Datasets:

harvard-lil

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cold-cases

like 13

"2000-08-30"

[ "766 So. 2d 441" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nThis is a non-final appeal from an order enjoining appellant from appearing pro se in the proceedings below involving his former wife’s motion for modification of child support.\nWe agree with the trial court that certain of appellant’s pleadings were “repetitious and frivolous ... thereby diminishing the ability of the court[ ] to devote [its] finite resources to the consideration of legitimate claims.” State v. Spencer, 751 So.2d 47, 48 (Fla.1999) (citations omitted).\nNonetheless, we find that the trial court abused its discretion by imposing too broad a sanction. This is a family law case where appellant is not the one seeking *442relief. This fact distinguishes this case from Rodriguez-Diaz v. Abate, 613 So.2d 515, 516 (Fla. 3d DCA 1993), where the third district upheld a trial court’s injunction against a plaintiffs pro se prosecution of a tort action. Moreover, as the Florida Supreme Court has recognized, in many family law cases, at least one party appears pro se:\nReports submitted to the Office of State Courts Administrator by the circuits of this state reflect that, on average, sixty-five percent of all family law cases have at least one unrepresented party.... Our goal must be to simplify the process. Otherwise, we deny many citizens meaningful and affordable access to the courts, particularly when so many of them are self-represented.\nIn re Amendments to the Florida Family Law Rules, 713 So.2d 1, 2 (Fla.1998). The injunction totally denied appellant the opportunity to defend against his former wife’s motion for modification unless he hired an attorney. Even the extreme remedy of entering a default as a sanction in a civil case does not go as far as the injunction here; a defaulted defendant still has the opportunity to litigate the issue of damages.\nOther remedies were available that would not have had the effect of denying appellant the opportunity to defend against his former wife’s motion for modification. For example, the court might have imposed page limits on appellant’s motions or stricken offensive pleadings. In McAliley v. McAliley, 704 So.2d 611, 613 (Fla. 4th DCA 1997), we held that “[ajttorney’s fees may be awarded as a punitive measure where a spouse in a domestic relations case institutes frivolous non-meritorious claims that contribute to unnecessary legal expenses, costs and a delay of the proceedings.” (Citations omitted). See Scholet v. Newell, 229 A.D.2d 621, 644 N.Y.S.2d 858, 860-61 (1996) (where court approved an award of attorney’s fees and a $500 sanction against a former husband who repeatedly filed meritless, successive pro se motions seeking relief from a stipulated order). In In re Marriage of Giordano, 57 Wash.App. 74, 787 P.2d 51, 53 (1990), the court approved the trial court’s imposition of a “moratorium” against the filing of post-dissolution motions until after a trial had been held on a separate issue. The appellate court found that it was within the trial court’s authority to impose reasonable restrictions to prevent further abuse of the court, noting that the moratorium did not amount to a “total denial” of access. See id. at 54.\nFor these reasons, we quash the injunction and remand to the trial court for further proceedings consistent with this opinion.\nKLEIN, GROSS and TAYLOR, JJ„ concur.\n", "ocr": true, "opinion_id": 7734936 } ]

"2000-04-10"

[ "766 So. 2d 1066" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nAFFIRMED.\nALLEN, LAWRENCE, and BENTON, JJ., concur.\n", "ocr": true, "opinion_id": 7735026 }, { "author_str": null, "per_curiam": false, "type": "070rehearing", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n\nON MOTION FOR REHEARING\n\nPER CURIAM.\nTheodore Dyess filed a motion under Florida Rule of Criminal Procedure 3.800 seeking credit for time he spent in the Santa Rosa County jail awaiting disposition of charges laid both in Santa Rosa and in Bay Counties. After we affirmed the order on his motion to correct illegal sentence, he filed a motion for rehearing. To this he attached what purported to be part of a written plea agreement reflecting that the Santa Rosa County authorities were aware of the warrant issued in Bay County earlier than the date from which the order under review had allowed jail credit on the sentence imposed in the Bay County case. See generally Daniels v. State, 491 So.2d 543 (Fla.1986). The motion to correct illegal sentence had not made reference to this plea agreement, however. See Baker v. State, 714 So.2d 1167, 1167 n. 1 (Fla. 1st DCA 1998) (“more than mere conclusory allegations” must identify court records showing entitlement to relief under Florida Rule of Criminal Procedure 3.800). Although affirmance is therefore proper under Florida Rule of Appellate Procedure 9.140(i), nothing precludes the filing of a subsequent motion under Florida Rule of Criminal Procedure 3.800, alleging the plea agreement with specificity. The motion for rehearing is denied.\nALLEN, LAWRENCE, and BENTON, JJ, CONCUR.\n", "ocr": true, "opinion_id": 7735027 } ]

"2000-08-31"

[ "766 So. 2d 1272" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Stokes, Melvin, Jr.; — Plaintiff; Applying for Supervisory and/or Remedial *1273Writs, Parish of West Feliciana, 20th Judicial District Court, Div. B, Nos. W82111498, W82111499; to the Court of Appeal, First Circuit, No. KW98 2456.\nDenied.\nJOHNSON, J., votes to grant.\nMARCUS, J., not on panel.\n", "ocr": true, "opinion_id": 7735098 } ]

"2000-09-29"

[ "769 So. 2d 549" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Richardson, William C.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court, Div. G, No. 438,903; to the Court of Appeal, Second Circuit, No. 34231-W.\nNot considered, not timely filed. See Supreme Court Rule X, Section 5.\n", "ocr": true, "opinion_id": 7735919 } ]

"2000-11-01"

[ "770 So. 2d 275" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nWe find that appellant’s allegations in his motion for post-conviction relief are sufficient to support his claim of ineffective assistance of trial counsel for failure to advise appellant of the defense of voluntary intoxication. We therefore reverse the trial court’s order denying that motion and remand for an evidentiary hearing on the merits of appellant’s claim.\nPOLEN, FARMER and KLEIN, JJ, concur.\n", "ocr": true, "opinion_id": 7736214 } ]

"2000-10-25"

