was entitled to raise a charging lien; whether the Client's payments to the Attorney were properly credited; and whether the Client had rights to a setoff. The Client also argued that the trial court lacked jurisdiction to impose a charging lien because the Attorney's notice and claim were untimely filed.

The trial court then entered the order imposing a charging lien. Following proceedings relating to a motion for rehearing, the order remained in effect, and this appeal followed.

Analysis

Our standard of review on the issue raised by the Client on subject matter jurisdiction is de novo. See Greenberg Traurig, P.A. v. Starling, 238 So.3d 862, 864-65 (Fla. 2d DCA 2018). We also review de novo the legal sufficiency of the claim of lien, and the propriety of a determination of the claim without an evidentiary hearing. See Nieves v. Viera, 150 So.3d 1236, 1238-39 (Fla. 3d DCA 2014).

We reject without extensive discussion the Attorney's contention that we lack jurisdiction because the Client's notice of appeal was untimely. The initial order granting a lien was indeed a final order, see Trontz v. Winig, 905 So.2d 1026, 1027 (Fla. 4th DCA 2005), and the Client's motion for rehearing suspended rendition until a successor judge denied it (and, for the elimination of doubt, reaffirmed that the charging lien order "remains in full force and effect").

As to the claim of a charging lien itself, the Florida Supreme Court has held:

To impose such a lien, the attorney must show: (1) an express or implied contract between attorney and client; (2) an express or implied understanding for payment of attorney's fees out of the recovery; (3) either an avoidance of payment or a dispute as to the amount of fees; and (4) timely notice.

Daniel Mones, P.A. v. Smith, 486 So.2d 559, 561 (Fla. 1986). In that case, the Supreme Court also observed that such liens are creatures of common law, and are governed exclusively by case law.

In this case, there are two shortcomings in the Attorney's claim which require reversal. The first, a failure to timely notify the Client of the claim of lien, is preclusively fatal to the claim and we reverse and vacate the order on that basis. The Attorney did not file his notice of a purported charging lien until after the final judgment had been entered in favor of his former Client in the case. In Daniel Mones, P.A., the Florida Supreme court held that the claimant/attorney was obligated "to notify his clients in some way before the close of the original proceeding that he intended to pursue the charging lien." Id.

In Schur v. Americare Transtech, Inc., 786 So.2d 46, 48 (Fla. 3d DCA 2001), this Court affirmed the denial of a charging lien as untimely. In that case, the attorney claiming the lien "did not pursue the charging lien before the entry of the final judgment," such that "the fourth requirement of timely notice had not been met" (referring to the fourth prerequisite for a charging lien as specified in Daniel Mones, P.A. and other cases). Id.

The Attorney responds with an argument that the final judgment was not truly final until the disposition of the borrowers' timely motions for rehearing and relief from the final judgment under Florida Rules of Civil Procedure 1.530 and 1.540. We disagree. The pendency of such motions affects "rendition" of the final judgment for appellate purposes, but the Attorney was not a party to the case (and had withdrawn as counsel over a year earlier), had not moved to intervene or been allowed to do so, and had not objected to the trial court's determination of the liquidated amounts awarded in the final judgment. Further, the borrowers' motions for rehearing and relief from judgment were denied, such that the final judgment (entered before the Attorney's claim of a charging lien was asserted) was not affected.

The Attorney's "notice" was too late to permit the parties and the trial court to consider and determine it before the entry of the final judgment. We cannot speculate what adjustments, if any, might have been made to the sums claimed by the Client in the final judgment had the Attorney filed the claim of charging lien before the final judgment was considered and entered by the trial court.

The Attorney's "notice" appears to have recognized that the claim was untimely. The notice included a request that "if a judgment has been entered, [the Attorney] respectfully requests that this Court vacate the judgment until this Court adjudicates the charging lien." The Attorney did not advance this request before the trial court, and the trial court never vacated the final judgment to adjudicate the late-filed claim.

Although our resolution of the first issue, timeliness, is dispositive of the appeal, we also consider the second shortcoming raised by the Client so that it may be addressed on any further appellate review. That second shortcoming is the trial court's failure to conduct an evidentiary hearing before approving the imposition of the Attorney's charging lien.

There is no written agreement between the Attorney and Client regarding the fees to be charged, the terms and timing of payment, or any specific funding source. There was no admissible evidence that there was any "express or implied understanding for payment of attorney's fees out of the recovery." Daniel Mones, P.A., 486 So.2d at 561. While represented by the Attorney, however, the Client did engage in conduct, and he signed interrogatory answers, acknowledging his obligation to the Attorney for the appellate attorneys' fees actually awarded by the trial court after remand. But that conduct and the interrogatory responses did not address any lien rights, or particular funds or property as a source of secured recovery, as against the Client. Any implication that the foreclosure itself, and any property or payment recovered in that lawsuit, would fund the liability to the Attorney, would have required an evidentiary hearing (and thus reversal and remand by this Court). The trial court's conclusion that "an evidentiary hearing will serve no purpose other than to unfairly delay the imposition of a charging lien" includes no citation to authority and does not withstand appellate scrutiny of the record.

For these reasons, we reverse and vacate the final order imposing a charging lien against the Client for the benefit of the Attorney and authorizing execution to collect the lien. This disposition is without prejudice to the Attorney to pursue payment of any allegedly unpaid fees and costs from his former client as an unsecured claim, though we express no opinion regarding the merits of any such action.

      The final order sought to be reviewed was entered October 30, 2017, shortly before the trial judge retired. Thereafter, a motion for rehearing was filed by the Client and granted by a successor judge. The matter was reopened for an evidentiary hearing, in the successor judge's order of December 14, 2017. On March 30, 2018, a third judge determined that the successor judge lacked jurisdiction to review or rehear the final order under Groover v. Walker, 88 So.2d 312 (Fla. 1956), and reinstated that final order. The Client's timely appeal of all three orders followed.

      Andros Dev. Corp. v. Benitez, 178 So.3d 918 (Fla. 3d DCA 2015). This Court dismissed the appeal for lack of jurisdiction.

      The final judgment, totaling $ 1,928,812.14, included a line item for attorneys' fees of $ 29,459.91, but did not differentiate between fees attributable to the Attorney and to successor counsel for the Client. The final judgment also specified that all sums comprising the total, including the attorneys' fees, were payable exclusively to the Client.

      In this case, as in other reported and unreported disputes between lawyers and clients, there is a teaching point that lawyers should heed their own usual advice to "get it in writing." In the case of a fee contingent in whole or in part on a recovery for the client, of course, the agreement is only enforceable if "such fee agreement is reduced to a written contract, signed by the client and by a lawyer for the lawyer or for the law firm representing the client." R. Regulating Fla. Bar 4-1.5(f)(2).


source: Caselaw Access Project

author: HENDON, J.

license: Public Domain

text:
    WINN-DIXIE STORES, INC., Appellant, v. Vadne WINTERS, Appellee.
    No. 3D18-0550
    District Court of Appeal of Florida, Third District.
    Opinion filed April 10, 2019
    Cole, Scott & Kissane, P.A., and Melinda S. Thornton, Miami, for appellant.
    Steinger Iscoe & Greene, P.A., and Alejandro M. Garcia (Fort Lauderdale); Burlington & Rockenbach, P.A., and Nichole J. Segal and Andrew A. Harris (West Palm Beach), for appellee.
    Before EMAS, C.J., and LOGUE and HENDON, JJ.
   HENDON, J.

Winn-Dixie Stores, Inc. ("Winn-Dixie") seeks to reverse the order vacating the Final Judgment and granting Plaintiff Vadne Winters' ("Winters") motion for new trial. We affirm.

In 2011, Winters slipped, fell, and was injured at Winn-Dixie, allegedly on water that had accumulated from the dripping mist system near the fresh vegetable section. She filed suit against Winn-Dixie for breach of duty of care by negligent maintenance of the produce section floor, or alternatively, by failing to warn her of a known dangerous condition, resulting in her injuries. The action went to trial in 2017. Throughout the trial, the trial court cautioned the parties and jury that they were not to assume that any of his trial decisions indicated any bias or opinion as to the merits of the case. The jury found Winn-Dixie was not negligent.

Winters subsequently filed a motion to disqualify the trial judge, alleging that the trial judge's comments and behavior demonstrated prejudice against her counsel and deprived her of a fair trial. The trial judge appropriately recused himself from the case, and a successor judge was assigned. The successor judge entered Final Judgment in favor of Winn-Dixie pursuant to the jury verdict. Subsequently, the successor judge conducted a hearing on Winters' motion for new trial. After hearing arguments of both counsel, the successor judge granted Winters' motion for new trial, and vacated the prior Final Judgment based on "the reasons stated by the Court during the February 12, 2018 hearing ..."

