Datasets:

harvard-lil

/

cold-cases

like 13

"1996-03-15"

[ "669 So. 2d 422" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re East Baton Rouge Par. Sch. Bd.;— Defendant(s); applying for writ of certiorari and/or review; Office of Workers’ Compensation, Dist. No. 2, Div. “02”, No. 91-08101; to the Court of Appeal, First Circuit, No. CA94 0518.\nDenied.\n", "ocr": true, "opinion_id": 7695225 } ]

"1995-09-19"

[ "669 So. 2d 801" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nAppeal No. 14115 from Judgment dated October 4, 1994, Howard L. Patterson, Jr., Ruling Judge, Marion County Chancery Court.\nBefore BRIDGES, P.J., and BARBER and PAYNE, JJ.\nAffirmed.\nFRAISER, C.J., THOMAS, P.J., and COLEMAN, DIAZ, KING, McMILLIN and SOUTHWICK, JJ., concur.\n", "ocr": true, "opinion_id": 7695383 } ]

"1996-03-06"

[ "670 So. 2d 737" ]

[ { "author_str": "Bsaunders", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nbSAUNDERS, Judge.\nThe Town of Jonesville filed an expropriation proceeding concerning an abandoned railroad right-of-way running adjacent to the community’s industrial park. Defendants-appellants were among those against whom the proceedings were filed. The appellants filed an exception of prematurity alleging that the Town of Jonesville had not entered into bona fide negotiations to purchase the property before instituting suit. The trial court denied these exceptions, prompting this court to reverse the trial lacourt and dismiss the expropriation proceedings. Town of Jonesville v. Griffing, et al, 94-376 (La.App. 3 Cir. 1/10/95).1\nSubsequently, defendants-appellants filed a rule in the trial court to have the Town of Jonesville assessed with all costs. The trial court agreed to do so, but refused to include among those costs the attorney’s fees incurred by defendants-appellants in the amount of $4,935.00. From this ruling, the Griffings have appealed. They maintain that La.R.S. 19:201, set forth below, explicitly entitles them to reimbursement of their legal expenses.\nSec. 201. Attorney fees; unsuccessful or abandoned expropriation suits\nA court of Louisiana having jurisdiction of a proceeding instituted by the State of Louisiana, a parish, a municipality or an agency of any of them vested with the power of expropriation, to acquire real property by expropriation, shall award the owner of any right, or title to, or interest in such real property such sum as will, in the opinion of the court, reimburse such owner for his reasonable attorney fees actually incurred because of the expropriation proceeding, if the final judgment is that the plaintiff cannot acquire the real property by expropriation or if the pro*739ceeding is abandoned by the plaintiff. Any such award shall be paid from the same funds from which the purchase price of the property would have been paid.\nThe rights of the landowner herein fixed are in addition to any other rights he may have under the Constitution of Louisiana.\nLa.R.S. 19:201 (Emphasis added.)\nResponding to defendants’ challenge, the Town of Jonesville cites jurisprudence standing for the proposition that trial courts are vested with much discretion in the awarding of statutory attorney’s fees in expropriation cases.2\n|8We are persuaded by the merits of defendants’ argument. \"When the wording of a section of the Revised Statute is clear and free of ambiguity, its letter shall not be disregarded under the pretext of pursuing its spirit. La.R.S. 1:4. The word “shall” is mandatory and the word “may” is permissive. La.R.S. 1:3.\nBy its clear and unambiguous terms, La.R.S. 19:201 is a mandatory provision insofar as it states that a court having jurisdiction over an expropriation proceeding “shall” award attorney’s fees when expropriation proceedings are dismissed or abandoned. The authority cited by the Town of Jonesville fails to convince us otherwise. To the contrary, of the cases cited by the Town of Jonesville, all except one awarded damages for attorney’s fees in expropriation proceedings; and the one which did not, State, Dept. of Transportation and Development v. Winn, 463 So.2d 648 (La.App. 4 Cir.1984), was a proceeding involving La.R.S. 48:4533 in which the | ¿State was found to be innocent of negotiating in bad faith. The case did not concern a proceeding in which a political subdivision had abandoned its efforts to expropriate or was determined to be unable to acquire the property through expropriation.\n\nCONCLUSION\n\nBecause the Town of Jonesville does not dispute the amount of fees to which defendants claim to be entitled and the record supports defendants’ contentions in this regard, the judgment of the trial court is reversed, and defendants are awarded attorney’s fees in the amount prayed for, $4,935.00. Plaintiff-appellee, Town of Jones-ville, is cast with all costs of these proceedings.\nREVERSED AND RENDERED.\n\n. Before bringing suit, an expropriating authori-1y must make a good faith attempt to acquire the property conventionally, through negotiation. Faustina Pipe Line Co. v. Levert-St. John, Inc., 463 So.2d 964 (La.App. 3 Cir.), writ denied, 466 So.2d 1301 (La.1985); Southwest Louisiana Elec-trie Membership Corp. v. Simon, 207 So.2d 546 (La.App. 3 Cir.1967), writ denied, 252 La. 104, 209 So.2d 37 (1968). The failure to do so subjects the suit for expropriation to dismissal for prematurity. City of Thibodaux v. Hillman, 464 So.2d 370 (La.App. 1 Cir.1985).\n\n\n. The Town of Jonesville cites State, Dept, of Transportation and Development v. Williamson, 597 So.2d 439 (La.1992); State through Dept. of Transportation and Development v. The Estate of Davis, 572 So.2d 39 (La.1990); Red River Waterway Commission v. Fry, 628 So.2d 38 (La.App. 2 Cir.1993), writ denied, 633 So.2d 581 (La.1994); State, Department of Transportation and Development v. Dietrich, 598 So.2d 649 (La.App. 3 Cir.1992); State, Dept. of Transportation and Development v. Clark, 548 So.2d 365 (La.App. 2 Cir.), writ denied, 552 So.2d 395 (La.1989); State, Dept. of Transportation and Development v. Jacob, 491 So.2d 138 (La.App. 3 Cir.), writ denied, 496 So.2d 331 (La.1986); Valley Electric Membership Corp., Inc. v. Wallace, 465 So.2d 986 (La.App. 3 Cir.1985); State, Dept. of Transportation and Development v. Winn, 463 So.2d 648 (La.App. 4 Cir.1984).\n\n\n. That provision states:\nSec. 453. Measure of compensation; burden of proof; extent of loss\nA.The measure of compensation for the property expropriated is determined as of the time the estimated compensation was deposited into the registry of the court, without considering any change in value caused by the proposed improvement for which the property is taken.\nB. The measure of damages, if any, to the defendant’s remaining property is determined on a basis of immediately before and immediately after the taking, taking into consideration the effects of the completion of the project in the manner proposed or planned.\nC. The owner shall be compensated to \"the full extent of his loss. The court shall include in its consideration the difference between the rate of interest of any existing mortgage on an owner-occupied residence and the prevailing rate of interest required to secure a mortgage on another owner-occupied residence of equal value.\nD. The defendant shall present his evidence of value first.\nE. Reasonable attorney fees may be awarded by the court if the amount of the compensation deposited in the registry of the court is less than the amount of compensation awarded in the judgment. Such attorney fees in no event shall exceed twenty-five percent of the difference between the award and the amount deposited in the registry of the court.\n\n", "ocr": true, "opinion_id": 7695695 } ]

"1996-04-17"

[ "671 So. 2d 879" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nAffirmed. Stephens v. Stephens, 402 So.2d 1301 (Fla. 1st DCA 1981).\n", "ocr": true, "opinion_id": 7696177 } ]

"1995-10-03"

[ "672 So. 2d 765" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nAppeal No. H93065 from Judgment dated September 16, 1993, Henry Lafayette Lackey, Ruling Judge, Chickasaw County Circuit Court, First Judicial District.\nBefore THOMAS, P.J., and COLEMAN and DIAZ, JJ.\nAffirmed in part, reversed in part, and remanded to the Mississippi Workers’ Compensation Commission.\nBARBER, COLEMAN, DIAZ, KING, PAYNE and SOUTHWICK, JJ., concur.\n*766FRAISER, C.J., BRIDGES and THOMAS, P.JJ., and McMILLIN, J., dissent.\n", "ocr": true, "opinion_id": 7696540 } ]

"1996-05-31"

[ "674 So. 2d 899" ]

[ { "author_str": "Griffin", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nGRIFFIN, Judge.\nAfter reviewing the record, we can find no factual basis for the arresting officers to have reasonably believed that the defendant was in constructive possession of drug paraphernalia found in the house they knew she was visiting. Even if the fact the items were visible to the police can lead to the inference she knew the items were present, there is, by the officers’ own admission, nothing to suggest she had any right to exercise dominion or control over the items or that she ever undertook to do so. See Brown v. State, 428 So.2d 250 (Fla.1983), cert. denied, 463 U.S. 1209, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983). There was no probable cause to arrest her for the offense.\nAFFIRMED.\nPETERSON, C.J., and THOMPSON, J., concur.\n", "ocr": true, "opinion_id": 7697441 } ]

"1995-11-14"

[ "675 So. 2d 327" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nAppeal No. 4549 from Judgment dated December 2,1993, Joseph H. Loper, Jr., Ruling Judge, Winston County Circuit Court.\nBefore THOMAS, P.J., and BARBER, DIAZ and KING, JJ.\nAffirmed.\nFRAISER, C.J., BRIDGES, P.J., and COLEMAN,-MeMILLIN, PAYNE and SOUTHWICK, JJ., concur.\n", "ocr": true, "opinion_id": 7697722 } ]

"1996-06-21"

[ "675 So. 2d 1066" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Taylor, Gregory; — Defendant(s); applying for supervisory and/or remedial writ; Parish of Caddo, 1st Judicial District Court, Div. “H”, No. 145,653; to the Court of Appeal, Second Circuit, No. 26050-KW.\nDenied.\nMARCUS, J., not on panel.\n", "ocr": true, "opinion_id": 7697988 } ]

"1996-06-21"

[ "675 So. 2d 1072" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Sweet, Oscar; — Defendant(s); applying for supervisory and/or remedial writ; Parish of Morehouse, 4th Judicial District Court, Div. “F”, No. 89-2385A; to the Court of Appeal, Second Circuit, No. 25968-KH.\nDenied.\nVICTORY, J., recused; not on panel.\n", "ocr": true, "opinion_id": 7698010 } ]

"1996-06-21"

[ "675 So. 2d 1089" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Joseph, George, Sr.; — Defendant(s); applying for writ of certiorari and/or review; Parish of East Baton Rouge, Family Court East Baton Rouge Parish, Div. “A”, No. 95,-*1090125; to the Court of Appeal, First Circuit, No. CA95 1703.\nDenied.\nMARCUS, J., not on panel.\n", "ocr": true, "opinion_id": 7698071 } ]

"1996-06-26"

[ "676 So. 2d 33" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nWe treat the state’s notice of appeal as a petition for writ of certiorari. See State v. Pettis, 520 So.2d 250 (Fla.1988).\nThe state charged appellee with violating section 403.413(5), Florida Statutes (1993), which reads:\nUnless otherwise authorized by law or permit, it is unlawful for any person to dump raw human waste from any train, aircraft, motor vehicle, or vessel upon the public or private lands or waters of the state.\nAppellee challenged the constitutionality of a related portion of the statute, section dOSAlS^Xh),1 on the ground that it imper-missibly shifted the burden of proving his innocence to him. The trial court agreed and declared section 403.413(6)(h) unconstitutional.\nThe state contends appellee did not have standing to challenge the constitutionality of section 403.413(6)(h). We disagree. Appel-lee had standing to challenge section 403.413(6)(h). See State v. Thurston, 591 So.2d 998 (Fla. 3d DCA 1991); State v. Benitez, 395 So.2d 514, 517 (Fla.1981). The state also contends that section 403.413(6)(h) does not constitute an unconstitutional burden shift, but instead constitutes an affirmative defense available to appellee. We agree and grant certiorari.\nIn State v. Cohen, 568 So.2d 49, 51-52 (Fla.1990), the supreme court defined the characteristics of an affirmative defense:\nAn “affirmative defense” is any defense that assumes the complaint or charges to be correct but raises other facts that, if true, would establish a valid excuse or justification or a right to engage in the conduct in question. An affirmative defense does not concern itself with the elements of the offense at all; it concedes them. In effect, an affirmative defense says, “Yes, I did it, but I had a good reason.”\nHere, section 403.413(5) prohibits all dumping of raw human waste on public or private land or waters of the state. The statute requires the state to prove that ap-pellee “dump[ed] raw human waste from a train, aircraft, motor vehicle or vessel upon the public or private lands or waters of the state.” Upon such proof, appellee would be guilty of violating subsection (5) unless appel-lee’s actions were “otherwise authorized by law or permit.” Subsection (5) provides ap-*35pellee with the opportunity to present the affirmative defense of ‘Tes I did it, but I had a good reason. I had a permit” or “I had a right by law.” See Cohen, 568 So.2d at 51-52. Subsection (6)(h) provides that if appel-lee elects to assert an affirmative defense he has the burden of proving it. It does not abrogate the state’s burden of proving appel-lee’s guilt beyond a reasonable doubt, nor does it require appellee to prove his innocence in order to escape conviction.\nFurthermore, requiring a defendant to prove an affirmative defense does not contravene the principles of due process. Due process requires that a prosecutor prove every element of a criminal offense. “[T]here is no due process problem with requiring that the defendant plead and prove a defense.” State v. Buchman, 361 So.2d 692, 695 (Fla.1978).\nAccordingly, we quash the order of the trial court and remand for proceedings consistent herewith.\nPETITION FOR WRIT OF CERTIORA-RI GRANTED and REMANDED.\nDELL, FARMER and SHAHOOD, JJ., concur.\n\n. Section 403.413(6)(h), Fla. Stat. (1993) states:\nIn the criminal trial of a person charged with violating this section, the state does not have the burden of proving that the person did not have the right or authority to dump the litter or that litter dumped on private property causes a public nuisance. The defendant has the burden of proving that he had authority to dump the litter and that the litter dumped does not cause a public nuisance.\n\n", "ocr": true, "opinion_id": 7698397 } ]

