author: KHOUZAM, Judge.

text:
    Grady C. LOVE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1630
    District Court of Appeal of Florida, Second District.
    Opinion filed March 1, 2019
    Grady C. Love, pro se.
    Ashley Brooke Moody, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Grady C. Love appeals the summary denial of his motion for postconviction relief. In his motion, Love raised a claim of newly discovered evidence. The postconviction court denied the motion on the ground that Love's claim was successive. However, the court did not attach to its order any documents-such as Love's previous motion and the order denying it-to demonstrate the successiveness of Love's claim. See Fla R. Crim. P. 3.850(h)(2) (providing that an order denying a postconviction motion as successive shall be accompanied by "a copy of that portion of the files and records necessary to support the court's ruling"); Bryant v. State, 944 So.2d 1016, 1017 (Fla. 3d DCA 2005) ("[W]here a trial court denies a motion on account of successiveness, the documents demonstrating successiveness must be attached to the trial court's order."). Accordingly, we must reverse and remand for the postconviction court either to attach documents demonstrating the successiveness of Love's claim or to consider Love's motion on its merits.

Reversed and remanded.

KELLY and SLEET, JJ., Concur.


source: Caselaw Access Project

author: MORRIS, Judge.

license: Public Domain

text:
    Melissa PETERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1324
    District Court of Appeal of Florida, Second District.
    Opinion filed March 6, 2019
    Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Melissa Peterson appeals her judgment and sentences for possession of a controlled substance, possession of marijuana (not more than twenty grams), two counts of possession of paraphernalia, and one count of conspiracy to introduce contraband into a detention facility. Because we conclude that there was no valid basis for law enforcement to conduct a traffic stop and that law enforcement did not have a reasonable suspicion that she had committed or was about to commit a crime, we reverse the judgment and sentences.

BACKGROUND

The charges in this case were based on events that occurred on February 27, 2016. Peterson filed motions to suppress arguing that Desoto County Sheriff's Deputy Matthew Proudfit lacked probable cause to conduct a traffic stop based solely on her failure to maintain a single lane of traffic where her conduct did not create a reasonable safety concern. She also argued that information that a jail visitation clerk had relayed to Deputy Proudfit about a conversation between Peterson and a jail inmate did not provide Deputy Proudfit with a reasonable suspicion that Peterson had committed or was about to commit a crime. Thus Peterson argued that an investigatory stop was not warranted.

At the suppression hearing, the jail visitation clerk testified that as part of her duties, she listens to phone calls between inmates and their visitors "if it [is] warrant[ed]" and she "know[s] that something[ ] ... needs to be listened to." The clerk also testified that she handles all money that is deposited into inmate accounts. The clerk acknowledged that she was not a law enforcement officer and had not had any type of law enforcement training or certification. Because the clerk had noticed that Peterson was depositing money into several different inmate accounts, she decided she needed to listen to a phone call between Peterson and her boyfriend, who was an inmate. During the phone call, the clerk overheard Peterson's boyfriend ask Peterson whether another woman, nicknamed "Buck Wild," did what the boyfriend had asked her to do. After further discussion about whether the unnamed act had occurred, the boyfriend told Peterson, "[Y]ou cannot do it, you know, during the week and in the daytime. [I]t has to be done at night." When asked whether the boyfriend ever actually described what "it" was, the clerk responded: "They were going to try to bring in some contraband .... And he said, I want her to bring it and put it at the spot where I told you."

The clerk also testified about a visitation call between Peterson and the boyfriend. During that call, the boyfriend reportedly asked Peterson, "[D]id you bring something with you?" Peterson responded, "Yeah, me." The boyfriend then asked, "[D]id you bring your gold?" Peterson responded affirmatively. The clerk testified that the boyfriend asked Peterson whether she knew how to smoke, while making a gesture as if he was smoking a cigarette, and he then asked Peterson, "[D]o you know where the spot is that I told you?" Peterson responded affirmatively. The boyfriend then told her: "[N]ot in the daytime. Has to be done at night, and not on the weekends." Peterson responded, "[O]kay, well, I'll have to drop back over here."

The clerk was able to visually observe Peterson on a video monitor during the visitation call. The clerk testified that Peterson appeared to be under the influence of something because Peterson "was laying her head down, and her eyes were going closed and she would just stop talking." The clerk also testified that she noticed that Peterson's eyes were rolling in the back of her head. Based on Peterson's conduct, the clerk felt that she needed to report her observations to someone because she was concerned that if Peterson drove away from the jail, she could hurt or kill herself or someone else. The clerk watched Peterson leave the jail and get back into her vehicle. As Peterson walked past the clerk, the clerk observed that Peterson's eyes were dilated and that "she was visibly high." The clerk subsequently observed Peterson slumped over the steering wheel of the vehicle, and the clerk explained that Peterson sat out in her car for approximately thirty to thirty-five minutes before driving away. The clerk testified that she relayed all of the information that she testified to at trial to the narcotics unit of the Desoto County Sheriff's Office.

A Desoto County Sheriff's Deputy testified that he was initially alerted to watch for Peterson's vehicle by his supervisor, a Desoto County Sheriff's Sergeant. The deputy explained that he and fellow deputies were setting up surveillance of Peterson because the visitation clerk "overheard some recordings that there was possibly going to be a drug drop at the jail." The deputy testified that he and the other deputies were watching to see if Peterson "was going to ... throw something over the gate." The deputy further testified that after Peterson failed to do so and began to drive away, the deputies decided to follow her and "wait for probable cause to stop [her]." The deputy admitted that he was not aware of the specific details (i.e., "that no drop would occur that day" and that Peterson "was not going to do anything in the daytime") overheard by the visitation clerk.

The deputy came into contact with Peterson after stopping her vehicle because she failed to maintain a single lane of traffic on two occasions. The deputy was asked whether the traffic stop was for "a potential DUI driver," and he responded, "I did not assume she was under any impairment at that time, no." The deputy admitted that there was no oncoming traffic, that the stop occurred during the daytime, that Peterson was traveling on a one-way street, and that there were no bikes in the bike lanes next to Peterson's lane of travel. The deputy also admitted that he did not observe Peterson impact traffic in any way when her vehicle crossed over the line and that he did not see any pedestrians in the area. The deputy was asked whether the traffic stop was initiated as "a proxy to make contact ... and conduct a search if possible." The deputy candidly responded: "We're always looking to get into vehicles, as I work in narcotics and drug and addiction. My main goal is to enter every vehicle I pull over to see what's inside that vehicle. So I was not singling her out by any means."

The sergeant testified that he received the phone call from the visitation clerk relaying the information about what she had overheard. The sergeant testified that the clerk believed "there was going to be some contraband dropped off or delivered to an inmate through Ms. Peterson." More specifically, the clerk relayed that she believed Peterson was "going to drop off an unknown item, possibly drug related, to a trustee." Based on that information, the sergeant instructed other deputies to begin surveillance on Peterson's vehicle. The sergeant acknowledged that neither he nor the other deputies ever observed Peterson participate in a drug drop or drug activity at the jail.

The sergeant came into contact with Peterson after she was stopped for the traffic violation. During the traffic stop, Peterson made a statement indicating that she had weapons in the vehicle. As a result, Peterson's purse was searched and drugs were found. At that point, Peterson was arrested.

The prosecutor argued to the trial court, in relevant part, that the stop of Peterson's vehicle was justified because the deputies had received a tip from a citizen informant and that, therefore, the tip should be considered at the high end of the reliability scale. While acknowledging that under Florida case law, it was "questionable" whether or not the traffic stop was valid because Peterson had not interfered with traffic, the prosecutor argued that the information that had been relayed by the visitation clerk was sufficient to justify an investigatory stop because "law enforcement had information that drugs were in the vehicle" and that "there was an intent to actually get them into the jail."

In response, the defense argued that based on Crooks v. State, 710 So.2d 1041 (Fla. 2d DCA 1998), the deputies lacked an objective basis to conduct a traffic stop because Peterson's failure to maintain a single lane of traffic did not create a reasonable safety concern. Addressing the investigatory stop, defense counsel argued that there was no evidence that a crime had occurred because the deputies failed to observe a drug drop at the jail as they had anticipated.

The trial court denied Peterson's suppression motions, concluding that the stop was justified because "the information provided as far as what happened at the jail visitation was sufficient to justify an investigatory detention." The trial court also apparently concluded that Peterson committed a traffic violation, finding that "the civil infractions ... did occur." But the trial court acknowledged that " Crooks has been whittled away ... so many times" and that "it gives you very little teeth to go on in those kinds of stops."