As a general proposition, a trial court, when asked to rule on a motion to disqualify, must accept the facts alleged as true and then determine legally if those facts would cause a reasonable person to develop a well-grounded belief that he or she would not receive a fair hearing before that trial judge. See Shumpert v. State, 703 So.2d 1128 (Fla. 2d DCA 1997) ; Rucks v. State, 692 So.2d 976, 977 (Fla. 2d DCA 1997) ; Fla. R. Jud. Admin. 2.160(f). The facts alleged in the motion need only show a well-grounded fear that the movant will not receive a fair trial at the hands of the judge. "The question of disqualification focuses on those matters from which a litigant may reasonably question a judge's impartiality rather than the judge's perception of his ability to act fairly and impartially." Livingston v. State, 441 So.2d 1083, 1086 (Fla. 1983). If the facts as alleged do not meet that burden, the motion is determined to be legally insufficient. J & J Indus., Inc. v. Carpet Showcase of Tampa Bay, Inc., 723 So.2d 281, 282-83 (Fla. 2d DCA 1998). In the case before us, the original trial court judge granted Winter's motion to disqualify as the facts alleged in her motion were sufficient to support her assertions that she believed that she could not receive a fair trial.

We review the successor judge's grant of a motion for new trial for abuse of discretion. Big Lots Stores, Inc. v. de Diaz, 18 So.3d 1065, 1067 (Fla. 3d DCA 2008). In its brief, Winn-Dixie acknowledges the general applicability of this standard of review, but contends that where the motion for new trial is ruled on by a successor judge (who must base his or her determination on review of a cold record, having not presided over the trial), the deference accorded such ruling is significantly narrowed. See, e.g., Robinson v. Ward, 203 So.3d 984, 989 (Fla. 2d DCA 2016) (affirming the trial court's order granting a new trial based on attorney misconduct and explaining that the abuse of discretion standard is "based on the presumption that the trial judge ruling on the motion for new trial was the one who presided over the case and is therefore in the best position to determine the propriety and potential impact of the conduct") (citation omitted). See also Nat'l Healthcorp Ltd. P'ship v. Close, 787 So.2d 22 (Fla. 2d DCA 2001) (observing: "Because the order awarding a new trial was entered by a successor judge on the basis of a study of the record, the discretion of the trial court to set aside the jury's verdict is significantly diminished in this case."); Lindon v. Dalton Hotel Corp., 113 So.3d 985 (Fla. 5th DCA 2013). Winn-Dixie's point is well taken but ultimately unavailing: Even applying this narrowed abuse of discretion standard, we would affirm the successor judge's order. If the appellate court determines that reasonable people could differ as to the propriety of the trial court's action, there can be no finding of an abuse of discretion. Hahn v. Medeiros, 858 So.2d 1242 (Fla. 5th DCA 2003) ; see also Gen. Hosp. of Greater Miami, Inc. v. Gager, 160 So.2d 749, 751 (Fla. 3d DCA 1964) (stating that appellate courts are much more reluctant to interfere with an order granting a new trial than an order denying a new trial).

Finding no abuse of discretion, we therefore affirm the order granting the Plaintiff's motion for new trial.

Affirmed.


author: PER CURIAM.

text:
    Margaret A. BROZ, Appellant, v. R.E. REECE, etc., et al., Appellees.
    No. 3D18-273
    District Court of Appeal of Florida, Third District.
    Opinion filed April 10, 2019
    Margaret A. Broz, in proper person.
    No Appearance for appellees.
    Before SALTER, SCALES and HENDON, JJ.
   PER CURIAM.

Affirmed. Notwithstanding the facts that (1) the hearing on the appellees/defendants' motion to dismiss was noticed and conducted as an evidentiary hearing and (2) the trial court heard the appellant/plaintiff's testimony before dismissing the first amended complaint with prejudice, our task as a reviewing court is unaffected. The order dismissing the first amended complaint with prejudice is subject to a de novo standard of review. United Auto. Ins. Co. v. Law Offices of Michal I. Libman, 46 So.3d 1101, 1103 (Fla. 3d DCA 2010). We consider the allegations within the four corners of the complaint and its attachments to be true, Coriat v. Global Assurance Group, Inc., 862 So.2d 743, 743 (Fla. 3d DCA 2003), as well as all reasonable inferences drawn from those allegations, United Automobile Insurance Co., 46 So.3d at 1103-04.

Dismissal with prejudice, with its denial of the right to amend the complaint again, should not be granted unless the privilege of amendment has been abused, there is prejudice to the opposing party, or further amendment would be futile.

Gerber Trade Fin., Inc. v. Bayou Dock Seafood Co., 917 So.2d 964, 968 (Fla. 3d DCA 2005) ; World Class Yachts, Inc. v. Murphy, 731 So.2d 798, 800 (Fla. 4th DCA 1999).

The first amended complaint, its attachments, and the circuit court's own dockets establish that: the defendants prepared the survey of Ms. Broz's half of a residential duplex property, 427 26th Street Ocean, Marathon, Florida, before she purchased it in 2005; Ms. Broz is an attorney; the survey erroneously switched the street address and legal description for Ms. Broz's half of the duplex for the legal description and street address for the other half of the duplex, 409 26th Street Ocean, Marathon; the survey error caused Ms. Broz to be served with a foreclosure complaint on a mortgage that was intended to encumber the other half of the duplex, not Ms. Broz's half; that foreclosure commenced in December 2006 and the complaint was personally served on her in January 2007; and Ms. Broz filed her lawsuit against the surveyors in July 2011.

The motion to dismiss the first amended complaint maintained that Ms. Broz had conceded an irremediable bar to her claim based on the statute of limitations. The parties are on common ground that the applicable statute, section 95.11(3)(a), Florida Statutes (2007), specifies a four-year limitation period for "[a]n action founded on negligence." The cause of action accrues "when the last element constituting the cause of action occurs." § 95.031(1), Fla. Stat. (2007).

The first amended complaint itself establishes that the owner of the other half of the duplex defaulted on his mortgage loan, with the result that Fremont Investment & Loan commenced a lawsuit against Ms. Broz (erroneously, and only by virtue of the mistaken legal description and address) in December 2006.

Ms. Broz failed to pursue her alleged negligence claim within four years from the date the erroneous addresses and legal descriptions damaged her rights as owner of her half of the duplex. The period from service of the foreclosure complaint upon her until the filing of her own lawsuit was over four years and six months. Further amendment could not change that fatal flaw, as her first amended complaint and attachments acknowledged that the misdirected foreclosure led her to the discovery of the survey, street address, and legal description transpositions for the two halves of the duplex.

Ms. Broz's contentions that the applicable four-year statute for negligence was tolled, or that her cause of action accrued later under the delayed discovery doctrine, are unavailing. The first amended complaint and attachments do not include, nor does this record suggest that any further amendment could include, any allegation supporting a tolling claim under section 95.031, Florida Statutes (2007).

This Court has also construed the delayed discovery doctrine cautiously and narrowly, following Florida Supreme Court precedent, in cases of intentional torts arising from childhood sexual abuse and "specific historical and procedural facts" quite unlike anything presented here. Cisco v. Diocese of Steubenville, 123 So.3d 83, 84 (Fla. 3d DCA 2013).

For these reasons, the final order and dismissal with prejudice are affirmed.

      The foreclosure complaint itself was attached to the first amended complaint. The court entered an order dismissing a prior version of the complaint in this case finding that Ms. Broz was served with the foreclosure complaint on January 6, 2007.

      Ms. Broz's initial slander of title claim, dismissed upon consideration of an earlier version of her complaint and a stipulation that the applicable statute of limitations for that claim was two years, was not realleged by her in the first amended complaint.


author: LINDSEY, J.

text:
    Ana Maria OLIN, et al., Appellants, v. WILMINGTON SAVINGS FUND SOCIETY, FSB, etc., Appellee.
    No. 3D19-0256
    District Court of Appeal of Florida, Third District.
    Opinion filed April 10, 2019
    Ana Maria Olin and Robert A. Del Castillo, in proper persons.
    Fox McCluskey Bush Robison, PLLC, and Adam G. Schwartz (Stuart), for appellee.
    Before SALTER, FERNANDEZ, and LINDSEY, JJ.
   LINDSEY, J.

Appellee, Wilmington Savings Fund Society, FSB, D/B/A Christiana Trust, as Trustee for the Pretium Mortgage Acquisition Trust (Wilmington), seeks dismissal of this appeal for lack of jurisdiction. Because appellants, Ana Maria Olin and Robert A. Del Castillo a/k/a Robert Anthony Del Castillo, filed their notice of appeal beyond thirty days from the date of rendition of the order on appeal, we grant Wilmington's motion and dismiss this appeal for lack of jurisdiction.

This cases involves an appeal of an order rescheduling a foreclosure sale. The order was rendered December 18, 2018. Ms. Olin and Mr. Del Castillo filed their notice of appeal on February 8, 2019 - 53 days later. Fla. R. App. P. 9.110(b) provides that an appellant shall file a notice with the clerk of the lower tribunal within thirty days of rendition of the order to be reviewed. Thus, Ms. Olin and Mr. Del Castillo were required to file their notice of appeal on or before January 17, 2019, in order to timely invoke this Court's jurisdiction.