"1996-07-24"

[ "677 So. 2d 393" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nJeffrey Smith appeals from his judgment and sentence for aggravated battery with a deadly weapon and discharging a firearm from a vehicle within 1,000 feet of a person. We hold that the state presented sufficient evidence to support his convictions, and we affirm his judgment. However, we must reverse Smith’s sentence and remand for re-sentencing based on a scoresheet error.\nSmith was sentenced on a single score-sheet for aggravated battery with a deadly weapon, discharging a firearm from a vehicle within 1,000 feet of a person, and carrying a concealed firearm, a charge which arose from another case. The scoresheet includes an additional twenty-five points for possession of a semiautomatic weapon. See Fla.R.Crim.P. 3.702(d)(12). The state concedes that it presented no proof that the firearm Smith used was a semiautomatic weapon. Thus, on remand, the trial court shall resentence Smith based on a corrected scoresheet which reflects an additional eighteen points for the possession of a firearm pursuant to rule 3.702(d)(12).\nAffirmed in part, reversed in part, and remanded.\nDANAHY, A.C.J., and CAMPBELL and PATTERSON, JJ., concur.\n", "ocr": true, "opinion_id": 7698775 } ]

"1996-08-30"

[ "678 So. 2d 525" ]

[ { "author_str": "Cobb", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nCOBB, Judge.\nThe issue on this appeal is whether the trial court erred by imposing an agreed to thirty month sentence after violation of probation when the original sentence, prior to modification pursuant to section 958.04(2)(d), Florida Statutes (1991), was 18 months.\nOn October 19,1994, the trial court accepted Fayson’s guilty plea to violating community control and Fayson was adjudicated guilty of the underlying crimes of possession and sale of cocaine and was sentenced to 18 months incarceration. On April 12, 1995, pursuant to section 958.04(2)(d), Florida Statutes, and the recommendation of the Department of Corrections, the trial court modified Fayson’s sentence to 24 months probation.\nSubsequently, an affidavit of violation of probation was filed against Fayson. Fayson pled guilty and was sentenced to 30 months imprisonment. During the hearing, it was clear that Fayson agreed, as part of his plea bargain, to the 30 months incarceration.\nFayson now contends that the lower court cannot impose a thirty month sentence when it originally imposed an 18 month sentence. Fayson’s rationale is that the 30 month sentence imposed after violation of probation was “more severe” than the 18 month sentence originally imposed for the same offenses.\nIn Johnson v. State, 574 So.2d 222, 224 (Fla. 5th DCA 1991), this court held that:\nThe double jeopardy clause of the federal constitution applies to the imposition of sentence as well as the determination of guilt and prohibits the imposition of a second or subsequent sentence after imposition of a valid sentence as to “the same offense.” Once a defendant has commenced the service of a valid sentence, the court cannot, constitutionally, again sentence him for the “same offense” or make the original sentence more onerous, [footnote omitted] The Legislature cannot authorize a violation of this fundamental constitutional right and section 958.04(4)(e) cannot constitutionally authorize, even after violation of probation, a second sentence imposing punishment more onerous or severe than that which has been imposed by a prior valid sentence on the same conviction of what is factually, legally and constitutionally “the same offense.”\nInasmuch as this court has held that the above represents fundamental error, the 30 month concurrent sentences are vacated. On remand, the 18 month concurrent sentences are to be reinstated with credit for time served.\nREVERSED AND REMANDED.\nW. SHARP and HARRIS, JJ., concur.\n", "ocr": true, "opinion_id": 7699254 } ]

"1996-09-03"

[ "678 So. 2d 559" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Mayes, Warren; — Defendant(s); applying for supervisory and/or remedial writs; Parish of Orleans, Criminal District Court, Div. “G”, No. 374-572.\nDenied. Moot.\nVICTORY, J., not on panel.\n", "ocr": true, "opinion_id": 7699351 } ]

"1996-02-13"

[ "678 So. 2d 1007" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nAppeal No. 8319 from Judgment dated January 20, 1994, John Leslie Hatcher, Ruling Judge, Coahoma County Circuit Court.\nBefore BRIDGES, P.J., and KING and PAYNE, JJ.\nAffirmed.\nFRAISER, C.J., THOMAS, P.J., and BARBER, COLEMAN, DIAZ, McMILLIN and SOUTHWICK, JJ., concur.\n", "ocr": true, "opinion_id": 7699446 } ]

"1996-07-31"

[ "679 So. 2d 15" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nThe defendant, Ralph Filsaime, appeals his convictions and sentences for two counts of armed robbery. We affirm the convictions, but reverse and remand for resentencing.\nFilsaime argues that it was error to score victim injury points for injury to two victims when the record does not show that any actual injury occurred. At sentencing, defense counsel specifically agreed that points for slight injury to one victim could be scored. He did not agree that there was any injury to the second victim. It is error to score victim injury points without evidence of injury to the victim. See Karchesky v. State, 591 So.2d 930 (Fla.1992) (holding that, in sexual battery eases, penetration “which does not cause ascertainable physical injury” cannot be basis for victim injury points). Because there was no testimony to support a finding of any injury to the second victim, seven of the fourteen victim injury points should be subtracted from the scoresheet total of 128 which results in a lower permitted sentencing range.\nFilsaime also challenges the imposition of several costs which the state agrees are improper. The $2.00 court cost imposed pursuant to section 943.25(13), Florida Statutes (1993), the $25.00 cost imposed pursuant to section 939.01, Florida Statutes (1993), and the $96.00 cost imposed pursuant to administrative order must all be stricken. See Reyes v. State, 655 So.2d 111 (Fla. 2d DCA 1995)(en banc).\nFinally, Filsaime challenges certain probation conditions which were not orally pronounced at sentencing. However, the Florida Supreme Court has held that Florida Rule of Criminal Procedure 3.986 provides constructive notice of these probation conditions which, therefore, need not be announced at sentencing. State v. Hart, 668 So.2d 589 (Fla.1996).\nFilsaime also challenges the portion of Condition # 12 requiring him to pay for drug tests because that provision was not orally pronounced at sentencing (nor is it one of the eleven general conditions of probation contained in Rule 3.986 which need not be orally pronounced pursuant to Hart). The state argues that Filsaime requested that drug and alcohol counseling be made part of his sentence, and the court announced at sentencing that continued counseling would be a special condition of probation. Since the defendant’s payment for drug tests is an implicit part of the announced requirement for counseling, that condition need not be stricken.\nWe affirm the convictions, strike the invalid costs and conditions of probation, and remand for resentencing in accordance with this opinion.\nRYDER, A.C.J., and FRANK and FULMER, JJ., concur.\n", "ocr": true, "opinion_id": 7699594 } ]

"1996-09-18"

[ "679 So. 2d 391" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Lemon, Edward; — Plaintiff(s) applying for motion to enforce this Court’s Order *392dated February 2, 1996; Parish of Orleans, Criminal District Court, Div. “I”, No. 364-144; to the Court of Appeal, Fourth Circuit, No. 95KW-2633.\nDenied. See State ex rel. Foy v. Criminal District Court, 96-0519 (La. 3/15/96), 669 So.2d 393.\nCALOGERO, C. J., not on panel.\n", "ocr": true, "opinion_id": 7699756 } ]

"1996-09-27"

[ "679 So. 2d 1346" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Mule-Durel, Inc.; Hingle, Ray James, Jr.; — Defendant(s); applying for writ of certiorari and/or review; Parish of Orleans, Civil District Court, Div. “K”, No. 94-7970; to the Court of Appeal, Fourth Circuit, No. 95CA-2192.\nDenied.\nBLEICH, J., not on panel.\n", "ocr": true, "opinion_id": 7700172 } ]

"1996-10-04"

[ "679 So. 2d 1363" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Jones, Charles D.; — Plaintiffs); applying for supervisory and/or remedial writs; Parish of East Baton Rouge, 19th Judicial District Court, Div. “D”, No. 429,619; to the Court of Appeal, First Circuit, No. CW96 1547.\nGranted. Consolidated With 96-C-1907, 679 So.2d 1363.\nMARCUS, J., not on panel.\n", "ocr": true, "opinion_id": 7700232 } ]

"1996-10-04"

[ "679 So. 2d 1377" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Lilley, Larry Dale; — Defendant(s); applying for -writ of certiorari and/or review; Parish of Caddo, 26th Judicial District Court, Div. “B”, No. 71,553; to the Court of Appeal, Second Circuit, No. 27616-KA.\nDenied.\n*1378CALOGERO, C. J., and LEMMON, J., would grant the writ.\nBLEICH, J., not on panel.\n", "ocr": true, "opinion_id": 7700281 } ]

"1996-10-04"

[ "679 So. 2d 1383" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re D’Amico, Frank J.; Wisner, Marie Riccio; — Defendant(s); applying for supervisory and/or remedial writs; Parish of Or*1384leans, Civil District Court, Div. “B”, No. 95-17536; Civil District Court, Div. “K”, No. 86-11148; to the Court of Appeal, Fourth Circuit, Nos. 96CW-0608, 96CW-0799.\nDenied.\nVICTORY, J., not on panel.\n", "ocr": true, "opinion_id": 7700302 } ]

"1996-10-04"

[ "679 So. 2d 1388" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Murphy Oil, USA Inc.; — Defendant (s); applying for supervisory and/or remedial writs; Parish of Orleans, Civil District Court, Div. “D”, No. 95-8984; to the Court of Appeal, Fourth Circuit, No. 96CW-0915.\nDenied. Relator may reraise on appeal.\nJOHNSON, J., not on panel.\n", "ocr": true, "opinion_id": 7700318 } ]

"1996-09-05"

[ "680 So. 2d 208" ]