After the suppression motions were denied, Peterson entered into a plea agreement whereby she agreed to plead no contest to the charges. Adjudication was withheld on the counts for possession of a controlled substance (count I) and possession of marijuana (not more than twenty grams) (count II), and she was sentenced to twenty-four months of drug offender probation for count I and to time served on count II. As to the counts for possession of paraphernalia (counts III and IV), Peterson was adjudicated guilty and sentenced to time served. And for the count for conspiracy to introduce contraband into a detention facility (count V), she was adjudicated guilty and sentenced to twenty-four months' drug offender probation concurrent with the sentence for count I. The defense reserved its right to appeal the dispositive motions to suppress.

ANALYSIS

In reviewing an order denying a motion to suppress, we afford "a presumption of correctness" to the circuit court's findings of fact, but we review mixed questions of law and fact de novo. Pasha v. State, 225 So.3d 688, 703 (Fla. 2017) (quoting Wyche v. State, 987 So.2d 23, 25 (Fla. 2008) ).

Generally, traffic stops are deemed reasonable "where the police have probable cause to believe that a traffic violation has occurred." Langello v. State, 970 So.2d 491, 492 (Fla. 2d DCA 2007) (quoting Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ). The validity of a traffic stop is judged on an objective basis, and therefore, "the subjective knowledge, motivation, or intention of the individual officer involved [is] wholly irrelevant." Hurd v. State, 958 So.2d 600, 602 (Fla. 4th DCA 2007) (citing Holland v. State, 696 So.2d 757, 759 (Fla. 1997) ). Here, the transcript reflects that no traffic violation occurred.

Section 316.089(1), Florida Statutes (2015), provides in relevant part that

[w]henever any roadway has been divided into two or more clearly marked lanes for traffic ... [a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

This court, along with other Florida appellate courts, has refused to find a violation of this statute where a driver's failure to maintain a single lane did not endanger himself or herself or anyone else. See, e.g., Crooks, 710 So.2d at 1043 (explaining that a violation of section 316.089"does not occur in isolation, but requires evidence that the driver's conduct created a reasonable safety concern" and thus reversing appellant's conviction where there was no evidence how far into the right-hand emergency lane appellant drove on three occasions and where there was no objective evidence that appellant failed to ascertain that his movements could be made with safety) ; Hurd, 958 So.2d at 603 ("[T]he failure to maintain a single lane alone cannot establish probable cause when the action is done safely."). And while a driver's failure to maintain a single lane, coupled with a suspicion of impairment, unfitness, or vehicle defects, can give rise to probable cause for purposes of a traffic stop, there was no testimony that such circumstances existed in this case. Compare Jordan v. State, 831 So.2d 1241, 1243 (Fla. 5th DCA 2002) (holding that traffic stop was unlawful where officer's testimony established that no other vehicles were in danger due to appellant's failure to maintain single lane and where there was no testimony that appellant was intoxicated or otherwise impaired or that he had been driving erratically); with State v. Davidson, 744 So.2d 1180, 1181 (Fla. 2d DCA 1999) (concluding that deputy's observations of appellant maintaining low speeds and continually drifting across the line and jerking vehicle in opposite direction provided deputy with founded suspicion to conduct traffic stop where actions were consistent with those of an impaired driver), and Dep't of Highway Safety & Motor Vehicles v. DeShong, 603 So.2d 1349, 1352 (Fla. 2d DCA 1992) (recognizing that "a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior").

Here, the deputy testified that he observed Peterson's vehicle cross the solid white line twice within a mile-and-a-half distance. However, the deputy acknowledged: (1) this occurred on a one-way street with a bike lane on each side, (2) there was no oncoming traffic, (3) he did not see any bicycles on the street at the time, (4) he did not see any pedestrians affected, (5) Peterson's conduct did not impact traffic in any way, and (6) he did not assume that Peterson was under any impairment at that time. We hold that because there was no evidence that Peterson's crossing the white line on two occasions created a reasonable safety concern, the deputy did not have probable cause to believe that Peterson violated section 316.089(1). Consequently, the traffic stop could not be justified on that basis, and we must next determine whether an investigatory stop was warranted based on the other information relayed from the jail visitation clerk to the sergeant.

"[P]olice can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot,' even if the officer lacks probable cause." State v. Teamer, 151 So.3d 421, 425 (Fla. 2014) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) ); see also Davis v. State, 695 So.2d 836, 837 (Fla. 2d DCA 1997). A mere suspicion of a crime is not enough. Teamer, 151 So.3d at 426. Thus, where a person's conduct is consistent with both criminal and noncriminal activity, such facts do not give rise to a reasonable suspicion of a crime. See Carter v. State, 454 So.2d 739, 742 (Fla. 2d DCA 1984) (concluding that where appellant's conduct "was at least equally consistent with noncriminal activity" and where officers admitted they had a bare suspicion that appellant was engaging in unlawful activity, there was no founded suspicion to justify an investigatory stop).

In determining whether an officer had reasonable suspicion of a crime, we must consider the facts available to the officer and the totality of the circumstances. See Teamer, 151 So.3d at 426. This determination must be viewed "from the standpoint of an objectively reasonable police officer," and "the officer's subjective intentions are not involved in the determination of reasonableness." Id. (first quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ; and then quoting Hilton v. State, 961 So.2d 284, 294 (Fla. 2007) ). "Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability." Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). "Both factors-quantity and quality-are considered in the 'totality of the circumstances-the whole picture.' " Id. (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ).

Here, there is no dispute that the tip concerning Peterson's possible involvement in a drug drop at the jail came from a known citizen informant. Such a tip ordinarily "falls at a higher end of the reliability scale." Baptiste v. State, 995 So.2d 285, 291 (Fla. 2008). The problem in this case is not the reliability of the visitation clerk. Rather, the problem is that the information relayed by the clerk consisted of nothing more than vague portions of a conversation that the clerk construed as suspicious coupled with the clerk's assumption that Peterson was under the influence of drugs based on her physical demeanor. The information did not create or support a reasonable suspicion that Peterson had committed, was committing, or was about to commit a crime. Cf. Cooks v. State, 28 So.3d 147, 149-150 (Fla. 1st DCA 2010) (explaining that tip from citizen informant, a hotel clerk, was not reliable "in its assertion of illegality" where tip consisted of the informant's hunch that appellant might have been planning to rob her based on his suspicious activity but where the information relayed did not create a reasonable suspicion that appellant had committed, was committing, or was about to commit a crime (quoting Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) ) ); R.E. v. State, 536 So.2d 1125, 1128 (Fla. 1st DCA 1988) (holding that where citizen informant's claim of suspicious activity had a "minimal objective basis and, except for innocent details of identification, is uncorroborated by law enforcement's subsequent observations," there was no reasonable suspicion that "crime [wa]s afoot, which is essential if a report of generalized, allegedly suspicious activity is to justify a stop"); Hall v. State, 366 So.2d 865, 865-866 (Fla. 4th DCA 1979) (holding that where citizen informant, a retail store manager, alerted police that appellant and another man were acting suspiciously but where officer did not observe appellant do anything suspicious, there was no basis for an investigatory stop).

The visitation clerk reportedly heard Peterson and her boyfriend discussing Peterson bringing "gold" with her and about something needing to be done by either a third party or Peterson "at night" and "during the week" and the boyfriend asking Peterson if she knew "where the spot is that I told you." Based on these statements, the clerk assumed that Peterson and her boyfriend were arranging a drug drop at the jail. But such generalized statements did not evince that a crime had been committed, was being committed, or was about to occur. Further, the clerk acknowledged that she was not a law enforcement officer and had no law enforcement certification or training, and there was no other evidence that the clerk had any expertise in identifying possible drug transactions based on the language used. Also notable is the fact that the deputies did not observe Peterson engage in a drug drop at the jail or any other suspicious conduct prior to conducting the traffic stop.