Florida courts of appeal have routinely granted motions to dismiss following the untimely filing of a notice of appeal because the court does not have jurisdiction to hear the case. See Bryant v. Wells Fargo Bank, N.A., 182 So.3d 927, 929 (Fla. 3d DCA 2016) (citing Mekertin v. Winn Dixie Stores, Inc., 869 So.2d 1286, 1288 (Fla. 4th DCA 2004) ("The time for taking an appeal is a jurisdictional requirement established by Fla. R. App. P. 9.110(b). Where the notice of appeal is not filed within thirty days of rendition, the appellate court is precluded from exercising jurisdiction over the appeal." (quoting Am. Auto. Ass'n v. C.D.S. Towing & Recovery, Inc., 805 So.2d 1064, 1065 (Fla. 3d DCA 2002) ) ); Chandler v. BAC Home Loans Servicing, 101 So.3d 948 (Fla. 1st DCA 2012) ) (dismissing appeal for untimely notice of appeal). Failure to timely invoke this Court's jurisdiction requires dismissal.

Dismissed.


author: SCALES, J.

text:
    Juan A. JIMÉNEZ, Petitioner, v. GRANADA INSURANCE COMPANY, et al., Respondents.
    No. 3D19-118
    District Court of Appeal of Florida, Third District.
    Opinion filed April 10, 2019
    Davis, Giardino & Hrivnak, P.A., and Wayne T. Hrivnak (West Palm Beach), for petitioner.
    Hinshaw & Culbertson LLP, and James H. Wyman, for respondent Granada Insurance Company.
    Before EMAS, C.J., and SCALES and MILLER, JJ.
   SCALES, J.

In this petition for writ of certiorari, Juan Jimenez, a non-party movant below, argues that the trial court departed from the essential requirements of the law in failing to grant Mr. Jimenez's motion for a protective order directed toward two non-party subpoenas served on Infinity Auto Insurance Company ("Infinity Auto") and Western Heritage Insurance Company ("Western Heritage"). Because Mr. Jimenez has failed to demonstrate the requisite irreparable harm, we lack jurisdiction to hear, and therefore dismiss, the instant petition. See CQB, 2010, LLC v. Bank of New York Mellon, 177 So.3d 644, 645 (Fla. 1st DCA 2015) ("The requirement of material, irreparable harm is jurisdictional. We must dismiss the petition if it is not met.").

In October 2015, respondent Carlos Martinez was injured when the bicycle he was riding collided with a vehicle driven by petitioner Juan Jimenez. Mr. Martinez thereafter filed a personal injury action against Mr. Jimenez's employer, respondent Ben Auto Service, Corporation ("Ben Auto"), and the vehicle's owner, Henry Auto Broker Finance, LLC ("Henry Auto"). As to Ben Auto, Mr. Martinez alleged that the employer was liable for Mr. Jimenez's negligence because the subject accident allegedly occurred during the course and scope of Mr. Jimenez's employment. As to Henry Auto, Mr. Martinez alleged that the vehicle owner was liable for Mr. Jimenez's negligence because Mr. Jimenez allegedly operated the vehicle with Henry Auto's knowledge, consent and permission.

Ben Auto was an insured under a commercial garage liability policy through respondent, Granada Insurance Company ("Granada"). In March 2017, Granada filed the instant declaratory judgment action against Ben Auto and Mr. Martinez, seeking a declaration that Granada is not required to defend and indemnify Ben Auto in Mr. Martinez's personal injury action because the subject accident allegedly did not occur during the course and scope of Mr. Jimenez's employment.

In June 2018, Granada served non-party subpoenas for production of documents without deposition on Infinity Auto, Mr. Jimenez's personal automobile insurer, and on Western Heritage, Henry Auto's insurer. The two non-party subpoenas seek information contained in the insurers' claims files - specifically, in relevant part, any and all recordings, statements, and transcriptions of Mr. Jimenez with respect to claims made in connection with the subject accident. Importantly, while neither Infinity Auto nor Western Heritage objected to the non-party subpoenas, Mr. Jimenez (Infinity Auto's insured) moved for a protective order arguing that no portion of the claims files should be produced because the claims files are privileged work product.

In ruling on Mr. Jimenez's motions for a protective order, the trial court ordered that Granada modify the two non-party subpoenas to reflect that the requested documents be produced to Mr. Jimenez's counsel so that counsel can: (i) provide all non-privileged documents to Granada; and (ii) prepare and file a privilege log with respect to the remaining objected-to documents so that the trial court can conduct an in camera inspection. In this Court, Mr. Jimenez seeks review of the trial court's order on his motions for protective order, via petition for writ of certiorari.

In Scottsdale Insurance Co. v. Camara De Comercio Latino-Americana De Los Estados Unidos, Inc., 813 So.2d 250, 252 (Fla. 3d DCA 2002), this Court recognized both that an insurer's "claims file is the insurer's work product" and that "the work-product privilege belongs solely to [the insurer]." Neither of the subpoenaed insurers - Infinity Auto nor Western Heritage - have objected to the non-party subpoenas in the lower court; nor is either insurer a participant in the instant petition. We therefore conclude that we lack certiorari jurisdiction because Mr. Jimenez does not have the requisite standing to assert the work product privilege on behalf of the two subpoenaed insurers; without standing, Mr. Jimenez cannot establish the requisite irreparable harm.

Petition for writ of certiorari dismissed.

      Given our resolution, we need not and therefore do not, address the correctness of the subject discovery order.


author: SALARIO, Judge.

text:
    William Budd MOORE, Appellant, v. Holly Hollencamp HOLTON f/k/a Holly Moore, Appellee.
    Case No. 2D18-2672
    District Court of Appeal of Florida, Second District.
    Opinion filed April 12, 2019
    William Budd Moore, pro se.
    Jaime L. Wallace and Mark C. Dungan of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., Sarasota, for Appellee.
   SALARIO, Judge.

In this postjudgment dissolution of marriage appeal, Mr. Moore seeks review of an order awarding attorney's fees and an income deduction order, both rendered after the trial court found Mr. Moore in arrears on alimony, child support, and attorney's fees and reduced the amounts of those arrearages to judgment in connection with its resolution of a motion to enforce those obligations. We affirm the fee order without comment. We reverse in part as to the income deduction order.

The income deduction order calls for a deduction of sixty-five percent of Mr. Moore's monthly disposable income-which Mr. Moore does not contend was improper, see 15 U.S.C. § 1673(b)(2)(B) (2018)-but it fails to explain how much of that monthly deduction and in what priority the amount deducted is to apply to each current obligation and each arrearage (alimony, child support, or attorney's fees). Section 61.1301(1), Florida Statutes (2018), sets forth items that a trial court imposing an income deduction order must specify, including that arrearage amounts are to be deducted at twenty percent or more of the periodic amount set forth in the order establishing the obligation. Neither the judgment upon which this income deduction order is based nor the order itself provides any indication of how the arrearage amounts and the original obligations are to be treated in relation to the total percentage deducted. It is therefore impossible for Mr. Moore to know from the face of the income deduction order whether or how the deduction is applying to each arrearage and each original current obligation. And the income deduction order is likewise insufficient to provide any future payor or court tasked with the enforcement of the order under section 61.1301(2) with the requisite information to apply the deduction amount to the arrearages and the current obligations in a way that consistently adheres to section 61.1301. Entering the income deduction order without this information was error because, without more specificity, Mr. Moore will be unable to determine how much each obligation (current and arrearage) is affected when income is deducted or when his obligation to pay the arrearages has expired. See generally Dep't of Revenue v. Knight, 765 So.2d 963, 964 (Fla. 4th DCA 2000) (relying "on section 61.1301(4), Florida Statutes (Supp. 1998), which provides how amounts available from an income deduction order should be allocated when there is more than one obligation outstanding," to require remand for the specific proration of the income deduction amounts at issue in an income deduction order).

We therefore reverse the income deduction order to the extent that it fails to provide this information, affirm the balance (the fee order, the order reducing the arrearage amount to judgment, and so much of the income deduction order as we have not reversed), and remand with instructions to enter an amended income deduction order including the information we have just described. Nothing in this opinion should be read as precluding the use of percentages rather than exact dollar amounts to determine the amount of the monthly income deduction and its application to the various obligations the income deduction order enforces as long as those percentages are sufficiently stated to show the allocations and priorities described above.

Affirmed in part; reversed in part; remanded.

BLACK and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    ADVANCED SYSTEMS, INC., etc., Appellant, v. GOTHAM INSURANCE COMPANY, etc., Appellee.
    No. 3D18-1744
    District Court of Appeal of Florida, Third District.
    Opinion filed April 17, 2019
    Law Office of Daniel Te Young, P.A., and Daniel Te Young (Pompano Beach), for appellant.
    Kennedys CMK LLP, and Neil E. Bayer, Josh Levy, and Katrine L. Hyde (Basking Ridge, NJ), for appellee.
    Before SALTER, SCALES, and LINDSEY, JJ.
   LINDSEY, J.