[ "770 So. 2d 719" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nThe Defendant appeals his conviction on two counts of sexual battery on a person aged 12 to 18 by a person in familial or custodial authority. He raises four issues, challenging the trial court’s denial of his motion to dismiss the information and three evidentiary rulings. Finding no merit to the Defendant’s arguments, we affirm.\nThe Defendant is the victim’s uncle by marriage. The victim resided with the Defendant and her aunt, during which time the Defendant, according to the evidence, sexually abused the victim repeatedly. This abuse culminated in the victim’s pregnancy. A DNA test was conducted comparing the victim’s baby’s DNA to that of the Defendant. The conclusion drawn from this test was that there was a 99.99 + % probability that the Defendant was the father of the victim’s baby. The Defendant was convicted upon testimony of the victim describing the incidents of sexual abuse and the results of the DNA test.\nThe Defendant’s defense was that his nephew, another adult male who lived in the house, sexually abused the victim and fathered her child. The nephew did not submit a DNA sample for comparison to the baby’s, and by the time of trial, the nephew had died. The Defendant sought to elicit testimony from the State’s geneticist expert as to whether he could exclude the nephew as a possible father of the victim’s child. The trial court sustained the State’s objection. The Defendant now argues that such testimony would have helped to cast doubt on the conclusion drawn from the DNA test that he fathered the victim’s baby (and thus sexually abused the victim).\nAlthough the trial court sustained the State’s objection, the record shows that the geneticist essentially answered the question by explaining that because the nephew was not tested, there was no way of calculating the probability he was the father. The question could not have been answered any better than it was.\nThe Defendant also argues the trial court should have allowed testimony that the victim had once accused her mother’s live-in boyfriend of sexual abuse. The Defendant does not argue that this testimony was probative of some possible defense that the victim fabricated the charges in retaliation of an exercise of authority by a parent or guardian figure. Cf. Gutierrez v. State, 747 So.2d 429 (Fla. 4th DCA 1999). Rather, he argues that this testimony was relevant because it “would have established a basis for her sexual knowledge” and thus could have impacted the jury’s assessment of her credibility.\nThe Defendant relies upon cases in which the courts held that due to the victim’s age or mental capacity, the jury might perceive the victim as naive and thus should have been allowed to consider evidence that might help them evaluate the victim’s testimony of sexually explicit matters. See Bisbee v. State, 719 So.2d 993 (Fla. 1st DCA 1998); Hammond v. State, 660 So.2d 1152 (Fla. 2d DCA 1995). To contrast, here, the trial evidence showed the victim was thirteen at the time of the abuse. She became pregnant as a result of the abuse, so she had already reached puberty. Further, defense counsel elicited testimony from her that she had had sex education classes in school and knew enough about sex to understand what semen was and that a pre-pubescent boy *721could not have caused her pregnancy. The Defendant cannot now argue that the only explanation for the victim’s knowledge of sex was some previous instance of sexual abuse. The trial court did not abuse its discretion in excluding this testimony.\nThe Defendant raises two other issues, which we affirm without comment. Finding no merit to the Defendant’s arguments, we affirm his convictions and sentence.\nAFFIRMED.\nGUNTHER and GROSS, JJ., concur.\nFARMER, J., dissents with opinion.\n", "ocr": true, "opinion_id": 7736362 }, { "author_str": "Farmer", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nFARMER, J.,\ndissenting.\nThe key question in this case is whether the trial judge properly barred defendant from asking the state’s DNA population frequency expert on cross-examination whether he could exclude the defendant’s nephew as the father of the child. The question was relevant to a defense that the nephew had sexual relations with victim and was the father of the child born to the victim.1 I think it was error to exclude this testimony, error which I cannot say is harmless.\nUnder Brim v. State, 695 So.2d 268 (Fla. 1997), the admission of DNA evidence involves two distinct steps: the first to show that the DNA does not exclude the defendant, and the second to show the probabilities that defendant supplied the DNA in question. The issue in this case concerns the second step, the population frequency statistics.\nThe state’s population frequency expert testified on direct examination that in his opinion the probability was 99.99 + % that defendant was the source of the DNA. He explained that his analysis determined a probability of paternity as against a randomly selected individual from defendant’s population base.2 On cross-examination defense counsel asked the witness whether he could exclude the nephew3 as the source. The state objected to the question. The trial judge told defendant he could not ask the question unless the witness had actually analyzed the nephew’s DNA.4 Defense counsel proffered that the witness would answer that based on the studies he had already done he could not exclude the nephew as the source; that unless he actually analyzed the DNA of any specific member of defendant’s family he could not exclude him as the father; and that he had not done so. The trial court sustained the state’s objection.\nThe probative power of DNA evidence in a criminal trial is the equivalent of the 1,000 pound behemoth in the wrestling match. It outweighs all other challengers. Consequently I believe that judges have special obligations to insure that the behemoth has not been improperly unleashed. Thus the population frequency statistics *722require careful analysis as to precisely what was being compared.\nThe probability testified by the witness was between the defendant on the one hand, and a randomly selected individual from the rest of the subject population on the other. The 99% probability given by the expert was that the DNA in question did not have its source in the rest of the population. In other words he did not attempt to quantify any probability between the defendant and the nephew— only between the defendant and the rest of the world.\nDefendant’s question on cross-examination thus addressed a different population, so to speak. He wanted to know in essence whether the 99% probability applied to members of defendant’s family. For purposes of judging any prejudice in excluding the question, it is irrelevant that the probabilities are 99% that a randomly selected individual from the rest of defendant’s racial population can be excluded as the source. Defendant was entitled to cross-examine the population frequency expert to make the point that his probabilities were limited to sources outside the family.\nI do not understand the logic of the trial judge in excluding the question and its answer. The fact that the nephew’s DNA has not been analyzed does not yield any possible conclusion that it is irrelevant to ask whether the expert’s existing analysis excluded the nephew as well. He did not ask the expert to state a probability that the nephew actually was the source. This latter question — not posed by defendant— would conceivably require analysis of the nephew’s DNA. But the only question asked, whether the 99% probability excluded the nephew, did not require such an analysis. It merely made clear that what appears to be all but conclusive — for so the average juror is likely to regard any authoritative 99.99 + % probability — is not at all decisive on the single individual who, because of the blood relationship, bears some common DNA characteristics.\nI would reverse for a new trial.\n\n. There was other evidence to the effect that the nephew shared the same home with the victim and defendant, that the nephew had the opportunity, that he had been found alone with the victim, that the victim would walk through the nephew's room on her way to the bath; that the victim's aunt thought that the nephew was the father of the child. The trial judge also excluded evidence that the victim had several years before told police that her mother's then live-in boyfriend had abused her when it was not true. I believe it was also error to exclude this latter testimony as well.\n\n\n. He identified three population bases: Caucasian, African-American and Hispanic.\n\n\n. The premise for the question is that the defendant and his nephew share some common DNA characteristics which the rest of the subject population do not have or have in very limited numbers.\n\n\n. The nephew was killed after police investigated this case. There was testimony that when the victim became pregnant her older brother was visibly upset, got a gun and threatened to shoot the father. The trial judge also excluded evidence to the effect that the police suspected the older brother in the murder of the nephew. This evidence was admittedly on the margin of admissibility. When exculpatory evidence is doubtful, in my opinion it should be admitted.\n\n", "ocr": true, "opinion_id": 7736363 } ]

"2000-04-28"

[ "771 So. 2d 1069" ]

[ { "author_str": "Long", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n\n*1070\nOn Remand from the Alabama Supreme Court\n\nLONG, Presiding Judge.\nOn the authority of Ex parte Phillips, 771 So.2d 1066 (Ala.2000), the judgment of the circuit court is reversed and this cause is remanded to the Circuit Court for Shelby County for proceedings consistent with the Supreme Court’s opinion.\nREVERSED AND REMANDED.\nMcMILLAN, COBB, BASCHAB, and FRY, JJ., concur.\n", "ocr": true, "opinion_id": 7736739 } ]

"2000-09-29"

[ "772 So. 2d 109" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Broadwall Management Corp. et al.; Greater Lakeside Corp.; — Defendants; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 518-324; to the Court of Appeal, Fifth Circuit, No. 00-C-908.\nDenied.\n", "ocr": true, "opinion_id": 7736823 } ]

"2000-11-21"