Moreover, even if Peterson was under the influence of drugs at the jail, the State has not established that her being in that condition-without more-constitutes a crime under any Florida law. At most, the visitation clerk's relaying of Peterson's physical condition to the officers might have provided reasonable suspicion to conduct a traffic stop for driving under the influence of drugs. See § 316.193(1)(a), Fla. Stat. (2015) (describing offense of driving under the influence of a controlled substance). However, here, the deputy rejected the notion that he was attempting to conduct a "potential DUI stop," explaining that he did not assume that Peterson was impaired at the time he performed the traffic stop. Thus the only information which could have formed the basis for an investigatory stop was the content of Peterson's conversation with her boyfriend that was overheard and relayed by the visitation clerk. But as already explained herein, that conversation consisted of nothing more than generalized, allegedly suspicious statements which did not result in any observed criminal conduct. Accordingly, that information could not have provided a reasonable suspicion that Peterson had committed, was committing, or was about to commit a crime. And, therefore, the traffic stop could not be justified on that basis.

Because the traffic stop was not supported by probable cause that Peterson had committed a violation of section 316.089(1) or by a reasonable suspicion that Peterson had committed, was committing, or was about to commit a crime, the trial court should have granted Peterson's dispositive motions to suppress. Accordingly, we reverse and remand with instructions to grant the dispositive motions to suppress and to vacate the convictions and sentences in this case.

Reversed and remanded with instructions.

KELLY and SLEET, JJ., Concur.

      Peterson also raised the issues of the failure of Deputy Proudfit to provide a warning pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the lack of probable cause to search her or arrest her based on her admission that she had a weapon because section 790.25(5), Florida Statutes (2015), was applicable and provided an exception to the prohibition against possession of a concealed firearm without a permit. However, she does not raise these issues on appeal.

      Peterson had initially been charged with possession of a controlled substance with intent to sell or deliver, but the State amended the information to reduce the charge to possession of a controlled substance.

      We acknowledge that, in application, Crooks presents challenges to law enforcement officers who are asked to make split-second decisions as to whether a driver's conduct creates a reasonable safety concern. What may be a reasonable safety concern under one set of facts may not rise to that level under a slightly different set of facts. For that reason, the legislature may want to consider whether section 316.089(1) should be clarified to provide law enforcement with better guidance as to the scope of what constitutes a reasonable safety concern.

      See Hurd, 958 So.2d at 603.


author: Per Curiam.

text:
    DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Appellant, v. The FLORIDA HORSEMEN'S BENEVOLENT & PROTECTIVE ASSOCIATION, INC., a Florida Nonprofit Corporation, Appellee.
    No. 1D18-1434
    District Court of Appeal of Florida, First District.
    March 7, 2019
    Ross Marshman, Chief Appellate Counsel for the Department of Business & Professional Regulation, Tallahassee, for Appellant.
    Bradford J. Beilly and John Strohsahl of Beilly & Strohsahl, P.A., Fort Lauderdale, for Appellee.
   Per Curiam.

The Department of Business and Professional Regulation, Division of Pari-Mutual Wagering (the "Division") appeals an order from the Division of Administrative Hearings, finding Rule 61D-6.011, Florida Administrative Code (2016), was an invalid exercise of delegated legislative authority. We agree with both parties that the language of the relevant statutory provision, section 550.2415(7), Florida Statutes (2015), is clear and unambiguous. See Fla. Hosp. v. Agency for Health Care Admin. , 823 So.2d 844, 848 (Fla. 1st DCA 2002) (holding that if the language of a statute "is clear and unambiguous and conveys a clear and definite meaning, the statute should be given its plain meaning"). The provision provides that "[t]he division rules must include a classification system for drugs and substances and a corresponding penalty schedule for violations which incorporates the Uniform Classification Guidelines for Foreign Substances, Version 8.0, revised December 2014, by the Association of Racing Commissioners International, Inc." § 550.2415(7)(c), Fla. Stat. The parties agree that the referenced document includes a penalty schedule, and we reject the Division's argument that the statutory provision directs the Division to incorporate only the drug-classification portion of that document, rather than-as the statute says-a classification system "and a corresponding penalty schedule for violations which incorporates" that document. Because the Division adopted its own penalty schedule, it exceeded its delegated legislative authority.

AFFIRMED.

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

      We agree with the parties that although the rule has been revised and now includes the required penalty schedule, the issue is not moot because disciplinary actions are pending below based on violation of the invalid rule. See, e.g., Dep't of Health v. Shands Jacksonville Medical Ctr. Inc. , 259 So.3d 247, 251 (Fla. 1st DCA 2018) (noting a matter is not considered moot where "collateral legal consequences flow from the issues to be resolved that may affect the rights of a party").


author: PER CURIAM.

text:
    J.A.L., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4512
    District Court of Appeal of Florida, Second District.
    Opinion filed March 6, 2019.
    Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having reviewed the record in keeping with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we affirm the disposition rendered after J.A.L. pleaded guilty to counts of grand theft of an automobile and dealing in stolen property, his withhold of adjudication after a disposition hearing on a third count for burglary of a dwelling, and his placement on juvenile probation for the various counts. We remand only for the trial court to enter a written order reflecting that the fourth count-grand theft-was merged with the dealing in stolen property count at the time of the plea as stated in the transcript of the plea hearing. See generally Lenker v. State, 151 So.3d 1273 (Fla. 2d DCA 2014) (affirming but remanding in an Anders proceeding for entry of a written record accurately reflecting the resolution of the various counts).

Affirmed; remanded with instructions.

KELLY and SALARIO, JJ., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur.


text:
    Michael J. JOHNSON, Petitioner, v. Mark S. INCH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D19-0258
    District Court of Appeal of Florida, First District.
    March 11, 2019
    Michael J. Johnson, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied. See Green v. Dep't of Corrs. , 122 So.3d 932 (Fla. 1st DCA 2013).

Wetherell, Osterhaus, and Winokur, JJ., concur.


text:
    Jerry HOLLY, Petitioner, v. FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, Respondent.
    No. 1D19-0536
    District Court of Appeal of Florida, First District.
    March 11, 2019
    William J. Cook of Barker Cook, Tampa, for Petitioner.
    No appearance for Respondent.
   Per Curiam.

The petition for review of nonfinal agency action, or in the alternative petition for writ of mandamus, is denied on the merits.

Wetherell, Osterhaus, and Winokur, JJ., concur.


author: PER CURIAM

text:
    IN RE: Daniel J. HUNTER
    NO. 2019-B-0158
    Supreme Court of Louisiana.
    March 6, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent mismanaged his client trust account. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline in which respondent admitted that his conduct violated Rules 1.15(a)(f) and 8.4(c) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Daniel J. Hunter, Louisiana Bar Roll number 30561, be suspended from the practice of law for a period of one year. This suspension shall be deferred in its entirety, subject to respondent's successful completion of a two-year period of probation governed by the conditions set forth in the petition for consent discipline. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

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


author: PER CURIAM:

text:
    STATE of Louisiana v. Earnest J. FELICE aka E.J.F
    No. 18-KH-0369
    Supreme Court of Louisiana.
    March 6, 2019
    ON SUPERVISORY WRITS TO THE THIRTY-SIXTH JUDICIAL DISTRICT COURT, PARISH OF BEAUREGARD
   PER CURIAM:

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

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


text:
    Cathy ZAHN and Robert Zahn v. Akelia A. WATKINS, Metropolitan Property and Casualty Insurance Company and State Farm Mutual Automobile Insurance Company, et al.
    2018-CC-0337
    Supreme Court of Louisiana.
    March 6, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
    Writ denied.
    CRICHTON, J., additionally concurs and assigns reasons.
    Crichton, J., additionally concurs and assigns reasons.
   Circumstances unique to this case give rise to a genuine issue of material fact and therefore, in my view, the decisions of the lower court are correct. See La. C. Civ. P. art 966(c) and Maggio v. Parker , 17-1112 (La. 6/27/18), 250 So.3d 874.


author: HUGHES, J., would grant.

text:
    Whitney J. DEROCHE, Jr. v. Roy A. BLANCHARD, Farm Bureau Insurance Company and Teche Airboats, Inc.
    No. 2019-CC-0064
    Supreme Court of Louisiana.
    March 6, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF LAFOURCHE
    Writ denied.
   HUGHES, J., would grant.

CRICHTON, J., would grant and assigns reasons.

CRICHTON, J., would grant and assigns reasons:

For the reasons assigned by Judges Guidry and Holdridge, I would grant the defendant's writ application, reverse the court of appeal, and remand the matter for a full trial on the merits.


text:
    Jennifer A. LOYOLA v. James A. LOYOLA
    No. 2019-OC-0079
    Supreme Court of Louisiana.
    March 6, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
    Writ denied.
   HUGHES, J., would grant.