Advanced Systems, Inc. seeks review, pursuant to Fla. R. App. P. 9.110(m) and 9.130, of the trial court's determination that Appellee Gotham Insurance Company had no duty to defend or indemnify Advanced Systems under a commercial general liability policy. Because the trial court improperly relied on extrinsic evidence in granting Gotham's Motion for Summary Judgment, we reverse.

I. BACKGROUND

This case stems from a failed foam fire suppressant system in an aircraft hangar that resulted in damage to several airplanes. In March 2017, Orion Jet Center LLC, the hangar's owner, filed suit against Moss & Associates, LLC, the general contractor that constructed the aircraft hangar, and Moss's performance bond surety, none of which are parties to this appeal. In November 2017, Moss brought a third-party complaint against Advanced Systems, the subcontractor that installed the hangar's fire suppression system. Advanced Systems, in turn, tendered defense to Gotham, its insurer.

Gotham insured Advanced Systems with a commercial general liability policy under its Fire Suppression Insurance Program (the "Policy"). The Policy contains the following insuring agreement:

SECTION 1-COVERAGES
COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply.

The Policy also includes the following Total Pollution Exclusion by endorsement:

This insurance does not apply to:
f. Pollution
(1) "Bodily injury" or "property damage" which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of "pollutants" at any time.
This exclusion does not apply to "bodily injury" or "property damage" arising out of heat, smoke or fumes from a "hostile fire" ....

The Policy defines "pollutants" as "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste." The Policy does not define "irritant," "contaminant," or "chemicals."

Because Gotham did not respond to the tender of defense, Advanced Systems filed a complaint for declaratory judgment against Gotham on February 20, 2018. In May 2018, Advanced Systems filed a motion for partial summary judgment on the issue of Gotham's duty to defend and indemnify. In June 2018, Gotham filed its own motion for summary judgment, arguing that it had neither a duty to defend nor a duty to indemnify because coverage was barred by the Total Pollution Exclusion.

In support of its motion, Gotham attached the declaration of Christopher Ward, a claims specialist. Mr. Ward attached a copy of the Material Safety Data Sheet ("MSDS") for Chemguard C2, which Gotham claims is the name of the foam fire suppressant that was released into the aircraft hangar. Based on the MSDS, which details Chemguard C2's chemical composition, Gotham argued that the fire suppressant foam was a "pollutant" and therefore excluded from coverage under the Policy.

On June 15, 2018, the trial court held a summary judgment hearing. Over Advanced Systems' objection, Gotham relied on the MSDS submitted with its motion for summary judgment. During the hearing, the following exchange took place:

THE COURT: Where did this come from? Material Safety Data Sheet, where is this coming from?
[COUNSEL FOR GOTHAM]: The Internet, Judge. It's publically available record. MSD sheets are publically available. We did -- the product that was used was Chemguard, we Googled it.

On July 23, 2018, the trial court entered an order granting Gotham's motion for summary judgment, specifically relying on the MSDS to conclude that the Total Pollution Exclusion operated as a bar to coverage and any duty to defend because the released foam constituted a "pollutant" within the meaning of the Policy. This timely appeal follows.

II. ANALYSIS

We review the trial court's determination concerning Gotham's duty to defend and to indemnify de novo. See Transcontinental Ins. Co. v. Jim Black & Assoc., 888 So.2d 671, 674 (Fla. 2d DCA 2004) ; Herrera v. C.A. Seguros Catatumbo, 844 So.2d 664, 665 (Fla. 3d DCA 2003) ("[I]ssues pertaining to insurance coverage present questions of law subject to de novo review."). Additionally, where "the trial court grants one party's cross-motion for summary judgment on a declaratory judgment action, our review is de novo." Liork, LLC v. BH 150 Second Ave., LLC, 241 So.3d 920, 922 (Fla. 3d DCA 2018) (citing Lee Cty. Elec. Coop., Inc. v. City of Cape Coral, 159 So.3d 126, 127 (Fla. 2d DCA 2014) ).

Under Florida law, an insurer's duty to defend is separate and distinct from its duty to indemnify, and it is more extensive.

First Am. Title Ins. Co. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 695 So.2d 475, 476 (Fla. 3d DCA 1997) (citing Klaesen Bros., Inc. v. Harbor Ins. Co., 410 So.2d 611, 612-13 (Fla. 4th DCA 1982) ). "A liability insurer's obligation, with respect to its duty to defend, is not determined by the insured's actual liability but rather by whether the alleged basis of the action against the insurer falls within the policy's coverage." XL Specialty Ins. Co. v. Skystream, Inc., 943 So.2d 848, 849 (Fla. 3d DCA 2006). Here, we look to the allegations in Moss's third-party complaint against Advanced Systems to determine whether Gotham has a duty to defend. See Biltmore Const. Co., Inc. v. Owners Ins. Co., 842 So.2d 947, 949 (Fla. 2d DCA 2003) ("An insurer's duty to defend a complaint depends solely on the allegations in the complaint filed by a third party against the insured." (citing Home Owners Warranty Corp. v. Hanover Ins. Co., 683 So.2d 527, 528 (Fla. 3d DCA 1996) ) ).

Even where the complaint alleges facts partially within and partially outside the coverage of a policy, the insurer is nonetheless obligated to defend the entire suit, even if the facts later demonstrate that no coverage actually exists. Morgan Intern. Realty, Inc. v. Dade Underwriters Ins. Agency, Inc., 617 So.2d 455, 458 (Fla. 3d DCA 1993) (citing Grissom v. Commercial Union Ins. Co., 610 So.2d 1299, 1306-07 (Fla. 1st DCA 1992) ). And, the insurer must defend even if the allegations in the complaint are factually incorrect or meritless. Jones v. Florida Ins. Guar. Ass'n, Inc., 908 So.2d 435, 443 (Fla. 2005). As such, "an insurer is obligated to defend a claim even if it is uncertain whether coverage exists under the policy." First Am. Title Ins. Co., 695 So.2d at 476. "Furthermore, once a court finds that there is a duty to defend, the duty will continue 'even though it is ultimately determined that the alleged cause of action is groundless and no liability is found within the policy provisions defining coverage.' " Mid-Continent Cas. Co. v. Royal Crane, LLC, 169 So.3d 174, 181 (Fla. 4th DCA 2015) (quoting Sinni v. Scottsdale Ins. Co., 676 F.Supp.2d 1319, 1323 (M.D. Fla. 2009) ). Finally, because Gotham relies on an exclusion to deny coverage, "it has the burden of demonstrating that the allegations of the complaint are cast solely and entirely within the policy exclusion and are subject to no other reasonable interpretation." See Castillo v. State Farm Florida Ins. Co., 971 So.2d 820, 824 (Fla. 3d DCA 2007) (disagreed with on other grounds in Washington Nat. Ins. Corp. v. Ruderman, 117 So.3d 943 (Fla. 2013) ).

Although Gotham agrees that the general rule in Florida is that an insurer's duty to defend is determined from the allegations in the complaint, it argues that the trial court properly considered extrinsic evidence of Chemguard C2's chemical composition because an exception to the general rule applies "where an insurer's claim that there is no duty to defend is based on factual issues that would not normally be alleged in the underlying complaint." See Higgins v. State Farm Fire & Cas. Co., 894 So.2d 5, 10 n.2 (Fla. 2004).

We disagree that the narrow exception outlined in Higgins is applicable here. See id. at 10 (explaining that because the allegations in the complaint govern the duty to defend, "there generally is no need for a declaratory action in respect to the insurer's obligation to defend"); see also Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1323-24 (11th Cir. 2014) (explaining that although Florida courts have, in "special circumstances," considered extrinsic facts, "such cases are best viewed 'as exceptional cases in which courts have crafted an equitable remedy when it is manifestly obvious to all involved that the actual facts placed the claim outside the scope of coverage' "

(quoting First Specialty Ins. Corp. v. 633 Partners, Ltd., 300 Fed. Appx. 777, 786 (11th Cir.2008) ) ); Sinni, 676 F.Supp.2d at 1323 ("In exceptionally rare cases, however, where the complaint omits a reference to an uncontroverted fact that, if pled, would have clearly placed the claim outside the scope of coverage, equity may relieve an insurer from its duty to defend.").

Gotham relies on two cases to support its contention that this is an exceptional case requiring the trial court to consider extrinsic facts. First, in Composite Structures, Inc. v. Continental Insurance Co., 903 F.Supp.2d 1284, 1286 (M.D. Fla. 2012), two seamen alleged that they suffered bodily injury from exposure to carbon monoxide fumes while working aboard a yacht that the insured designed, manufactured, and sold. These allegations plainly fell within the scope of a pollution exclusion. Id. at 1288. However, the policy also contained an exception to the pollution exclusion with specific timing and notice requirements. Id. at 1287. The court permitted evidence beyond the complaint showing that the insured was unable to satisfy the timing and notice requirements because the pertinent dates and timeframes would not normally be alleged in the underlying complaint, and, importantly, the evidence was undisputed. Id. at 1288-90.