[ { "author_str": "McRae", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMcRAE, Justice,\nfor the Court:\nThis is an appeal of the Monroe County Circuit Court decision upholding the validity of the local option election legalizing the use, possession and sale of alcohol within the city limits of Aberdeen, Mississippi. Bob Kelly, individually and as chairman of Citizens Against Legalized Liquor, relying on a published newspaper article as the latest official census, objected to the validity of the election on the basis that the population of Aberdeen was less than 7000. The City of Aberdeen, relying on the statement of the Census Bureau that the 1980 census figures were the latest official census results, maintained that it had the requisite population to hold the election. Because we find that the 1980 federal census was controlling under Miss.Code Ann. § 67-1-14 (1990), the circuit court decision upholding the validity of Aberdeen’s local option election is hereby affirmed.\nOn October 20,1990, the Mayor and Board of Aldermen of Aberdeen, Mississippi determined that the City of Aberdeen was qualified to hold an election on whether it could legalize the use, possession and sale of alcohol within the municipality pursuant to Miss. Code Ann. § 67-1-14 (1990). The voters in the municipality subsequently elected to permit the sale, receipt, storage and transportation of alcoholic beverages in the City of Aberdeen, Mississippi on November 13, 1990. The election was certified by the Board of Aldermen.\nBob Kelly, individually and as chairman of Citizens Against Legalized Liquor, filed a Bill of Exceptions in the Circuit Court of Monroe County arguing that the City of Aberdeen was not permitted to hold a local option election under § 67-1-14 since the preliminary 1990 census figures, printed in several local newspaper articles, indicated the population of Aberdeen to be less than 7,000. The City of Aberdeen acknowledged that 1990 preliminary figures showed a population of less than 7,000. It maintained, however, that the 1980 census, which showed a population greater than 7000, was controlling in this matter because the results of the 1990 census were merely preliminary figures and *209not final until April 1, 1991. The circuit court entered judgment on January 12, 1998, concluding that the election was valid since the latest federal census was the 1980 census.\n. The sole issue presented by this appeal concerns which census was controlling under Miss.Code Ann. § 67-1-14 (1990) to determine whether the City of Aberdeen was entitled to hold a local option election. Section 67-1-14 provides the qualifications necessary for a municipality to vote on whether the sale of liquor will be legal within the city limits despite its location in a dry county. The Mayor and Board of Aldermen of Aberdeen determined that the City was qualified to hold such an election under § 67-l-14(2)(a) which states:\nAny municipality in this state having a population of not less than seven thousand (7,000) according to the latest federal census, all or any portion of which is located within five (5) miles of the Tennessee-Tombigbee Waterway or the Bogue Chitto River and which is located in a county which has voted against coming out from under the dry law may, at an election held for the purpose under the election laws applicable to such municipality, either prohibit or permit the sale, and the receipt, storage and transportation for the purpose of sale, of alcoholic beverages.\n(emphasis added). Kelly argues that the trial court erroneously concluded that the election was valid based on the 1980 census figures. The City concedes that the preliminary 1990 figures showed a population of less than 7,000, and it even acknowledges that the final census figures released in 1991 showed a population of 6873, but it maintains that reliance on the 1980 census at the time of the election was proper, especially in light of the affidavit submitted by Paula J. Schneider, Chief of the Population Division of the Bureau of the Census, which stated the 1980 was the last official census at the time of the election because the official results of the 1990 census were not released until April 1, 1991.\nThis is a case of first impression as there are no Mississippi cases dealing with this particular aspect of the statute in question. After a thorough review of the numerous cases from other jurisdictions cited in the briefs, we find that the reasoning in Lewis v. Lackawanna County, 200 Pa. 590, 50 A. 162 (1901) should govern the particular circumstances of this ease. The issue in Lewis was whether a district attorney should have been paid a greater salary for his previous eight years in office based on a statute which provided a certain salary when the population of the County exceeded 150,000. 50 A. at 162-68. Based on growth figures revealed in the 1900 census, Lewis argued that the population undoubtedly exceeded 150,000 by the year 1892. Id. at 163. Although the statute in Lewis failed to make reference to the federal census as the guidepost for population determination, the court concluded that the latest federal census, the 1890 census, was the legal and official figure of population under that state statute because it was the most competent evidence of population, and because it would ensure “correctness, uniformity, and the avoidance of duplication,” as well as prevent “intolerable inconvenience and confusion.” Id.\nThe same reasoning used by the Lewis court applies to the facts of the case at hand. The legislature obviously included the words “according to the latest federal census” in order to avoid confusion and provide a definite benchmark for determining whether a municipality located in a dry county could legally conduct a local option election. As long as the census is subject to possible correction for miscounts, which would have been the. ease had Aberdeen relied on the newspaper articles submitted by Kelly,1 then there is the danger that a dty would have to later declare the local option election invalid. Future election results from local option elections based on preliminary numbers would merely be a source of intolerable inconvenience and confusion. To promote stability, uniformity, and the avoidance of confusion and duplicate efforts, municipalities must *210rely on the official results of the latest federal census in determining whether it may hold a local option election under § 67-l-14(2)(a). The evidence introduced in the trial below indicated that the official results of the 1990 census were not released until April 1, 1991. Accordingly, we conclude that the 1980 census was the latest federal census under § 67-l-14(2)(a) at the time of the election.\nIn City of Detroit v. Nims, 330 Mich. 239, 47 N.W.2d 4, 6 (1951), the Michigan Supreme Court interpreted a statute which required the treasurer to distribute tax dollars on a per capita basis “according to the latest or each succeeding federal decennial census.” The court concluded that the quarterly distributions could be based upon preliminary census figures. Id., 47 N.W.2d at 10; see City of Rochester v. County of Monroe, 93 A.D.2d 625, 462 N.Y.S.2d 939, 942 (1983) (quarterly sales tax revenues from winter of 1980-81 properly allocated according to preliminary report of 1980 census); City of Nashville v. Kizer, 194 Tenn. 357, 250 S.W.2d 562 (1952) (allocation of tax dollars to cities should rely on census figures as soon as available).\nIn reaching this conclusion, however, the court noted that the distributions were made subject to further readjustments according to later adjusted census figures. Nims, 47 N.W.2d at 6. Because the amount of distributions could be adjusted, the court noted that reliance on preliminary figures would not cause “disturbance of the orderly processes of government nor any hardship other than as may flow from a miscalculation of anticipated revenues.” Id.2\nUnlike the situation presented in Nims, there is no procedure in the case at hand for making minor adjustments to an election which tens out to have been illegally conducted. Other than complete invalidation of an election, there is no other means for adjusting an election to reflect a change in results indicated by the official promulgation of the census. Consequently, municipalities should rely on the latest official census results in the record which, in this case, were the results of the 1980 census. See Cato v. Chaddock, 175 Ind.App. 514, 373 N.E.2d 172, 175 (1978) (census results effective once governor receives official results thereby insuring uniform application of laws relying on census); Haralson v. State, 260 Ala. 473, 71 So .2d 79, 84 (1953) (interpreting statute which referenced latest published census to require “final, correct, official, conclusive” figure); Varble v. Whitecotton, 354 Mo. 570, *211190 S.W.2d 244 (1945) (selection of petit jury in October of 1930 based on 1920 census was valid because courts only take judicial notice of official record of census and results of 1930 census had not been officially published).\nIn Childers v. Duvall, 69 Ark. 336, 63 S.W. 802, 803 (1901), the Arkansas Supreme Court made similar observations regarding reliance on preliminary reports,\nSo long as the enumeration of its inhabitants for that year was subject to the examination and revision of an officer, it was not the census. The work that was to make it such was not finished. Until the law authorized the announcement of the enumeration as the census, no official notice of it as such could be taken; and, until official notice could be taken of it, no election or appointment could be based upon it.\nKelly contends that there is no interest in stability and uniformity in this particular ease since Aberdeen held “perhaps [the] only [election] up to this point” under § 67-1-14. Kelly, however, fails to account for the fact that the same dispute might arise every ten years if this Court fails to require finalized results from the Census Bureau. Although 13 U.S.C.A. § 7 (1990) authorizes the Bureau of the Census to publish “preliminary and other census bulletins,” use of these figures would not cure the problems of uncertainty. Therefore, preliminary census bulletins are simply not controlling under § 67-1-14. But see Herndon v. Excise Board, 147 Okla. 126, 295 P. 223, 224 (1931) (allowing preliminary results to control because the law expressly permitted the supervisor to publish preliminary results).\nThe phrase, “latest federal census,” in Mxss.Code Ann. § 67-1-14 (1991) requires a municipality to rely on the latest official promulgation of results from the Bureau of the Census. Although the parties in this dispute and the facts of this case fail to delineate which exact documents constitute official results, the weight of the evidence indicated that the 1980 census was the latest official census at the time of the election because the official results of the 1990 census were not released until April 1, 1991. Because the 1980 census showed the population of Aberdeen to be greater than 7,000, the local option election held on November 13, 1990 was valid under § 67-1-14. Accordingly, the decision of the Monroe County Chancery Court upholding the local option election in Aberdeen is hereby affirmed.\nJUDGMENT AFFIRMED.\nLEE, C.J., SULLIVAN, P.J., and PITTMAN and BANKS, JJ., concur.\nSMITH, J., dissents with separate written opinion joined by PRATHER, P.J., and JAMES L. ROBERTS, Jr., J.\nMILLS, J., not participating.\n\n. Not only did the preliminary figures contain the caveat that they were subject to adjustment, but the newspaper articles were actually urging citizens to contact the Census Bureau if they believed they had not been counted in the 1990 census so that more definite figures could be obtained.\n\n\n. In a review of prior cases on this issue, many of which have been cited by the parties in the case sub judice, the Nims court made the following observation:\nIt is not surprising that ... courts, in determining the jurisdiction of courts, or the validity of the drawing of juries or of the appointment or election of public officials, have rejected the date of enumeration as the time as of which the statutory effects of a changed population status shah become operative, and, instead, have accepted for that purpose some subsequent date when census results were published or became known, inasmuch as to do otherwise would result in a period of chaos and confusion, between those two dates, during which the jurisdiction of courts and the validity of proceedings would be in doubt, incapable of immediate ascertainment.\nId., 47 N.W.2d at 8. Although the court was alluding to the time period between the talcing of the census and the publication of results, instead of the time difference between preliminary publications and the official promulgation of results as in the case sub judice, the same reasoning of avoiding confusion applies. Reliance on preliminary figures would simply create a period of chaos and confusion as to the validity of a local option election.\nThe Nims court actually made the following observation with respect to the reliance on preliminary figures instead of official figures:\nWhether, in such cases, the change of status resulting from reaching a certain population level were to be held in effect as of the date of a preliminary bulletin as distinguished from the date of final promulgation of results, or vice versa, however, would make little practical difference ordinarily, unless the preliminary report disclosed a figure so near the dividing line as to cast doubt what the final result might be.\n(emphasis added). Id. at 8. Although reliance on preliminary figures might normally make little difference in the end, the facts of this case revealed that the preliminary figures released in the newspaper were so close to the dividing line set forth in the statute (7,000) that reliance on preliminary figures would have made a practical difference and cast doubt on what the final result of the census might have been. In the interests of avoiding this doubt in future local option elections, the official promulgation of results is the proper benchmark for determining whether a municipality is entitled to hold a local option election under § 67-1-14(2)(a).\n\n", "ocr": true, "opinion_id": 7700345 }, { "author_str": "Smith", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nSMITH, Justice,\ndissenting:\nThis is nothing short of an attempt by the City of Aberdeen to sneak in under the wire and conduct a liquor referendum using 1980 census figures. The city knew full well that 1990 preliminary population results indicated that the city had insufficient population under the statute to even conduct a liquor referendum. Nevertheless, the city chose to circumvent the law and hold a liquor referendum prior to the “officially released” new census data. In this first impression issue, the majority adopts the minority view of our sister states with which I cannot agree and therefore, must dissent.\nMfiss.Code Ann. § 67-1-14 (Supp.1990) required at least a population of 7,000 for cities to hold a local option election. The 1980 census showed Aberdeen to have a population of 7,184 residents. However, the preliminary figures made public from the 1990 census showed a population of only 6,771. The preliminary 1990 figures had been released by the Bureau of Census, properly and legally published, all in accordance with the “latest federal census.” Aberdeen’s population decline, as shown by the new 1990 census, were of obvious public notoriety due to the four publications in the local newspaper. In a hurried attempt to get around the new census figures, the city fathers claimed the old figures under the 1980 census were controlling.\nWe must first answer the question of what is the Legislature’s intent as to which census *212should control, the 1980 or 1990 census. The use of the word “latest” in the Mississippi Code Ann. § 67-1-14 (Supp.1990), indicates that the 1990 census figures, even though preliminary, should control. The 1990 census should also be controlling under Section 67-1-14, enacted after the 1990 decennial census date. In City of Detroit v. Nims, 330 Mich. 239, 47 N.W.2d 4, 9 (1961), the court held that legislative intent, when ascertainable, is the guiding star. That court, addressing the use of the word “latest census” in the Michigan statute, also noted that the use of the word latest “disclosed a clear intent ... distributions should be made on a basis as nearly in accord with actual population as possible.” Id., 47 N.W.2d at 9. The Michigan court thus gave immediate effect to a preliminary report (released August 1, 1950) of the 1950 census results, rather than wait some eight more months until the “official” results were filed.\nIn Forde v. Owens, 160 S.C. 168, 158 S.E. 147, 148 (1931), according to statute, the compensation of the mayor and councilmen of the City of Columbia could double whenever it was determined by the “last preceding published United States Census” that the city’s population had attained 50,001. The preliminary publication announced by the Board of Census were 50,195. The city officials certified that the city had exceeded the numerical amount of population required by the South Carolina statute and began drawing salaries at twice the rate previously received. The city officials were promptly challenged. The South Carolina Supreme Court, in holding that the governing officials did not act too soon, noted that the census was “published” when the results were made known “by bulletins published in the newspapers” ... and that it was “not necessary to wait” until there have been compiled and bound certain volumes constituting the final official report of the Bureau ... to the Secretary of Commerce. Id., 158 S.E. at 150.\nIn Board of Com’rs of Lorain County v. City of Elyria, 174 Ohio St. 135, 21 Ohio Ops.2d 393, 187 N.E.2d 33 (1962), where a village and a city joined in petitioning to annex part of the village to the city, the Secretary of State proclaimed that the village had already grown in excess of 5,000 residents according to the latest 1960 census, and was therefore, now a city, not a village. Id., 187 N.E.2d at 33-34. In holding that this information met Ohio’s statutory language requiring the Secretary of State to act when the census count was “officially made known to the Secretary of State,” the court found that this informal certification by the Director of the Bureau of Census was sufficient. Id. at 35. The court noted that the Secretary of State did not have to wait “until the final official declaration of the census [w]as sent to him.” Id. Newspaper legal publications are informal channels, but the focus is the authority of the source, and the source is the Bureau of Census. If preliminary released figures were considered “official” in City of Elyria, they most definitely should be considered the “latest ” census under Miss.Code Ann. § 67-1-14.\nIn State ex rel. Retonaz v. Mitchell, 115 S.W. 1098 (Mo.App.1908), the Missouri Court of Appeals considered the eligibility of a city, based upon population, to opt for a liquor law that may or may not have been identical or different from that chosen by the county. The county held an election on March 7, 1908, which was held improper because a local census completed February 7, 1908, showed that the city had a population sufficient enough to qualify under the same statute to conduct its own city election on enacting a local option law. Id. at 1100.\nThis issue is not confined to this century. The case of Nelson v. Edwards, 55 Tex. 389 (1881), as in Aberdeen, involved a county that was losing population. The county had a public office of tax collector and elected a tax collector during November 1880 elections. The census of 1880 showed a decline in population sufficient to drop the county to a class where the sheriff was to be both sheriff and tax collector. The final census figures had not been released and thus the dispute arose. The court, in finding that the enumerator’s preliminary list filed in the office of the county court, was sufficient evidence of the 1880 population, held that the 1880 census governed as to whether the county should elect a tax collector or whether such position was no longer necessary. 55 Tex. at 393. *213The court invalidated the November 1880 election.\nState ex rel. Clark v. Board of Education of City of Salina, 148 Kan. 632, 84 P.2d 507 (1938), is also analogous to the case at bar. A city in Kansas attempted to beat the new census by conducting a vote of a school bond the month prior to the new census being officially published. The court followed the principle of practicality rather than formality and held that the most recent census should guide the city’s decision despite the fact that it had not been published officially. The most recent census was the most recently taken census. Id., 84 P.2d at 508-09.\nIn City of Rochester v. Monroe County, 93 A.D.2d 625, 628, 462 N.Y.S.2d 939, 941 (N.Y.App.Div.1983), the New York appeals court noted no “statutory requirement that the final tabulations be in any particular form or book. Once the census figures are broken down into counties, towns, wards, etc., and are released to the public by an authorized official, the census is complete for all practical purposes.” Id.\nThe principle derived from all of these cases is simply that “a new census should be given effect when preliminary figures are made public by those authorized to disseminate such figures.” City of Elyria, 187 N.E.2d at 35; see also State ex rel. Clark, 148 Kan. 632, 84 P.2d 507 (1938). Preliminary census figures filed three months prior to án election, by the enumerator authorized to file them, governed the county’s power to hold that election. Nelson v. Edwards, 55 Tex. 389, 392 (1881).\nFinally, the majority hangs its hat, as did Aberdeen, on the caveat that preliminary “population counts are subject to correction for undereount or overcount.” This caveat is appended to every 1990 census report to comply with a stipulation resulting from litigation against the Bureau by some of the nation’s largest cities. City of New York v. U.S. Dept. of Commerce, 739 F.Supp. 761 (E.D.N.Y.1990) (rev’d on other grounds in Wisconsin v. City of New York, — U.S. -, 116 S.Ct. 1091, 134 L.Ed.2d 167 (1996)); see State of New Jersey v. Apportionment Com’n, 125 N.J. 375, 593 A.2d 710, 711 (N.J.1991). The majority claims that this caveat requires that a ten and one-half-year-old census should remain the controlling “latest” census until at least April 1, 1991, or at most until July 15, 1991, the date when the census becomes “official.” This same argument was raised and soundly rejected in State of New Jersey in which the Court held that even where the New Jersey Constitution used the phrase, “official decennial census,” the figures released to the Governor months before either the July 15th or April 1, 1991, deadlines should be considered official and be acted upon by state officers. State of New Jersey, 125 N.J. at 382, 593 A.2d at 714.\nThe Oklahoma Supreme Court, in Herndon v. Excise Bd. of Garfield County, 147 Okla. 126, 295 P. 223 (Okla.1931), considered a ease where the City of Enid, according to preliminary census figures released on May 3, 1930, was entitled to and did establish a city court. The governing board, claiming that the 1920 census controlled and that the 1930 census was “not complete, nor officially declared,” refused to pay the salary of the new judge. Id., 295 P. 223. The preliminary announcement of the 1930 census figures contained a caveat that “these figures are preliminary and subject to correction.” Id. The initial figures were subsequently corrected after May 3, 1930, but the preliminary announcement was one the Board was required to take notice of and be guided by. Id. at 224.\nPreliminary census figures still subject to correction had similar force and effect in Ludwig v. Board of County Comr’s of Sarpy County, 170 Neb. 600, 103 N.W.2d 838 (Neb. 1960); Excise Bd. of Washita County v. Lowden, 189 Okla. 286, 116 P.2d 700 (1941); Elliott v. State ex ret Kirkpatrick, 150 Okla. 275, 1 P.2d 370 (Okla.1931); and Holcomb v. Spikes, 232 S.W. 891 (Tex.Civ.App.1921).\nIn the case at bar, MIss.Code Ann. § 67-1-14 (Supp.1990) did not require that the census be “official,” only that it be the “latest” census governing population count in Aberdeen for purposes of a city holding a local option liquor referendum. Therefore, the 1990 census should be controlling under § 67-1-14 which became effective June 2, 1990, after the 1990 decennial census date.\n*214Even considering the caveat, the Census Bureau, on July 22, 1991, announced that no adjustment to Aberdeen’s preliminary population figures, made public by publication during August, September, and October of 1990, would be made to the final “official” figures. This was so in spite of the Bureau’s admission that two per-cent of the population was not counted.\nI respectfully dissent.\nPRATHER, P.J., and JAMES L. ROBERTS, Jr., J., join this opinion.\n", "ocr": true, "opinion_id": 7700346 } ]