GENOVESE, J., would grant and assigns reasons.

GENOVESE, J., would grant and assigns reasons.

In its denial of this writ, the majority found that Mr. Loyola waived any right to assert insufficient notice because he had actual notice of the judgment in question. Actual notice of the judgment is irrelevant. It is well-settled that actual notice of a judgment does not waive the requirement of service. Nassau Realty Co., Inc. v. Brown , 332 So.2d 206 (La. 1976). Furthermore, any such waiver must be an express waiver and not an implied waiver, considering the undisputed fact that under our law, maintaining an appeal is favored. Shell Pipeline Corp. v. Kennedy , 00-3207, p. 4 (La. 10/16/01), 799 So.2d 475, 478. I would grant this writ and reverse the court of appeal's dismissal of Mr. Loyola's appeal.


text:
    Michelle WILLIAMS and Nicole Williams Gross v. CENTERPOINT ENERGY RESOURCES CORP. and The City of Shreveport, Louisiana
    NO. 2019-CC-0266
    Supreme Court of Louisiana.
    March 6, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM

Granted. The district court is directed to decide the choice of law issue prior to trial. See La. Code Civ. art. 929; Babineaux v. Pernie-Bailey Drilling Co. , 261 La. 1080, 262 So.2d 328 (1972).

HUGHES, J., would deny and assigns reasons.

GENOVESE, J., would deny and assigns reasons.

Hughes, J., would deny the writ.

Respectfully, this is a really big dog being wagged by its tail.

Louisiana law provides for fact pleading. Only after the facts are determined by the fact finder is the judge able to apply the applicable law. Even if the law of another state may be applicable, Louisiana procedure is used.

Babineaux is clearly distinguishable. This case presents a choice of law question, not a nonsensical partial exception of no right of action.

Genovese, J., dissents and would deny this writ for the following reasons:

The issue in this case is whether the trial court erred in deferring the choice of law determination of whether Texas punitive damages law applies until the close of evidence. This case arises from a fire and explosion in the backyard of plaintiff, Michelle Williams, and her husband, Dr. Richard Williams, caused by a natural gas leak. Dr. Williams sustained serious burns and died from his injuries approximately three months later.

After plaintiffs filed suit and discovery was had, defendant, CenterPoint Energy Resources Corp. ("CenterPoint Energy"), filed a motion for partial summary judgment and an exception of no right of action. The trial court denied both motions and deferred the choice of law issue until the close of evidence. The court of appeal denied writs. Defendant applied for writs to this court. The majority of this court granted defendant's writ stating, "The district court is directed to decide the choice of law issue prior to trial. See La. Code Civ.P. art. 929 ; Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972)." I disagree with granting the writ and the directed procedure.

First, La. Code Civ.P. art. 929(B) emphasis added) states, "If the peremptory exception has been filed after the answer, but at or prior to the trial of the case, it shall be tried and disposed of either in advance of or on the trial of the case." The trial court deferred the choice of law issue until the close of evidence. The trial court's ruling did not violate La. Code Civ.P. art. 929 in that its ruling (at the close of evidence) would dispose of the peremptory exception "on the trial of the case." Second, Babineaux is inapposite. In Babineaux , there was an issue as to whether the plaintiff in that case lacked good faith in asserting she was married to the decedent. There is no such issue in this case. Here, defendant's exception of no right of action is totally without merit as it is undisputed that the plaintiffs are the proper parties with a right of action to bring this suit. Likewise, defendant's motion for partial summary judgment is equally without merit because there are serious questions of material fact relating to the issue of choice of law.

More importantly, by granting this writ and directing the district court "to decide the choice of law issue prior to trial," the majority has deprived plaintiffs of their fundamental right to a jury trial on the factual issues presented. In my view, the jury must decide the facts in this case and not the judge. The majority has placed the proverbial "cart before the horse." The facts come first, then the law. In a jury trial, such as in this case, it is the jury which decides the facts, not the judge. To require the judge to decide the facts in this case relative to the issue of choice of law is to strip plaintiffs of their fundamental right to a trial by jury on those factual issues. If a bifurcated trial is required to legally address the issue of choice of law in this case, then so be it.

Consequently, I would deny the writ.


text:
    IN RE: James E. MOORE, Jr.
    NO. 2019-B-0163
    Supreme Court of Louisiana.
    March 6, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

Respondent was charged with multiple criminal offenses relating to substance use. Prior to the filing of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that James E. Moore, Jr., Louisiana Bar Roll number 21758, be and he hereby is suspended from the practice of law for a period of one year, retroactive to January 31, 2018, the date of his interim suspension.

IT IS FURTHER ORDERED that following his suspension, respondent shall be placed on probation for a period to coincide with the term of his recovery agreement with the Judges and Lawyers Assistance Program.

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, J., would reject consent discipline.


text:
    IN RE: CONFIDENTIAL PARTY
    NO. 2019-B-0176
    Supreme Court of Louisiana.
    March 6, 2019
    ORDER
   Considering the Joint Petition for Consent Discipline filed by respondent and the Office of Disciplinary Counsel,

IT IS ORDERED that the Joint Petition for Consent Discipline be and hereby is rejected pursuant to Supreme Court Rule XIX, § 20.

IT IS FURTHER ORDERED that this matter be remanded for consideration of the previously filed formal charges.


text:
    STATE of Louisiana v. Willie BEASLEY
    No. 2018-KH-0376
    Supreme Court of Louisiana.
    March 6, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

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

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


text:
    STATE of Louisiana v. Joe Nathan TUBBS
    No. 18-KH-0479
    Supreme Court of Louisiana.
    March 6, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

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

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


text:
    STATE of Louisiana v. Sevon Lemeir MOORE
    No. 2018-KH-0484
    Supreme Court of Louisiana.
    March 6, 2019
    ON SUPERVISORY WRITS TO THE SECOND JUDICIAL DISTRICT COURT, PARISH OF BIENVILLE
   PER CURIAM:

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

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


text:
    STATE of Louisiana v. Michael Stefan WHITE
    No. 2018-KH-0531
    Supreme Court of Louisiana.
    March 6, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

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

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

Hughes, J., would grant the writ.


author: CRICHTON, J., recused.

text:
    STATE of Louisiana v. Keith MARTIN
    No. 2018-KH-578
    Supreme Court of Louisiana.
    March 6, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
    Writ denied.
    HUGHES, J., additionally concurs and assigns reasons.
   CRICHTON, J., recused.

Hughes, J., additionally concurs.

I concur with the denial of the writ while noting that the court of appeal transferred this matter to the trial court to consider the request for documents. If the transcript supports relator's contentions that the prosecutor infringed upon his right to remain silent, he may reurge that claim.


text:
    STATE of Louisiana v. Ronald ALEXANDER
    No. 2018-KH-0372
    Supreme Court of Louisiana.
    March 6, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Applicant fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The application is also repetitive. La.C.Cr.P. art. 930.4.

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


text:
    STATE of Louisiana v. Keefer Lamar EAGLIN
    No. 2018-KH-0463
    Supreme Court of Louisiana.
    March 6, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

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

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


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

text:
    STATE of Louisiana v. Lorenzo CONNER
    No. 2018-KK-2003
    Supreme Court of Louisiana.
    March 6, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS
    Writ denied.
    HUGHES, J., would grant and assigns reasons.
   Hughes, J., would grant the writ.

Respectfully, the investigating officer received an email from another detective stating, "Gun on victim had five murders connected to it. Bystanders attempted to remove weapon but police arrived too soon. Victim killed someone near University Hospital last week."