Gotham also relies on Nationwide Mutual Fire Insurance Co. v. Keen, 658 So.2d 1101 (Fla. 4th DCA 1995). In Keen, the insured conceded that he operated a water craft with an engine more powerful than coverage afforded. Id. at 1103. Although the complaint did not allege anything with respect to engine horsepower, the court permitted the evidence because it was uncontroverted, "and the claimant [made] no attempt to plead the fact creating coverage or suggest the existence of evidence establishing coverage ...." Id.

Here, unlike in Composite Structures and Keen, the extrinsic evidence was not uncontroverted or manifestly obvious to all so as to preclude coverage. Our review of the transcript of the summary judgment hearing reveals that Advanced Systems consistently contested the nature and composition of the released fire suppression foam. Similarly, Advanced Systems repeatedly objected to the use of the MSDS as unauthenticated evidence not in the record and beyond the scope to determine whether a duty to defend existed. In short, the record before us contains no objective fact that is manifestly obvious to all involved, nor are there uncontroverted facts that simply were not pled in the Underlying Action or in Moss's third-party complaint.

III. CONCLUSION

We therefore conclude that the alleged facts in Moss's third-party complaint fairly and potentially bring Moss's suit within policy coverage and that the trial court erred in relying on extrinsic evidence to determine that a duty to defend did not arise below.

Reversed and remanded.

      In its third-party complaint, Moss alleges that Advanced Systems "failed to construct and install the Manual Release Stations in a manner that would prevent water intrusion." According to the allegations in Orion's complaint, which are incorporated by Moss's third-party complaint, moisture infiltrated the manual release stations, resulting in unintended and unexpected activation of the foam fire suppression system.

      Summary judgment evidence must be in the form of evidence that would be admissible at trial. See Gidwani v. Roberts, 248 So.3d 203, 208 (Fla. 3d DCA 2018) ("Because 'only competent evidence may be considered by the court in ruling upon a motion for summary judgment,' a document attached to a motion for summary judgment or a document attached to an affidavit that is not otherwise authenticated is not competent evidence." (quoting Daeda v. Blue Cross & Blue Shield of Fla., Inc., 698 So.2d 617, 618 (Fla. 2d DCA 1997) ) ).

      We do not reach the issue of whether, irrespective of the admissibility of the MSDS, the relied-upon pollution exclusion would be applicable in this case to relieve the insurer of liability.


author: Per Curiam.

text:
    Amber BROWNER, Wife, Appellant, v. Travis BROWNER, Husband, Appellee.
    No. 1D19-0556
    District Court of Appeal of Florida, First District.
    April 22, 2019 Rehearing Denied June 3, 2019
    Clark H. Henderson of Oberliesen & Henderson, Shalimar, for Appellant.
    No appearance for Appellee.
   Per Curiam.

Appellant filed a notice of appeal on February 14, 2019, seeking to appeal a final judgment of dissolution of marriage entered on January 2, 2019, and an order denying a motion for rehearing on timesharing entered on January 14, 2019. Noting that the order reserved jurisdiction to determine issues of child support and equitable distribution, we ordered Appellant to show cause why the appeal should not be dismissed as premature.

In response, Appellant states that the trial court did not reserve jurisdiction on the issues of timesharing and parental responsibility, and as to these issues, the order constitutes a final order. We disagree. While the order may have resolved the issues addressed, "the reservation of jurisdiction over related claims necessarily renders the order nonfinal." Hoffman v. O'Connor , 802 So.2d 1197, 1197 (Fla. 1st DCA 2002). And although portions of the order appear to be immediately reviewable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii), the appeal is not timely as a nonfinal appeal. Ward v. Bragg , 957 So.2d 670, 670-71 (Fla. 1st DCA 2007) (holding that rehearing of a nonfinal order is not authorized and does not delay rendition). The appeal is therefore dismissed for lack of jurisdiction.

DISMISSED .

Ray, Osterhaus, and Winokur, JJ., concur.


text:
    Jonathan WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-268
    District Court of Appeal of Florida, First District.
    May 2, 2019
    Jonathan Wright, Appellant, pro se.
    Ashley Moody, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Jonathan Wright appeals an order denying his motion for postconviction relief. While we find no error in most of the trial court's disposition, we agree with Mr. Wright that the court's record attachments do not refute his claim of entitlement to additional jail credit.

In 1985, Jonathan Wright was sentenced for two counts of attempted second-degree murder, four counts of armed robbery, and three counts of attempted armed robbery. In 2007, he was re-sentenced following this court's decision in Wright v. State , 941 So.2d 538 (Fla. 1st DCA 2006).

In the instant motion, Mr. Wright contended that while awaiting re-sentencing he was held in Duval County Jail from May 29, 2007 until November 22, 2007. He claimed that he was entitled to jail credit for this time. The trial court denied relief, finding that the motion was legally insufficient, and that Mr. Wright was not entitled to the credit on the merits.

We disagree with the court's conclusion that the motion was legally insufficient. Criminal defendants are entitled to credit for time spent in county jail awaiting re-sentencing. Middleton v. State , 213 So.3d 963 (Fla. 1st DCA 2015). And Mr. Wright's motion alleged everything that was required pursuant to Florida Rule of Criminal Procedure 3.801. The record attachments do not conclusively refute his jail credit claim. See McIntosh v. State , 146 So.3d 1291 (Fla. 1st DCA 2014) (" Rule 3.801(e) ... requires the circuit court to attach to its order denying a motion seeking additional jail credit records that conclusively refute the motion.").

On remand, the court should grant relief, unless the jail and/or prison records show that Mr. Wright received the credit due for the time he spent in jail from May 29, 2007 until November 22, 2007. If the court denies relief, it must include record attachments showing that the defendant is not entitled to relief for this period of time.

Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings not inconsistent with this opinion.

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


text:
    Christopher Mack CHARLES, Appellant, v. STATE of Florida, Appellee.
    No. 1D19-0397
    District Court of Appeal of Florida, First District.
    April 29, 2019
    Christopher Mack Charles, pro se, Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Upon consideration of Appellant's response to the Court's show cause order of February 5, 2019, the appeal is dismissed for lack of jurisdiction.

Lewis, Wetherell, and Rowe, JJ., concur.


text:
    Bernardo OCHOA, Appellant, v. Capt. Kenneth E. STEPHENS, Appellee.
    No. 1D18-4567
    District Court of Appeal of Florida, First District.
    April 29, 2019
    Bernardo Ochoa, pro se, Appellant.
    Ashley Moody, Attorney General, and Damaris E. Reynolds, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In light of Appellee's confession of error, we reverse the order on appeal and remand to the lower tribunal for further proceedings.

Lewis, Wetherell, and Jay, JJ., concur.


text:
    Stephen DRAKUS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4457
    District Court of Appeal of Florida, First District.
    May 2, 2019
    Stephen Drakus, pro se, Appellant.
    Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

After his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief was denied following an evidentiary hearing, the appellant raises three issues on appeal. We reject the appellant's argument on Issue I and agree with his arguments on Issues II and III.

In Issue I, the postconviction court did not abuse its discretion in denying the appellant's motion to appoint postconviction counsel. See Simmons v. State , 99 So.3d 620, 624 (Fla. 1st DCA 2012) (recognizing there is no absolute right to counsel in postconviction proceedings and the decision to provide counsel rests in the sound discretion of the trial court).

Regarding Issues II and III, the State concedes that the postconviction court erred by failing to make any factual findings or conclusions either orally or in its written order. See Fla. R. Crim. P. 3.850(f)(8)(A) (requiring such findings following an evidentiary hearing). As such, this case cannot be reviewed on appeal and must be remanded for a proper order. See White v. State , 198 So.3d 1130, 1131 (Fla. 4th DCA 2016). Even though the State argues that the court must have regarded defense counsel's testimony as more credible, the postconviction court never said as much, and we cannot make such an assumption. See id. While it also appears that the testimony does not support a finding of prejudice, the lack of factual findings precludes this Court from determining the sufficiency of the trial court's conclusion under the prejudice prong. Marcus v. State , 201 So.3d 851, 852 (Fla. 1st DCA 2016). The proper remedy is to remand with instructions for the postconviction court to make the necessary findings upon the record to resolve Issues II and III. Id.

AFFIRMED in part, REVERSED in part, and REMANDED .

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


author: PER CURIAM

text:
    IN RE: John C. ALEXANDER
    NO. 2019-B-0664
    Supreme Court of Louisiana.
    June 3, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

Respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline, in which respondent acknowledges that he violated Rule 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that John C. Alexander, Louisiana Bar Roll number 26591, be and he hereby is publicly reprimanded.

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


text:
    IN RE: Kevin Lovell JAMES
    NO. 2019-B-0653
    Supreme Court of Louisiana.
    June 3, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent mismanaged her client trust account. Respondent then failed to cooperate with the ODC in its investigation of the complaint filed against her. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Kevin Lovell James, Louisiana Bar Roll number 24129, be suspended from the practice of law for a period of one year and one day. All but thirty days of this suspension shall be deferred, followed by a two-year period of supervised probation governed by the conditions set forth in the petition for consent discipline. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

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

Clark and Genovese, JJs, would reject consent discipline.

