author: PER CURIAM

text:
    Raphael PARCILLA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2980
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 2, 2018
    James S. Purdy, Public Defender, and Glendon George Gordon, Jr., Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM

We reverse due to the trial court's failure to comply with Florida Rules of Criminal Procedure 3.210(a) and 3.212(c)(7). The trial court ordered that Parcilla be evaluated for competency but failed to conduct a hearing before trial or enter a written order.

"A person accused of an offense ... who is mentally incompetent to proceed at any material stage of a criminal proceeding shall not be proceeded against while incompetent." Fla. R. Crim. P. 3.210(a). "If, at any time after such commitment, the court decides, after hearing, that the defendant is competent to proceed, it shall enter its order so finding and shall proceed." Fla. R. Crim. P. 3.212(c)(7).

We reverse and remand for the trial court to determine whether it can conduct a nunc pro tunc hearing regarding Parcilla's competency at the time of trial. See Rumph v. State, 217 So.3d 1092, 1094-96 (Fla. 5th DCA 2017). If it is possible to do so, and the court determines that Parcilla was competent, then it shall enter a nunc pro tunc written order adjudicating him competent. Id. at 1096. If the court determines that Parcilla was incompetent, or if the court is unable to conduct a hearing, it shall vacate Parcilla's judgment and sentence. Id.

REVERSED and REMANDED WITH INSTRUCTIONS.

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


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Michael BOYINGTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2372
    District Court of Appeal of Florida, First District.
    November 6, 2018
    Michael Boyington, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is dismissed as an untimely, successive petition. See Fla. R. App. P. 9.141(d)(5) and (d)(6)(C).

Roberts, Makar, and Bilbrey, JJ., concur.


author: PER CURIAM.

text:
    Francis R. SWANSON, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D18-2522
    District Court of Appeal of Florida, First District.
    November 6, 2018
    Francis R. Swanson, pro se, Petitioner.
    Rana Wallace, General Counsel, and Mark Hiers, Assistant General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
   PER CURIAM.

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

ROWE, BILBREY, and WINSOR, JJ., concur.


text:
    Travis JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4711
    District Court of Appeal of Florida, First District.
    November 7, 2018
    Travis Jones, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

This court issued an order on September 14, 2018, directing Appellant to show cause why sanctions should not be imposed against him in view of his having instituted numerous repetitive, meritless proceedings in this court. See State v. Spencer , 751 So.2d 47 (Fla. 1999). Appellant has failed to respond or provide a legal basis to justify withholding imposition of sanctions.

Appellant is hereby prohibited from filing any pro se filings in this Court challenging his conviction and sentence imposed in Leon County Circuit Court case number 2006-CF-1004. The Clerk of this Court is directed to not accept any filings in this case unless they are signed by a member in good standing of the Florida Bar.

Additionally, we find this appeal is a frivolous proceeding brought before this Court by a state prisoner. See § 944.279(1), Fla. Stat. (2017). We direct the clerk to forward a certified copy of this opinion to the appropriate institution or facility within the Florida Department of Corrections for disciplinary procedures pursuant to department rules.

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


text:
    Michael Lawrence CASSIDY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2432
    District Court of Appeal of Florida, First District.
    November 7, 2018
    Michael Lawrence Cassidy, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

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


text:
    Arrion Deshawn BLUE, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-3256
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 9, 2018
    Leon B. Cheek, III, Assistant Regional Counsel, Office of Regional Criminal Conflict, Casselberry, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the August 20, 2018 judgment and sentence rendered in Case No. 2017-CF-001938-A, in the Circuit Court in and for Seminole County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

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


text:
    Lawrence William PATTERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1421
    District Court of Appeal of Florida, First District.
    November 7, 2018
    Lawrence William Patterson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

Rowe, Bilbrey, and Winsor, JJ., concur.


text:
    Anthony D. WASHINGTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3661
    District Court of Appeal of Florida, First District.
    November 7, 2018
    Anthony D. Washington, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

Rowe, Bilbrey, and Winsor, JJ., concur.


text:
    Christopher COLLIER, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-2143
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 9, 2018
    Christopher Collier, Graceville, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the February 22, 2018, judgment and sentence rendered in Case No. 2017-CF-776 in the Circuit Court in and for Hernando County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, EDWARDS and EISNAUGLE, JJ., concur.


text:
    Edward REEDER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3999
    District Court of Appeal of Florida, First District.
    November 9, 2018
    Edward Reeder, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Wetherell, Makar, and Winsor, JJ., concur.


text:
    CONVERGENT TECHNOLOGIES, INC., Appellant, v. Jasper STONE, Kurt A. Bernard, Paul R. Hutchinson, and Michael D. Fleming, Appellees.
    No. 1D18-389
    District Court of Appeal of Florida, First District.
    November 13, 2018
    Jeremy C. Branning, Daniel E. Harrell, and Andrew M. Spencer of Clark Partington, Pensacola, for Appellant.
    Ralph A. Peterson, Marcus A. Huff, and John R. Zoesch, III, of Beggs & Lane, RLLP, Pensacola, for Appellees.
   Per Curiam.

Appellant, Convergent Technologies, Inc. ("CTI"), the plaintiff below, appeals the trial court's Decision and Order Granting Motion for Summary Judgment, which entered final summary judgment in favor of Appellees, defendants below, in a lawsuit alleging breaches of non-solicitation agreements. Having considered the depositions, affidavits, and other materials of record in a light most favorable to CTI as the non-moving party, see Brookie v. Winn-Dixie Stores, Inc. , 213 So.3d 1129, 1131 (Fla. 1st DCA 2017), we conclude that the trial court erred in entering summary judgment, and reverse.

I.

CTI provides cyber-security training both as a prime contractor and subcontractor with the United States government. George Dands is CTI's president.

Acting in the latter capacity in 2010, CTI entered into a subcontract with Telecommunications Systems, Inc. ("TCS"), to provide instructors for a Joint Cyber Analysis Course ("JCAC"), a beginner's level cyber-security program for Navy personnel at Cory Field in Pensacola, Florida. Over the course of three years, CTI hired Appellees Paul Hutchinson, Kurt Bernard, Jasper Stone, and Michael Fleming as instructors for the JCAC job. Each appellee signed an employment contract with CTI that contained a non-solicitation clause. Although CTI refined the wording of the clauses over the years as each Appellee was hired, the following clause contained in Paul Hutchinson's contract-the first hire-conveys the gist of the other non-solicitation agreements:

In accordance with contract guidelines, I also agree that I will not solicit employment with any other company associated with the JCAC contract during the customer review period, full-time employment period, or a six month post employment [sic] period.

In his affidavit, George Dands claimed that CTI required Appellees to execute the non-solicitation agreements primarily for the following four reasons: (1) the considerable resources expended in recruiting and "on-boarding" Appellees for the JCAC project; (2) the fact that Appellees would be managed remotely from CTI's Maryland headquarters; (3) the significant training expense and time CTI would incur in replacing Appellees on the project; and (4) the fact that CTI's relationship with TCS required the non-solicitation agreements as "a term of employment."

Along with CTI, TCS had a number of other subcontractors to support its efforts on the JCAC contract. One of the other subcontractors was Epsilon, Inc. ("Epsilon"). Under the terms of the contract between TCS and CTI, the companies agreed they would not solicit or hire each other's employees who provided services under the JCAC contract. There was no similar agreement between CTI and Epsilon, or between it and any of the other subcontractors on the JCAC job. That fact served as the proverbial "crack in the door" through which slid employment negotiations between Appellees and Epsilon. In light of the non-solicitation clauses, the crux of the motion for summary judgment was who solicited whom for employment.

In his affidavit, Christopher Gaukel asserted that prior to March 2016, he worked for Epsilon as the lead instructor and considered himself to be "work friends" with Paul Hutchinson. Gaukel stated that Hutchinson told him he was frustrated with, and had concerns about, his employment with CTI regarding pay rates, health insurance, training courses, and the "complete lack of response and communication from CTI senior management and its owner, George Dands." Gaukel "encouraged" Hutchinson to "reach out" to Keith Pabst, TCS's project manager on the JCAC project.

In addition, around September 2013, Gaukel informed Peter Penzell-Epsilon's Chief Executive Officer-about "some of the issues employees with CTI were having with CTI's management," based on his conversations with Hutchison. Gaukel told Hutchinson that Penzell might contact him about a potential employment opportunity with Epsilon. Hutchinson told Gaukel he would be "interested in taking the call."