[ "772 So. 2d 579" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nWe reverse and remand this case for the trial court to award the correct amount of jail credit or to attach portions of the record conclusively refuting appellant’s claim. See Davis v. State, 680 So.2d 527 (Fla. 1st DCA 1996).\nREVERSED and REMANDED.\nBARFIELD, C.J., WEBSTER AND VAN NORTWICK, JJ., CONCUR.\n", "ocr": true, "opinion_id": 7736937 } ]

"2000-10-27"

[ "772 So. 2d 657" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re James Pest Control Inc. et al.; Louisiana Pest Control Insurance Company; — Plaintiffs; Applying for Writ of Cer-tiorari and/or Review, Parish of Jefferson, 24th Judicial District Court, Div. F, No. 484-235; to the Court of Appeal, Fifth Circuit, No. 99-CA-1316.\nDenied.\n", "ocr": true, "opinion_id": 7737055 } ]

"2000-11-17"

[ "774 So. 2d 981" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Harrel, Evelyn; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, No. 97-1413; to the Court of Appeal, Fourth Circuit, No. 98-CA-2931.\nDenied.\n", "ocr": true, "opinion_id": 7737771 } ]

"2001-01-05"

[ "775 So. 2d 418" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nEarl Robinson appeals an amended final judgment awarding Ricky Peeler damages for breach of a partnership agreement and permanently enjoining Mr. Robinson from “coming about, harming, molesting, or otherwise ill-treating” Mr. Peeler. We modify the injunction to prohibit instead Mr. Robinson’s harassing, threatening, or physically harming or molesting Mr. Peeler. We also reverse the award of attorney’s fees on Mr. Peeler’s confession of error. See Dade County v. Pena, 664 So.2d 959, 960 (Fla.1995). As modified, the amended final judgment is otherwise AFFIRMED.\nALLEN, BENTON, and BROWNING, JJ., concur.\n", "ocr": true, "opinion_id": 7737924 } ]

"2000-12-22"

[ "775 So. 2d 1214" ]