This email should have been immediately provided to the defense.


text:
    Shirley STELLY, et al. v. CITY CLUB AT RIVER RANCH, LLC, et al.
    No. 2019-C-0062
    Supreme Court of Louisiana.
    March 6, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF LAFAYETTE
    Writ denied.
    CLARK, J., would grant and reinstate the ruling of the trial court.
    CRICHTON, J., would grant and assigns reasons.
    CRICHTON, J., would grant and assigns reasons:
   In this parking lot trip and fall case, defendants assert that the court of appeal erred in reversing the district court's grant of summary judgment in favor of defendants. Noting that plaintiff had visited the site on prior occasions and nothing prevented her from seeing the curb or appreciating its height, the district court held that the height of the sidewalk was an open and obvious condition and, as such, the defendants did not owe a duty to the plaintiff. Accordingly, I would grant this writ application and reinstate the district court's dismissal of this case. See Williams v. Liberty Mut. Fire Ins. Co. , 16-0996, p. 9 (La. App. 1 Cir. 3/13/17), 217 So.3d 421, 427 ("An accident, alone, does not support the imposition of liability, particularly considering the normal hazards pedestrians face while traversing sidewalks and parking lots in this state. A pedestrian has a duty to see what should be seen and is bound to observe his course to see if his pathway is clear.").


text:
    IN RE: Scott W. MCQUAIG
    NO. 2019-B-0308
    Supreme Court of Louisiana.
    March 6, 2019
    ORDER
   Considering the Joint Petition for Interim Suspension filed by respondent, Scott W. McQuaig, and the Office of Disciplinary Counsel,

IT IS ORDERED that Scott W. McQuaig, Louisiana Bar Roll number 1945, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.


text:
    PONTCHARTRAIN NATURAL GAS SYSTEM, K/D/S Promix, L.L.C., and Acadian Gas Pipeline System v. TEXAS BRINE COMPANY, LLC
    No. 2019-C-0080
    Supreme Court of Louisiana.
    March 6, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF ASSUMPTION
    Writ denied.
    CRICHTON, J., would grant and assigns reasons.
    CRICHTON, J., would grant and assigns reasons:
   For the reasons similarly assigned in my dissent in Crosstex Energy Services, LP v. Texas Brine Company, LLC , 18-0144 (La. 3/23/18), 238 So.3d 962, I would grant this writ application, as I find there are genuine issues of material fact relating to the duty to defend and whether there was liability during the coverage period.


author: GREMILLION, Judge.

text:
    Russell AIOLA v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
    18-524
    Court of Appeal of Louisiana, Third Circuit.
    February 20, 2019
    Carl J. Rachal, Barton W. Bernard, Bart Bernard Personal Injury Law Firm, 1031 Camellia Boulevard, Lafayette, LA 70508, (337) 989-2278, COUNSEL FOR PLAINTIFF/APPELLANT: Russell Aiola
    Kenny L. Oliver, David O. Way, Oliver & Way, L.L.C., P.O. Box 82447, Lafayette, LA 70598-2447, (337) 988-3500, COUNSEL FOR DEFENDANT/APPELLEE: State Farm Mutual Automobile Insurance Company
    Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
   GREMILLION, Judge.

The plaintiff-appellant, Russel Aiola, appeals the trial court's judgment finding that his claim against the defendant-appellee, his uninsured motorist carrier, State Farm Mutual Automobile Insurance Company, was prescribed. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Aiola was injured following a February 4, 2015 motor vehicle accident with Howard Hughes II, whose insurer tendered policy limits of $ 50,000.00 to Aiola. On May 14, 2015, Aiola's counsel forwarded a demand for medical payments (med-pay) to Aiola's uninsured motorist carrier (UM), State Farm. According to Aiola's brief, on July 9, 2015, Aiola's counsel sent a demand to State Farm for payment of his UM policy limits. Aiola states in his brief that counsel again sent a demand to State Farm on March 8, 2016. State Farm tendered the med-pay payment of $ 5,000.00 on April 4, 2016. State Farm made no other payments to Aiola.

Aiola filed suit against State Farm on September 8, 2017. State Farm filed a Peremptory Exception of Prescription. Following a March 2018 hearing, the trial court found that Aiola's claim was prescribed and dismissed Aiola's claim with prejudice. Aiola now appeals and assigns as error:

The Trial Court committed reversible error and abused its discretion by ruling that the plaintiff's claims was prescribed, and that prescription was not interrupted by State Farm's payment of medical payments as an acknowledgement of the obligation.

DISCUSSION

On appeal, we review a trial court's grant of a peremptory exception of prescription according to the following rules:

An appellate court reviews the exception under the manifest error standard of review if evidence is introduced in support or contravention of the exception.
Dugas v. Bayou Teche Water Works, 10-1211 (La.App. 3 Cir. 4/6/11), 61 So.3d 826. If not, the appellate court "simply determines whether the trial court's finding was legally correct." Id. at 830.

McCauley v. Stubbs , 17-933, p. 3 (La.App. 3 Cir. 4/25/18), 245 So.3d 41, 44, quoting Allain v. Trippel B Holding, LLC, 13-673, p.9 (La.App. 3 Cir. 12/11/13), 128 So.3d 1278, 1285.

Actions against UM carriers are subject to a two-year prescriptive period. La.R.S. 9:5629. That period begins "from the date of the accident in which the damage was sustained." Id. Aiola concedes that the burden of proof is on him to prove that the action is not prescribed, since on the face of the petition, his claims would have prescribed on February 4, 2017. See Younger v. Marshall Indus., Inc. , 618 So.2d 866 (La.1993). Aiola argues that prescription was interrupted when the med-pay payment was issued on April 4, 2016, because it constituted an acknowledgement of the obligation and that the prescriptive period began to run anew thereby giving him until April 4, 2018, to file suit against State Farm. Aiola argues that the jurisprudence holding that med-pay payments do not interrupt prescription is inapplicable under these facts because all of the cases involve the liability insurer rather than the UM insurer.

State Farm relies on Titus v. IHOP Restaurant, Inc. , 09-951, p. 9 (La. 12/1/09), 25 So.3d 761, 767, in which the Louisiana Supreme Court held that "an insurer's payment of medical claims, pursuant to the no fault medical pay coverage provision in an insurance policy, does not result in a tacit acknowledgement of all general damage claims."

Aiola argues:

Once the tort claim was settled and disposed of, the claim was no longer a contractual no-fault med-pay coverage issue. The claim was now an obligation on the part of State Farm to make the plaintiff whole since the liability portion of the claim had resolved.
... [O]nce the plaintiff settled with the tortfeasor, State Farm's obligation was now based upon the evaluation of plaintiff's claim and not based on a contractual right. Under this scenario, if State Farm felt that plaintiff had been adequately compensated by the payment made by the tortfeasor, then they had no obligation to make any medical payments or tenders under the uninsured/underinsured motorist policy. However, in the present case, State Farm made a medical payment of $ 5,000.00 to the plaintiff on April 4, 2016, after the plaintiff had settled his liability claim for policy limits. Clearly, had State Farm felt that plaintiff had been adequately compensated, they owed no obligation to issue the medical payment to plaintiff. As a result, it is clear that State Farm recognized their obligation to plaintiff and when they made this payment, it was an acknowledgement of that obligation.

We disagree with Aiola's reasoning. State Farm's med-pay obligation to Aiola was not converted to another type of obligation by virtue of the med-pay payment. Med-pay payments alone do not serve to interrupt prescription. Veillion v. Fontenot , 96-1075 (La.App. 3 Cir. 3/12/97), 692 So.2d 639, writ denied , 97-0932 (La. 5/16/97), 693 So.2d 801. Aiola's UM policy is not included in the record. We note, however, that the standard in UM policies is that med-pay payments are generally a contractual obligation under the policy due regardless of fault. As Aiola had the burden of proof in this matter, it was incumbent upon him to submit the insurance policy into the record if he wanted it to be considered.

Acknowledgement

Prescription can be interrupted when a party acknowledges the rights of the insured. La.Civ.Code art. 3464. Acknowledgement may be verbal, in writing, by payment, or it may be inferred from the particular facts and circumstances. Veillion, 692 So.2d 639. A UM insurer's payment of med-pay benefits alone simply does not constitute acknowledgement that would interrupt prescription. Id. As stated in Touchet v. State Farm Fire & Cas. Co. , 542 So.2d 1142, 1146 (La.App. 3 Cir.), writ denied , 546 So.2d 1214 (La.1989), an insurance company's acknowledgement of a "right to reimbursement for medical expenses d[oes] not interrupt prescription for [plaintiff's] right to recover for his personal injuries." See also Rockenbaugh v. State Farm Mut. Auto. Ins. Co. , 15-1759 (La.App. 1 Cir. 6/3/16), 2016 WL 3128686 (unpublished opinion). As Aiola has provided no other facts suggesting that State Farm acknowledged any obligation to him, we find no error in the trial court's granting of State Farm's Peremptory Exception of Prescription.

CONCLUSION

The judgment of the trial court in favor of the defendant-appellee, State Farm Mutual Automobile Insurance Company, is affirmed. All costs of this appeal are assessed to the plaintiff-appellant, Russell Aiola.

AFFIRMED .