In his affidavit, Penzell explained that problems with management, such as Hutchinson had described, "could cause employees to resign," a "situation" that might "adversely affect the ability of TCS and the subcontractors to continue to provide and deliver to the United States government the high level of instructor services required under the JCAC Contract." Accordingly, Penzell said he called Keith Pabst, who-without naming names-"confirmed that the four CTI employees were very unhappy and that CTI had been unresponsive" to their concerns. Penzell added that Pabst had "noted that each of the CTI employees had come to him about their problems and concerns, including lack of communication, unpaid expense report costs, lack of training, lapses in health insurance benefits and other discrepancies, including improper 401K contributions and matching." When Penzell asked Pabst whether TCS would fill the positions if the CTI employees resigned, Pabst informed him that the provisions in the contract between CTI and TCS prohibited each company from hiring the other's employees. Penzell responded, " 'Nothing prevents me from hiring these guys.' " Accordingly, Penzell contacted his recruiter, Michael Kane, and assigned him the task of contacting Hutchinson and proposing that he come to work for Epsilon. Kane interviewed Hutchinson and reported back to Penzell that Hutchinson was willing to speak with Epsilon.

When deposed, Hutchinson admitted that he had spoken to Kane, who told him that he would pass on the information to Penzell. During a phone call from Penzell, Hutchinson shared with him the same issues he had discussed with Kane-his qualifications, experience, and his concerns with CTI. During the call, Hutchinson also expressed his concern about the non-solicitation agreement he had signed with CTI. Hutchinson scanned and emailed a copy of the agreement to Epsilon for its lawyers to review. When the call with Penzell ended, Hutchinson was left with the "understanding that this was not necessarily a simple situation," but that they would continue to talk about the possibility of hiring.

Hutchinson went on to testify that the next time he spoke with Penzell, Penzell informed him that the non-solicitation agreement was "laughable" and Epsilon would pay his legal fees if necessary. Penzell then asked Hutchinson if there were other disaffected CTI employees on the JCAC contract. Hutchinson named Stone, Fleming, and Bernard, who were experiencing the same frustrations working for CTI. Hutchinson could not remember how that call with Penzell ended, but he estimated that between their first conversation and when he received an offer of employment from Epsilon, he spoke to Penzell no less than ten times. Hutchinson estimated that he had been a part of about a dozen "personal conversations" with Stone, Fleming, and Bernard concerning potential employment with Epsilon.

Jasper Stone testified in deposition that he first spoke to Keith Pabst about his complaints with CTI in October 2013, and related that the others-Hutchinson, Bernard, and Fleming-all had the same complaints. He stated he had looked to Paul Hutchinson for guidance, as the JCAC job was his first government contract, and the two talked together with Pabst. According to Stone, Pabst told them he would get in touch with Dands and would let them know the result of the conversation. Stone admitted that in November 2013, he was involved in a four-way conversation between himself, Hutchinson, Fleming, and representatives from Epsilon on their personal cell phones outside the building where they were working for CTI. He said Pabst had asked him "in passing" if he would be interested in working for Epsilon.

Stone brought up the non-solicitation agreement and Pabst ended the conversation there. Stone then testified that it was Hutchinson who told him that Penzell wanted to have a phone conversation with them concerning employment. Stone again raised the non-solicitation clause and was told by Hutchinson that it was not they who were doing the soliciting; it was Epsilon who had initiated contact with them as a group and was interested in talking about employment. Stone maintained that it "might be hard to prove where the first contact came from," but insisted it "definitely" had been Epsilon soliciting them for employment. What ultimately eased his mind was his conversation with Penzell, who informed him Epsilon's general counsel had advised him that Florida law would not recognize the non-solicitation agreement because Florida is a "right to work" state and it had been Epsilon who had solicited them.

In early to mid-November 2013, Penzell asked Gaukel to reach out to Appellees for their contact information in order that he could speak to them directly about employment with Epsilon. By November 25, 2013, Penzell, himself, contacted Hutchinson, Stone, and Fleming and conveyed an offer of employment with Epsilon on the JCAC project. Penzell interviewed them, and all three discussed their work experience as CTI employees on the JCAC contract, while voicing their concerns with CTI. Penzell allayed their fears that CTI would take legal action against them for leaving its employ and going to work for Epsilon, but, again, assured them that Epsilon would pay their attorney's fees in the event of a lawsuit.

Hutchinson, Stone, and Fleming each expressed their willingness to accept employment with Epsilon. In his affidavit, Penzell said he explained to them that a formal written job offer would be conditioned on their being able to receive updated security clearances from the U.S. government. To obtain the updates, Hutchinson, Stone, and Fleming would have to provide Epsilon with updated "packages" for Standard Form 86-the Questionnaire for National Security Positions ("SF 86"). Epsilon provided the three men with the SF 86 clearance materials and coordinated their submission for forwarding to the government. No other documents, such as resumes, applications, or other personnel forms, were required of Appellees before they started work with Epsilon.

The last remaining CTI employee to be officially contacted by Epsilon was Kurt Bernard. It was in late November 2013 when Gaukel asked him about coming on board. Bernard said he was interested and would be willing to speak with Penzell. Gaukel informed Penzell of Bernard's response, but because Bernard did not hear from Penzell by early December, he contacted Fred Luke, a friend employed by Epsilon. Bernard explained to Luke that Gaukel had approached him about a job and asked Luke if he knew anything about the offer. Luke said he did not, but would check on the status of the matter. He subsequently informed Bernard that Bernard would be receiving a call soon.

When Bernard did not hear from Penzell by December 20, Luke suggested he call or convey his contact information. Bernard did the latter and Penzell called him, apologizing for not calling sooner. Penzell confirmed Epsilon's offer of employment to him and informed him Gaukel had been personally authorized by him to offer him a job with Epsilon. Nevertheless, during the conversation, Penzell directly indicated he would like to hire Bernard and advised him his job would be conditioned upon Epsilon's receipt of Bernard's updated SF 86 clearance. Epsilon staff members facilitated the paper work for Bernard, as it had done for the other three Appellees.

Jasper Stone was the first to begin working as an instructor in support of the JCAC contract for Epsilon, on January 17, 2014. Then, in February 2014, a "meet and greet" was held in Pensacola in order for Penzell to meet Appellees. Although Michael Fleming attended, he later flatly denied that there was any discussion about transitioning his employment to Epsilon during the gathering. Instead, he said the evening was for socializing, and later in the evening, they were joined by other Epsilon employees. Nevertheless, in March 2014, Fleming, along with Hutchinson and Bernard, resigned their positions with CTI and became employed by Epsilon as JCAC instructors.

II.

On June 3, 2014, CTI filed a complaint against Appellees to have the non-solicitation agreements enforced and treated as non-compete agreements, to enjoin Appellees from working for Epsilon or any other company associated with the federal government contract, and to recover damages for breach of contract. Appellees filed a motion for summary judgment on June 27, 2015. On September 9, the trial court entered a partial summary judgment in favor of Appellees on CTI's claim of breach of non-compete agreements, but found genuine issues of material fact remained on the question of the enforceability of the non-solicitation agreements, entitlement to relief and damages for breach of contract, and Appellees' affirmative defenses.

A hearing was held on the remainder of Appellees' motion for summary judgment on November 6, 2017, at which time the parties presented their arguments. Ultimately, the trial court granted Appellees' motion. In its Decision and Order Granting Motion for Summary Judgment, the trial court ruled:

[T]here is no genuine issue of material fact or law and [ ] the evidence presented in the record before the Court clearly shows that Epsilon solicited these Defendants, and not the converse. Defendants responded and eventually accepted offers from Epsilon. Defendants' conduct was what would be characterized as the normal job application processing for the job of an instructor on the JCAC Contract. Defendants' actions, as reflected in this case, were simply in response to Epsilon's offer of employment and were the process they had to go through to accept the job. Because Defendants did not engage in any proactive solicitation, although Epsilon did, Defendants did not violate or breach their non-solicitation agreements.

Pivotal to its decision was the trial court's rejection of CTI's argument that Scarbrough v. Liberty National Life Insurance Co ., 872 So.2d 283 (Fla. 1st DCA 2004), controlled and, under that opinion's analysis, that Appellees had engaged in sufficiently "proactive" conduct to constitute a breach of the non-solicitation agreements, regardless of who made the first contact. Instead, the trial court found "instructive and persuasive" the decision of the Indiana Court of Appeals in Enhanced Network Solutions Group, Inc. v. Hypersonic Technologies Corp. , 951 N.E.2d 265 (Ind. Ct. App. 2011), which distinguished its facts from the proactive conduct in Scarbrough . Applying the Indiana appellate court's analysis to the facts in the instant case, the trial court concluded there was "no genuine issue of material fact or law" and "the record clearly shows that Epsilon solicited these Defendants, and not the converse." For the reasons that follow, we respectfully disagree with the trial court's conclusion.