[ { "author_str": "Leblanc", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nJ^LeBLANC, J.\nThis is an appeal by the plaintiff, Janet Hamblen, individually and as tutrix of her quadriplegic minor son, David Wayne Fag-gard, from a judgment of dismissal rendered by the trial court in favor of the defendants, Hospital Service District No. 1, the owner and operator of Terrebonne General Medical Center and Kevin J. Por-tier, hereinafter referred to as TGMC, on the basis of plaintiffs counsel repeated failure to ignore a motion to compel discovery documents.\nProcedural Background\nOn January 15, 1998, TGMC filed a petition to initiate discovery subsequent to plaintiffs filing a medical review proceeding. TGMC immediately began discovery by way of scheduled depositions and requests for production of documents to various medical providers as well as to the plaintiff. The record reveals that on June 9, 1998, plaintiff received TGMC’s request for production of documents.2 On June 24, 1998, TGMC wrote a demand letter to plaintiffs counsel (Brooks), for the overdue responses to the prior request. The letter noted the importance of the requested documents (medical release authorizations) and indicated a motion to compel would be filed if the requests were not answered promptly. On September 1, 1998, TGMC sent interrogatories via certified mail to Brooks, and again requested responses to the prior overdue requests for production of documents. The record reveals that the interrogatories were received by Brooks on September 8, 1998. Despite yet another demand letter for responses sent to Brooks on September 28, 1998, plaintiff failed to respond to the discovery requests.\n| .¡Therefore, on October 13, 1998, TGMC filed a motion and order to compel discovery responses, which was set for hearing on December 4, 1998, more than a month and a half later; still, no responses from plaintiff were made. Inexplicably, neither plaintiff nor plaintiffs counsel, Brooks, appeared for the hearing on the motion to compel. Counsel for TGMC appeared and explained at the hearing that the afternoon *1216of the 3rd (the prior day) he received a fax of “purported” answers to the discovery requests from plaintiffs counsel which were incomplete and non-responsive. Furthermore, no responses at all were submitted for six interrogatories and two production of documents requests. Counsel for TGMC stated that he faxed Brooks regarding the incompleteness of the responses and did not hear anything further. The trial court granted the motion ordering plaintiff to respond to the discovery requests within forty days, or by January 14, 1999, and assessed attorney’s fees in the amount of $400.00 against Brooks.\nOn January 15, 1999, TGMC sent another letter to Brooks again requesting answers to its discovery requests, specifically detailing the incompleteness and non-responsiveness of the answers provided by the plaintiff and demanding payment of the $400.00 attorney’s fees assessed by the court. The Tetter indicated that if response was not made by January 25, 1999, a motion and order for contempt would be filed.\nWhen no response was made, TGMC filed a motion and order for contempt and/or to dismiss, which motion was set for hearing on March 5, 1999. Brooks made an appearance at this hearing, and in response to the judge’s questioning regarding his failure to pay the $400.00 assessed at the prior hearing, he simply alleged his belief that the judgment was invalid on its face. (Inexplicably, counsel for plaintiff did not take writs or appeal the first judgment.) When questioned about the discovery requests, Brooks continued to maintain that he had answered them; with regard to the incomplete and non-responsive answers, Brooks told the judge that he had ^received a letter from plaintiffs alleged new counsel, to whom he had sent the entire file, including all discovery requests. However, upon further questioning from the court, including a recess during which the court ordered a faxed copy of the letter sent to Brooks by the alleged new counsel to be produced, none of Brooks’ allegations were substantiated. Indeed, the court found that clearly the “new counsel” was merely reviewing the case, and had not been hired by plaintiff. Noting that Brooks had not filed a motion to withdraw, and no motion to enroll had' been filed by the alleged new counsel, the trial court found Brooks obligated by the prior judgment, of which he was in contempt, and assessed an additional $600.00 in attorney’s fees against him. The court continued the remainder of the rule, regarding the continuing request for supplemental discovery answers and a request for dismissal, and fixed it for hearing on March 26,1999.\nOn March 24,1999, two days prior to the second hearing date on TGMC’s motion and order for contempt and to dismiss, plaintiff filed an “answer” by way of an attached affidavit that had been executed by Ms. Hamblen. The affidavit, which we deem insufficient for reasons discussed more fully below, contains assertions by Ms. Hamblen purporting to excuse all of Brooks’ deficiencies in refusing to respond to discovery requests by the fact that Hamblen, who was overburdened by the care required of her son, had been unable to assist Brooks in making the responses.\nThe second hearing on the motion for contempt and/or to dismiss was held on March 26, 1999. Despite numerous verbal assurances made by Brooks in open court at the prior hearing to defense counsel to meet him in the hallway so Brooks could pay the entire $1000 fee assessed against him, the record reveals that at the time of the second hearing, Brooks still had not paid the fine or responded to the discovery requests as ordered by the court. Given an opportunity to add “anything that you might have in addition to what you’ve already submitted,” Brooks merely relied on the previously | ^submitted affidavit. The trial court promptly ordered the matter dismissed. This appeal, of the judgment of dismissal and the prior judgment impos*1217ing sanctions, follows.3\nAnalysis\nIncredibly, on appeal Brooks asserts that he “at no time violated an Order to compel discovery,” and argues that the trial court erred in imposing sanctions against him and in dismissing the plaintiffs case. The record before us makes abundantly clear the complete inaccuracy of these assertions.\nLouisiana Code of Civil Procedure Article 1471, entitled “Failure to comply with order compelling discovery; sanctions” governs the situation. Article 1471 provides that if a party fails to obey an order to permit discovery, including an order compelling discovery made pursuant to La. C.C.P. art. 1469, the court may make such orders in regard to the failure as are just, including that specified in section (3) of Article 1471 as follows:\nAn order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any pant thereof, or rendering a judgment by default against the disobedient party. (Emphasis added)\nThe article further provides that,\nIn lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, | fiincluding attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award Of expenses unjust.\nAgain, the record reveals a complete absence of any justification for the blatant failure of plaintiffs counsel to comply with three separate orders of the court. Accordingly, the imposition of sanctions against Brooks is wholly supported by both the record and applicable law.\nThe question regarding the propriety of the court’s dismissal of plaintiffs case, insofar as it unduly and harshly penalizes the plaintiff, Hamblen, for the failures and inadequacies of her counsel, is not so clear cut. In Horton v. McCary, 93-2315, p. 10 (La.4/11/94), 635 So.2d 199, 203, our supreme court stated the penalties of dismissal and default provided by Article 1471 are “draconian penalties which should be applied only in extreme circumstances.” One of the four factors to consider before taking such a drastic measure is “whether the client participated in the violation or simply misunderstood a court order or innocently hired a derelict attorney.” Horton, 93-2315 at p. 11, 635 So.2d at 203. Furthermore, the court noted that dismissal is generally reserved for those cases in which the client, as well as the attorney, are at fault. Id.\nThe only evidence in the record that Brooks’ failure to respond to the discovery requests and the court’s orders was in any way attributable to the plaintiff, Hamblen, is her sworn affidavit submitted in answer to the motion for contempt. Our review of this affidavit .reveals grave concerns regarding its credibility. It appears to have been sworn to and subscribed before Brooks himself. As stated earlier, in the affidavit, Hamblen purports to shoulder the blame for Brooks’ failure *1218to respond to the discovery requests. She asserts that the burden of caring for her quadriplegic son prevented her from supplying her attorney with the requested discovery responses. We find there is a potential conflict of interest in an affidavit wherein a client, |7perhaps unwittingly, shoulders the blame for the derelictions of her attorney, and such affidavit is attested to by that same attorney. At best, it raises questions regarding the accuracy of communication between attorney and client, particularly in light of the other questionable aspects of the affidavit, detailed below.\nFirst, we find the assertion that Ham-blen is singly to blame for the failure to respond is unreasonable given the facts and circumstances of this case, including that the repeated demands and requests were flatly ignored by Brooks, who did not even attempt to explain he was encountering difficulties in obtaining the responses from his client. Indeed, Brooks’ failure to appear at the first hearing on the motion to compel has never been explained nor excused. Furthermore, throughout the pendency of the hearings, Brooks continued to maintain that he had answered the requests, rather than attempt to explain that he was having difficulty obtaining Hamblen’s cooperation. Finally, the unreasonableness of the affidavit’s attempt to place the blame for Brooks’ shortcomings on Hamblen is borne out by the fact that Brooks was able to obtain her signature on this affidavit, but still did not provide the long requested signed medical release authorizations. If Brooks was able to obtain her signature for an affidavit shouldering the blame for the failure to provide this information, why then was he still unable to obtain her signature on the requested documents? An explanation for this has not even been attempted.\nAdditionally, on its face, we must question the veracity of the assertions made in the affidavit. First, paragraphs 5, 7, 8, 9 and 13 of the affidavit address hearsay information regarding conversations between her attorney and defense attorney, of which Hamblen clearly had no first hand knowledge. Second, paragraph 10 of the affidavit states: “She is unemployed and has no way of paying the fine imposed.” This assertion causes us to question the accuracy and veracity of the information exchanged between | ^Brooks and Hamblen. The record reveals that the imposition of fines was always clearly and unambiguously directed at Brooks, individually, and not at Hamblen: thus, we have serious doubts regarding the informed nature of the assertion in paragraph 10.\nFinally, even if we were to accept that the failure to respond was due to Ham-blen’s inability to do so, there still has been no explanation offered for why this excuse was not presented until the motion for contempt and/or dismiss had been filed, when repeated requests prior to that time had been ignored.\nTherefore, we find the affidavit is wholly insufficient to establish that the failure to respond in this case was due to anything other than the dereliction of Brooks’ duties as plaintiffs counsel. Even despite her own assertions to the contrary, the record fails to convince us that there was any willfulness, bad faith or fault on the part of the plaintiff for the inactions of her attorney. Although the trial court has wide discretion in fashioning a remedy pursuant to those provided in La. C.C.P. art. 1471, the record must contain sufficient evidence of plaintiffs willful disobedience, bad faith, or fault, in order to justify the dismissal. If the record does not contain evidence of plaintiffs, rather than counsel’s fault, the trial court, if it grants dismissal, abuses the wide discretion afforded it by La. C.C.P. art. 1471. Brumfield v. Lallie Kemp Charity Hosp., 551 So.2d 741, 742 (La.App. 1 Cir.1989). This is such a case.\nAccordingly, we affirm the judgment imposing sanctions against Brooks and add attorney’s fees for the handling of this appeal in the amount of $2,500.00, together with costs; we reverse the judgment dis*1219missing plaintiffs action, and remand this matter to the trial court for further proceedings consistent herewith. We further order that the plaintiff, whether through Brooks or new counsel, provide the remaining answers to the l9discovery requests at issue no later than thirty days from the date of this judgment.\nAFFIRMED IN PART; REVERSED IN PART, AND REMANDED, WITH ORDER.\n\n. The record reveals that TGMC attempted to issue discovery documents to the plaintiff through counsel as early as May 6, 1998; however, those documents, which were sent certified mail, were unclaimed by plaintiffs counsel. Ultimately, a second request was sent certified mail and was claimed by plaintiffs counsel on June 9, 1998.\n\n\n. The trial court, additionally on its own motion, ordered Brooks to show cause on April 23, 1999, why he should not be held in constructive contempt for the \"willful disobedience” of the court's prior orders.\nAt the April 23, 1999 hearing, Brooks established that, finally, approximately one week prior to the hearing, he paid the $1000 assessment against him. In defense of his blatant failure to comply with discovery requests, Brooks merely apologized to the court and requested “some measure of mercy” from the court in consideration of his assertion that in 32 years of practice, he had never been sanctioned and in light of his intention to retire in three years.\nThe trial court found Brooks to be in willful contempt of court and sentenced Brooks to serve 24 hours in the parish prison and pay a fine of $5; the time to be served was suspended on condition that Brooks pay the $5 fine and all costs of the rule.\n\n", "ocr": true, "opinion_id": 7738166 } ]

"2001-01-26"

[ "776 So. 2d 1030" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nThe petition for writ of habeas corpus is granted. Petitioner shall be allowed a belated appeal of the November 3, 1998, judgment and sentence issued by the Du-val County Circuit Court in case number 98-8166-CF-A. The trial court shall treat this court’s mandate as the notice of appeal. Fla.R.App.P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.\nVAN NORTWICK, BROWNING and POLSTON, JJ„ concur.\n", "ocr": true, "opinion_id": 7738362 } ]

"2000-11-29"