"1996-04-23"

[ "680 So. 2d 506" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nThis is a direct appeal from convictions and sentences for grand theft and possession with intent to use drug paraphernalia. We affirm the conviction and sentence for grand theft, but reverse the conviction and sentence for possession of drug paraphernalia, because there was insufficient evidence of intent to use the paraphernalia to ingest a controlled substance.\nAccording to section 893.147(l)(b), Florida Statutes, “[i]t is unlawful for any person to use, or to possess with intent to use, drug paraphernalia: ... [t]o inject, ingest, inhale, or otherwise introduce into the human body a controlled substance.” The record indicates that when arrested, appellant had an item described as a homemade crack pipe in his boot and another in his pocket. No evidence was offered to show that any drug residue was found on the items, nor was there evidence that appellant had any illegal drugs in his possession when arrested. An arresting officer testified as to how such pipes are used.\nThe presence of even a minuscule quantity of drug residue is sufficient circumstantial evidence to prove the element of intent to use, see Steele v. State, 561 So.2d 638 (Fla. 1st DCA 1990). Conversely, when alleged drug paraphernalia tested negative for drug residue and the record was devoid of other evidence that appellant possessed the item with intent to use it for an illegal purpose, a violation of section 893.147(1) was not established, see T.E.D. v. State, 627 So.2d 118 (Fla. 5th DCA 1993). Under the present circumstances, there was insufficient evidence of intent to use the items for an illicit purpose. See also Williams v. State, 529 So.2d 345 (Fla. 1st DCA 1988).\nAFFIRMED in part REVERSED in part and REMANDED.\nJOANOS, BENTON and VAN NORTWICK, JJ., concur.\n", "ocr": true, "opinion_id": 7700416 } ]

"1996-10-11"

[ "680 So. 2d 659" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Johnson, Byron Jerome; — Defendants); applying for supervisory and/or remedial writ; Parish of Ouachita, 4th Judicial District Court, Div. “D”, No. 91-F0927; to the Court of Appeal, Second Circuit, No. 26960-KW.\nDenied.\nVICTORY, J., not on panel; recused.\n", "ocr": true, "opinion_id": 7700569 } ]

"1996-10-16"

[ "680 So. 2d 1143" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nAffirmed. See Williams v. State, 472 So.2d 738 (Fla.1985).\n", "ocr": true, "opinion_id": 7700719 } ]

"1995-06-30"

[ "681 So. 2d 145" ]

[ { "author_str": "Holmes", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nRICHARD L. HOLMES, Retired Appellate Judge.\nC.W. Guilford filed a complaint, seeking a sale for division of jointly-owned real property. This case has previously been before this court. In the prior appeal we reversed the trial court’s judgment and remanded the case to the trial court for further proceedings. See Guilford, v. Bell, 637 So.2d 1364 (Ala.Civ.App.1994).\nAfter remand, the trial court scheduled a hearing for June 10, 1994, on the issue of whether the subject real estate could be equitably divided. At this hearing Guilford testified, and the following documents were admitted into evidence: the original deed naming William Bell and James Bell as grantees of the subject real estate, a list outlining the names and respective interests of the heirs of William Bell and James Bell, and the appraiser’s report, which was prepared after the petition for sale for division was filed. There was no other evidence or testimony presented by either party.\nThereafter, Odessa Bell and the remaining joint owners (hereinafter referred to collectively as Bell) filed a written motion for directed verdict. The motion for directed verdict alleged that Guilford failed to meet his burden of establishing that the subject real estate could not be equitably divided. Guilford filed a response to the motion for directed verdict.\nAfter a hearing on the motion for directed verdict, the trial court issued an order dated August 24, 1994, wherein it determined that the subject real estate could not be equitably divided among the joint owners, that the subject real estate should be sold, and that the proceeds from the sale should be divided among the joint owners, according to their respective interests.\nBell filed a post-judgment motion, which was denied.\nBell appeals. This case is before this court pursuant to Ala.Code 1975, § 12-2-7(6).\nBell’s first issue on appeal centers around Guilford’s competence to testify at the hearing of June 10, 1994, and whether the trial court unfairly hindered Bell’s attorney in his attempt to establish Guilford’s incompetence.\nInitially, we would note that a witness is presumed to be competent to testify and that the party who objects to the competency of a witness bears the burden of proving the incompetency. Smith v. State, 380 So.2d 345 (Ala.Crim.App.1980). In order to reverse a trial court’s determination that a witness is competent to testify, an appellate court must find that the trial court abused its discretion in making such a determination. Smith, 380 So.2d 345.\nOur review of the record reveals the following: Although Bell’s attorney questioned whether Guilford was “of sound mind” in the answer to the petition and at the beginning of the June 10, 1994, hearing, there was no objection to Guilford’s competency to testify after he was called as a witness and administered the oath.\nOn cross-examination, Bell’s attorney questioned Guilford, who was 71 years of age at the time of the hearing, at length regarding the names and respective interests of the heirs of William Bell and James Bell. When Guilford’s attorney objected to the line of questioning, the attorney for Bell indicated that he was exploring that line of questioning to test Guilford’s competency to testify.\nThe trial court had the opportunity to observe the witness and indicated that just because Guilford could not answer every question about all the different heirs, that did not mean that he was not competent to testify.\nIn light of the above, we find no abuse of discretion on the part of the trial court.\nIn the second issue, Bell contends that the trial court’s finding that the subject real es*147tate could not be equitably divided was against the great weight of the evidence.\nThe law is clear that when a trial court, sitting without a jury, enters a judgment after hearing the testimony and reviewing the evidence, such judgment will be affirmed on appeal if there is credible evidence to support the judgment and if the judgment is not palpably wrong or manifestly unjust. City of Bridgeport v. Citizens Action Committee, 571 So.2d 1089 (Ala.1990).\nWe have reviewed the record on appeal and cannot agree with Bell’s contention that the trial court’s determination was against the great weight of the evidence. Our review of the record reveals that there was credible evidence to support the trial court’s judgment and that the judgment was not palpably wrong or manifestly unjust.\nIn light of the above, the judgment is due to be affirmed.\nThe foregoing opinion was prepared by Retired Appellate Judge RICHARD L. HOLMES while serving on active duty status as a judge of this-court under the provisions of § 12-18-10(e), Ala.Code 1975.\nAFFIRMED.\nAll the judges concur.\n", "ocr": true, "opinion_id": 7700779 } ]

"1996-10-25"

[ "681 So. 2d 374" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Deville, Paul; — Defendant(s); applying for writ of certiorari and/or review; Parish of Evangeline, 13th Judicial District Court, Div. “B”, No. 56,441; to the Court of Appeal, Third Circuit, No. CA96-0159.\nDenied.\nBLEICH, J., not on panel.\n", "ocr": true, "opinion_id": 7700919 } ]

"1996-11-01"

[ "681 So. 2d 1260" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Ouachita Parish Sch. Bd.; Davis, Ross; —Defendants); applying for supervisory and/or remedial writ; Parish of Caddo, 1st Judicial District Court, Div. “A”, No. 336,783; to the Court of Appeal, Second Circuit, No. 28400-CA.\nDenied.\nVICTORY and BLEICH, JJ., would grant the writ.\nLEMMON, J., not on panel.\n", "ocr": true, "opinion_id": 7701201 } ]

"1996-11-01"

[ "681 So. 2d 1265" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Comford, Dawn; — Plaintiffs); applying for writ of certiorari and/or review; to the Court of Appeal, First Circuit, No. CA95 2398; Parish of St. Tammany, 22nd Judicial District Court, Div, “D”, No. 94-11250.\nDenied.\nKIMBALL, J., not on panel.\n", "ocr": true, "opinion_id": 7701217 } ]

"1996-11-15"

[ "682 So. 2d 756" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Black, Lee Cizer, Jr.; — Defendant(s); applying for supervisory and/or remedial writ; Parish of Caddo, 1st Judicial District *757Court, Div. “B”, No. 161,501; to the Court of Appeal, Second Circuit, No. 26565-KA\nDenied.\nVICTORY, J., not on panel; recused.\n", "ocr": true, "opinion_id": 7701522 } ]

"1996-11-22"

[ "683 So. 2d 284" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Bourg, Patricia Autin; — Plaintiffs); applying for supervisory and/or remedial writs; to the Court of Appeal, Fifth Circuit, No. 96-CW-0715; Parish of St. Charles, 29th Judicial District Court, Div. “E”, No. 39,158.\nDenied.\nCALOGERO, C.J., not on panel.\n", "ocr": true, "opinion_id": 7701928 } ]

"1996-11-27"

[ "683 So. 2d 627" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nUpon her plea of guilty to second degree murder the trial court sentenced the appellant to twenty years’ incarceration followed by ten years’ probation, which sentence was within the terms of the plea bargain. The appellant’s counsel then filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We have reviewed the record in accordance with In re Anders Briefs, 581 So.2d 149 (Fla.1991), and agree with counsel that no meritorious grounds exist to reverse the conviction or sentence. However, we do note that a special condition of probation was imposed that the trial court did not pronounce at sentencing. Therefore, the special condition that the appellant pay for drug testing during her probationary term is stricken. Hamilton v. State, 653 So.2d 1068 (Fla. 2d DCA 1995). In all other respects we affirm.\nDANAHY, A.C.J., and PARKER and FULMER, JJ., concur.\n", "ocr": true, "opinion_id": 7702023 } ]

"1996-12-04"

[ "684 So. 2d 269" ]