III.

An order granting summary judgment is reviewed de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P. , 760 So.2d 126, 130 (Fla. 2000).

The law is well settled in Florida that a party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought.... A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law....
If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences , or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it....

Moore v. Morris , 475 So.2d 666, 668 (Fla. 1985) (emphasis added) (citations omitted). As this Court accentuated in Bowman v. Barker , 172 So.3d 1013 (Fla. 1st DCA 2015) :

A summary judgment proceeding is not a trial by affidavit or deposition .... The movant must demonstrate conclusively that no genuine issue exists as to any material fact, and the court must draw every possible inference in favor of the party opposing summary judgment.... Moreover, "[A]ll doubts as to the existence of a genuine issue of material fact must be resolved against the moving party; if the slightest doubt remains , a summary judgment cannot stand."

Id. at 1015 (emphasis added) (citations and some quotation marks omitted) (quoting Brock v. Assocs. Fin., Inc. , 625 So.2d 135, 135-36 (Fla. 1st DCA 1993) ).

As we earlier remarked, the trial court resolved the question of who initiated solicitation as a matter of law by concluding that Enhanced Network Solutions Group -not Scarbrough -compelled the conclusion that Appellees did not proactively solicit employment with Epsilon. We appreciate the trial court's attempt to parse the legal issue central to Scarbrough by comparing it to an out-of-state appellate court's critique of our analysis, but Scarbrough is the controlling precedent in the First District and the trial court was bound to apply it. Pardo v. State , 596 So.2d 665, 666 (Fla. 1992) (holding that " '[t]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court,' " quoting Stanfill v. State , 384 So.2d 141, 143 (Fla. 1980) ). Even so, because the trial court felt compelled to locate another court's decision presenting different facts in order to distinguish those in Scarbrough exemplifies just how fact-driven this particular case is.

Initially, it is important to note that neither Scarbrough nor Enhanced Network Solutions Group were decided on motions for summary judgment. Enhanced Network Solutions Group involved an appeal from the trial court's order granting a declaratory judgment. The Indiana appellate court restated the issue as being "[w]hether the trial court erred when it found that Hypersonic did not solicit or induce an employee of ENS to terminate his employment in violation of the terms of the Sub-Contractor Agreement entered into between Hypersonic and ENS." 951 N.E.2d at 266. The appellate court reviewed the trial court's findings to determine whether they were supported by the evidence and also "considered only the evidence favorable to the judgment and all reasonable inferences to be drawn therefrom." Id. at 267 (emphasis added) (citations omitted). That standard of review clearly differs from the one we must employ in reviewing the instant summary judgment order, where every possible inference must be resolved in favor of CTI, the party opposing summary judgment. Brookie , 213 So.3d at 1131.

In turn, Scarbrough was an appeal from an order temporarily enjoining Scarbrough from soliciting the sale of insurance to customers of Liberty National Life Insurance, Scarbrough's former employer. Again, the standard of review differed. On appeal, it was whether the trial court abused its discretion. But apart from that, in Scarbrough we adopted the definition of "solicit" from Black's Law Dictionary to be applied to non-solicitation cases. We concluded that "[i]t reasonably appears [ ] that a person may, in appropriate circumstances, solicit another's business regardless of who initiates the meeting" because "the term 'solicit' in an agreement prohibit[s] the employee from being 'proactive' in such efforts." Id. at 285 (citing J.K.R., Inc. v. Triple Check Tax Serv. , 736 So.2d 43, 44 (Fla. 1st DCA 1999) ). As a result, Scarbrough expanded the concept of direct solicitation to encompass conduct that, while less direct, is nonetheless more active than passive in nature.

We conclude that whether a defendant's behavior is proactive presents a question of fact for the trier of fact. Indeed, the question of whether Appellees were "proactive" in soliciting employment with Epsilon is just as unsuitable for resolution on a motion for summary judgment as was the fraud claim in Bowman, for the reason that it is "a subtle thing requiring a full explanation of the facts and circumstances of the alleged wrong[.]" 172 So.3d at 1017 (internal quotation marks omitted) (quoting Palmer v. Santa Fe Healthcare Sys., Inc. , 582 So.2d 1234, 1236 (Fla. 1st DCA 1991) ).

For instance, in the present case, the essence of Hutchinson's deposition testimony and Gaukel's affidavit draws forth the reasonable inference that Hutchinson, along with the other Appellees, might have been complaining just a little too loudly about employment woes with CTI in a working environment where everyone involved knew there was more than one subcontractor on the job to hear their protests. Furthermore, Hutchinson's round-up of the other three Appellees also is subject to a reasonable inference that there might have been a concerted plan to leave CTI for Epsilon. And, Penzell's act of referring the issue of the non-solicitation agreements to his company's legal team because of concerns expressed by Appellees suggests a general acknowledgment of a potential conflict with the agreements, despite Penzell's disparaging opinion that CTI's non-solicitation clauses were "laughable." Those facts, alone, go a long way toward "permit[ing] different reasonable inferences," and, moreover, they "tend[ ] to prove the issues." Moore , 475 So.2d at 668.

It is also worth noting that this is not a case where the issue is resolved based on the interpretation of the contractual language, or turns on the enforceability of the non-solicit/non-compete clause. Cf. White v. Mederi Caretenders Visiting Servs. of Se. Fla., LLC , 226 So.3d 774 (Fla. 2017) ; Henao v. Prof'l Shoe Repair, Inc. , 929 So.2d 723 (Fla. 5th DCA 2006) ; Univ. of Fla., Bd. of Trs. v. Sanal , 837 So.2d 512 (Fla. 1st DCA 2003). Instead, whether the terms of the non-solicitation agreements were violated here is largely predicated on the inferences to be drawn from the facts of Appellees' behavior prior to, and during, their negotiations with Epsilon. On that point, we hold that the facts contained in the depositions, affidavits, and other papers of record are not "so crystallized that nothing remains but questions of law." Moore , 475 So.2d at 668. Instead, they raise a legitimate doubt so that " 'a summary judgment cannot stand ....' " Bowman , 172 So.3d at 1015 (emphasis added) (quoting Brock , 625 So.2d at 135-36 ).

Consequently, the Decision and Order Granting Motion for Summary Judgment is reversed and the cause is remanded for further proceedings on CTI's Amended Complaint.

REVERSED and REMANDED .

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


text:
    Damon MCKINLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3871
    District Court of Appeal of Florida, First District.
    November 9, 2018
    Damon McKinley, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Wetherell, Makar, and Winsor, JJ., concur.


text:
    Ryan C. TORRENS, Appellant, v. Sean SHAW, Ken Detzner, in his official capacity as the Secretary of State; Department of State, Division of Elections, Appellees.
    No. 1D18-3600
    District Court of Appeal of Florida, First District.
    November 13, 2018
    Jared James McCabe of The McCabe Law Firm, Tampa; Dineen Pashoukos Wasylik, DPW Legal, Tampa, for Appellant.
    Andrew J. Baumann, Robert P. Diffenderfer of Lewis Longman & Walker, P.A., West Palm Beach, and Natalie A. Kato of Lewis Longman & Walker, P.A., Tallahassee, for Appellees.
   Per Curiam.

Appellant, Ryan Torrens, seeks review of a final judgment granting declaratory and injunctive relief, which disqualified him as a candidate for the Democratic nomination for Attorney General. We previously stayed the final judgment, and we now reverse.

On June 21, 2018, Ryan Torrens submitted the items listed in section 99.061(7), Florida Statutes (2017), and qualified as a candidate for the Democratic nomination for Attorney General. One of the items he submitted was a check from the Ryan Torrens for Attorney General Campaign Account in the amount of $7,738.32.

In July, his opponent for the nomination, Sean Shaw, filed a complaint for declaratory and injunctive relief against Torrens. The complaint alleged that on June 18, prior to submitting his qualifying check, Torrens' campaign accepted a contribution of $4,000 from Francesca Yabraian, Torrens' wife, which the complaint alleged to be a prima facie violation of section 106.08(1)(a)1., Florida Statutes (2017). The complaint alleged that prior to receipt of the contribution, the Torrens campaign account did not hold enough funds to cover the qualifying fee, and Torrens would not have qualified as a candidate but for the illegal contribution. It further alleged that Torrens acted in bad faith and attempted to qualify as a candidate through fraudulent conduct expressly designed to corrupt the ballot. Torrens moved to dismiss the complaint for failure to state a cause of action, but the circuit court deferred ruling on the motion until trial.