Crichton, J., would reject consent and discipline and assigns reasons.

Crichton, J., would reject the petition for consent discipline.

I dissent from the per curiam, because, in my view, the discipline of one year and one day, with only thirty days deferred, is too lenient. Respondent herself stipulated that she as grossly negligent in the mismanagement of her client trust account. Further, I find respondent's failures to respond the Office of Disciplinary Counsel in its investigations of that mismanagement to be egregious.

With respect to Count I, Respondent initially failed to respond to the ODC's notice of a June 2017 overdraft of her client trust account. After ODC issued a formal complaint, respondent submitted a request for an extension of time to respond, but the account was again overdrawn. She was then sent notice of the second overdraft, but failed to respond to that notice, requiring the ODC to send a second request for a response. At that point, by now months later in October 2017, respondent again requested another extension of time. The ODC granted her that courtesy, but she again failed to respond. After a third request for a response from the ODC, respondent provided some materials, but it was incomplete. Thus, ODC had to request additional documentation, leading to a similar circle of events in which respondent again requested additional time, which was granted by ODC, but did not submit the supplemental materials.

In March 2018, another subpoena duces tecum was served upon respondent. The following month, she submitted a supplemental response with additional documentation. In May 2018, the ODC asked respondent to submit a supplemental response and documentation. Again, she requested an extension of time to respond, which was granted, but-yet again-she did not submit the supplemental response. This required a second subpoena duces tecum to be served upon respondent. In August 2018, respondent requested an extension, and the ODC again accommodated her request. Despite the ODC's repeated accommodations of respondent's requests for extensions, respondent failed to provide the ODC with requested documentation. Respondent ultimately failed to make any further contact with the ODC regarding the issues in Count I.

With respect to Count II, in May 2018 respondent again overdrew her client trust account. The ODC notified her of the overdraft and requested a response, but she failed to respond to the correspondence and a formal complaint was opened. In July 2018, respondent received notice of the complaint along with a request for an initial response and documentation. When respondent did not submit a response, the ODC sent her a second request. In August 2018, respondent requested an extension of time to respond, and the ODC again accommodated her request. Still receiving no response, the ODC issued a subpoena duces tecum requesting specific documentation. Thereafter, respondent advised that she would provide the requested documentation by November 12, 2018. However, she did not submit the documentation and has had no further contact with the ODC in regard to the investigation of the issues in Count II.

For these reasons, I find her conduct warrants a more lengthy suspension of one year and one day, with no time deferred.

Genovese, J., would reject consent discipline.


author: GUIDRY, J., recused.

text:
    Jared GUIDRY and Leigha Woods v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Ronald Chambers
    No. 2019-C-0223
    Supreme Court of Louisiana.
    May 20, 2019
    ON WRIT OF CERTIORARI TO THE FIFTH CIRCUIT COURT OF APPEAL, PARISH OF JEFFERSON
    Writ denied.
   GUIDRY, J., recused.

HUGHES, J., would grant.

GENOVESE, J., would grant for the reasons assigned by Judge Marc Johnson.


text:
    IN RE: Gregory COOK
    NO. 2019-B-0406
    Supreme Court of Louisiana.
    June 3, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

Respondent, Gregory Cook, engaged in a conflict of interest. For this misconduct, we suspended respondent for a period of six months, with all but thirty days deferred, subject to one year of unsupervised probation. In re: Cook , 18-1076 (La. 12/5/18), --- So.3d ----, 2018 WL 6390368 (" Cook I "). Respondent did not file a request for a rehearing, and the order of suspension became final and effective on December 20, 2018. In the instant matter, the Office of Disciplinary Counsel ("ODC") seeks to make the deferred suspension executory, based upon allegations that respondent engaged in the unauthorized practice of law during his suspension and made false representations in his affidavit for reinstatement.

UNDERLYING FACTS AND PROCEDURAL HISTORY

On February 8, 2019, respondent telephoned the ODC to discuss his probation. Both during this telephone call and thereafter in writing, respondent admitted that he regularly engaged in the practice of law after the effective date of his suspension.

The ODC has verified numerous actions taken by respondent during his suspension which constitute the practice of law:

1. On December 20, 2018, respondent appeared and participated in a pretrial hearing in Evangeline Parish (docket number 112,907).
2. On December 28, 2018, respondent filed a petition for damages in Evangeline Parish (docket number 77943).
3. On January 2, 2019, respondent filed a motion to withdraw and then appeared in court to argue that matter the next day, January 3, 2019 (docket numbers 03-17-0160, 10-17-0010, and 11-14-0615).
4. On January 8, 2019, respondent attended and participated in a status conference in the 19th JDC (docket number 06-18-0509).
5. On January 22, 2019, respondent filed a motion to withdraw (docket number 06-17-0353).
6. On January 28, 2019, respondent appeared in the 19th JDC at a status conference and requested a continuance (docket number 08-18-0492).
7. On January 31, 2019, respondent appeared in the 19th JDC on a probation revocation matter and asked for a continuance (docket numbers 01-18-0287 and 07-17-0608).

On March 4, 2019, respondent submitted an affidavit pursuant to Supreme Court Rule XIX, § 23, certifying his full compliance with the court's suspension order. Supreme Court Rule XIX, § 23 provides:

A lawyer who has served a suspension period of one year or less pursuant to disciplinary proceedings, exclusive of any waivers or periods of deferral, shall be reinstated at the end of the period of suspension by filing with the court and serving upon disciplinary counsel an affidavit stating that the lawyer has fully complied with the requirements of the suspension order , has filed the attorney registration statement required by Rule XIX, § 8(C) of these rules, and has paid currently owed bar dues, disciplinary administration and enforcement fees, filing fees and disciplinary costs. A certificate from the Administrator of the Disciplinary Board shall be attached to such affidavit evidencing that the lawyer has paid all disciplinary costs. [Emphasis added].

In his affidavit, respondent certified to this court that he "complied with any and all orders" of this court and also indicated that during his suspension, "certain measures were taken in an attempt to prevent running afoul of the Rules of Professional Conduct." Despite his representations in the affidavit, respondent continued to practice law during his suspension. He also failed to attach a certificate from the Administrator of the Disciplinary Board evidencing that he had paid all disciplinary costs.

On March 13, 2019, the ODC filed the instant "Petition to Make Deferred Suspension Executory." In this petition, the ODC argues that respondent has violated Rule 5.5 of the Rules of Professional Conduct by practicing law while suspended. The ODC further argues that respondent made false representations in his affidavit. Together, these actions warrant the revocation of the deferred portion of respondent's suspension in Cook I.

In his response to the petition, respondent maintains that he never intended to circumvent the Rules of Professional Conduct, but was simply waiting for the ODC to inform him of the date his suspension would commence. Respondent indicates that while erroneously awaiting notification of a suspension date, he was unknowingly practicing law within the suspension period. Respondent reasonably thought he would have received ample notice of his suspension date so he could take action to protect his clients.

DISCUSSION

Respondent was found to have engaged in a conflict of interest, leading the court to impose a six-month suspension, with all but thirty days deferred, subject to a one-year period of probation. Thereafter, during the active period of his suspension, respondent engaged in the practice of law. Prior to being reinstated, respondent submitted an affidavit certifying his full compliance with the court's suspension order. This affidavit, however, contained false representations.

We agree that these circumstances constitute misconduct. Although the ODC has requested that that the previously-deferred portion of the suspension be made executory, we find no evidence that respondent has served any part of the active portion of his suspension. To the contrary, the record reveals respondent continued to practice law between the finality of our decree on December 20, 2018 through January 31, 2019. Accordingly, we will make the entire six-month suspension imposed in Cook I immediately executory, to commence from the date of this decree.

DECREE

For the reasons assigned, the suspension imposed in In re: Cook , 18-1076 (La. 12/5/18), --- So.3d ----, 2018 WL 6390368, is made immediately executory, and respondent is hereby suspended for a period of six months from the date of this decree. All costs and expenses in the matter are assessed against respondent, Gregory Cook, Louisiana Bar Roll number 34268, in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

Hughes, J., would not make suspension executory.


author: HUGHES, J., would deny.

text:
    Richard A. RODRIGUE v. The TRAVELERS INSURANCE COMPANY, et al.
    NO. 2019-CC-0602
    Supreme Court of Louisiana.
    June 3, 2019
    ON SUPERVISORY WRITS TO THE CIVIL DISTRICT COURT, PARISH OF ORLEANS
    Writ denied.
   HUGHES, J., would deny.

GENOVESE, J., would deny and assigns reasons.