[ { "author_str": "Shahood", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nSHAHOOD, Judge.\nWe affirm appellant’s judgment and conviction on the charge of delivery of cocaine and possession of cocaine but strike that portion of the order of probation requiring appellant to pay costs of random testing as it was not orally pronounced at sentencing.\nAppellant’s order of probation states in pertinent part as follows:\n5. You will submit to urinalysis, breathalyzer or blood tests at any time requested by your officer or the professional staff of any treatment center where you are receiving treatment, to determine possible use of alcohol, drugs or controlled substances. You shall be required to pay for such tests unless otherwise waived by your officer. (Once a month)[in handwriting].\n(Emphasis added).\nAt sentencing, the trial court failed to orally pronounce the requirement that appellant was to pay for drug testing. Further, this condition is not a condition approved in rule 3.986, Florida Rules of Criminal Procedure (1995). Therefore, the condition must be orally pronounced at sentencing.\nThis court, in Fernandez v. State, 677 So.2d 332, 333 (Fla. 4th DCA 1996), struck that portion of the condition of probation requiring the defendant to pay costs of random testing. In finding it to be improper, the court explained that:\nWhile section 948.03, which enumerates the terms and conditions of probation for all forms of probation, authorizes a trial court to impose random testing, the statute does not specifically provide for a defendant to be financially responsible for the testing. See § 948.03(l)(k)l; Dean. For this reason the requirement that defendant pay the cost of testing as a condition of probation must be stricken because it was not orally pronounced. Dean v. State, 669 So.2d 1140 (Fla. 4th DCA 1996); Catholic v. State, 632 So.2d 272 (Fla. 4th DCA 1994).\n677 So.2d at 333-34; see also Dean v. State, 669 So.2d 1140 (Fla. 4th DCA 1996); Catholic v. State, 632 So.2d 272 (Fla. 4th DCA 1994).\nAffirmed in part; reversed in part.\nGLICKSTEIN and DELL, JJ., concur.\n", "ocr": true, "opinion_id": 7702236 } ]

"1996-12-13"

[ "684 So. 2d 298" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nC.N. appeals the final order of delinquency adjudicating him guilty of attempted burglary.- We reverse because the State failed to present evidence that was inconsistent with *299his reasonable hypothesis of innocence. See State v. Law, 559 So.2d 187 (Fla.1989); Luscomb v. State, 660 So.2d 1099 (Fla. 5th DCA 1995); J.C.S. v. State, 613 So.2d 574 (Fla. 1st DCA 1993).\nREVERSED.\nGOSHORN and THOMPSON, JJ., concur.\nW. SHARP, J., dissents, with opinion.\n", "ocr": true, "opinion_id": 7702251 }, { "author_str": "Sharp", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nW. SHARP, Judge,\ndissenting.\nI respectfully dissent. First, I do not think that C.N. preserved the issues of whether the state presented sufficient evidence to show he intended to commit an offense inside the victim’s home, as argued on appeal, or whether the state failed to present evidence that was inconsistent with his reasonable hypothesis of innocence, as the majority opinion holds. At the close of the state’s ease, C.N. moved for judgment of acquittal on the ground that there was no evidence that he opened a door or window. Since C.N. failed to present in the trial court either the argument urged by counsel on appeal, or the ground relied upon by this court in reversing, neither is preserved for appellate review. Archer v. State, 613 So.2d 446 (Fla.1993); Tillman v. State, 471 So.2d 32 (Fla.1985).\nIt also appears to me that even if C.N. had properly argued to the trial court that the state failed to present evidence that was inconsistent with his reasonable hypothesis of innocence, and received an adverse ruling by the trial court, I would agree with the trial court in this ease that his position has no merit. C.N. claimed he was intoxicated and was merely trying to get into the home of a person he knew named Mr. Barnes.\nThe evidence at trial established that C.N. aggressively attempted to enter a dwelling, first beating on the front door, and then on a window. The home owner called 911 to report a man armed with a pipe was trying to break into his home. The victim testified that C.N. was coherent and conversing with him during the attempted break-in. The victim told C.N. he was not Mr. Barnes and there was no one at the dwelling with that name. The victim further testified that C.N. appeared to understand.\nNonetheless, C.N. said he was coming into the residence. He then tried to force his way in through a window. At that point, C.N. could clearly see the victim. Had C.N. not fallen into a flower bed, and the police instantly arrived on the scene, he likely would have broken the window. In my view, the evidence was sufficient to controvert his reasonable hypothesis of innocence: that he was merely intoxicated and looking for an acquaintance. I would affirm the adjudication of delinquency based on attempted burglary of a dwelling.\n", "ocr": true, "opinion_id": 7702252 } ]

"1996-12-13"

[ "684 So. 2d 304" ]

[ { "author_str": "Patterson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPATTERSON, Judge.\nKevin Kilgannon, the father in this paternity action, appeals from the final judgment which determines his child support obligation. We affirm the final judgment in all respects with the exception of the trial court’s award of 10% of the father’s future bonuses.\nThe mother of the parties’ minor child is employed as an assistant vice president of Barnett Bank, earning $36,850 gross yearly salary. The father earns a base salary of $110,200 a year as an executive vice president of Sun Trust Bank. He is also eligible for an annual bonus based on the bank’s performance in the previous year. He had received only two bonuses in his seven years of employment with the bank, in 1994 and 1995. In 1995 he received a bonus of $18,-289.88 for the bank’s performance in 1994. The father claimed that a bonus in 1996 was not likely because the bank’s 1995 performance had been poor.\nIn determining the father’s child support obligation, the trial court declined to include the father’s bonus income in computing his gross income because of the uncertain nature of the bonuses from year to year. Finding, nonetheless, that the child was entitled to share in the father’s “good fortune” should he receive a bonus in the future, the court awarded 10% of any such net bonus to be paid as child support within ten days of its receipt. Thus, the father was obligated to pay $1,185 monthly child support, in addition to 10% of the net of any bonuses he received in the future.\nThe father does not dispute that he must pay some part of his yearly bonuses toward his child support obligation. However, he argues that the trial court erred in requiring him to pay a flat 10% of his future bonuses without taking into consideration the child’s needs or the mother’s income at the time he receives the bonus. We agree. See Joseph v. Joseph, 681 So.2d 888 (Fla. 4th DCA 1996) (provision awarding wife 25% of any bonus husband receives with 7% allocated to child support and 18% to alimony invalid because evidence of wife’s and children’s needs must be considered at the time the bonus is received).\nAccordingly, we affirm the final judgment of paternity with the exception of the future bonus award. The mother is not precluded by this holding from seeking a modification *305of the child support award in the future, should the father receive a bonus.\nAffirmed in part; reversed in part.\nDANAHY, A.C.J., and ALTENBERND, J., concur.\n", "ocr": true, "opinion_id": 7702256 } ]

"1996-12-19"

[ "684 So. 2d 953" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re London, Michael; — Plaintiffs); applying for supervisory and/or remedial writ; Parish of Orleans, Criminal District Court, Div. “H”, No. 350-989; to the Court of Appeal, Fourth Circuit, No. 95KW-0005.\nDenied. See La.C.Cr.P. art. 930.3; State ex rel Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172.\nLEMMON, J., not on panel.\n", "ocr": true, "opinion_id": 7702514 } ]

"1996-12-20"

[ "685 So. 2d 78" ]

[ { "author_str": "Patterson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPATTERSON, Acting Chief Judge.\nIn this dissolution of marriage action, the trial court, on its own motion, struck the husband’s pleadings. We reverse.\nThe case began when the husband filed his pro se petition for dissolution, which stated that the parties had agreed on shared parental responsibility for their daughter, who would reside with the wife. Attached to the petition was a form settlement agreement that both parties had signed. The wife filed a pro se answer. The husband then, through counsel, filed an amended petition which sought sole parental responsibility of the child and to vacate the settlement agreement. The wife, through counsel, filed an amended answer and counterclaim seeking shared parental responsibility. The court referred the case to family mediation.\nThe husband moved for trial, and the court set a pretrial conference. At the conclusion of that proceeding, the trial court entered a pretrial order and found that the husband: (1) had not fully complied with the mediation order; (2) was in arrears in child support for which he was in civil contempt; and (3) was the subject of an arrest warrant for failing to comply with an order to appear and show cause on the support issue. The court concluded the order by striking the husband’s pleadings and commenting that this now resolved the issues of custody, child support, alimony, and the husband’s attempt to set aside the settlement agreement. The wife had not requested the striking of the pleadings, and the order does not recite the court’s reasoning.\nWe are left to assume that the court struck the pleadings as a sanction for the husband’s conduct. For whatever reason, it was too severe a sanction for what appears in this record and constituted an abuse of discretion. See Neal v. Neal, 636 So.2d 810 (Fla. 1st DCA 1994) (abuse of discretion to strike wife’s pleadings when record did not support finding of willful violation of discovery order and husband could not demonstrate meaningful prejudice to justify extreme sanction); Chase v. Chase, 519 So.2d 637 (Fla. 2d DCA 1987) (severe sanction of striking husband’s pleadings for willful failure to comply with discovery orders in dissolution action was inappropriate, especially when sensitive matters such as child custody and support were at issue).\nWe therefore reverse and remand with instructions that the husband’s pleadings be reinstated.\nWHATLEY, J., and PADGETT, J. ROGERS, Associate Judge, concur.\n", "ocr": true, "opinion_id": 7702606 } ]

"1997-01-06"

[ "685 So. 2d 122" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Central Louisiana Bank & Trust; Cottonport Bank; — Plaintiffs); applying for writ of certiorari and/or review; Parish of Avoyelles, 12th Judicial District Court, Div. “B”, No. 91-6004-B; to the Court of Appeal, Third Circuit, No. CA96-0379.\nDenied.\nKNOLL, J., not on panel.\n", "ocr": true, "opinion_id": 7702660 } ]

"1997-01-15"

[ "685 So. 2d 1389" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nAppellant, Milton K. Davis, claims his right to a direct appeal was abridged as a result of his attorney’s failure to file a notice with the court as requested by the appellant. We agree.\nThe State properly concedes that the record reflects defense counsel failed to insure substitute counsel would be appointed following his discharge for the purpose of discussing whether there were any viable issues for an appeal. Furthermore, the record reflects that counsel was discharged immediately following the sentencing proceeding and the issue of whether there might be an appeal was not resolved.\nThe order discharging trial counsel, as well as statements made at the sentencing hearing, indicate that all concerned contemplated appointing appellate counsel, however one was never appointed. We remand for the purpose of appointing counsel to represent appellant on appeal and to discuss whether an appeal is warranted. See Fla. R.Crim. P. 3.111(e). Appellant shall be granted a belated appeal providing him with 30 days from the date appellate counsel is appointed in which to file the proper notice. See Weisman v. State, 651 So.2d 148 (Fla. 2d DCA 1995); Parker v. State, 634 So.2d 755 (Fla. 1st DCA 1994).\nReversed; remanded with instructions.\n", "ocr": true, "opinion_id": 7703001 } ]

"1996-04-17"

[ "686 So. 2d 10" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nMark Gauvain, the plaintiff in a personal injury action, appeals the final judgment entered after jury verdict and the trial court order denying his motion for new trial. We affirm.\nGauvain presents four issues on appeal. We do not address the two issues pertaining to the seatbelt defense because the argument presented on appeal was not timely presented to the trial court. Furthermore, Gau-vain’s counsel stipulated to the jury instructions and verdict form that were given to the jury. Therefore, these issues were not preserved for appellate review. See City of Orlando v. Birmingham, 539 So.2d 1133 (Fla.1989). With respect to the remaining two issues, we find them to be without merit.\nAffirmed.\nSCHOONOVER, A.C.J., and FULMER and QUINCE, JJ., concur.\n", "ocr": true, "opinion_id": 7703024 } ]

"1996-12-20"

[ "686 So. 2d 957" ]