On August 24, after a non-jury trial, the circuit court entered a final judgment granting declaratory and injunctive relief. The circuit court found that Torrens intentionally acted contrary to the campaign finance and qualifying laws.

Specifically, the circuit court found that Torrens knowingly possessed the unlawful funds for more than a month. But for the $4,000 remaining in the account from June 18 and beyond, the qualifying check would not have cleared and Torrens would not have qualified for the ballot. Noting that it had to determine whether Torrens properly met the qualifying criteria in section 99.061, Florida Statutes (2017), the court concluded that Torrens "acted improperly" in filling out the check and compounded his disregard for the law by not immediately refunding the excess amount.

The circuit court's order does not contain any authority supporting its ruling that Torrens failed to properly qualify as a candidate other than its non-specific reference to section 99.061. Section 99.061(7), relating to qualifying, provides:

(a) In order for a candidate to be qualified, the following items must be received by the filing officer by the end of the qualifying period:
1. A properly executed check drawn upon the candidate's campaign account payable to the person or entity as prescribed by the filing officer in an amount not less than the fee required by s. 99.092, unless the candidate obtained the required number of signatures on petitions pursuant to s. 99.095. The filing fee for a special district candidate is not required to be drawn upon the candidate's campaign account. If a candidate's check is returned by the bank for any reason, the filing officer shall immediately notify the candidate and the candidate shall have until the end of qualifying to pay the fee with a cashier's check purchased from funds of the campaign account. Failure to pay the fee as provided in this subparagraph shall disqualify the candidate.
2. The candidate's oath required by s. 99.021, which must contain the name of the candidate as it is to appear on the ballot; the office sought, including the district or group number if applicable; and the signature of the candidate, which must be verified under oath or affirmation pursuant to s. 92.525(1)(a).
3. If the office sought is partisan, the written statement of political party affiliation required by s. 99.021(1)(b).
4. The completed form for the appointment of campaign treasurer and designation of campaign depository, as required by s. 106.021.
5. The full and public disclosure or statement of financial interests required by subsection (5). A public officer who has filed the full and public disclosure or statement of financial interests with the Commission on Ethics or the supervisor of elections prior to qualifying for office may file a copy of that disclosure at the time of qualifying.

Shaw did not allege that Torrens failed to file any of the items listed above, nor did the trial court assert what particular section of the statute Torrens failed to follow. This case is distinguishable from Boatman v. Hardee , 254 So.3d 604, 2018 WL 4008818 (Fla. 1st DCA Aug. 23, 2018), where we recently upheld a declaratory judgment finding that a candidate for School Board of Madison County did not properly qualify as a candidate for election because he paid his qualifying fee using a cashier's check instead of the "check drawn upon the candidate's campaign account" as required by section 105.031(5)(a)1., Florida Statutes (2017). Here, there is no dispute that Torrens tendered "[a] properly executed check drawn upon the candidate's campaign account."

Rather, Shaw challenged the source of the funds in Torrens' campaign account, alleging that Torrens violated section 106.08. The remedies related to violating section 106.08 are very specific and limit when a violation may result in removal from the ballot. Section 106.19(1), Florida Statutes (2017), states it is a first-degree misdemeanor to knowingly and willfully accept a contribution in excess of the limits in section 106.08. The name of a candidate "shall not be printed on the ballot for an election if the candidate is convicted of violating s. 106.19." § 106.18(1), Fla. Stat. (2017) (emphasis added). However, "[e]xcept as otherwise expressly stated, the failure by a candidate to comply with the requirements of [chapter 106] has no effect upon whether the candidate has qualified for the office the candidate is seeking." § 106.19(4), Fla. Stat. (2017). Thus a private citizen's allegation of a violation of chapter 106 has no bearing on whether a candidate has properly qualified for office under section 99.061(7).

Our sister courts have also recognized that chapter 106 does not create a private right of action. For example, in Schurr v. Sanchez-Gronlier , 937 So.2d 1166, 1170 (Fla. 3d DCA 2006), the Third District found a candidate for circuit judge was in violation of section 106.021 for accepting a campaign contribution prior to appointing a treasurer and designating a primary campaign depository but found the candidate's removal from the ballot was not warranted. Schurr recognized that in Goff v. Ehrlich , 776 So.2d 1011 (Fla. 5th DCA 2001), the Fifth District held that section 106.021 does not provide for a private right of action. Schurr further noted that enforcement of chapter 106 was "within the purview of the Florida Elections Commission." Schurr, 937 So.2d at 1170. See also Cullen v. Cheal , 586 So.2d 1228 (Fla. 3d DCA 1991) (upholding order dismissing Cullen's complaint to enjoin the issuance of a certificate of election to successful candidate for County Commissioner, finding that private citizens did not have the power to enforce chapter 106). Accordingly, the circuit court erred in declaring that Torrens failed to properly qualify.

Accordingly, we reverse the final judgment on appeal. Given our disposition of Torrens' first argument on appeal, we do not find it necessary to address his remaining arguments.

Wolf, Kelsey, and Jay, JJ., concur.

      Torrens did not ultimately prevail in the August 28, 2018, primary election. We find the issue not to be moot because of potential incidental consequences that may arise out of the trial court's decision in this case.

      The order also deferred ruling on Shaw's motion to dismiss Torrens' amended counterclaim for libel. This counterclaim remained pending when the appeal was filed but has since been voluntarily dismissed.


text:
    Kristen Yvette KOHL f/k/a Kristen Yvette Rammacca, Appellant, v. Brent Nicholas RAMMACCA, Appellee.
    Case No. 5D17-2906
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 16, 2018
    Geoffrey D. Smith, Susan C. Smith, Tallahassee, and Stephen B. Burch, of Smith & Associates, Melbourne, for Appellant.
    James H. Fallace, and Andrew J. Williams, of Fallace & Larkin, L.C., Melbourne, for Appellee.
   PER CURIAM.

The former wife, Kristen Kohl, appeals an order granting in part and denying in part her amended motion to enforce. We agree that the trial court improperly awarded a setoff of $871 for dental bills paid by the former husband, Brent Rammacca. Pursuant to the final judgment of dissolution of marriage, the former husband was obligated to pay these bills. We further agree that the trial court improperly awarded a setoff of $2896.06 for monies voluntarily paid by the former husband for the purchase of a motor vehicle for one of the parties' minor children. See Onley v. Onley , 540 So.2d 880 (Fla. 3d DCA 1989) (holding that former husband was not entitled to credit of $2000 which represented cost of automobile given by former husband to parties' teenage son). The trial court's order is otherwise affirmed.

AFFIRMED, in part; REVERSED, in part; REMANDED.

EVANDER, BERGER and GROSSHANS, JJ., concur.


text:
    In the INTEREST OF R.B., J.B., and B.B., children.
    Department of Children and Families, Appellant, v. B.B. and T.D., Appellees.
    Case No. 2D17-1978
    District Court of Appeal of Florida, Second District.
    Opinion filed November 14, 2018
    Deborah Anne Schroth, Children's Legal Services, Jacksonville; and Stephanie C. Zimmerman, Children's Legal Services, Bradenton (substituted as counsel of record), for Appellant.
    Ita M. Neymotin, Regional Counsel, Fort Myers, and Joseph Thye Sexton, Assistant Regional Counsel, Tampa, for Appellee B.B.
    No appearance for Appellee T.D.
   PER CURIAM.

The Department of Children and Families appeals a shelter order that denied its petition to shelter the three children of B.B. (Father) and T.D. (Mother). We treat the appeal as a petition for writ of certiorari and deny the petition.

Denied.

KELLY, SLEET, and BADALAMENTI, JJ., Concur.


author: PER CURIAM:

text:
    STATE EX REL. Roosevelt HOLMES v. STATE of Louisiana
    No. 2017-KH-1707
    Supreme Court of Louisiana.
    November 20, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

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


text:
    STATE of Louisiana v. Forest HAMMOND
    No. 2018-KP-0352
    Supreme Court of Louisiana.
    November 20, 2018
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated at least two 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 successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    IN RE: Scott Robert HYMEL
    NO. 2018-OB-1680
    Supreme Court of Louisiana.
    November 20, 2018
    ORDER
   The Office of Disciplinary Counsel ("ODC") filed formal charges against respondent, alleging that he violated Rules 1.3, 1.4, 8.1(c), 8.4(a), 8.4(b), and 8.4(c) of the Rules of Professional Conduct. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent's petition.