      The policy limit was tendered on October 6, 2016.


author: WHIPPLE, C.J.

text:
    Brian LEWIS v. LOUISIANA STATE JUDICIAL REVIEW BOARD
    NUMBER 2018 CA 0204
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: November 2, 2018
    Brian Lewis, Baton Rouge, LA, Plaintiff/Appellant, pro se
    Danelle L. Gilkes, Claudeira M. Minor, Cynthia T. Batiste, Jerome J. Burden, Baton Rouge, LA, Counsel for Defendant/Appellee, Louisiana Workforce Commission, Louisiana Board of Review
    Rachel S. Guttman, Thomas P. Anzelmo, Isidro R. Derojas, New Orleans, LA, Counsel for Defendant/Appellee, Sams East, Inc.
    BEFORE: WHIPPLE, C.J., McCLENDON AND HIGGINBOTHAM, JJ.
   WHIPPLE, C.J.

Brian Lewis, the claimant herein, appeals the district court's judgment that affirmed the decision of the Board of Review disqualifying him from unemployment benefits due to his misconduct during employment. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Lewis was employed by Wal Mart Associates, Inc., at one of its Sam's Club stores, as a part-time lot attendant. On February 14, 2017, his employment was terminated on the basis that he had accepted a gratuity from a club member, in violation of company rules.

Following his discharge, Lewis filed a claim for unemployment compensation benefits. However, his claim for benefits was denied based on a finding that he had been discharged for violation of a company policy of which he was aware.

Lewis appealed the Agency's determination to the Appeals Tribunal of the Louisiana Workforce Commission. See LSA-R.S. 23:1628, LSA-R.S. 23:1629(A), & LAC 40:IV.109. After conducting a hearing by telephone, an Administrative Law Judge ("ALJ") with the Appeals Tribunal issued a written decision affirming the Agency's determination of disqualification. See LAC 40:IV.115 & LAC 40:IV.123.

Lewis then appealed to the Board of Review ("the Board"). See LSA-R.S. 23:1630 & LAC 40:IV.125. After review of the record, the Board affirmed the ALJ's decision disqualifying Lewis from unemployment compensation benefits.

Lewis then filed a petition for judicial review in the district court. See LSA-R.S. 23:1634(A). After considering the record and oral argument of the parties, the district court issued a "Ruling," concluding that the Board's decision was lawfully supported by the evidence and, thus, "order[ing] that the relief [Lewis sought] in his request for judicial review be dismissed and the Board's decision affirmed." Thereafter, by judgment dated December 13, 2017, the district court, in accordance with its "Ruling," affirmed the decision of the Board, which had affirmed the ALJ's disqualification of Lewis for unemployment compensation benefits.

Lewis now appeals to this court. While he does not specifically list any assignments of error, Lewis essentially contends that there was no evidence against him filed in the case.

RULE TO SHOW CAUSE ORDER

Prior to addressing the merits of Lewis's appeal, we first address a Rule to Show Cause Order issued by this court on February 20, 2018. This court noted therein that Lewis had filed a motion for appeal on November 21, 2017, seeking to appeal the November 20, 2017 "Ruling" of the district court. However, the district court's judgment was not signed until December 13, 2017. As further noted by this court, neither the motion for appeal nor the order of appeal signed on December 18, 2017, reference the December 13, 2017 judgment. Thus, this court ordered the parties to show cause by briefs why the appeal should or should not be dismissed.

Appeals are favored in law, must be maintained wherever possible, and should not be dismissed on mere technicalities. Fruehauf Trailer Co. v. Baillio, 252 La. 181, 190, 210 So.2d 312, 315 (1968) ; Wells v. Hannah, 2017-1399 (La. App. 1st Cir. 4/6/18), 2018 WL 1663032 (unpublished). The motion for appeal filed by Lewis on November 21, 2017 presents two problems: it was filed before a judgment on the merits was signed, and it lists the date of the trial court's Ruling, rather than the date of the later-signed judgment on the merits. As to the premature filing of the motion for appeal, a defect arising from a premature motion for appeal (i.e., one taken before the signing of a final judgment) is cured once the final judgment has been signed. Chauvin v. Chauvin, 2010-1055 (La. App. 1st Cir. 10/29/10), 49 So.3d 565, 568 n.1 ; City of Denham Springs v. Perkins, 2008-1937 (La. App. 1st Cir. 3/27/09), 10 So.3d 311, 317 n.5, writ denied, 2009-0871 (La. 5/13/09), 8 So.3d 568.

With regard to the listing in the motion for appeal of the date of the trial court's Ruling rather than the date of the judgment on the merits, we note that while entitled "Ruling," the November 20, 2017 Ruling of the district court was in the nature of written reasons for judgment and specifically stated that a judgment in accordance with the ruling was to be submitted to the court for signature. We further note that in Magnum Corporation v. Dauphin, 286 So.2d 415, 415-416 (La. App. 3rd Cir. 1973), the Third Circuit Court of Appeal held that the fact that the plaintiff had inadvertently placed the date of the Reasons for Judgment rather than the date of the final judgment on its petition for appeal was immaterial and, thus, the court denied a motion to dismiss the appeal. Additionally, in denying an application for rehearing, the court further held that the fact that the order granting the appeal was signed before the judgment was signed was likewise immaterial under the facts therein. Magnum Corporation, 286 So.2d at 416 (per curiam on application for rehearing).

In the instant case, while Lewis, who is a pro se litigant, prematurely filed a motion for appeal from the district court's Ruling, his brief on appeal clearly indicates his intent to appeal from the judgment denying his petition for review. Additionally, we note that after the district court signed its judgment on December 13, 2017, and after notice of the judgment was mailed to the parties on December 18, 2017, Lewis timely filed a second motion for appeal on December 22, 2017, seeking to appeal the district court's December 13, 2017 judgment. In this motion for appeal, Lewis noted that the court's computer system indicated that the district court had granted his appeal, but further indicated that he had "to play safe," apparently referring to the filing of the second motion for appeal after the original motion had been granted. The district court ultimately denied this second motion for appeal on February 14, 2018, noting as follows: "Plaintiff filed two motions for appeal from the Judgment signed on December 13, 2017. The first appeal order was signed on December 13, 2017. Since this is a duplicate motion and is unnecessary, it is hereby denied."

Considering the foregoing, and because appeals are favored in law, must be maintained wherever possible, and should not be dismissed on mere technicalities, we recall the Rule to Show Cause Order and maintain the appeal.

DISCUSSION

Under the provisions of the Louisiana Employment Security Law, LSA-R.S. 23:1471 etseq., an individual shall be disqualified for unemployment compensation benefits upon a finding that the individual was discharged by the employer for "misconduct connected with his employment." LSA-R.S. 23:1601(2)(a). "Misconduct" is defined as "mismanagement of a position of employment by action or inaction, neglect that places in jeopardy the lives or property of others, dishonesty, wrongdoing, violation of a law, or violation of a policy or rule adopted to insure orderly work or the safety of others." LSA-R.S. 23:1601(2)(a). When an employer seeks to deny unemployment benefits because of employee misconduct, the burden is on the employer to establish such misconduct by a preponderance of the evidence. Fontenet v. Cypress Bayou Casino, 2006-0300 (La. App. 1st Cir. 6/8/07), 964 So.2d 1035, 1037. Repeated violations in the face of warnings have been held to amount to misconduct. Jackson v. Administrator, Department of Employment Security of State, 511 So.2d 1309, 1312 (La. App. 2nd Cir. 1987).

Appellate review of an unemployment compensation proceeding is provided for under LSA-R.S. 23:1634(B), with the scope of review limited to determining whether the facts are supported by sufficient and competent evidence and, in the absence of fraud, whether the facts, as a matter of law, justify the action taken. Fontenet, 964 So.2d at 1038. Judicial review of the findings of the Board does not permit the weighing of evidence, drawing of inferences, reevaluation of evidence, or substitution of the views of the court for that of the Board as to the correctness of the facts presented. Gonzales Home Health Care, L.L.C. v. Felder, 2008-0798 (La. App. 1st Cir. 9/26/08), 994 So.2d 687, 690-691, writ not considered, 2008-2568 (La. 1/9/09), 998 So.2d 730.