[ { "author_str": "Jafitzsimmons", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nJaFITZSIMMONS, Judge.\nIn this suit for damages arising from a one vehicle accident in the east bound lane of I-*95910 in Iberville Parish, the trial court apportioned fault and awarded damages to the plaintiff. We reverse in part, and affirm in part.\nFACTS AND PROCEDURAL BACKGROUND\nThe accident that injured Ms. Barsavage occurred on October 11, 1988, at 10:30 p.m. Ms. Barsavage’s car left the paved surface on the left side of the east bound lane and briefly traveled on the dirt shoulder. When she tried to return to the highway, her tire blew out. The car flipped over several times on the surface of the highway. She suffered a herniated disc and cervical fracture.\nMs. Barsavage sued the'State of Louisiana, through the Department of Transportation and Development (DOTD). After a trial on the merits, the trial court apportioned 85% of the fault to Ms. Barsavage and 15% of the fault to the DOTD. The trial court awarded Ms. Barsavage $75,000 for past, present, and future physical pain and suffering, $25,-000 for mental anguish, $60,900 for past loss of wages, $178,624 for future earning capacity, $57,150 for future medical expenses, $30,-000 for future surgery, and $8,064.08 for past medical expenses. Ms. Barsavage filed a motion for a new trial, which was denied.\nDOTD appealed and assigned error to (1) the apportionment of fault, (2) failure of the trial court to properly reduce the award of past and future lost wages because of plaintiffs failure to mitigate her damages, (3) the trial court’s failure to properly reduce the award for mental anguish because of plaintiff’s failure to mitigate, and (4) the award for future surgery when such an award was too speculative. No error was assigned to the award for past, present, and future physical pain and suffering or to the award for past and future medical expenses, with the exception of the $30,000 awarded for future |3surgery. Ms. Barsavage answered the appeal, and complained of the trial court’s apportionment of fault.1\nTRIAL TESTIMONY AND EVIDENCE\nMr. Wayne Wess, an experienced truck driver, witnessed the accident. Mr. Wess testified that the night was dark and the black asphalt roadway surface was dark, rendering the area of the accident “pitch black.” Before the accident, he saw no warning signs or barricades that night to alert a driver to a construction zone. Signs were located further down the highway. As Ms. Barsavage passed Mr. Wess’ truck, he noticed that she was over quite a bit to the left. Mr. Wess saw Ms. Barsavage’s left tires go off of the paved portion of the highway onto the shoulder. When she tried to pull back onto the roadway, her tire blew and the car flipped over. After the accident, Mr. Wess inspected the drop off between the paved surface and the dirt shoulder at the point that Ms. Barsavage attempted to return to the roadway. He described a drop off differential between the two surfaces as eight inches. Mr. Wess testified that because of the darkness of the area and the roadway, and with no markings to delineate the shoulder, a driver could not tell where the roadway ended and the shoulder began.\nPlaintiffs expert, Mr. Dwayne Evans, a registered electrical engineer, was qualified by the court as an expert in traffic engineering and accident reconstruction. In Mr. Evans’ opinion, the motorist entering a construction zone must be so advised and an atmosphere of safety must be created by the use of appropriate signs and barricades. The highway construction project log noted that the signs and barricades were “okay” on jAhe day of the accident, but the log does not say where they were placed. For safety *960reasons, Mr. Evans stated that a shoulder drop off should not be more than two inches. A drop of more than two inches presented a hazard. Mr. Evans noted that in his review of the project contract, a drop off of more than two inches required the contractor to grade up the area to eliminate the difference. Mr. Evans opined that at night the outer limit of the paved surface would be very difficult to see. A temporary dashed center line is not a good guide to the edge of the roadway. Thus, under the conditions present at the time of the accident, it was substandard conduct not to have a line marking the edge of the roadway and the shoulder. In Mr. Evans’ opinion, the drop off of between six and eight inches caused the tire to blow out when Mr. Barsavage tried to return to the highway. The blow out caused the car to flip. DOTD offered no expert testimony on what caused the accident.\nChristine Barsavage testified that at the time of the accident, she lived in Dallas, Texas. She was unfamiliar with the stretch of the interstate where the accident occurred. Ms. Barsavage had never experienced such a dark highway before that night. She remembered looking in the rear view mirror to check the position of the truck behind her. It was at that moment that her left tires left the paved portion of the highway. The dirt shoulder was very bumpy and the vehicle was hard to control. Ms. Barsavage testified that she slowed down a little, and immediately tried to return to the highway. She remembered no construction hazard warning signs; there were no lines on the edge of the roadway.\nApproximately two weeks after the accident, Ms. Barsavage went back to the scene to view the area and try to find out what happened. She testified that the drop off was of varying depths between the dirt shoulder and the paved surface. The dirt was 15chunky and rocky. She estimated that the drop off at one point was the “length of a sixteen ounce Coke bottle.... ”\nBobby Roberts, plaintiffs expert in vocational evaluation, recommended a structured physical therapy program for Ms. Barsavage. However, when asked about the success of patients who had not had surgery within a short time after the accident, Mr. Roberts opined that the longer the patient goes “post-injury without remediating or resolving symptoms[,] the less likely we are to ever get that person rehabed.” Mr. Roberts noted that Dr. Llewellyn had told Ms. Barsavage to do certain exercises, but she had quit because the exercises were painful.\nMs. Barsavage called Glenn J. Delatte, Jr., the State Police Trooper who responded to the scene of the accident. The trooper testified that he had previously seen construction warning signs posted throughout the area, in the east and west bound lanes. He specifically mentioned a sign placed at the approximate beginning of the project. The accident scene was about four and one-half miles into the construction area. He confirmed that the tire blew out on the ear; there were no street lights; a dashed center line had been placed on the new asphalt; and, that the edge of the roadway had no lines marking it. The trooper opined that Ms. Barsavage over corrected when she tried to enter the highway. Trooper Delatte testified that the scene of the accident was in a particularly dark area of the interstate because the interstate lanes are divided by trees in that area. The east bound lane was forested on both sides. According to the trooper, the drop off between the paved portion of the roadway and the dirt shoulder was from two to three inches. The area he referred to was not where Ms. Barsavage went off the highway. Therefore, the drop off differential in that area could not have been created by the wheels on the soft dirt.\n16James Tattie, a civil engineer for DOTD, testified that signs were placed at the beginning and end of the project, and every half mile between. DOTD had paved four feet more than the normal road width surface. No lines were placed on the edge of the roadway, delineating between the paved roadway and the paved portion of the shoulder, or between the paved portion and the dirt shoulder. Mr. Tattie stated that DOTD had no such requirement. The policy of the state, according to Mr. Tattie, was not to have a drop off beyond two inches. The shoulder had been worked on and graded. However, the work on the dirt shoulder was *961not complete. Mr. Tattie admitted that he had not personally cheeked the signage on the night of the accident.\nDOTD called its expert in vocational testing, counseling, and rehabilitation, Mr. William Joseph Cranburg. Mr. Cranburg noted that Doctors Whiteeloud and Llewellyn suggested surgery and indicated a good probability of success. Mr. Cranburg believed that Ms. Barsavage was a good candidate for rehabilitation services. The Texas rehabilitation program offered many free services, and could make a determination of Ms. Bar-savage’s eligibility for other services, including vocational training and physical therapy.\nMEDICAL TESTIMONY\nDr. Raeburn Llewellyn, a board certified neurological surgeon, testified by deposition. Dr. Llewellyn treated Ms. Barsavage from May 17, 1989 until November of 1990. She did not return for an office visit after November. From time to time, Ms. Barsavage also saw Dr. Jarrott, Dr. Llewellyn’s associate.\nVarious tests, including a Magnetic Resonance Imaging(MRI) test, were ordered by Dr. Llewellyn. Both doctors repeatedly asked Ms. Barsavage to have the MRI, but she did not undergo the MRI until mid-1990. After a CAT scan and X-rays, Dr. Llewellyn diagnosed injuries to the sacrum and cervical vertebrae, muscle and ligament sprain of the lower back, and a fractured coccyx caused by the 1988 accident. The doctor’s notes contained ^notification by Ms. Barsavage of a second accident in May of 1989 and an injury at home later that year. The doctor opined that these secondary accidents aggravated the original injuries.\nIn July of 1989, Ms. Barsavage returned to Dr. Llewellyn. The doctor found lumbar sprain and aggravated soft tissue injury to neck and back. Ms. Barsavage was encouraged to be as active as she could tolerate and to return to light work. Ms. Barsavage returned to the office on November 9, 1990. She stated that she was in school, and not working. No significant changes in her condition were noted. On December 26, 1989, Dr. Llewellyn found moderate neck and back problems. She reported she injured herself while undergoing home treatment. On May 31, 1990, the MRI test was conducted. In June of 1990, Dr. Llewellyn noted evidence of the cervical injuries, but found that they were healing. From the MRI, the doctor found no cervical disc problem, but diagnosed a lower back disc protrusion or herniation. Dr. Jarrott examined her and felt that she could return to light work assignment and increase her activity level. The MRI test was repeated and evidence of the disc herniation was again found at L4-5. A lumbar myelogram and CAT scan were recommended to determine if the injury “was of the type that might likely worsen with time and that she should accept a surgery option to insure that she could be eighty percent comfortable eighty percent of the time and treat herself for muscle and ligament complaints that might persist after disc surgery.” Dr. Llewellyn believed that the surgery was a reasonable option to Ms. Barsavage’s other choice, that is, “restricted activities and avoidances, and treating herself with home heat and exercise activities....” With the surgery, she could alternatively sit and stand at intervals, commute back and forth to work, could occasionally lift twenty pounds, and would have zero disability from light work. She might be able to engage in volleyball and horseback riding, but the doctor would not advise it because of the chance of re-injury. Without surgery, she would have to accept a level of comfort only |⅜ fifty percent of the time, the continued use of medication, and possibly not being able to work. Dr. Llewellyn believed that the difference in recovery with surgery would be significant in a young woman like Ms. Barsavage.\nDr. Thomas Whiteeloud, Chairman of the Department of Orthopedic Surgery at Tulane University Medical School and on staff at the Tulane Medical Center as a board certified orthopedic surgeon, also testified by deposition. Dr. Whiteeloud only saw Ms. Barsavage one time, on March 23, 1992. He diagnosed a disc herniation at L4-5. Dr. Whiteeloud told Ms. Barsavage that she needed surgery and felt that it was a viable option. With surgery, Dr. Whiteeloud opined that Ms. Barsavage would suffer only a ten percent impairment, but no disability. She would be restricted from heavy manual *962labor, but otherwise she could “do whatever she want[ed] to do.” Dr. Whitecloud would have placed no limitations on sporting activities. The surgery was scheduled by Ms. Barsavage for June 3, 1992. She was a Medicaid patient and the hospital was prepared to do the surgery under the Medicaid program. Ms. Barsavage did not show up for the surgery.\nBy deposition, Dr. Robert L. Stockton, a board certified neurological surgeon, testified that he saw Ms. Barsavage one time on May 17, 1993. Ms. Barsavage told Dr. Stockton that she had delivered a child approximately two weeks before the May visit. She reported pain in her neck, in her low back, and in both legs. After examination, Dr. Stockton found Ms. Barsavage to be disabled from performing usual work tasks and not employable. A CAT scan and MRI were scheduled and she was told to return in one month. She never returned.\nDr. Stockton stated that he did not suggest surgery because he needed the results of the tests before he could make such a decision. Particularly, the doctor wanted to make sure that any fractures had healed. Ms. Barsa-vage could still try surgery, but Dr. Stockton found that when a patient has not worked for four years, and experienced chronic pain during that same period, | ;¡“it’s very seldom that we can get a patient back to work under those circumstances.” The formation of scar tissue that contributed greatly to the pain could have been alleviated by earlier surgery. If the surgery had been done sooner, Dr. Stockton believed that a fifty percent chance existed that Ms. Barsavage could have returned to work.\nFAULT OF THE PARTIES\nThe duty of the DOTD is to keep the highways and shoulders in reasonably safe condition. That “duty encompasses the obligation to protect a motorist who inadvertently drives onto the shoulder of the highway.” Campbell v. Louisiana Department of Transportation & Development, 94-1052 p. 5-6 (La.1/17/95), 648 So.2d 898, 901. Prudent behavior for a motorist who inadvertently drives off the paved roadway onto the shoulder is first to reduce the speed and then to attempt a gradual reentry after the motorist has regained control of the vehicle. Guidroz v. State, Through Department of Transportation and Development, 94-0253 p. 4 (La.App. 1st Cir. 12/22/94), 648 So.2d 1361, 1364.\n“In apportioning faulty the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed.” Campbell, 94-1052 at p. 7, 648 So.2d at 902. A determination of the allocation of fault by the trier of fact is a factual finding. Guidroz, 94-0253 at p. 7, 648 So.2d at 1366. Factual findings cannot be overturned in the absence of manifest error. The issue to be resolved by this court is not whether the trial court was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). “After the court of appeal finds a ‘clearly wrong’ apportionment of fault, it should adjust the award, but only to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court’s | ipdiscretion.” Clement v. Frey, 95-1119, 95-1163, p. 7-8 (La.1/16/96), 666 So.2d 607, 611.\nThe trial court found that the DOTD had warned of the construction zone and that Ms. Barsavage’s own inattentiveness caused her to run off of the road. The trial court also believed that Ms. Barsavage “apparently panicked” when she attempted to return to the highway. In its reasons for judgment, the trial court stated that the drop off between the paved surface and the dirt shoulder of only one and one-half inches “should not cause an accident like this to happen.” Eighty-five percent of the fault was apportioned to Ms. Barsavage.\nBased on our thorough review of the record, we can find no reasonable basis for the trial court’s apportionment of fault. DOTD did not dispute the plaintiffs version of the accident and how it happened. In written reasons for judgment, the trial court found that the drop off was one and one-half inches and that the DOTD met its duty to *963adequately warn of construction hazards. We find no support for these conclusions. The trial court committed manifest error in its finding that the DOTD adequately warned this plaintiff of the particular unreasonable hazard created by DOTD in this case. We also find that the trial court erred in its estimation of the size of the drop off. These erroneous findings skewed the trial court’s determination of fault, and led the trial court into clear error in the allocation of fault.\nAll witnesses at the scene agreed on the darkness of the particular area of the interstate, the darkness of the road surface, the absence of lines marking the edge of the roadway, and the blow out of the tire, which caused the car to flip over. Because of the great difficulty in distinguishing between the paved surface and the dirt shoulder in such a dark area, we find an unreasonably dangerous condition was created by DOTD’s failure to mark the edge of the black paved surface or the edge of the shoulder in an area that was particularly dark at night. The lack of a requirement to mark the edge of the roadway at the time of | nthe accident does not waive DOTD’s duty to alert the motorist to the hazard created in this case under these circumstances. Mr. Evans testified that any edge marking or additional signs to warn of this particular hazard in this case would be relatively inexpensive. A “low shoulder” or “new shoulder” sign posted every half mile would be sufficient.\nThe record contains no basis for a finding that the drop off between the paved road and the dirt shoulder was one and one-half inches. The preponderance of the evidence points to a drop off of more than two inches. The testimony of Mr. Dwayne Evans, the only expert testimony on the subject, was that a drop off of more than two inches created a hazard.\nThe failure to warn the driver of the end of the paved surface under the peculiar circumstances here, coupled with the fact that the drop off was more than the two inches deemed reasonable, created an unreasonable risk. Mr. Evans opined that the tire blew out because of the substandard drop off. Thus, in comparing the conduct of the parties and the effect of the conduct on the causal relation, and “mindful of the deference we must give the trier of fact,” we find DOTD to be 70% at fault for the accident. Clement v. Frey, 95-1119, 95-1163 at p. 10, 666 So.2d at 612.\nMs. Barsavage was inattentive while passing the truck. She did slow while on the shoulder, but tried to reenter the highway too quickly, instead of attempting a gradual reentry. Again, using the Clement standard, we assign 30% of the fault to Ms. Barsavage. See Clement v. Frey, 95-1119, 95-1163 at p. 7-8, 666 So.2d at 611; Guidroz, 94-0253 at p. 4-5, 648 So.2d at 1364-65.\nDAMAGES: DUTY TO MITIGATE\nAn injured party has a duty to mitigate his or her own damages. Aisole v. Dean, 574 So.2d 1248, 1253-54 (La.1991). An injured party is required to take reasonable steps to exercise ordinary prudence to minimize the damage. Stanley v. Guy, 442 | i2So.2d 579, 582 (La.App. 1st Cir.1983). In order to minimize damage, an injured party is obligated to submit to reasonable medical treatment recommended for the party’s improvement. Reeves v. Louisiana and Arkansas Railway Co., 304 So.2d 370, 375 (La.App. 1st Cir.), writ denied, 305 So.2d 123 (La.1974).\nMs. Barsavage asserted not only her inability to work as a result of the accident, but also complained that her physical limitations impacted her life with her children. Her claim for mental anguish was based on her inability to support herself and her children, and her sometime inability to meet the physical demands of parenthood. DOTD argued that Ms. Barsavage failed to mitigate her damages.\nMs. Barsavage suffered injuries and testified that she was unable to work after the accident in 1988. At the time of trial, she testified that she had pain from time to time in her neck, but it was “a lot better than what it was in the very beginning.” The pain was brought on by weather changes and stress. Her back was still painful during the trial. She testified that she had back pain every day. Ms. Barsavage stated that she took Advil on a daily basis.\n*964For ten months before the accident, she worked at Omega Optical as a contact lens technician making $5.45 an hour. Sometime after the accident, she gave birth to two children, who were about one and four, at the time of the trial in 1994. Ms. Barsavage tried to return to work in October or November of 1993 at a factory assembly line. She worked for a week and a half, but could not continue because of the pain she experienced on the job. She made no other attempts to find a job. Ms. Barsavage admitted that two physicians, Dr. Whitecloud and Dr. Llewellyn, told her that surgery would alleviate the pain, but she felt that the surgery was optional. She declined to undertake any surgical procedure because the doctors would not give her any guarantees and she did not want to leave her only child at the time to go to the hospital. Ms. Barsavage testified that she was aware of | ^rehabilitation services (many of which were free) in her state of residence, Texas. She had not utilized any of them. Ms. Barsavage testified that she would undergo physical therapy, but she could not afford it. She admitted that she even if she was functionally capable, she would not go back to work until her children were in school. Ms. Barsavage stated that she could not afford day care and believed that it was her responsibility to stay home with her children until they were about five.\nOn the issue of failure to mitigate damages, the trial court, in its reasons for judgment, noted that Dr. Whitecloud recommended surgery and, based on the normal outcome of the surgery in such a case, forecast no disability and only a 10% physical impairment. A 10% impairment would preclude heavy manual labor, but nothing else. The trial court noted that Dr. Stockton believed that surgery would not have eliminated the disability that prevented Ms. Barsa-vage from working. However, the trial court also stated that Dr. Stockton “testified that surgery would have cut down on the scar tissue and relieved the pain.” According to Dr. Stockton, any future surgery would not reduce the pain as earlier surgery would have. Thus, the trial court found that (1) Ms. Barsavage refused to have surgery and (2) Ms. Barsavage’s condition would have been improved by surgery. The trial court also found that she had not attended any vocational counseling, rehabilitation training, or physical therapy sessions, and many of these services would have been provided to her for free.' In its reasons for judgment, the trial court noted that Ms. Barsavage gave birth to the children after the accident.\nWe find no manifest error in these findings. However, the trial court, in its award of damages, gave no specific indication of what, if any, reduction it made for Ms. Bar-savage’s failure to mitigate her mental anguish. The trial court made no reduction in the award for past or future lost wages.\nOn the record before us, we agree with the trial court that Ms. Barsavage failed to adequately mitigate her damages. I i4CertainIy, DOTD met its burden of proof on Ms. Barsavage’s duty to mitigate. The refusal to have surgery obviously interdicted the possibilities of recovery from the injury and of lowering the level of pain. It is undisputed that Ms. Barsavage was injured. The dispute is over her responsibility to seek the highest level of improvement that is reasonable under the circumstances. The question arises of whether DOTD has a duty to pay for lost wages Ms. Barsavage suffered as a result of her choice of treatment.\nCounsel for Ms. Barsavage argues that the surgery was optional and, therefore, she was not required to undergo surgery to mitigate her damages. It is clear from the medical depositions that Ms. Barsavage was offered options, but unequal options. The choices offered her by Doctors Llewellyn and Jarrott were conservative treatment versus surgery. Conservative treatment required her to accept severe restrictions on activities and rendered her unemployable. Surgery within a reasonable time after the accident offered a high probability of recovery sufficient to return her to the work force and allow light and moderate activity. Except in emergency situations, doctors do not force surgery on anyone. Ms. Barsavage exhibited throughout her treatment a persistent refusal to follow the advice of her physicians and present herself for evaluation or treatment. Thus, she has a shown consistent disregard for mitigation of damages.\n*965All the doctors testified that surgery would. have improved Ms. Barsavage’s condition. The disagreement was over the level of improvement after surgery. Dr. Whitecloud; Dr. Llewellyn, and Dr. Jarrott believed that after surgery, Ms. Barsavage would have had to refrain from heavy manual labor, but would have been able to work. The only treating physician that testified, Dr. Llewellyn, stated that Ms. Barsavage would be eighty percent comfortable eighty percent of the time, be able to return to light work, and moderate activities. Dr. Whitecloud forecast an even greater level of recovery. Dr. Stockton believed that Ms. Barsavage would still have been disabled to some extent after earlier surgery, |lsbut admitted that the pain would have been significantly reduced. Tulane Medical Center was willing to do the surgery under the Medicaid program. In fact, surgery was scheduled and preparations made, but Ms. Barsavage did not show up.\nMs. Barsavage also refused physical therapy, but for a good reason; she could not afford it at the time. On the other hand, she did not avail herself of the Texas rehabilitation services that may have been able to provide free or low cost therapy.\nAfter the accident, Ms. Barsavage made no attempt to find a job in her previous field of employment. No one claims that the job of optical technician required the type of activity found in the only job she did attempt post-injury in 1993, that of an assembly line worker. Ms. Barsavage made the decision to have two children, ■ after she knew that her injury was interfering with her ability to work. She also admitted that she believed that it was her duty to stay home to care for the children until they were of school age. Many women today may share Ms. Barsa-vage’s view toward child rearing, and wish to stay home. However, monetary concerns, which affect the children’s welfare, often demand that the mother seek employment before the children are of school age.\nFor these reasons, we find that the trial court abused its discretion in not sufficiently reducing the award for mental anguish and in not reducing the award for lost wages and earning capacity. See State, Department of Social Services ex rel. Harden v. Southern Baptist Hospital, 94-2228, 94-2229 p. 11-12 (La.App. 4th Cir. 10/12/95), 663 So.2d 443, 451, writ denied, 95-2751 (La.1/26/96), 666 So.2d 676; Coffin v. Board of Supervisors of Louisiana State University Agricultural and Mechanical College, 620 So.2d 1354, 1366-67 (La.App. 2d Cir.1993); Burke v. Safeway Stores, Inc., 554 So.2d 184, 190 (La.App. 2d Cir.1989). Although Ms. Barsavage would have experienced some lost wages and mental anguish from the injury to her neck and back, the awards did not adequately reflect the significance of her failure to Lamitigate her damages. Based on the record, proper rehabilitation after surgery, undertaken a short time after the accident, with or without vocational training, would, in all probability, have enabled Ms. Barsavage to return to gainful employment and to better meet the physical demands of parenthood. See Pisciotta v. Allstate Insurance Company, 385 So.2d 1176, 1181-82 (La.1979) (On Rehearing (La.1980), the Louisiana Supreme Court affirmed original opinion on issue of mitigation, reversed on another issue). By returning to employment that met her restrictions, she would have • eliminated the feelings of inadequacy that she experienced.\nFor the sake of argument, even if the surgery had been offered as an equal option to more conservative treatment, Ms. Barsa-vage made no attempt to resume employment in her field or take advantage of free counseling and vocational training available to her. Dr. Llewellyn encouraged her to resume certain activities and to return to light work as early as 1989. She may have been able to perform at an adequate level, but the defendant was deprived of this information by her own refusal to attempt to find suitable employment at her former level or at minimum wage.\nThe only just result on the record before us is to reduce the amount for mental anguish to one-half of that awarded by the trial court, and to reduce the amount of lost wages to three-fourths of the trial court’s award. That is, an award of $29,940.50, or between two and three years salary based on the figures calculated by Dr. Randolph Rice' and utilized by the trial court. That is the *966approximate period of time from the accident until the termination of treatment with Dr. Llewellyn and Dr. Jarrott by Ms. Barsavage.\nThe record contains no support for an award for future surgery. We find no evidence in the record that a particular surgery would be successful many years after the accident or that Ms. Barsavage would actually undertake a specific surgical resolution in the near future. This is especially true in light |17of Dr. Stockton’s testimony and Ms. Barsavage’s refusal to undertake any previous recommendation for surgery. Thus, we find that the award of $30,000 for surgery was far too speculative on the record, and must be deleted.\nCONCLUSION\nFor these reasons, we reverse the judgment on the apportionment of fault. The fault is apportioned 70% to DOTD and 30% to Ms. Barsavage. We amend the judgment, as follows:\n(1) the award for mental anguish is reduced from $25,000 to $12,500;\n(2) the award for past and future lost wages is reduced from a total of $239,-524 ($60,900 for past lost wages and $178,624 for future lost wages) to $29,-940.50; and\n(3) the amount of $30,000 for future surgery is deleted from the award for future medical expenses.\nThe total amount of damages, before apportionment, now equals $182,654.58. We affirm the judgment in all other respects. The costs of the trial court, $865.90, are assessed to DOTD. The costs of the appeal, $400, are assessed equally to Ms. Barsavage and the DOTD.\nAFFIRMED IN PART, REVERSED IN PART, AND RENDERED.\nWHIPPLE, J., concurs.\n\n. To request modification or reversal of a portion of a trial court’s judgment, an appellee must answer the appeal. LSA-C.C.P.art. 2133. In Ms. Barsavage’s answer she did not request a review of the damages. However, in the conclusion of her appellee brief, Ms. Barsavage requests this court to review the assessment of damages in accordance with the evidence. In response to the appeal by DOTD, we reviewed all damages, except pain and suffering and medical expenses, minus the future surgery award. Although we do feel compelled to undertake such a review based only on the one sentence request in the appellee brief, we find that the record does not support any increase in the damages. Certainly, the trial court did not abuse its vast discretion in its award of damages for pain and suffering or err in its award of medical expenses, with the exception of the future surgery award.\n\n", "ocr": true, "opinion_id": 7703306 } ]