GENOVESE, J., would simply deny this writ outright without the mythical and untenable verbiage, "adequate remedy on appeal."


text:
    Eric Dewayne CURTIS v. MICHELS CORPORATION, et al.
    No. 2019-C-603
    Supreme Court of Louisiana.
    June 3, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF ALLEN
    Writ denied.
    HUGHES, J., additionally concurs and assigns reasons.
    Hughes, J., additionally concurs and assigns reasons.
   Any dismissal not specifically designated "with prejudice" is considered to be "without prejudice." See La.C.C.P. art. 1673 ; State ex rel. Dep't of Soc. Serv. v. A.P. , 02-2372 (La. App. 1 Cir. 6/20/03), 858 So.2d 498 ("[w]hen the judgment is silent as to whether it is being dismissed with or without prejudice, the dismissal must be without prejudice.")


text:
    Tasha Tolar CARRIERE and Daniel Bihm Marcantel, et al. v. UNION PACIFIC RAILROAD COMPANY, et al.
    2019-CC-0592
    Supreme Court of Louisiana.
    June 3, 2019
    ON SUPERVISORY WRITS TO THE 27TH JUDICIAL DISTRICT COURT, PARISH OF ST. LANDRY
    Writ denied.
    CRICHTON, J., would grant and assigns reasons.
    Crichton, J. would grant and assigns reasons.
   I would grant this writ because, in my view, the trial court's imposition of $300,000 in special master fees and costs against defendant in this case was an abuse of discretion. See La. C.C.P. art. 1920. Further, this amount was imposed after the defendant had already advanced in excess of $ 100,000 to the special master. Under the circumstances of this case, in which causation and damages have yet to be determined, I consider this amount excessive and violative of the reasonableness requirement of R.S. 13:4165(D).


author: WEIMER, J., would grant.

text:
    James GUILBEAU, et al. v. LIBERTY MUTUAL INS. CO., et al.
    Keith Antoine v. Liberty Mutual Ins. Co., et al.
    Clyde Guillory v. Liberty Mutual Ins. Co., et al.
    No. 19-CC-0579
    Supreme Court of Louisiana.
    June 3, 2019
    ON SUPERVISORY WRITS TO THE TWENTY SEVENTH JUDICIAL DISTRICT COURT, PARISH OF ST. LANDRY
    Writ denied.
   WEIMER, J., would grant.

CRICHTON, J., would grant and assigns reasons.

CRICHTON, J., would grant and assigns reasons:

For the reasons stated by Judge Pickett in his dissent, I would grant the defendant's writ application, reverse the lower courts' rulings and reinstate the defendant's right to a jury trial in this case.


text:
    Jack Alexander MASON v. Keith COOLEY, Warden
    NO. 2018-KP-0110
    Supreme Court of Louisiana.
    June 3, 2019
    Rehearing denied.


text:
    STATE of Louisiana v. Howard JACKSON
    NO. 2018-KO-2035
    Supreme Court of Louisiana.
    June 3, 2019
    Denied.
   GUIDRY, J., recused.

HUGHES, J., would grant in part.


text:
    STATE of Louisiana v. Troy JONES, Sr.
    NO. 2018-KO-2039
    Supreme Court of Louisiana.
    June 3, 2019
    Denied.


text:
    STATE of Louisiana v. Jamie Dewayne HAYNES
    NO. 2018-KO-2081
    Supreme Court of Louisiana.
    June 3, 2019
    Denied.


text:
    STATE of Louisiana v. Desmond C. PARKER
    State of Louisiana v. Desmond C. Parker
    State of Louisiana v. Desmond C. Parker
    NO. 2019-K-0074
    Supreme Court of Louisiana.
    June 3, 2019
    Denied.


author: HUGHES, J., would grant.

text:
    STATE of Louisiana v. Noe A. AGULIAR-BENITEZ aka Noe Aguilar-Benitez
    NO. 2019-KO-0147
    Supreme Court of Louisiana.
    June 3, 2019
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Tyrone DANIELS
    NO. 2019-K-0152
    Supreme Court of Louisiana.
    June 3, 2019
    Denied.
   HUGHES, J., would grant.


author: GUIDRY, J., would grant.

text:
    Melvin GUIDRY and Triege Guidry v. ABC TRUCKING COMPANY, et al.
    Louisiana Scrap Metal Recycling, et al. v. Larsen Intermodal Services, Inc.
    NO. 2019-C-0554
    Supreme Court of Louisiana.
    June 3, 2019
    Denied.
   GUIDRY, J., would grant.

HUGHES, J., would grant.


author: GENOVESE, J., recused.

text:
    IN RE: HARRIER TRUST
    NO. 2019-C-0582
    Supreme Court of Louisiana.
    June 3, 2019
    Denied.
   GENOVESE, J., recused.


text:
    John MANTIPLY and Melissa Sue Mantifly, et al. v. Joseph I. HOFFMAN, Jr., M.D.
    NO. 2019-C-0588
    Supreme Court of Louisiana.
    June 3, 2019
    Denied.


text:
    STATE of Louisiana v. Cokey J. LISTI
    NO. 2019-KK-0713
    Supreme Court of Louisiana.
    June 3, 2019
    Denied.
    GENOVESE, J., would grant for the reasons assigned by the trial court judge.


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

text:
    STATE of Louisiana v. Landon D. QUINN
    NO. 2018-KP-1103
    Supreme Court of Louisiana.
    June 3, 2019
    Not considered. See La.S.Ct.R. IX, § 6.
   JOHNSON, C.J., would grant.


text:
    STATE of Louisiana v. Aja DOUCETTE
    State of Louisiana v. Brandon A. Guidry
    NO. 2018-KO-1304
    Supreme Court of Louisiana.
    June 3, 2019
    Denied.


text:
    STATE of Louisiana v. Lance GRANDISON
    NO. 2018-K-1992
    Supreme Court of Louisiana.
    June 3, 2019
    Denied.


text:
    STATE of Louisiana v. Keriana M. ALEXCEE
    NO. 2019-K-0150
    Supreme Court of Louisiana.
    June 3, 2019
    Denied.


text:
    STATE of Louisiana v. Arthur TOLEDANO
    NO. 2019-K-0300
    Supreme Court of Louisiana.
    June 3, 2019
    Denied.


author: CRAIN, J.

text:
    FLORIDA GAS TRANSMISSION COMPANY, LLC v. TEXAS BRINE COMPANY, LLC, et al.
    NO. 2018 CA 0218
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JANUARY 11, 2019 Rehearing Denied February 26, 2019
    Leopold Z. Sher, James M. Gamer, Peter L. Hilbert Jr., Neal J. Kling, Jeffrey D. Kessler, Amanda R. Schenck, New Orleans, Louisiana, Robert Ryland Percy III, Gonzales, Louisiana, Eric J. Mayer, Houston, Texas, Travis J. Turner, Gonzales, Louisiana, Attorneys for Defendant/Appellant, Texas Brine Company, LLC
    Glen E. Mercer Kourtney T. French New Orleans, Louisiana Attorneys for Defendants/Appellees, Zurich American Insurance Company, Steadfast Insurance Company, and American Guarantee & Liability Insurance Company
    BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

Texas Brine Company, LLC appeals a summary judgment dismissing the plaintiff's claims against certain liability insurers of Texas Brine. In an answer to the appeal, the insurers assert the trial court erred in denying their motion for summary judgment seeking a dismissal of Texas Brine's incidental demand against them. We affirm in part, reverse in part, and render summary judgment in favor of the insurers.

FACTS AND PROCEDURAL HISTORY

This is one of several lawsuits arising out of a sinkhole in Assumption Parish that developed on or about August 3, 2012, following the collapse of a salt mine cavern. Florida Gas Transmission Company sued Texas Brine, among other defendants, alleging Texas Brine's salt mining operations caused the collapse of the cavern and the resulting sinkhole, which damaged two of Florida Gas's nearby pipelines. Florida Gas also sued several liability insurers, including Zurich American Insurance Company, alleging the insurers issued policies providing coverage for Texas Brine's alleged liability. Texas Brine filed an incidental demand against Zurich, alleging it was obligated to provide Texas Brine with indemnity and a defense in the litigation.

Citing policy language limiting coverage to damage that "occurs during the policy period," Zurich filed motions for summary judgment asserting its "pre-2012 policies," the last of which expired on March 1, 2012, do not cover Florida Gas's claims and do not require Zurich to provide a defense to Texas Brine. In a judgment signed on September 13, 2017, the trial court granted summary judgment in favor of Zurich, dismissing Florida Gas's claims against Zurich with prejudice; however, the trial court denied the motion with respect to Texas Brine's claims, stating in written reasons that a genuine issue of material fact precluded summary judgment on Zurich's duty to defend. Texas Brine appealed the dismissal of Florida Gas's claims against Zurich. Answering the appeal, Zurich asserts the trial court erred in denying its motion as to Texas Brine's claims.

DISCUSSION

The arguments presented on appeal by Texas Brine and Zurich have been addressed in a related appeal decided by this circuit, Pontchartrain Natural Gas System v. Texas Brine Company, LLC , 18-0244 (La. App. 1 Cir. 10/11/18), 264 So.3d 545, which reviewed a similar motion for summary judgment filed by Zurich and argued to the same trial court at the same hearing as the present motion. In the related appeal, this court affirmed a summary judgment dismissing a different plaintiff's claims against Zurich, then reversed the trial court and rendered summary judgment in favor of Zurich dismissing Texas Brine's incidental demand against the insurer. See Pontchartrain Natural Gas System , 264 So.3d at ----.