[ "776 So. 2d 1175" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Cowart, Elton; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court, Div. C, No. 99-5564; to the Court of Appeal, Fifth Circuit, No. 00-K-1849.\nStay denied. Writ denied.\n", "ocr": true, "opinion_id": 7738437 } ]

"2000-11-28"

[ "776 So. 2d 1234" ]

[ { "author_str": "Chehardy", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nJ^CHEHARDY, Judge.\nIn this matter, defendant, Ray A. Pen-dleton, was charged by bill of information with driving while intoxicated, third offense (DWI-3), occurring on or about December 11, 1998. The bill, filed on February 1, 1999, contained information of two prior DWI convictions, first offense, as follows: a conviction via plea of guilty in the First Parish Court, Division “B” on November 19, 1997, in case number F-1144803; and a conviction via plea of guilty in the Twenty-Ninth Judicial District Court, Parish of St. Charles, on October 25, 1991, in case number 225728.\nIn the instant case, defense counsel moved for the trial court to quash the two predicate guilty pleas. After hearing, the trial court denied defendant’s motion. Defendant thereafter entered into a negotiated guilty plea to DWI-3, under State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to challenge the trial court’s ruling on the motion to quash. Defendant executed a waiver form, also signed by the trial judge and defense counsel, in which he initialed his understanding and waiver of his constitutional rights as set out in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).\nAfter waiving delays, defendant was sentenced to three years in parish prison, with the sentence suspended for two years. Defendant’s sentence included one year in ^prison, followed by two years’ active probation. A fine of $2,000.00, a commissioner’s fee and court costs were imposed. Defendant was ordered to attend a substance abuse program and any other program as deemed appropriate by the Department of Corrections. An interlock device was also ordered to be installed on defendant’s vehicle. This appeal ensued.\nDefendant’s sole assignment of error on appeal is that the trial court erred in failing to quash defendant’s two prior guilty pleas.\nIn State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556, the Louisiana Supreme Court extended the burden-shifting principles for habitual offender proceedings announced in State v. Shelton, 621 So.2d 769 (La.1993) to the recidivist provisions of the DWI statute. Based on Carlos, when a defendant challenges the constitutional validity of a predicate DWI conviction resulting from a guilty plea, the state bears the initial burden of proving, 1) the existence of the guilty plea and 2) that an attorney represented defendant at the plea. Carlos, 738 So.2d at 559. If the state meets the initial burden, defendant must produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. Carlos, 738 So.2d at 559.\n*1236With regards to defendant’s 1997 guilty plea, the state introduced the following documents into evidence at the hearing: certified copies of the bill of information charging defendant with DWI, first offense; minute entries; the commitment; and a waiver of constitutional rights form signed by defendant, defense counsel, and the trial judge.\nOn appeal, defendant argues that the introduced minutes and Boykin form were the “fill-in-the-blank type” that did not provide sufficient specificity about the colloquy between defendant and the court to ensure that there was adequate notice of rights to defendant, or that defendant understood those rights and knowingly and voluntarily waived them. Defendant also argues that the trial court did not advise defendant that his | ¿plea in that case could be used against him to enhance the crime and penalty in future DWI arrests.\nIn his 1997 conviction, the minute entry states that defendant, who was represented by counsel, was advised by the trial court of his rights. The waiver of rights form, signed by defendant, defense counsel, and the trial judge, shows that defendant was advised of his Boykin rights, including the right, in this case of a misdemeanor, to trial by judge, the right to remain silent, and the right to confront his accusers. The form further recited the following: (1) defendant was entering a plea under Article 894 and was waiving the rights indicated; (2) defendant had not been forced, threatened, or intimidated to make the plea and no promises were made; (3) defendant was advised, and understood, that the conviction may be used against him for future enhancement or increase of the sentence or penalties for any subsequent conviction; (4) defendant was informed that if he elected to have a trial, he had a right to counsel at. trial and appeal and that one would be appointed to him if he was unable to pay for counsel; (5) defendant signed the form, certifying that the rights recited therein were read and explained to him by his counsel and that he had no further questions.\nUpon review, and pursuant to Carlos, supra, we find that the state met its initial burden of proving the existence of the guilty plea and that an attorney represented defendant at the plea. We further find that defendant has failed to produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. Accordingly, we find that the trial court properly denied defendant’s motion to quash his 1997 DWI conviction.\nWith regards to defendant’s 1991 guilty plea, the state introduced the following documents into evidence at the hearing: certified copies of the bill of information charging defendant with DWI, first offense, the minute entries, and the transcript of the plea colloquy. The minute entries indicate that, at the time of his arraignment, defendant was present in court with counsel and that he entered a plea of not guilty. However, thatj^minute entry also states that defendant’s indigen-cy was tested and his appointed attorney was “removed as counsel of record.” Thus, it appears that defendant was provided with appointed counsel, but that upon finding that he was not indigent, defendant’s court-appointed counsel was removed.\nThree weeks later, and without being represented by counsel, defendant withdrew his plea of not guilty and entered a plea of guilty. The transcript of the brief plea colloquy indicates that defendant was informed by the trial judge of the following:\nIn this particular matter, you have a right to have a trial before a jury. You have a right to have an attorney. You have a right not to take the witness stand. And a right to cross-examine people. Those rights can be waived provided you voluntarily and intelligently waive them.\n*1237As I understand, you want to waive your rights and plead guilty because you are, in fact, guilty?\nDefendant then answered: ‘Tes sir.”\nPrior to informing defendant of these rights, the trial judge stated that two other charges were to be dismissed as a result of his plea. In addition, the trial judge recited the driving while intoxicated statute La. R.S. 14:98, and advised defendant of his sentencing exposure for first offense DWI.\nUpon review, we find this plea clearly distinguishable from defendant’s 1997 guilty plea, as defendant was not represented by counsel when he plead guilty in 1991 to DWI. State v. Carlos, supra, neither involved nor addressed the state’s initial burden when the challenged guilty plea was taken without representation by counsel. Before Carlos, Louisiana jurisprudence held that an uncounseled misdemeanor DWI guilty plea could be used to enhance a subsequent DWI offense if the state established that defendant knowingly and intelligently waived his right to counsel when the prior guilty plea was entered. State v. Stevison, 97-3122 (La.10/30/98), 721 So.2d 843, 844; State v. Strain, 585 So.2d 540, 543-544 (La.1991).\nIn State v. Boudreaux, 99-1017 (La.App. 5 Cir.2/16/00), 756 So.2d 505, 508, this court recognized that the existing jurisprudence on the issue of uncounseled predicate IfiDWI pleas remained valid in the wake of Carlos. The Boudreaux court concluded that, when a defendant challenges a predicate DWI guilty plea entered into without counsel, the state must prove, as part of its initial burden under Carlos, that the defendant knowingly and intelligently waived the right to counsel before entering the guilty plea.\nIn Strain, supra, the Louisiana Supreme Court established guidelines that the trial judge should follow when a defendant pleads guilty to a misdemeanor without counsel. According to Strain, the trial judge should expressly advise defendant of his right to counsel and to appointed counsel if he is indigent. The judge should further determine on the record that the waiver of counsel is made knowingly and intelligently under the circumstances. Factors bearing on the validity of this determination include the age, education, experience, background, competency and conduct of the accused, as well as the nature, complexity and seriousness of the charge facing defendant. Strain, 585 So.2d at 543-544.\nIn Stevison, supra, the Louisiana Supreme Court explained that “Strain did not establish inflexible criteria or a magic word formula for determining the volun-tariness of a waiver.” Rather, the determination of the validity of the accused’s waiver of counsel rests on the totality of the circumstances in each case. Stevison, 721 So.2d at 844-45.\nIn the matter before us, a review of the guilty plea transcript shows that the trial judge did not make an inquiry into defendant’s background and competency, nor did the trial judge assess defendant’s ability to knowingly and intelligently waive his right to counsel. The trial judge merely recited defendant’s rights and then asked if he wanted to waive them and plead guilty. Based on these facts, we cannot say that the state proved that defendant knowingly and intelligently waived his right to counsel before entering the guilty plea. Boudreaux, supra; Strain, supra. Therefore, the trial court in this matter erred in failing to quash defendant’s 1991 guilty plea.\nFinally, pursuant to La.C.Cr.P. art. 920, the record was reviewed for errors patent, and none are noted.\n^Accordingly, for the foregoing reasons, while we find that the trial court properly denied defendant’s motion to quash his 1997 DWI guilty plea, we must reverse the trial court’s ruling with regards to defendant’s 1991 DWI guilty plea, as the state failed to prove that defendant’s plea, made without counsel, was knowing and voluntary. Because defendant’s 1991 guilty plea *1238is constitutionally infirm, we must vacate defendant’s April 24, 2000 guilty plea and sentence to DWI-3 herein. We remand this case to the trial court for further proceedings consistent with this opinion.\n\nREVERSED IN PART; VACATED IN PART; REMANDED.\n\n", "ocr": true, "opinion_id": 7738460 } ]