"1997-01-29"

[ "687 So. 2d 390" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Armstrong, Robert L.; — Defendant/s); applying for supervisory and/or remedial writ; Parish of Sabine, 11th Judicial District Court, Div. “A”.\nDenied.\nKIMBALL, J., not on panel.\n", "ocr": true, "opinion_id": 7703530 } ]

"1996-04-09"

[ "687 So. 2d 764" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nAppeal No. 8093 from Judgment dated December 10, 1993; John Leslie Hatcher, Ruling Judge, Coahoma County Circuit Court.\nDana J. Swan, Ralph E. Chapman, Chapman Lewis & Swan, Clarksdale, for Appellant.\nWilliam O. Luckett, Jr., N.J. McMullen, Jr., Clarksdale, for Appellee.\nBefore THOMAS, P.J., and COLEMAN and McMILLIN, JJ.\nAffirmed.\nFRAISER, C.J., BRIDGES, P.J., and BARBER, DIAZ, PAYNE and SOUTHWICK, JJ., concur.\nKING, J., dissents.\n", "ocr": true, "opinion_id": 7703661 } ]

"1997-02-14"

[ "688 So. 2d 415" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nWe affirm the trial court’s February 7, 1996 denial of appellant’s motion to correct or modify his sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. Appellant was entitled upon resentencing for his violation of the probationary portion of his split sentence only to credit for actual prison time served during the incarcerative portion of his original sentence. See Fla. Stat. § 948.06 (1995); Sheppard v. State, 661 So.2d 386, 387 (Fla. 1st DCA 1995). This Court lacks the requisite jurisdiction in this appeal to review the correctness of appellant’s judgment of conviction and sentence.\n*416ALLEN, MICKLE and PADOVANO, JJ„ concur.\n", "ocr": true, "opinion_id": 7704011 } ]

"1997-02-07"

[ "688 So. 2d 509" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Dow Chemical Co.; — Defendant(s); applying for supervisory and/or remedial writs; Parish of Orleans, Civil District Court, Div. “F”, No. 92-2589; to the Court of Appeal, Fourth Circuit, Nos. 96CW-2539, 96CW-2187.\nDenied.\nTRAYLOR, J., recused.\nLEMMON, J., not on panel; recused.\n", "ocr": true, "opinion_id": 7704149 } ]