Having considered the Petition for Permanent Resignation from the Practice of Law filed by Scott Robert Hymel, Louisiana Bar Roll number 26344, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Scott Robert Hymel for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.

IT IS FURTHER ORDERED that Scott Robert Hymel shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.


text:
    STATE of Louisiana v. Norris L. GUIDRY
    No. 2018-KH-1581
    Supreme Court of Louisiana.
    November 20, 2018
    ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF ACADIA
   PER CURIAM:

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

Relator has now fully litigated several 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. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF ACADIA

CRICHTON, J., additionally concurs and assigns reasons:

While I agree with this Court's writ denial and related finality order, I write separately to express my opinion that the Habitual Offender Law was correctly applied in the present case. I have previously expressed concern that "use of the Habitual Offender Law by prosecutors should be cautiously exercised with reasonable discretion." State v. Ellison , 2018-0053, p. 6 (La. 10/29/18), 255 So.3d 568, 572, 2018 WL 5629078, at *6 (Crichton, J., additionally concurring) (citing State v. Guidry , 2016-1412 (La. 3/15/17), 221 So.3d 815, 831 (Crichton, J., additionally concurring); State v. Hickman , 2017-0142 (La. 9/29/17), 227 So.3d 246, 247, reconsideration not considered , 2017-0142 (La. 11/28/17), 230 So.3d 224 (Crichton, J., additionally concurring); State v. Hagans , 2016-0103 (La. 10/17/16), 202 So.3d 475 (Crichton, J., additionally concurring); State v. Ladd , 2014-1611 (La. 3/27/15), 164 So.3d 184 (Knoll, J., additionally concurring and Crichton, J., additionally concurring for the reasons assigned by Justice Knoll) ).

However, it is my view that the use of the Habitual Offender Law is appropriate for public policy and safety reasons to enhance sentences of convicted felons who repeatedly commit non-violent felony crimes when such recidivism arises to egregious levels. Here, although none of the defendant's previous nine felony convictions are "crimes of violence" as defined by La. R.S. 14:2, the defendant is a proven recidivist to whom the application of a 20-year habitual offender sentence-which is notably the minimum possible sentence under La. R.S. 15:529.1(A)(4) for an adjudicated fourth felony offender-is not unconstitutionally excessive.


text:
    STATE of Louisiana v. Michael ROBERTSON
    No. 2018-KK-0970
    Supreme Court of Louisiana.
    November 20, 2018
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF E. BATON ROUGE
   PER CURIAM:

Writ granted. When the State was unable to successfully e-file its writ application, the State attempted to comply with Local Rule 8 M(2) of the First Circuit by filing a hard copy of its document. Local Rule 8 M(2) provides:

A party may not be afforded relief for any delay or other problem attributable to the party's actions or use of the Court's computer system. If timeliness is of concern to the party, and the party has not received an acknowledgement email stating the document has been successfully uploaded to the Court's computer system, the party should file a hard copy of the document in accordance with Uniform Rule 2-13.

The court of appeal, however, declined to consider the State's writ application because it lacked the verifying affidavit required by Uniform Rules-Courts of Appeal, Rule 4-5(A). We find the court of appeal's interpretation of its Local Rule 8, which makes no reference to Uniform Rule 4-5 or any rule other than Uniform Rule 2-13, to be unreasonable. At the minimum, we find the court of appeal should afford a party the opportunity to conform to the affidavit requirements before declining to consider a timely filed hard copy of an unsuccessful e-filing. Accordingly, we vacate the court of appeal's ruling, and remand with instructions to consider the merits of the State's application from the district court's ruling that granted the defendant's motion to suppress.

VACATED AND REMANDED


text:
    STATE EX REL. Mohammed COLLINS v. STATE of Louisiana
    No. 2017-KH-1528
    Supreme Court of Louisiana.
    November 20, 2018
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ;

State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

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


text:
    Alton W. STEWART, Jr. v. BP AMOCO CHEMICAL COMPANY, et al.
    NO. 2018-CC-1521
    Supreme Court of Louisiana.
    November 20, 2018
    ON SUPERVISORY WRITS TO THE FOURTEENTH JUDICIAL DISTRICT COURT FOR THE PARISH OF CALCASIEU
   PER CURIAM

Granted. We find the district court abused its discretion by denying relators' exception of lack of personal jurisdiction as a sanction for failure to comply with discovery. See generally Horton v. McCary , 93-2315 (La. 4/11/94), 635 So.2d 199. Accordingly, the judgment of the district court is vacated and set aside insofar as it denies the exception as a sanction. The case is remanded to the district court for imposition of a less drastic sanction and for reconsideration of the exception of lack of personal jurisdiction on the merits.

      The district court's judgment is somewhat confusing because it denies the exception as a sanction but also purports to deny it on the merits. Without expressing any opinion on the merits of the exception, we find it appropriate to vacate the judgment of the district court in its entirety with regard to the exception and remand the matter for reconsideration of the exception.


text:
    STATE of Louisiana v. Tracy COMMON
    No. 2017-KP-1394
    Supreme Court of Louisiana.
    November 20, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator's sentencing claims are not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; see also State v. Cotton , 09-2397 (La. 10/15/10), 45 So.3d 1030 ; State v. Thomas , 08-2912 (La. 10/16/09), 19 So.3d 466.

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


text:
    STATE of Louisiana v. Lawrence JACOBS and Roy Bridgewater
    No. 2018-KP-0958
    Supreme Court of Louisiana.
    November 20, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Granted. The district court's ruling is reversed and matter is remanded for further proceedings. The state has provided open-file discovery in connection with the resentencing hearings to be conducted in accordance with La.C.Cr.P. art. 878.1.


text:
    STATE EX REL. Robert Dale WILSON v. STATE of Louisiana
    No. 2017-KH-1579
    Supreme Court of Louisiana.
    November 20, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

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

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


text:
    STATE of Louisiana v. Jermaine JACKSON
    No. 2018-KK-1135
    Supreme Court of Louisiana.
    November 20, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Writ granted. Two officers approached defendant, who stood on the sidewalk among a group of seven persons at night in a high crime area, because the group strongly smelled of burning marijuana, which gave the officers reasonable suspicion to conduct a brief investigatory stop pursuant to Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under the totality of the circumstances presented here, the officers also had a reasonable, objective and particularized basis for conducting a pat-down frisk of defendant. See State v. Sellers , 34,968 (La. App. 2 Cir. 9/26/01), 796 So.2d 158 (finding a frisk for weapons justified for officer safety in high crime area at night when officers were outnumbered following stop based on reasonable suspicion of criminal activity), writ denied , 01-2931 (La. 10/14/02), 827 So.2d 412. Before the pat-down was completed, defendant stated that he had a bag of marijuana and produced it for the officers. Defendant was then arrested, and a search incident to arrest revealed individually packaged heroin and a digital scale.

The district court granted defendant's motion to suppress the evidence because, inter alia, the possession of marijuana, while criminal, may result in the issuance of a summons rather than an arrest. The district court erred. An officer may arrest a person who commits a misdemeanor in the officer's presence. See La.C.Cr.P. art. 213 ; see also Atwater v. City of Lago Vista , 532 U.S. 318, 354, 121 S.Ct. 1536, 1557, 149 L.Ed.2d 549 (2001) ("If an officer has probable cause to believe an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender."). Defendant here, during a Terry stop based on reasonable suspicion, was found to be in possession of marijuana. Therefore, he was subject to arrest. Accordingly, we grant the state's application to reverse the district court's ruling that granted defendant's motion to suppress, and remand for further proceedings. In addition, the district court is directed to reconsider its ruling with regard to probable cause in light of the views expressed here.

REVERSED AND REMANDED

I respectfully dissent, finding the district court did not err in granting defendant's motion to suppress evidence.

In this case, two officers were on patrol and came across a group of approximately seven individuals, including the defendant. Officers claimed that as they were driving by with their windows down, they detected an odor consistent with marijuana. As officers approached the group, one individual allegedly responded "We had smoked earlier." One of the officers claimed defendant made the statement, however defendant asserted the officer's body camera footage clearly indicated a woman made the statement. The officers then conducted a pat down and search of three members of the group, including the defendant. The officers recovered a bag of marijuana from the defendant after the pat down and placed him under arrest for possession of marijuana. A subsequent search incident to the arrest recovered individually wrapped bags of heroin and a digital scale. Defendant was also charged with one count of possession of heroin with intent to distribute. Defendant filed a motion to suppress the evidence on the basis the investigatory stop was not permissible, and the pat down was not justified.