"2001-01-05"

[ "778 So. 2d 1145" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Rouyea, Albert M. et al.; Rouyea, Keith D.; Rouyea, Beverly Young; — Plaintiffs; Applying for Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. B, No. 41,610; to the Court of Appeal, First Circuit, No. 00 CW 1167.\nDenied. As stated in Judge Parro’s concurring opinion in connection with the denial of rehearing, the court of appeal’s judgment did not dismiss plaintiffs cause of action. We express no opinion concerning the correctness of the judgment of the court of appeal dismissing the third party demand filed by the State of Louisiana, Department of Transportation and Development, as that issue is not before us.\n", "ocr": true, "opinion_id": 7739025 } ]

"2000-04-12"

[ "779 So. 2d 360" ]

[ { "author_str": "Davis", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nDAVIS, Judge.\nMichael and Joy Hernandez, along with several other homeowners, appeal a trial court’s final declaratory judgment. In its final declaratory judgment, the trial court ruled that a voluntary homeowners’ association and community development district both carried the authority to enforce covenants and deed restrictions within the community known as Meadow Pointe. We affirm the trial court’s ruling as to the voluntary homeowners’ association, but reverse its declaration regarding the community development district.\nTrout Creek Development Corporation (“Trout Creek”) planned and developed a residential community in Pasco County known as Meadow Pointe. As part of the development process, Trout Creek recorded in the public records of Pasco County a Declaration of Restrictions. The Declaration established certain covenants and deed restrictions within the community. The Declaration provides that its covenants and deed restrictions may be enforced by persons owning real property within Meadow Pointe, Trout Creek, or the Meadow Pointe Community Development District (“MPCDD”). Pursuant to the Declaration, Trout Creek may enforce the Declaration as long as it owns property within the development, and, even if it does not own property within the development, it may still enforce the Declaration for a period of ten years. The MPCDD is a special property taxing district created under Chapter 190 of the Florida Statutes. The Declaration did not provide for the formation of a mandatory homeowners’ association.\nSeveral different homebuilders — not Trout Creek — built homes within Meadow Pointe. When the homeowners discovered that there were no provisions for a mandatory homeowners’ association, they sued the homebuilders for deceptive advertising, fraud, and negligent misrepresentation. The homeowners alleged that the builders advertised the existence of such an association and, without an association, their property would lose value. Additionally, the homeowners sought injunctive and declaratory relief against Trout Creek, alleging that Trout Creek had stopped exercising architectural control over the construction in Meadow Pointe, a duty the Declaration required of Trout Creek.\nAfter the homeowners filed suit, Trout Creek formed a not-for-profit corporation *362known as Meadow Pointe Homeowners’ Association, Inc. This corporation would act as a voluntary homeowners’ association. Trout Creek assigned to the new association a non-exclusive right to enforce the Declaration of Restrictions.\nThe trial court severed the homeowners’ action against Trout Creek from those against the several homebuilders. The resulting action against Trout Creek was a two-count complaint. First, the homeowners sought injunctive and declaratory relief for Trout Creek’s alleged failure to enforce the covenants and restrictions. Second, the homeowners sought additional declaratory relief, arguing that the voluntary homeowners’ association did not have the authority to enforce the covenants and restrictions. In response, Trout Creek raised as an affirmative defense the assertion that the Declaration also gave the MPCDD the same right to enforce the covenants and restrictions. The trial court entered its final declaratory judgment in favor of Trout Creek, ruling that both the voluntary homeowners’ association and the MPCDD did have the authority to enforce the covenants and restrictions.\nCiting primarily Palm Point Property Owners’ Ass’n v. Pisarski, 626 So.2d 195 (Fla.1993), the homeowners argue that the homeowners’ association lacks standing to enforce the Declaration. We find that Palm Point is inapplicable to the facts of the instant case. The Declaration specifically gave Trout Creek the right to enforce the covenants and deed restrictions. Trout Creek has validly assigned this right to a third party, that is, the homeowners’ association. See § 68.06, Fla. Stat. (1997). The association’s authority to enforce the restrictions is based — not on the fact that it is a homeowners’ association — but rather on the right the Declaration gave to Trout Creek, which Trout Creek then assigned to the association. Accordingly, the trial court was correct in its finding, and we affirm as to that issue.\nThe trial court also ruled that the Meadow Pointe Community Development District has the power to enforce covenants and deed restrictions. We disagree. The Florida Legislature designed community development districts “as an alternative method to manage and finance basic services for community development.” § 190.002(3), Fla. Stat. (1997). For example, under section 190.012, Florida Statutes (1997), community development districts may construct facilities for water management and control, water and wastewater services, bridges, culverts, roads, parks, recreational facilities, fire prevention systems, and schools.\nTrout Creek acknowledges that community development districts are limited to those powers enumerated in section 190.011, Florida Statutes (1997). However, Trout Creek argues that the districts may enforce covenants and deed restrictions as an exercise of the authority in subsection 190.011(15), which provides that a district may “exercise all powers necessary, convenient, incidental, or proper in connection with any of the powers, duties, or purposes authorized by the act.” Trout Creek specifically contends that the power to enforce covenants and deed restrictions is incidental to a district’s power to finance the cost of constructing capital facilities. Trout Creek reasons that covenants and deed restrictions preserve property values, thus easing a district’s ability to pay off the debts from its capital bonds. We reject this reading of subsection 190.011(15) as overly expansive, and contrary to the general purpose of delivery and management of community development services as contemplated by the statute. Accordingly, we hold that the trial court erred in finding that the MPCDD had the authority to enforce the Declaration of Restrictions.\nAffirmed in part, and reversed in part.\nALTENBERND, A.C.J., and FULMER J., Concur.\n", "ocr": true, "opinion_id": 7739167 } ]