The present case is not materially distinguishable from Pontchartrain Natural Gas System . In support of its motion on coverage, Zurich relies on the same evidence, primarily the policy provision limiting coverage to damage that "occurs during the policy period," and Florida Gas's admissions during discovery that it is not aware of any damage to its pipelines before the sinkhole appeared.

In opposition to the motion, Texas Brine principally relies on expert affidavits and a report, specifically focusing on one expert's opinion that "earth movement... could have damaged the underground pipelines earlier than March 1, 2012." (Emphasis added.) Accepting this statement as credible, which we must do for purposes of the motion, the mere possibility that damage "could" have occurred during a relevant policy period does not create a genuine issue of material fact. Proof that establishes only possibility, speculation, or unsupported probability does not suffice to establish a claim. Todd v. State Through Department of Social Services, 96-3090 (La. 9/9/97), 699 So.2d 35, 43. An expert's speculation that a material fact "possibly" exists or "may have" occurred is not sufficient to create a genuine issue precluding summary judgment. See Mansoor v. Jazz Casino Co., LLC, 12-1546 (La. 9/21/12), 98 So.3d 795 (per curiam ); Welborn v. Thompson Construction, 15-1217 (La. App. 1 Cir. 2/26/16), 191 So.3d 1086, 1090. The subject affidavits, as this circuit has previously held, are insufficient to create a genuine issue of material fact. See Pontchartrain Natural Gas System, 264 So.3d at ---- ; Crosstex Energy Services, LP v. Texas Brine Company, LLC, 17-0895 (La. App. 1 Cir. 12/21/17), 240 So.3d 932, 937-38, writ denied, 18-0145 (La. 3/23/18), 238 So.3d 963. The trial court did not err in granting summary judgment and dismissing Florida Gas's claims against Zurich.

Texas Brine's duty-to-defend claim differs from Pontchartrain Natural Gas System and Crosstex Energy Services, LP only to the extent this case involves a different plaintiff and petition. Florida Gas filed its suit on June 26, 2013, less than a year after the sinkhole appeared in August of 2012. The original petition and first two amending petitions do not suggest any damages occurred before the sinkhole. In the third amending petition, filed on August 17, 2015, Florida Gas alleged "the structural integrity and operating capacity of [its] ... pipelines were compromised as a result of the long-term subsidence prior to the failure of the salt cavern." In a fourth amendment, filed less than four months later on December 1, 2015, Florida Gas added:

The ... pipelines have been buried at all relevant times, and any such damage caused prior to the formation of the sinkhole has gone undetected, but Florida Gas has been unable to rule out whether the damage to which it was exposed over many years was realized prior to the formation of the sinkhole .... Since 1994 ... the activities of Texas Brine ... have caused subsidence, which, in turn, are believed to have caused damage to Florida Gas' pipelines over many years.

At that same time, however, Florida Gas admitted in discovery that it "has not discovered any specific damage which was likely caused by subsidence prior to March 1, 2012," and "is presently unaware of specific physical injury to any segment of its Pipelines occurring prior to the development of the sinkhole."

Although the duty to defend is broader than the duty to indemnity, the duty to defend ceases when the uncontroverted facts preclude the possibility of coverage under the policy. See Pontchartrain Natural Gas System , 264 So.3d at ---- ; Maldonado v. Kiewit Louisiana Co., 13-0756 (La. App. 1 Cir. 3/24/14), 146 So.3d 210, 219 ; Allstate Insurance Company v. Roy, 94-1072 (La. App. 1 Cir. 4/7/95), 653 So.2d 1327, 1333, writ denied, 95-1121 (La. 6/16/95), 655 So.2d 339. Here, the carefully crafted allegations of Florida Gas's third and fourth amending petitions, filed three years after the sinkhole appeared, did not create a duty to defend where the uncontroverted admissions establish that no pre-sinkhole damage has ever been identified. The trial court erred in denying the motion for summary judgment seeking dismissal of Texas Brine's claims against Zurich. See Pontchartrain Natural Gas System, 264 So.3d at ----. We reverse that ruling and render summary judgment in favor of Zurich, dismissing Texas Brine's claims against the insurer under the pre-2012 policies with prejudice and at Texas Brine's cost.

CONCLUSION

The September 13, 2017 summary judgment dismissing Florida Gas's claims against Zurich is affirmed. We reverse the trial court's denial of the motion for summary judgment relevant to Texas Brine's claim and render summary judgment in favor of Zurich, dismissing Texas Brine's claims against Zurich under the pre-2012 policies with prejudice and at Texas Brine's cost. All costs of this appeal are assessed to Texas Brine.

MOTION TO DISMISS DENIED; JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

Holdridge J. concurs reasons

HOLDRIDGE, J., concurs.

I concur in the result. In Crosstex Energy Services, LP v. Texas Brine, Co., LLC, 17-0863 (La. App. 1 Cir. 12/21/17), 240 So.3d 1024, 1030-32, writ denied, 18-0145 (La. 3/23/18), 238 So.3d 963, this court decided the same issues presented in this case. Unlike Florida Gas Transmission Company, LLC v. Texas Brine Company, LLC, 18-0062, 2019 WL 168583 (La. App. 1 Cir. 1/11/19) (decided this same day) and Pontchartrain Natural Gas System v. Texas Brine Company, LLC, 18-0244 (La. App. 1 Cir. 10/11/18), 264 So.3d 545, the Crosstex case is now a final and definitive judgment since the Louisiana Supreme Court has denied Texas Brine's application for a writ of certiorari. La. C.C.P. art. 2167(C). Therefore, we are bound to follow the final and definitive judgment rendered by another panel of this court.

      The second motion, specifically directed at Texas Brine's incidental demand, was filed on behalf of Zurich American Insurance Company, for itself and as successor-in-interest to Zurich Insurance Company (U.S. Branch), Steadfast Insurance Company, and American Guarantee & Liability Insurance Company, collectively referred to herein as "Zurich." The coverage provided by the Zurich policies in effect after March 1, 2012, was exhausted, leaving only claims under the "pre-2012" polices addressed in the subject motions.

      Zurich filed a motion to dismiss Texas Brine's appeal, arguing the summary judgment is a partial judgment not designated as final for purposes of appeal pursuant to Louisiana Code of Civil Procedure article 1915B. Because the judgment dismisses all of Florida Gas's claims against Zurich, it is appealable under Article 1915A(1) and (3). See Pontchartrain Natural Gas System v. Texas Brine Company, LLC, 18-0244 (La. App. 1 Cir. 10/11/18), 264 So.3d 545 ; Qasem v. Acadian Apartments, Inc., 17-1591, p. 3 (La. App. 1 Cir. 6/1/18), 252 So.3d 1 ; Mabile's Trucking, Inc. v. Stallion Oilfield Services, Ltd., 15-0740 (La. App. 1 Cir. 1/8/16), 185 So.3d 98, 101 n.2, writ denied, 16-0251 (La. 4/4/16), 190 So.3d 1207 ; Estate of Kirsh v. Blanchard, 11-1835, 2012 WL 3228973, p. 3 (La. App. 1 Cir. 8/9/12), writ denied, 12-2502 (La. 1/18/13), 107 So.3d 632 ; Weeks v. Sunstream, Inc., 09-706 (La. App. 3 Cir. 2/10/10), 30 So.3d 1163, 1165, writ denied, 10-0577 (La. 6/25/10), 38 So.3d 337. The motion to dismiss is denied.

      A denial of a motion for summary judgment is a non-appealable, interlocutory judgment. See La. Code Civ. Pro. art. 968. However, when an appeal is taken from a partial summary judgment immediately appealable under Article 1915, an appellant may seek review of an interlocutory judgment involving the same or related issues as the judgment on appeal. See Pittman v. Fairway Medical Center, L.L.C., 11-0278, 2011 WL 4625551, p. 4 n.2 (La. App. 1 Cir. 10/6/11), writ denied, 11-2848 (La. 3/2/12), 84 So.3d 533 ; State ex rel. Division of Administration v. National Union Fire Insurance Company of Louisiana, 10-0689 (La. App. 1 Cir. 2/11/11), 56 So.3d 1236, 1242, writ denied, 11-0849 (La. 6/3/11), 63 So.3d 1023. Likewise, the appellee may seek review of an interlocutory judgment involving the same or related issues by filing an answer to the appeal. See La. Code Civ. Pro. art. 2133 ; Wilson v. Two SD, LLC, 15-0959 (La. App. 1 Cir. 12/23/15), 186 So.3d 103, 113.

      See Thompson v. Center for Pediatric and Adolescent Medicine, L.L.C., 17-1088 (La. App. 1 Cir. 3/15/18), 244 So.3d 441, 447, writ denied, 18-0583 (La. 6/1/18), 243 So.3d 1062. Although Zurich filed a motion to strike the experts' affidavits and objected on the record at the hearing, the motion to strike was not presented at the hearing, and the trial court did not expressly exclude the affidavits from consideration. See La. Code Civ. Pro. art. 966D(2).