Under the Fourth Amendment, a police officer may briefly detain an individual for investigative purposes (" Terry stop") if the officer has a reasonable and articulable suspicion that the individual has committed or about to commit a crime. Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968) ; State v. Boyer , 07-0476 (La. 10/16/07), 967 So.2d 458, 469 ; State v. Temple , 02-1895 (La. 9/9/03), 854 So.2d 856, 859 ; State v. Sims , 02-2208 (La. 6/27/03), 851 So.2d 1039, 1043 ; see also La. C.Cr.P. art. 215.1. In making a brief investigatory stop on less than probable cause to arrest, the police " 'must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.' " State v. Kalie , 96-2650 (La. 9/19/97), 699 So.2d 879, 881 (quoting United States v. Cortez , 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981) ). Even after a lawful investigatory stop, an officer is justified in patting down a suspect only where "he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Terry , 392 U.S. at 27, 88 S.Ct. 1868. The officer's belief is not reasonable unless he is "able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous." Sibron v. New York , 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) ; see also State v. Bolden , 380 So.2d 40 (La. 1980), cert. denied , 449 U.S. 856, 101 S.Ct. 153, 66 L.Ed.2d 70 (1980).

In this case, the district court conducted an evidentiary hearing on defendant's motion to suppress the evidence, wherein the district court heard testimony from the officers and listened to the recording from the officer's body camera. In granting the motion to suppress, the court explained:

The telling thing for the court is that no one in the group makes a motion to leave, no furtive movements, nothing else, it's a very calm situation. The officer is very polite, inquisitive, but polite. There's no issue that the officer either testified to...or...evidence on the body camera that the officer had any indication that he should be on alert, that perhaps someone had committed-expect for the smoking of the marijuana-had committed a crime, was committing a crime, was about to commit a crime.
The court notes that the new marijuana laws...marijuana is now a summonsable offense. In fact, the issue is to issue a summons and not arrest.
It seems as though the officers in this case went directly from approaching and making inquisitions or asking questions into a straight pat-down, full pat-down, and search of all the individuals that were there for no real clear indication in this court's opinion and therefore the court finds that there was not probable cause for the search and suppresses the evidence that was seized.

Based on the facts of this case, I do not find that officers had a particularized and objective basis for suspecting this defendant had committed a crime, was committing a crime, or was about to commit a crime. Further, I find the pat down of defendant was not justified in this case because the officers failed to point to particular facts from which they reasonably inferred defendant was armed and dangerous.

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution protect citizens against unreasonable searches and seizures. However, all too often these constitutional protections are not respected by law enforcement in urban areas, especially those designated as "high crime areas." The action of walking down the street in a group of people, even in a "high crime area," without more, is insufficient to justify an investigatory stop and pat down. In my view, the officers' reliance on the smell of marijuana was certainly pre-textual in this case. Had officers merely smelled marijuana in a more affluent neighborhood or at one of our city's numerous outdoor festivals, I doubt they would begin to pat down everyone on the street or in the crowd. The same constitutional protections must apply to all of our citizens, regardless of the area of town.

For these reasons, I see no error in the district court's ruling granting defendant's motion to suppress and I would deny the state's writ application.

GENOVESE, Justice, would deny.


text:
    STATE of Louisiana v. Grover D. CANNON
    No. 2018-KK-1846
    Supreme Court of Louisiana.
    November 20, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
    Writ denied.
    CRICHTON, J., would grant and docket and assigns reasons.
   While the trial judge in this matter is no doubt accomplished and well-versed in conducting criminal proceedings, I would grant and docket this matter to examine whether the colloquy between defendant and the trial court should be conducted in accord with procedures set forth in State v. Touchet , 1993-2839 (La. 9/6/94), 642 So.2d 1213. In my view, this Court is missing a valuable opportunity to provide guidance on the best practice for trial courts across the State in conducting hearings in this unprecedented area of the law. See McCoy v. Louisiana , --- U.S. ----, 138 S.Ct. 1500, 200 L.Ed.2d 821 (2018). Under the trial court's present ruling, the State will be present while the court poses questions to the defendant, with the possibility that defendant may disclose defense strategy or make inculpatory statements, thereby giving the State an unfair advantage. Again, while I find no error in the trial court's ruling and absolutely do not presume the trial court will commit error during its hearing, I simply believe this Court should exercise its supervisory jurisdiction in this capital case in order to address this new frontier for all lower courts. See generally Krogmann v. State , 914 N.W.2d 293, 313-315 (Iowa 2018) (summarizing the development of this area of law from Faretta through McCoy ), State v. Bridgewater , 00-1529 (La. 1/15/02), 823 So.2d 877 (on reh'g ) (discussing a Faretta colloquy correctly conducted ex parte , pre-McCoy ), and Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (recognizing a Sixth Amendment right to self-representation for a defendant who is "made aware of the dangers and disadvantages of self-representation").


author: GENOVESE, J., would grant.

text:
    STATE of Louisiana v. Jason Isreal DUPUIS
    No. 2018-KK-1676
    Supreme Court of Louisiana.
    November 21, 2018
    ON SUPERVISORY WRITS TO THE 15th JUDICIAL DISTRICT COURT FOR THE PARISH OF ACADIA
    Writ denied.
    Hughes, J., would grant and assigns reasons.
   GENOVESE, J., would grant.

La. Code Crim. Proc. article 215.1(A) provides that a law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions. Terry v. Ohio , 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Louisiana Code of Criminal Procedure article 215.1 requires that an officer point to specific and articulable facts to justify an investigatory stop. State v. Frank , 04-0592 (La. App. 3 Cir. 09/29/04), 883 So.2d 1107, 1113.

Here, the officer's testimony shows that the defendant and his companion were fishing, not engaged in theft of crawfish or any other criminal activity. Nonetheless, the officer testified the defendant was detained and not free to leave. The officer testified only to vague, non-specific allegations of "crawfish theft." It is obvious that the defendant and his female companion were not stealing crawfish, but rather were fishing at night, a common south Louisiana practice. They had fishing poles, a dip net to secure the fish, and an empty sack to carry them home. It is highly unlikely that they could have accomplished theft of crawfish on a bicycle. The same officer had stopped the defendant while fishing before and arrested defendant's companion (perhaps accounting for defendant's nervousness). The officer specifically testified that the defendant was detained and not free to go.

After the officer had already patted the defendant down for weapons, it was unreasonable for the officer to demand that the detainee produce his cigarette pack. If he had one on his person, it certainly did not contain stolen crawfish. The fact that the officer's hunch was fruitful does not render it constitutional. The Fourth Amendment is means, not ends, based. The motion to suppress should granted.


author: WEIMER, J., recused.

text:
    STATE of Louisiana v. Randy Lee TURNER
    NO. 2018-K-0780
    Supreme Court of Louisiana.
    November 20, 2018
    Granted. See Order Attached.
   WEIMER, J., recused.

On Writ of Certiorari and/or Review Thirty-Second Judicial District Court, Parish of Terrebonne, No. 717086, Division C; Court of Appeal, First Circuit, No. 2017 KA 1648.

And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit-"It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified."

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, in accordance with Supreme Court Rule 1, at the City of New Orleans, the record in duplicate of the above-entitled case.


text:
    STATE of Louisiana v. Grover D. CANNON
    No. 2018-KK-1258
    Supreme Court of Louisiana.
    November 20, 2018
    ON SUPERVISORY WRITS TO 1st JUDICIAL DISTRICT COURT FOR THE PARISH OF CADDO
   PER CURIAM:

Writ granted. Considering that the availability vel non of a justification defense is a highly fact-intensive inquiry that will depend on the evidence presented at trial, the district court's pretrial ruling broadly prohibiting any reference during the guilt phase of this capital trial to the psychological testing or the hiring process involving the officer/victim is premature. Cf. State v. Payton , 17-0489 (La. 5/19/17), 219 So.3d 1095 (per curiam), 219 So.3d 1095. In addition, whether the psychological test results are admissible cannot be determined in a vacuum and can only be determined in the context of expert testimony as to how those tests should be interpreted. Absent that expert testimony, whose admissibility must first be determined in accordance with La.C.E. art. 702, the district court prematurely granted the state's motion in limine to exclude any mention of the psychological tests. Accordingly, we grant defendant's application to vacate the district court's ruling that granted the state's motion in limine, and remand for further proceedings. We note that nothing prevents the district court from revisiting this issue as additional evidence is presented to it, such as expert testimony proffered or an enhanced version of the audio recording of the shooting introduced.