"1998-06-10"

[ "780 So. 2d 86" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nWe affirm and certify to the Florida Supreme Court the following question certified in Williams v. State, 700 So.2d 750 (Fla. 2d DCA 1997):\nSHOULD THE REQUIREMENT THAT A DEFENDANT PAY FOR DRUG TESTING BE TREATED AS A GENERAL CONDITION OF PROBATION FOR WHICH NOTICE IS PROVIDED BY SECTION 948.09(6), FLORIDA STATUTES (1995), OR SHOULD IT BE TREATED AS A SPECIAL CONDITION THAT REQUIRES ORAL ANNOUNCEMENT?\nPARKER, C.J., and QUINCE and WHATLEY, JJ., concur.\n", "ocr": true, "opinion_id": 7739358 } ]

"2000-10-25"

[ "781 So. 2d 411" ]

[ { "author_str": "Stringer", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nSTRINGER, Judge.\nWilliam Sutton challenges the final judgment entered pursuant to a jury verdict which found that Grossteiner’s negligence caused some of Sutton’s injuries, but that he did not sustain permanent injuries ás a result of the accident. Sutton alleges that the trial court erred in denying his motion for directed verdict on the issue of permanency and his motion for new trial. We disagree and affirm.\nSutton was injured when his vehicle and Grossteiner’s vehicle collided on September 19, 1994. At trial, Grossteiner admitted that she was negligent in causing or contributing to the accident. On the date of the accident, Sutton was treated for his injuries by emergency medical services at the accident scene and emergency room personnel at Naples Community Hospital. He was experiencing shoulder and neck pain but did not complain of back pain. Sutton testified at trial that he began to experience back pain “days to weeks” after the accident but received no further treatment until he was treated by a chiropractor on November 29, 1994, seventy-one days after the accident.\nAt trial, Sutton alleged that he suffered injuries to his neck, shoulder, and back. Sutton’s back injury was the only one that he claimed was permanent. The jury verdict form did not distinguish between the injuries. Questions 1, 4, and 5 of the verdict form were answered as follows:\n1. Was the negligence of the Defendant, BERNICE I. GROSSTEINER, a legal cause of loss, injury or damages to Plaintiff, WILLIAM SUTTON?\nYES _X_ NO\n4. What is the amount of any damages sustained for medical expenses in the past as a result of the accident dated September 19,1994?\n$ 939.00\n5. Did Plaintiff, WILLIAM SUTTON, sustain a permanent injury within a reasonable degree of medical probability as a result of the accident dated September 19,1994?\nYES NO _X_\nSutton argues on appeal that the jury found causation for all of his injuries, including his back injury,' but that it erred in concluding that his back injury was not permanent. If the jury had found that Sutton’s back injury was caused by the accident, we would agree that the jury erred in finding the injury nonpermanent based on the evidence presented at trial. However, after an examination of the jury’s verdict, we conclude that the jury’s intent was to find causation for Sutton’s neck and shoulder injuries but not for his back injury.\n“The general rule is that a verdict is the determination of a jury upon the testimony submitted to them, and should be construed with reference to the issue made by the pleadings.... When the intent of the jury is apparent, their verdict will be sufficient to sustain a judgment entered in conformity with the intent of *413the verdict.” Cory v. Greyhound Lines, Inc., 257 So.2d 36, 40 (Fla.1971) (citations omitted).\nIt is obvious and apparent from this record that the jury intended to find causation for Sutton’s shoulder and neck injuries, but not for his back injury. The jury awarded Sutton $939 for medical expenses in the past as a result of the accident. The $939 amount corresponds to the amount of medical expenses Sutton incurred immediately after the accident relating to his shoulder and neck injuries. Sutton’s other medical expenses were related to his back injury and were incurred months after the accident. Under these circumstances, it is clear the jury found that only Sutton’s neck and shoulder injuries were caused by the accident. The issue of causation was a jury question, and there was sufficient evidence presented at trial for the jury to conclude that Sutton’s back injuries were not caused by the accident. Since the judgment in this case is in conformity with the intent of the jury’s verdict, we affirm the final judgment.\nAffirmed.\nNORTHCUTT, A.C.J., and CASANUEVA, J., Concur.\n", "ocr": true, "opinion_id": 7739580 } ]

"2001-01-26"

[ "782 So. 2d 632" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Weaver, Neil, Dr.;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court, Div. A, No. 444,-671; to the Court of Appeal, First Circuit, No. 00 CW 1360.\nDenied.\nVICTORY, J., would grant the writ.\n", "ocr": true, "opinion_id": 7739891 } ]

"2001-03-09"

[ "783 So. 2d 1112" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nJohnny McNutt appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the trial court’s order denying McNutt relief because this court receded from Thornton v. State, 683 So.2d 515 (Fla. 2d DCA 1996), the opinion relied upon by McNutt to establish his right to relief. Wendt v. State, 711 So.2d 1166 (Fla. 2d DCA 1998).\nHowever, the trial court’s order also ruled on an issue that was not posed by McNutt. Therefore, this affirmance is without prejudice to any right McNutt might have to file a timely, facially sufficient motion to correct illegal sentence pursuant to rule 3.800(a), seeking relief pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000).\nAffirmed.\nPATTERSON, C.J., and NORTHCUTT and CASANUEVA, JJ., concur.\n", "ocr": true, "opinion_id": 7740197 } ]

"2001-03-21"

[ "783 So. 2d 1122" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nWe affirm the final judgment of dissolution of marriage in all respects, finding no merit in any of the points raised by the former wife. As to the issue of the determination that the former husband would be responsible for some portion of the wife’s attorney’s fees, we are without jurisdiction, and therefore dismiss without prejudice. See Winkelman v. Toll, 632 So.2d 130 (Fla. 4th DCA 1994).\nPOLEN, STEVENSON and TAYLOR, JJ., concur.\n", "ocr": true, "opinion_id": 7740201 } ]

"2001-05-02"

[ "784 So. 2d 854" ]