During the April 13, 2017 telephone hearing conducted in the instant case by the ALJ, Christopher Charles, the Sam's Club manager, testified that Sam's Club has a written policy that prohibits its associates from accepting tips or gratuities and that the penalty for violation of the policy is automatic termination of employment. According to Charles, Lewis was aware of this policy, which Charles had personally discussed with Lewis and which is explained in computer-based learning that every new associate with Sam's Club must complete. Charles explained what had occurred on the date that Lewis was discharged. Although other associates had previously reported witnessing Lewis accepting tips, on the date of Lewis's discharge, Charles personally witnessed this behavior from a distance of about ten feet away. Specifically, he witnessed Lewis assisting a Sam's Club member in loading a heavy product in the parking lot and then saw the member hand Lewis money. According to Charles, Lewis bowed to the member, took the money, and quickly concealed it in his left back pocket.

At that point, Charles immediately approached Lewis and escorted him to the manager's office. Charles then called Michelle Lambert, a member services assistant manager who was Lewis's supervisor, into the office in order to have a witness present. According to Charles, he asked Lewis to explain what had just taken place. When Lewis responded that he was just helping a member load, Charles asked him what was in his left back pocket that the member had given him. Charles relayed that Lewis then took five dollars out of his pocket and said "Oh, I was going to turn that money in."

Charles then explained to Lewis that accepting tips was against company policy, that violation of the policy called for automatic termination, and that Lewis had been previously counseled in several conversations about accepting tips. According to Charles, Lewis repeatedly insisted that he wanted to go get the member who had tipped him so the member could tell Charles that he had placed the tip in Lewis's hand. However, Charles responded to Lewis that he knew that the job required him to provide member service without receiving an incentive to do so. Accordingly, based on what he had witnessed firsthand, Charles informed Lewis that his employment was terminated.

When questioned by the ALJ as to what Lewis was supposed to do if someone offered him a tip, Charles testified that Lewis should have explained to the member that providing great member service was part of his job. Moreover, if someone insisted that Lewis take a tip, Lewis should have immediately turned the money in to a member of management, who would then donate the money to Children's Miracle Network, a charity supported by Sam's Club. Charles explained that Sam's Club compensates its associates "a little more" than any of its competitors to provide great customer service. Additionally, associates in several job roles earn equal pay for providing great service. Thus, if parking lot attendants are allowed to accept tips, it becomes an equal pay issue.

Lewis declined to cross-examine Charles or to testify himself during the telephone hearing.

Based on our review of the record, we conclude that the factual findings by the ALJ and the Board are supported by competent evidence, and these facts, as a matter of law, justify the action taken. Because Lewis was discharged for "misconduct" for his violation of company policy, he was ineligible for unemployment compensation benefits. See LSA-R.S. 23:1601(2)(a). The district court properly affirmed the Board's decision.

CONCLUSION

For the above and foregoing reasons, the district court's December 13, 2017 judgment is affirmed. We decline to assess costs of this appeal against Brian Lewis under the facts of this case. See LSA-R.S. 23:1692.

RULE TO SHOW CAUSE ORDER RECALLED; APPEAL MAINTAINED; JUDGMENT AFFIRMED.

      The exact name of Lewis's employer is unclear from the record. While the Louisiana Workforce Commission listed Lewis's employer as "Wal Mart Associates Inc.," the Exit Interview Form completed on Lewis's last day of employment lists "Wal-Mart Stores, Inc." as his employer. Additionally, a brief was filed in the district court by "Sam's East, Inc." as "[r]espondent," averring that it had been improperly named as "Sam Club Store" and asking the court to affirm the denial of unemployment benefits to Lewis.

      Instead, in a closing statement, Lewis argued that he had done a great job at Sam's Club and that he had done his job according to the policy and procedures.
      Additionally, we note that in his petition for judicial review, Lewis stated that he was attaching to his petition statements from Sam's Club customers, which allegedly show that Lewis refused to accept money tips offered to him, and he attached three such written statements to the petition. The usual rules of evidence, including the rules regarding hearsay, do not apply to an unemployment compensation hearing. LSA-R.S. 23:1631, LAC 40:IV.115(C) & (D), Woods v. Cameco Industries, Inc., 2001-0298 (La. App. 1st Cir. 3/28/02), 815 So.2d 370, 375, While at the beginning of the April 13, 2017 telephone hearing, Lewis indicated to the ALJ that he had "sent in ... about two hundred pages of evidence," the transcript of the hearing indicates that only one written statement, that of a Shellie (or Shelley) Jones, was admitted into evidence at the telephone hearing. In this statement, which bears a date of January 5, 2016, Jones indicated that Lewis did not want a tip, but she "made him take it." Additionally, we note that even if all of these statements had been considered at the administrative level, they have no bearing on the events that occurred on the date Lewis's employment was terminated.


author: STONE, J.

text:
    Timothy SMITH, Plaintiff-Appellee v. Derrick KEPNEY and EAN Holdings, LLC and Bernard Kinsey and Safeway Insurance Company of Louisiana, Defendant-Appellant
    No. 52,455-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 16, 2019
    STAFF COUNSEL FOR SAFEWAY INSURANCE COMPANY, By: W. Brett Cain, Counsel for Appellants Safeway Insurance Company and Bernard Kinsey
    OFFICE OF F.Q. HOOD, JR., APLC, By: Christopher C. Broughton, Bossier City, Counsel for Appellee Timothy Smith
    STEPHEN T. COLLINS & ASSOCIATES, APLC, By: Stephen Thomas Collins, SEABAUGH, JOFFRION, AND SEPULVADO, By: Alan Thomas Seabaugh, Shreveport, Counsel for Appellee State Farm Mutual Automobile Insurance Company
    Before MOORE, STONE, and COX, JJ.
   STONE, J.

The appellant-defendant, Safeway Insurance Company of Louisiana, appeals that portion of the trial court judgment which granted the plaintiff, Timothy Smith, $5,295 in diminution of value damages. For the following reasons, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On July 2, 2015, a chain reaction occurred when a 1993 Honda Civic, operated by defendant Bernard Kinsey ("Kinsey") and owned by his wife, Devonda Kinsey, rear-ended a 2015 Jeep Patriot driven by defendant Derrick Kepney ("Kepney"). Kepney's vehicle then rear-ended a 2014 Chevy Camaro owned and operated by plaintiff, Timothy Smith ("Smith"). Smith's 2014 Chevy Camaro ("Camaro") was initially repaired at Brock's Collision Center; however, upon completion of the repair, Smith was not satisfied with the paint job. He then took his car to Red River Collision Center, where the paint job was correctly repaired.

On November 3, 2015, Smith filed a suit for damages naming as defendants Kepney and Kepney's insurer, EAN Holdings, L.L.C. ("EAN"), and Kinsey and Kinsey's insurer, Safeway Insurance Company ("Safeway"). On November 17, 2015, Kepney filed an answer denying the allegations set forth in Smith's petition. On November 25, 2015, EAN filed an answer to Smith's petition for damages denying the allegations set forth in the petition, and specifically pleading the affirmative defense of the sudden emergency doctrine. Finally, on December 8, 2015, Safeway filed its answer to Smith's petition for damages.

At trial, Smith testified that he considered selling the Camaro, and purchasing a new vehicle, but he chose instead to keep the Camaro.

However, Smith did maintain the possibility of selling the Camaro in the future. David Vandergracht ("Vandergracht"), an automotive appraisal and diminished value damages expert, testified that he examined the Camaro and determine a diminished value of the vehicle of $5,295. Vandergracht testified that he arrived at that calculation by taking into consideration the value of the vehicle, the amount of damage, the severity of damage, and the mileage of the vehicle.

On August 23, 2017, after a trial on the merits, the trial court found Kinsey to be 100% at fault for the accident. In addition, the trial court assessed damages, and awarded Smith $5,295 in diminution of value damages. The final judgment of the trial court was signed on January 30, 2018, and Safeway suspensively appealed on February 21, 2018.

DISCUSSION

On appeal, Safeway advances three assignments of error pertaining to trial court's award of diminished value damages. The crux of this appeal and the substance of each assignment of error hinges upon whether the trial court abused its discretion in awarding $5,295 in diminished value damages, and therefore, we will address these issues together.

Standard of Review

The trier of fact has much discretion in the assessment of damages, and an appellate court will only disturb such awards when there has been a clear abuse of that discretion. Theriot v. Allstate Ins. Co ., 625 So.2d 1337, 1340 (La. 1993). Appellate courts review the evidence in the light most favorable to the prevailing party to determine whether the trier of fact was clearly wrong in its conclusions. Theriot, supra ; Saunders v. ANPAC La. Ins. Co ., 43,405 (La. App. 2 Cir. 8/13/08), 988 So.2d 896.