VACATED AND REMANDED

Guidry, J., and Clark, J., would deny.


text:
    STATE of Louisiana v. Timothy H. QUEEN -aka- Timothy Hugh Queen
    NO. 2018-KO-0211
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


author: HUGHES, J., would grant.

text:
    STATE of Louisiana v. Yonni MATTHEWS
    NO. 2018-KK-1282
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.
   HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    In the MATTER OF the SUCCESSION OF Matthew COSTANZA
    NO. 2018-CC-1434
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    STATE EX REL. Lorenzo Carthal Hampton v. STATE of Louisiana
    NO. 2017-KH-1531
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    STATE of Louisiana v. Santos DARDAR
    NO. 2017-KP-1058
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    STATE of Louisiana v. Lawrence JACOBS
    NO. 2017-KP-1060
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    STATE EX REL. Jonvonte DAY v. STATE of Louisiana
    NO. 2017-KH-1457
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    Charles H. PARKER v. Kristen WOLKART, RN, MHA, President/CEO, St. Francis Medical Center
    NO. 2017-CI-1556
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 18-PDB-039
    NO. 2018-OB-1438
    Supreme Court of Louisiana.
    November 20, 2018
    Leave to appeal denied.


text:
    STATE EX REL. Kenneth SMOTHERS v. STATE of Louisiana
    NO. 2017-KH-1439
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    Carnell COLLIER v. SEWERAGE & WATER BOARD
    NO. 2018-C-1464
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    Lindsey FRENCH v. CLAIBORNE PARISH POLICE JURY and Claiborne Parish Sheriff
    NO. 2018-C-1470
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    Denise T. REED v. Wesley E. HAWLEY
    NO. 2018-C-1471
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    SUCCESSION OF Raymond Roy GENDRON Sr.
    NO. 2018-CC-1517
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.
   HUGHES, J., would grant.


text:
    FLORIDA GAS TRANSMISSION COMPANY, LLC v. TEXAS BRINE COMPANY, LLC
    NO. 2018-CO-1519
    Supreme Court of Louisiana.
    November 20, 2018
    Denied.


text:
    STATE EX REL. George GEORGETOWN v. STATE of Louisiana
    NO. 2017-KH-1173
    Supreme Court of Louisiana.
    November 20, 2018
    Reconsideration denied.


text:
    STATE EX REL. George Anthony COLLIER v. STATE of Louisiana
    NO. 2017-KH-1711
    Supreme Court of Louisiana.
    December 3, 2018
    Denied.


text:
    STATE EX REL. Pollis HERNANDEZ v. STATE of Louisiana
    NO. 2017-KH- 0208
    Supreme Court of Louisiana.
    December 3, 2018
    Not considered. See La.S.Ct.R. IX, § 6.


text:
    Mildred DECKER v. Merrill MELTON and Paul Holloway
    NO. 2018-C-1530
    Supreme Court of Louisiana.
    December 3, 2018
    Denied.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 18-PDB-D24
    2018-OB-1368
    Supreme Court of Louisiana.
    November 20, 2018
    Leave to appeal denied.


author: GENOVESE, J., recused.

text:
    STATE EX REL. Mark Wayne THIBODEAUX v. STATE of Louisiana
    NO. 2017-KH-1680
    Supreme Court of Louisiana.
    December 3, 2018
    Denied. Moot.
   GENOVESE, J., recused.


text:
    STATE EX REL. Douglas SMITH v. STATE of Louisiana
    NO. 2017-KH-1671
    Supreme Court of Louisiana.
    December 3, 2018
    Denied.


text:
    STATE EX REL. Jermaine HUDSON v. STATE of Louisiana
    NO. 2017-KH-1943
    Supreme Court of Louisiana.
    December 3, 2018
    Denied. Relator has previously exhausted his right to state collateral review.
    See State ex rel. Hudson v. State, 15-0467 (La. 1/8/16), 182 So.3d 948.


text:
    STATE of Louisiana v. Tommy M. FRANCISE
    NO. 2018-KK-1544
    Supreme Court of Louisiana.
    December 3, 2018
    Denied.
   HUGHES, J., would grant.


author: WEIMER, J., would grant.

text:
    STATE of Louisiana v. Alexander LOICANA
    NO. 2018-KK-1545
    Supreme Court of Louisiana.
    December 3, 2018
    Denied.
   WEIMER, J., would grant.

CLARK, J., would grant.


author: GUIDRY, J., recused.

text:
    STATE of Louisiana IN the INTEREST OF C.C., Jr., P.B., M.B., J.B.
    NO. 2018-CJ-1766
    Supreme Court of Louisiana.
    December 3, 2018
    Denied.
   GUIDRY, J., recused.


text:
    STATE of Louisiana v. Mark Wayne THIBODEAUX
    NO. 2018-KH-1183
    Supreme Court of Louisiana.
    December 3, 2018
    Denied; moot.
   GENOVESE, J., recused.


text:
    STATE of Louisiana EX REL. Andrea HALL v. STATE of Louisiana
    NO. 2018-KH-0002
    Supreme Court of Louisiana.
    December 3, 2018
    Denied.
   GENOVESE, J., recused.


text:
    STATE of Louisiana v. Ahmad Rashad JOHNSON, Sr.
    NO. 2018-K-0436
    Supreme Court of Louisiana.
    December 3, 2018
    Denied.


text:
    MDM TOOL SUPPLY, LLC v. Jeremy Wade GUIDRY
    NO. 2018-CC-1776
    Supreme Court of Louisiana.
    December 3, 2018
    Stay denied. Writ denied.


text:
    Gloria M. DYKES v. Raymond SIBLEY, Sandra Sibley, Pine Grove Auto Parts and Western Heritage Insurance Company
    NO. 2018-CC-1560
    Supreme Court of Louisiana.
    December 3, 2018
    Denied.


text:
    UNITED HOME CARE, INC., Trinity Home Health Care, Inc. and John D. Jones v. Charlie SIMPSON, Charles Gardner, CCZ, L.L.C., DJ-CS Properties, Inc. and CKS Properties, L.L.C.
    NO. 2018-CC-1572
    Supreme Court of Louisiana.
    December 3, 2018
    Denied.


text:
    Patricia SPANN v. GERRY LANE ENTERPRISES, INC. d/b/a Gerry Lane Chevrolet, ABC and XYZ
    NO. 2018-C-1584
    Supreme Court of Louisiana.
    December 3, 2018
    Denied.


text:
    GEORGIA-PACIFIC CONSUMER OPERATIONS, LLC (f/k/a Georgia-Pacific Corporation) v. CITY OF BATON ROUGE and Parish of East Baton Rouge
    Georgia-Pacific Consumer Operations, LLC (fka Georgia-Pacific Corporation) v. City of Baton Rouge-Parish of East Baton Rouge Department of Finance
    NO. 2018-C-1397
    Supreme Court of Louisiana.
    December 3, 2018
    Denied.
   WEIMER, J., would grant.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Paul A. BAKER
    NO. 2018-KO-0858
    Supreme Court of Louisiana.
    December 3, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Chakha Danny JAMES
    NO. 2018-KO-0850
    Supreme Court of Louisiana.
    December 3, 2018
    Denied.


text:
    STATE of Louisiana v. Earl COLEMAN
    NO. 2018-KO-1175
    Supreme Court of Louisiana.
    December 3, 2018
    Denied.


text:
    STATE of Louisiana v. Donald GLOVER
    NO. 2018-KK-1278
    Supreme Court of Louisiana.
    December 3, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Paul A. BAKER
    NO. 2018-KO-0833
    Supreme Court of Louisiana.
    December 3, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Dillion Wade TRAHAN aka Dillon Wade
    NO. 2018-KO-0851
    Supreme Court of Louisiana.
    December 3, 2018
    Denied.