"1997-02-07"

[ "688 So. 2d 510" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Safeway Insurance Company; — Defendants); applying for writ of certiorari and/or review; Parish of Winn, 8th Judicial District Court, Nos. 32093-93, 32130-93; to the Court of Appeal, Second Circuit, Nos. 28815-CA, 28816-CA.\nDenied.\nTRAYLOR, J., would grant the writ.\nVICTORY, J., not on panel.\n", "ocr": true, "opinion_id": 7704152 } ]

"1997-02-21"

[ "688 So. 2d 535" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Louisiana Workers’ Comp. Corp.;— Defendant(s); applying for supervisory and/or remedial writs; Office of Workers’ Compensation, Dist. 8, No. 96-00120; to the Court of Appeal, Fourth Circuit, No. 96CW-2241.\nGranted.\nLEMMON, J., not on panel.\n", "ocr": true, "opinion_id": 7704239 } ]

"1997-01-17"

[ "688 So. 2d 845" ]

[ { "author_str": "Wright", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nL. CHARLES WRIGHT, Retired Appellate Judge.\nRonald Andrews, as conservator of Gladys R. Andrews, and Ronald Andrews and Pansy M. Andrews, individually, filed a complaint against William L. Bullock, Sr., alleging ownership, by adverse possession, of a certain acre of property. Following an ore tenus proceeding, the trial court entered a judgment in favor of the Andrewses. The trial court found that the Andrewses had been in “actual, exclusive, open, notorious, and hostile possession” of the property for “more than 30 years.” Bullock filed a motion for a new trial, which was denied.\nBullock appeals, raising one issue: whether the trial court erred in holding that the Andrewses had exclusive, continuous, and hostile possession of the property for a period of 20 years.\nWhen evidence is presented ore temis and the trial court “resolves conflicting questions of fact in favor of one of the parties, its findings will not be disturbed on appeal unless they are clearly erroneous or are manifestly unjust.” Lilly v. Palmer, 496 So.2d 522, 525 (Ala.1986). “The presumption of correctness is particularly strong in adverse possession cases, because it is difficult for an appellate court to review the evidence in such eases.” Rice v. McGinnis, 653 So.2d 950 (Ala.1995).\nA party claiming title by adverse possession by prescription must show his or her possession was actual, exclusive, open, notorious, hostile, and continuous for a period of 20 years. Garringer v. Wingard, 585 So.2d 898 (Ala.1991).\nGladys Andrews acquired certain property in 1948, which included the “lands now occupied by the Grantors herein.” At that time the grantors, the Robinettes, lived in a house on the acre of property in dispute. Several witnesses testified that the disputed property was fenced from the 1940s until approximately 1972 when Ronald Andrews acquired the property from his mother, Gladys. These same witnesses also testified that during the 1950s, Gladys rented the house on the disputed property to various tenants. The witnesses further testified that they thought the disputed property belonged to the Andrewses and that they did not see anyone other than the Andrewses on the property. Moreover, the property taxes on the disputed property were assessed to Gladys until 1994 when the taxes were assessed to Bullock.\nAfter acquiring the property, Ronald and his wife, Pansy, built a house on property adjoining the disputed property. They planted a garden on the disputed property until the early 1980s, and they stored hay in the house on the property until they removed the house in approximately 1976 or 1977. Ronald and Pansy have stored large round bales of hay on the disputed property since 1976 or 1977, and their mailbox has been on the property since 1972. Ronald testified that Bullock had not used the disputed property for any purpose since 1972.\nIn 1986 Bullock purchased certain property that adjoined the disputed property. In 1993 Bullock learned that the disputed property had not been included in the 1986 deed, and he requested that his predecessors in *847title, Tom and Hazel York, deed him the property. The Yorks deeded the property to Bullock. However, Mr. York testified that before signing the deed, he informed Bullock that the deed might not be valid, because he and his wife did not own the property. Mr. York also testified that he told Bullock that the property belonged to the Andrewses and that he refused to accept any money from Bullock for the property. Several witnesses, including Bullock, testified that one year in the early 1980s, Bullock planted some turnips on the property, that for approximately two years, Bullock planted com on the property, and that these plantings occurred before Bullock purchased the property. After 1985 Bullock stored equipment on the property. The witnesses also testified that Ronald asked to purchase the property from Bullock. Both Ronald and Pansy denied that Ronald had asked to buy the property. They testified that Ronald had asked to buy an acre of property behind the disputed property.\nAfter reviewing the record, we conclude that the judgment of the trial court is not clearly erroneous or manifestly unjust; therefore, the judgment of the trial court is due to be affirmed.\nThe foregoing opinion was prepared by Retired Appellate Judge L. CHARLES WRIGHT while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975.\nAFFIRMED.\nROBERTSON, P.J., and YATES and CRAWLEY, JJ., concur.\nMONROE, J., concurs in result only.\n", "ocr": true, "opinion_id": 7704258 } ]

"1996-08-14"

[ "688 So. 2d 1075" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n\nWRIT DENIED.\n\n|Jn reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The appellate court must determine whether *1076the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proven beyond a reasonable doubt. State v. Nealy, 450 So.2d 634 (La.1984); State v. Doby, 540 So.2d 1008 (La.App.2d Cir.1989), writ denied, 544 So.2d 398 (1989).\nThe parties submitted this matter to the trial court based on the police reports. The arrest report and the “report narrative” show the police were notified at 12:49 a.m. that a male was slumped over the wheel of a pickup truck on East Texas Street. They found defendant asleep in the driver’s seat of a pickup on East Texas at Butler Street in Bossier City on November 22, 1995. The truck was partially blocking traffic. The time was 1:11 a.m. The gear selector was in the “drive” position. The engine was running. The parking brake was not engaged. The drive shaft was broken. Defendant almost fell when he got out of the truck. He had a strong odor of alcohol, could not perform field sobriety tests, and achieved a .111% on the blood alcohol test. He claimed that his friend “Hal” had been the driver.\n|2We find that the evidence, viewed in the light most favorable to maintain the guilty verdict, was sufficient.\n", "ocr": true, "opinion_id": 7704330 } ]

"1997-03-07"

[ "690 So. 2d 21" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Colony Insurance Co.; — Defendants); applying for supervisory and/or remedial \"writ; to the Court of Appeal, Fifth Circuit, No. 96-CW-0987; Parish of Jefferson, 24th Judicial District Court, Div. “D”, No. 469-599.\nDenied.\nJOHNSON, J., not on panel.\n", "ocr": true, "opinion_id": 7704833 } ]

"1997-03-14"

[ "690 So. 2d 29" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Johnson, Terry Michael; — Plaintiffs); applying for supervisory and/or remedial writs; Parish of Livingston, 3rd Judicial District Court, Div. “A”, No. 33,600; to the Court of Appeal, Second Circuit, No. 28015-KH.\nDenied.\nMARCUS, J., not on panel.\n", "ocr": true, "opinion_id": 7704864 } ]

"1997-02-19"

[ "690 So. 2d 190" ]

[ { "author_str": "Sullivan", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nSULLIVAN, Judge.\nFor the reasons assigned in the case of Citgo Petroleum, Corp. v. Yeargin, Inc. and Continental Casualty Company, 95-1574 (La.App. 3 Cir. 2/19/97); 690 So.2d 154, which was consolidated with this case, the trial court’s judgment is affirmed in part, reversed in part, amended in part and rendered.\nCosts of this appeal are assessed to Citgo Petroleum Corporation.\nAFFIRMED IN PART; REVERSED IN PART; AMENDED IN PART; AND RENDERED.\n", "ocr": true, "opinion_id": 7704959 }, { "author_str": null, "per_curiam": false, "type": "070rehearing", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nON REHEARING\nWe have granted Citgo Petroleum Corporation’s application for rehearing for the limited purpose of clarifying the issue of legal interest. Our opinion decreed that “CNA’s obligation for settlements entered into by Citgo, INA, U.S. Fire and CIGNA is reduced from $4,964,332.66 to $1,875,000.00 plus interest from date of judicial demand until paid.” We also held that CNA’s obligation for costs of defense is subject to interest from judicial demand until paid. Mover correctly points out that the “date of judicial demand” is different for each of the originally settled *191cases filed by the injured claimants. Therefore, we amend the prior decree and order that CNA’s obligation is subject to legal interest from the particular dates of judicial demand of each personal injury claimant’s suit.\nIn all other respects, Citgo’s. motion for rehearing is denied.\n", "ocr": true, "opinion_id": 7704960 } ]

"1997-02-25"

[ "690 So. 2d 217" ]

[ { "author_str": "Ibowes", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n| iBOWES, Judge.\nPlaintiff/appellee, Glenn Farrell, filed suit in the Twenty-Fourth Judicial District Court for damages suffered in an vehicular accident. We reverse the decision of the trial court in favor of plaintiff.\nIn the petition, appellee alleged that he was sitting in a truck owned by his employer, Michael Pakron Lawn Service, in a parking lot at a Time-Saver convenience store, when a delivery truck rolled down an incline and struck the Pakron vehicle. The petition alleged that the truck was owned by either Crescent Distributing Company (Crescent), Miller brands of Greater New Orleans (Miller), or Stan Scott Inc. (Scott) and additionally, that the truck was driven by Glenn Harris or another (unknown) employee. Farrell 12averred that he suffered injuries and sought damages from the defendants and their insurers.\nOf the defendants, the only service of process was on Crescent. Traveler’s Insurance Company who intervened as the worker’s compensation carrier of Pakron, averring that it had paid compensation benefits to Farrell, that it was subrogated to the rights of Farrell, and that it was entitled to be reimbursed for the benefits paid.\nMiller Brands (identifying itself as “formerly Crescent City Distributors”), filed a motion for extension of time and subsequently filed a general denial.\nPrior to trial, it was stipulated by plaintiff, intervenor, and defendant Miller, that plaintiff was in the course and scope of his employment at the time of the accident; that Traveler’s was the compensation carrier and paid benefits of $2,094.96, plus medical expenses of $824.00 and that Traveler’s was subrogated to the extent of its past and future payments.\nFollowing trial, the court took the matter under advisement and, ultimately, granted judgment in favor of the plaintiff and against Miller. In her reasons for judgment, the trial judge found that the delivery truck was owned by Miller and operated by Harris while in the course and scope of his employment with Miller and, further, that the accident was the result of Harris’ negligence in failing to properly park and apply the brakes. The trial judge further found that plaintiff had suffered injuries and granted ^damages in the amount of $5,500.00, plus $824.00 in medical specialists. The judgment further maintained the intervention of Travelers. Miller appeals.\n\nASSIGNMENT OF ERROR\n\nOn appeal, Miller asserts that it was error for the trial court to render judgment against it, because there was no evidence offered at trial that Miller owned the truck or that Harris was operating the truck, in the course and scope of his employment, at the time of the accident.\n\nANALYSIS\n\nIn Louisiana tort cases and other ordinary civil actions, the plaintiff, in general, has the burden of proving every essential element of *219his case, by a preponderance of the evidence. Lasha v. Olin Corp., 625 So.2d 1002 (La.1993); Miller v. Leonard, 588 So.2d 79 (La.1991). Proof by a preponderance requires that the evidence, taken as a whole, show that the fact sought to be proved is more probable than not. Lasha v. Olin Corp., supra; Prestenbach v. Sentry Ins. Co., 340 So.2d 1331 (La.1976); Williams v. Louisiana Coca-Cola Co., 94-810 (La.App. 5 Cir. 3/1/95), 652 So.2d 108.\nIf the party bearing the burden of proof fails to satisfy his burden of proof by a preponderance of the evidence, his case fails to outweigh his adversary’s case and he necessarily loses. Miller v. Leonard, supra.\n|4In the present case, the only testimony at trial was that of the plaintiff, who in describing the vehicle which hit him, stated:\nIt was like a state-body truck, like just like, I guess a beer truck. I can’t really say exactly what type of truck it was. I don’t know what brand or anything.\nPlaintiff did not see anyone in the truck at the time and was not able to identify the driver. He further testified that at no time did anyone identify himself personally to plaintiff as being the person who controlled the truck, as follows:\nBut to the police and Mike Pakron. I mean he was talking — I mean I just sat in the truck basically and waited.\nThe only other evidence introduced at trial were medical reports, plaintiffs federal W-2 form, and a certificate involving plaintiffs return to work.\nThus, it is apparent that plaintiff failed to prove, by a preponderance of evidence, that defendant Miller was the owner of the truck or the employer of the person responsible for control of the truck. The absence of any proof whatsoever relating defendant Miller to the ownership or control of the truck compels us to find that plaintiff did not carry his burden of proof, and that the trial court was manifestly erroneous in finding otherwise. Compare Simms v. Baton Rouge Coca-Cola Bottling Co., Ltd., 469 So.2d 52 (La.App. 1 Cir.1985),writ denied, 470 So.2d 882 (La.1985); Harrison v. Gulf South Beverages, Inc., 438 So.2d 261 (La.App. 4 Cir.1983), writ denied, 443 So.2d 582 (La.1983) in both of which cases, the appellate court found there was no evidence linking the defendant bottling companies to the contents of the bottle consumed by the plaintiffs. The lack of even a minimal identity of the defendant at trial is a failure to prove an essential element of the plaintiffs case.\nFor the foregoing reasons, the judgment of the trial court in favor of plaintiff is reversed. Costs of this appeal are taxed to appellees.\nREVERSED.\n", "ocr": true, "opinion_id": 7704962 } ]

"1997-04-04"