Under this standard, determinations of fact are entitled to great deference on review. McGlothlin v. Christus St. Patrick Hosp ., 10-2775 (La. 07/01/11), 65 So.3d 1218 ; Guillory v. Lee , 09-0075 (La. 06/26/09), 16 So.3d 1104. The linchpin is whether the trial court's findings are reasonable; even if the appellate court feels its own evaluation of the evidence is more reasonable, the trial court's findings cannot be reversed if they are in fact reasonable. Lewis v. State, Through DOTD , 94-2370 (La. 04/21/95), 654 So.2d 311. In other words, the appellate court may not reverse simply because it is convinced that, had it been sitting as a trier of fact, it would have ruled differently. Id . If there are two permissible views of the evidence, the factfinder's choice between them can virtually never be manifestly erroneous or clearly wrong. Id .

However, where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. Ferrell v. Fireman's Fund Ins. Co ., 94-1252 (La. 2/20/95), 650 So.2d 742, 747, rev'd in part, on other grounds , 96-3028 (La. 7/1/97), 696 So.2d 569, reh'g denied , 96-3028 (La. 9/19/97), 698 So.2d 1388. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. See Lasha v. Olin Corp ., 625 So.2d 1002, 1006 (La. 1993). Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. See Lasha , 625 So.2d at 1006 ; Evans v. Lungrin , 97-0541 (La. 2/6/98), 708 So.2d 731, 735.

In its brief, Safeway contends that this court should conduct an independent de novo review of the record. We disagree. Instead, we find that the record is devoid with any facts that specifically give rise to any legal error which interdicts that fact finding process and triggers an independent de novo review of the record. For that reason, manifest error is the applicable standard with which we evaluate the appellant's assignments of error.

Diminished Value Damages

As a general rule, recovery in cases of damages to an automobile is limited to cost of repair. Thiery v. Motors Ins. Corp. , 255 So.2d 181 (La. App. 3 Cir. 1971) ; Cloney v. Travelers Ins. Co ., 253 So.2d 83, 94 (La. App. 1 Cir. 1971), writ denied , 259 La. 871, 253 So.2d 212 (1971). Where, however, a vehicle is totally destroyed, or so badly damaged that the cost of repair exceeds its value, the measure of damages is the value of the vehicle less its salvage value. Bernard v. Fidelity & Cas. Co. of N.Y. , 186 So.2d 904 (La. App. 1 Cir. 1966) ; Cloney, supra .

Where an award of cost of repair is the measure of damages in a case involving damages to an automobile, additional damages may be recovered for diminution of value by virtue of the vehicle having been involved in an accident, provided proof of such diminished value be made . Gary v. Allstate Ins. Co ., 250 So.2d 168 (La. App. 1 Cir. 1971) (emphasis added).

Where the measure of damages is the cost of repairs, damages for depreciation are also recoverable where there is sufficient evidence presented as to the amount that the vehicle decreased in value solely due to being involved in a collision. Romco, Inc. v. Broussard , 528 So.2d 231, 234 (La. App. 3 Cir. 1988), writ denied , 533 So.2d 356 (La. 1988).

Louisiana law does not presume that there is inherent diminution in value involved in every automobile accident. Defraites v. State Farm Mut. Auto. Ins. Co ., 03-1081 (La. App. 5 Cir. 1/27/04), 864 So.2d 254, 261, writ denied , 2004-0460 (La. 3/12/04), 869 So.2d 832. Any plaintiff seeking to recover diminution in value must individually allege and prove that loss. Defraites, supra . As with other tort claims, no mechanical rule can be applied in the assessment of property damages claims and the claims must be assessed on a case-by-case basis. Coleman v. Victor , 326 So.2d 344 (La. 1976) ; Davies v. Auto. Cas. Ins ., 26,112 (La. App. 2 Cir. 12/7/94), 647 So.2d 419.

In its brief, Safeway argues that the court erred in awarding the plaintiff diminished value damages because the plaintiff, Smith, has not suffered an actual loss as a result of the diminished value of the vehicle. Furthermore, Safeway contends, Smith has been unjustly enriched at its expense because the loss for diminution of value may never be realized since Smith elected to retain his vehicle. For that reason, Safeway desires that this court recognize actualization of loss as an essential, required element in consideration of diminished value damage claims. We disagree.

A careful examination of Louisiana jurisprudence reveals that state courts have consistently recognized and awarded damages for diminution of value where the plaintiff offers proof of such depreciation without requiring additional proof of actualization of loss.

The issue of diminution of value was first recognized in the cases Dupuy v. Graeme Spring & Brake Service, Inc ., 19 So.2d 657 (La. App. Orl. Cir. 1944), and Day v. Roberts , 55 So.2d 316 (La. App. 2 Cir. 1951), in which state appellate courts found that a plaintiff may recover damages for depreciation if such a claim is set forth in the plaintiff's petition. Furthermore, in the case Gary, supra the First Circuit opined that the plaintiff has the duty and obligation to obtain estimates and appraisals as to the value of his vehicle immediately following the accident so as to establish his claim for damages.

In Orillac v. Solomon , 33,701 (La. App. 2 Cir. 8/23/00), 765 So.2d 1185, this court affirmed an award of diminished value damages where the manager of the car dealership where the plaintiff originally purchased the damaged vehicle offered testimony of the estimated depreciation of the vehicle, and the defendant failed to introduce any evidence to the contrary. Conversely, in Giles Lafayette, Inc. v. State Farm Mut. Auto. Ins. Co. , 467 So.2d 1309 (La. App. 3 Cir. 1985), writ not considered , 472 So.2d 911 (La. 1985) the Third Circuit reversed a damage award for depreciation where none of the plaintiff's witnesses' testimonies established any evidence of the amount of decrease in the value of the vehicle.

In his oral reasons for judgment, the trial judge cited the cases: Smith v. Midland Risk , 29,793 (La. App. 2 Cir. 9/24/97), 699 So.2d 1192 ; Romco, supra ; and Davies, supra . In Smith , this court affirmed an award of diminished value damages where the plaintiff and defendant both called expert witnesses to offer their opinion regarding the depreciation of the plaintiff's vehicle, and the trial court exercised its discretion in finding the plaintiff's expert more credible.

Conversely, in Davies , this court reversed an award of diminished value damages because such an award placed the plaintiff in a superior position to profit from the accident. Similarly, in Romco , the Third Circuit found that a plaintiff was not entitled to an award for the diminished value of a vehicle where the vehicle was sold rather than repaired after an accident, stating that a proper award for depreciation contemplates an award for a decrease in a vehicle's value after being repaired. Romco, supra .

Analysis

In applying the principles set forth in the above-referenced cases, we find that the trial court did not abuse its discretion in awarding Smith $5,295 in diminished value damages. First, the facts clearly indicate that Smith was eligible to make a claim for diminution in value because the measure of damages in the case at bar consisted of repairing the damage to his Camaro. In addition, the record reveals that the expert evidence offered by Smith is similar to the evidence offered in the above-cited cases. Here, Smith offered proof of his claim of diminution in value through the testimony and value report of Vandergracht who was qualified as an expert in automotive appraisal and diminished value damages by the trial court.

As such, in using the rationale from this court in Orillac , the opportunity to attack the reliability and credibility of the evidence Smith offered as proof of diminution of value of his Camaro was previously made available to Safeway at trial. The record shows that the trial judge inquired as to whether Safeway wished to offer evidence to counter the expert opinion of Vandergracht, and Safeway declined. Consequently, we think that it is not the duty of this court to preserve Safeway's opportunity to counter evidence presented at trial, and we decline to burden Smith with proving an additional requirement of actualization of loss as basis to invalidate the trial court's award for diminution of value damages.

Therefore, although the issue of actualization of loss is a legitimate consideration, we find that the facts of our present case are not dissimilar from the factual scenarios presented in the above-referenced cases. For that reason, we think it is unnecessary, at this juncture, to formulate any additional refinements and/or requirements beyond what other Louisiana state courts have considered as sufficient proof of such diminished value.

CONCLUSION

For the foregoing reasons, we affirm that portion of the trial court judgment which granted the plaintiff, Timothy Smith, $5,295 in diminished value damages. Costs of this appeal are assessed to the appellants, Safeway Insurance Company of Louisiana.

AFFIRMED.