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

text:
    Alexandria Jordan BROOKER v. Rory David DOBBS, et al.
    NO. 2018-CC-1327
    Supreme Court of Louisiana.
    December 3, 2018
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.


text:
    Gustave J. LABARRE, Jr., et al. v. OCCIDENTAL CHEMICAL COMPANY and Texas Brine Company, LLC, et al.
    NO. 2018-C-1380
    Supreme Court of Louisiana.
    December 3, 2018
    Denied.


text:
    ADAM ALAN PAINTING & CONSTRUCTION, LLC, et al. v. OLD.NEW.BLUE., LLC, et al.
    NO. 2018-CC-1550
    Supreme Court of Louisiana.
    December 3, 2018
    Denied.


author: WEIMER, J., would deny.

text:
    Haley R. TAYLOR v. Tatyana HOLDEN, et al.
    NO. 2018-CC-1365
    Supreme Court of Louisiana.
    December 3, 2018
    Granted. The judgment of the district court granting the motion to quash is reversed. Relator's motion to compel is granted. See La. Code Civ. P. art. 1422.
   WEIMER, J., would deny.


author: SAVOIE, Judge.

text:
    Agnes JONES, et al. v. IBERIA PARISH GOVERNMENT, et al.
    18-34
    Court of Appeal of Louisiana, Third Circuit.
    September 26, 2018
    Rebecca M. Massa, Blake Jones Law Firm, LLC, 701 Poydras Street, Suite 4100, New Orleans, Louisiana 70139, (504) 525-4361, COUNSEL FOR PLAINTIFF/APPELLANT: Agnes Jones, Agnes Jones o/b/o Yokohana Jones
    Joslyn Renee Alex, The Alex Law Firm, Post Office Box 126, Breaux Bridge, Louisiana 70517, (337) 332-1180, COUNSEL FOR DEFENDANT/APPELLEE: Joshua Washington
    Allison M. Ackal, Borne, Wilkes & Rabalais, Post Office Box 4305, Lafayette, Louisiana 70502-4305, (337) 232-1604 COUNSEL FOR DEFENDANT/APPELLEE: Iberia Parish Government, Iberia Parish Public Works Department, City of New Iberia
    Court composed of John E. Conery, D. Kent Savoie, and Candyce G. Perret, Judges.
   SAVOIE, Judge.

Plaintiff, Agnes Jones, appeals the judgment of the trial court, granting the City of New Iberia's Exception of Prescription and dismissing her claims with prejudice. For the following reasons, we affirm.

Facts and Procedural History

Jones alleges that she lost her footing, fell, and sustained injuries as a result of a defective walkway located at 909 East Pershing Street in New Iberia, Louisiana on March 14, 2014. On March 9, 2015, Jones filed a Petition for Damages, individually and on behalf of her minor child, naming as defendants Iberia Parish Government, Iberia Parish Public Works Department, and Joshua Washington, the owner of the premises.

Jones filed a supplemental petition on February 22, 2017, adding as defendants the City of New Iberia and the New Iberia Public Works Department. The City of New Iberia filed an Exception of Prescription on April 13, 2017, arguing they did not have timely notice of the lawsuit. The trial court heard the exception on July 21, 2017, and rendered judgment in favor of the City of New Iberia on August 14, 2017. Jones now appeals.

Assignments of Error

Jones assigns the following errors to the trial court's judgment:

1. Whether the trial court improperly held the City of New Iberia and Iberia Parish Government require a "connection" in order for a timely filed suit against one defendant to interrupt prescription as to both defendants?
2. Whether the trial court erred in failing to determine the City of New Iberia, Iberia Parish Government and Joshua Washington are joint tortfeasors such that suit filed timely naming Iberia Parish Government and Joshua Washington also interrupts prescription as to the City of New Iberia?

Discussion

In Allain v. Tripple B Holding, LLC , 13-673, pp. 9-10 (La.App. 3 Cir. 12/11/13), 128 So.3d 1278, 1285, this court discussed the appellate standard of review on an exception of prescription:

Prescription is a peremptory exception which is provided for in La.Code Civ.P. art. 927. Evidence in support or contravention of the exception may be introduced if the grounds are not apparent from the petition. La.Code Civ.P. art. 931. 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.

Neither party introduced evidence at the hearing on the exception of prescription held July 21, 2017. Therefore, we must determine whether the trial court's finding was legally correct.

The mover ordinarily bears the burden of proof on an exception of prescription. Comeaux v. Romero , 15-473 (La.App. 3 Cir. 12/9/15), 182 So.3d 1102. However, "if prescription is evident on the face of the petition, the burden shifts to the plaintiff to demonstrate that prescription has been suspended or interrupted." Id. at 1107.

Delictual liability claims must be brought within one year from the date of injury or damage. La.Civ.Code art. 3492. In the present case, the City of New Iberia was named as a defendant in Jones' lawsuit by an amended petition filed nearly three years after the accident. Thus, Jones' claims against the City of New Iberia are prescribed on the face of the petition, and Jones bears the burden of proving that her claim has not prescribed.

In her first assignment of error, Jones complains that the trial court erred in finding that the Iberia Parish Government and the City of New Iberia required a "connection" in order to interrupt prescription. The basis for this complaint is that Jones did not substitute the City of New Iberia for the Iberia Parish Government in the amending petition, but, rather, she added a defendant. As such, Jones argues that La.Code Civ.P. art. 1153 is inapplicable. We agree.

"Under certain circumstances a claim may be amended and considered timely after the one-year period, so long as the original pleading was timely filed." Savoie v. Calcasieu Par. Sheriff Office , 14-1133, p. 4 (La.App. 3 Cir. 3/4/15), 157 So.3d 1278, 1281 ; See La.Code Civ.P. art. 1153. Louisiana Code of Civil Procedure Article 1153 provides: "When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading."

In Ray v. Alexandria Mall , 434 So.2d 1083, 1086 (La.1983) (emphasis added), the Louisiana Supreme Court established four criteria to determine "whether La.Code Civ.P. art. 1153 allows an amendment which changes the identity of the party or parties sued to relate back to the date of filing of the original petition. The criteria are:

(1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading;
(2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits;
(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant , the action would have been brought against him;
(4) The purported substitute defendant must not be a wholly new or unrelated defendant , since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

Id. at 1087 (emphasis added).

In the amending petition, Jones does not attempt to change the identity of a party sued in the original petition. The amending petition alleges:

III.
Plaintiffs respectfully amend Paragraph 4 of their petition, to read as follows[:]
"4.
Defendants, Joshua Washington, Iberia Parish Government, and Iberia Parish Public Works Department, City of New Iberia and New Iberia Public Works Department are liable jointly, severally and in solido unto plaintiff, Agnes Jones, individually and on behalf of her minor child Yokohana Jones, in a reasonable compensatory sum plus legal interest and all costs of these proceedings, for the following reasons to wit:"
IV.
Plaintiffs again reallege and reaver each and every allegation of their original petition as if set here in full. A copy of their original petition is annexed hereto as Exhibit A.

The City of New Iberia is not in the posture of a substitute defendant. Instead, Jones alleges that they are joint tortfeasors, and, as such, they are a wholly new defendant added to the suit, in addition to the original defendants.

Accordingly, we agree with Jones that La.Code Civ.P. art. 1153 does not apply to the present case. However, this does not end our inquiry. We must now determine whether prescription as to the City of New Iberia was interrupted when Jones filed the original petition.

Jones contends that the trial court erred when it found that prescription was not interrupted in this lawsuit. It is Jones' position that, because she alleged that the City of New Iberia and the Iberia Parish Government are joint tortfeasors in her amended petition, prescription has been interrupted. We disagree.

Joint tortfeasor liability is found in La.Civ.Code art. 2324(B) which states, in pertinent part:

[L]iability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person's insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity as provided in R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable.

Louisiana Civil Code Article 2324(C) provides that "[i]nterruption of prescription against one joint tortfeasor is effective against all joint tortfeasors." As stated above, Jones has the burden of proving that the suit against the City of New Iberia was interrupted by the filing of the lawsuit against the Iberia Parish Government.

A review of the pleadings reveals that, while Jones made the allegation that the City of New Iberia was a joint tortfeasor with the Iberia Parish Government, she did not allege any facts on which to base that conclusion. Louisiana has a system of fact pleading, and "[t]he mere conclusion of the pleader unsupported by facts does not set forth a cause or right of action." Montalvo v. Sondes, 93-2813, p. 6 (La. 5/23/94), 637 So.2d 127, 131.

It is clear from the amending petition that Jones does not allege any facts upon which the City of New Iberia and the Iberia Parish Government could be joint tortfeasors. In fact, she does not state any relationship between the City of New Iberia and the accident or its location. For example, we do not know if the City of New Iberia owns the property at issue, holds the right of way, or is in charge of its maintenance, etc. Merely stating that the two parties are joint tortfeasors is not enough to allege joint tortfeasor liability. Because Jones has not properly alleged joint tortfeasor liability, she has not carried her burden of proving that prescription has been interrupted.

Decree

For the reasons assigned above, the judgment of the trial court, granting the City of New Iberia's exception of prescription, is affirmed. All costs of this appeal are assessed to Agnes Jones.

AFFIRMED.

      The New Iberia Public Works Department was dismissed from the suit by consent judgment on July 21, 2017.