[ { "author_str": "Decuir", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n|,DECUIR, Judge.\nThis is an appeal of the termination of parental rights. BJL appeals the termination of her parental rights as to three of her children, ADH, CAH, and HL.1 LDH appeals the termination of his parental rights as to ADH and CAH. After careful consideration of the record and the arguments propounded by the parties, we affirm the termination of the mother’s parental rights and reverse the termination of the father’s rights.\nIn March of 1998, the State of Louisiana, through the Department of Social Services, removed from the home of their mother five children, namely, ADH, CAH, HL, AL, and MB. The grounds for removal were lack of supervision and passive abuse. The younger children had been left in the care of MB, an incorrigible and unstable teenager, and there was evidence of a recent fire in the home and injuries to some of the children. Prior to the filing of these termination proceedings, MB reached the age of majority and AL was placed in the custody of her father and stepmother.\nBJL is an uneducated, unskilled woman in her mid-thirties. She was evaluated by a psychologist at the initiation of these proceedings and was found to be of subav-erage intelligence. She was diagnosed with personality and anger impulse control disorders. BJL is able to manage her own affairs. In the first year of foster care, she was consistently available for visits with her children in her home; however, she then moved to California without notifying the Department. She has no income and was recently rejected for social security benefits. She also has been unable to maintain housing. Both the psychologist and the trial judge referred to the fact that, prior to the removal of the children, BJL often left the younger ones in the care of MB |gand believed him to be a capable caregiver, even though they considered him far from able to care for other children. Additionally, BJL has made no *857attempt to obtain mental health treatment or other assistance offered to her throughout the course of these proceedings.\nBJL did not appear at the termination hearing. At the time the petition for termination was filed, BJL was believed to be an absentee living at an unknown address in California. Accordingly, a curator ad hoc was properly appointed to locate and represent her and was served in accordance with La.Ch.Code art. 1023. By the time of the hearing, the curator had been in contact with BJL, and she was apparently back in Louisiana. At the start of the termination hearing, the curator advised the court that BJL was aware of the hearing, but that she was not present. He moved for a continuance which was denied. The trial judge commented that BJL had made no contact with the court or counsel to advise that she could not appear at the hearing. In this appeal, counsel for BJL complains that she was not personally served with the termination petition and that the trial judge erred in refusing to grant a continuance. We find no merit to these arguments as service was made according to law and there was no abuse of discretion in the denial of a continuance.\nLDH, the father of the twin boys ADH and CAH, divorced BJL about a year after his children were born in 1991. At the termination hearing, he testified that he wants to raise the boys in his home and has sought custody of them three times since his divorce from BJL. He also asserted that the, boys want to live with him, although they did not testify at the hearing. LDH moved out of town after his divorce and, in 1998, he took a job in the oil industry in Nigeria, working two six-month periods there in 1998 and 1999. In the latter part of 1999, LDH came forward to exercise visitation with his sons and begin compliance with the case plan devised by the ^Department of Social Services to reunite the family. LDH is not without problems. In the absence of a court order to do so, he has not provided financial support for the boys. He has two DWI convictions from 1998 and was delinquent in providing income verification and a substance abuse evaluation to the Department.\nLDH testified that he works offshore as a cook, working fourteen days on and fourteen days off. He lives with a woman, MJ, who has three children of her own. The trial judge was very concerned that MJ could be a potential caregiver for the boys. Her own children have been removed from her home. She has been diagnosed as mildly mentally retarded and is unable to manage her own affairs. LDH testified that he would be willing to break off the relationship with MJ if that is what it would take to gain custody of the boys.\nThe trial judge found that BJL has made no significant progress in “putting herself in a position to receive” the children back into her life. Although she has “gone through the motions,” as far as attending family conferences and most visitations, she has not taken advantage of the services offered to her. Noting that BJL was not even present for the termination hearing, the trial judge concluded that BJL has a serious problem in caring for her children because of her low threshold for frustration. Additionally, her insistence on leaving the younger children in the care of MB shows an extreme lack of good judgment.\nIn terminating the parental rights of LDH, the trial judge voiced two serious concerns with LDH’s ability to be a parent. She first took issue with LDH’s denial of a substance abuse problem, noting the two DWI convictions and a recommendation for substance abuse counseling from the evaluating psychologist. Additionally, *858the trial judge expressed grave concern over the three year relationship between LDH and MJ, believing that MJ’s inadequacies as a caregiver should have |4been obvious to LDH. She commented to him, “I feel sorry for you, Mr. [H], I think you’d like to have an attempt to raise those two children, but it’s not a matter of what you wish to do, it’s what you will do. And what have you done?”\nThere was evidence in the record that the foster parents of the boys have requested them removal. There was no evidence from the Department as to any long term plans for the boys. In fact, the trial judge commented that perhaps the boys would get “nothing more than some type of long term facility,” essentially recognizing that the boys are unadoptable. She also surmised that if LDH were serious about getting custody of his sons he could apply to adopt them.\nLouisiana law holds the institution of the family in very high regard. The preamble to our Children’s Code, which governs termination of parental rights proceedings, contains the following pronouncements:\nArt. 101. Preamble\nThe people of Louisiana recognize the family as the most fundamental unit of human society; that preserving families is essential to a free society; that the relationship between parent and child is preeminent in establishing and maintaining the well-being of the child; that parents have the responsibility for providing the basic necessities of life as well as love and affection to their children; that parents have the paramount right to raise their children in accordance with their own values and traditions; that parents should make the decisions regarding where and with whom the child shall reside, the educational, moral, ethical, and religious training of the child, the medical, psychiatric, surgical, and preventive health care of the child, and the discipline of the child; that children owe to their parents respect, obedience, and affection; that the role of the state in the family is limited and should only be asserted when there is a serious threat to the family, the parents, or the child; and that extraordinary procedures established by law are meant to be used only when required by necessity and then with due respect for the rights of the parents, the children, and the institution of the family.\nThis court has previously recognized the fundamental concept that a child has the right to know and love his parents. In re Billeaud, 600 So.2d 863 (La.App. 3 Cir.1992). The natural rights between parents and their children are reciprocal and should not be denied except when a parent has proven himself unworthy of his child’s love. In re Adoption of B.G.S., 556 So.2d 545 (La.1990); In re Elliott, 93-750 (La.App. 3 Cir. 12/8/93), 630 So.2d 281, writ denied, 94-0076 (La.3/11/94), 634 So.2d 396. Parental rights give rise to a fundamental liberty interest and warrant great deference and vigilant protection under the law. State in the Interest of Q.P., 94-609 (La.App. 3 Cir. 11/2/94), 649 So.2d 512. Furthermore, because termination of parental rights is in derogation of the natural and fundamental liberties of the parent, proof of the grounds for termination must be proven by at least clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); La.Ch.Code art. 1035. Thus, the termination of parental rights is a severe action which requires an onerous burden of proof. State in the Interest of J.M.L., 540 So.2d 1244 (La.App. 3 Cir.1989).\nAdditionally, when faced with the decision to terminate a person’s parental rights, the trial judge must consider the *859best interest of the child and determine whether that interest will be served by termination:\nTitle X of the Children’s Code, which became effective on January 1, 1992, governs the involuntary termination of parental rights. La.Child.Code art. 1015 sets forth ten grounds on which a court can terminate parental rights. Only one ground need be established, La.Child.Code art. 1015, but the judge must also find that the termination is in the best interest of the child. La. Child. Code art. 1039.\nState in Interest of ML, 95-0045, p. 4 (La.9/5/1995), 660 So.2d 830, 832. In reviewing the determination of the trial court, the appellate court exercises the manifest error or clearly wrong standard of review. State in the Interest of S.M.W., 00-3277 (La.2/21/01), 781 So.2d 1223; In re A.J.F., 00-0948 (La.6/30/00), 764 So.2d 47.\nIfiAfter careful review of the record, we find no error in the trial court’s decision to terminate the parental rights of BJL. The Department proved the grounds for termination under La.Ch.Code art. 1015(5) with clear and convincing evidence. More than one year elapsed since the children were removed from BJL’s custody. The Department offered unrefuted evidence that BJL has not substantially complied with the case plan, i.e., she has not obtained stable housing or maintained a consistent income, has not kept the Department advised of her whereabouts, and has not addressed her serious mental health issues. Additionally, BJL visited with her children only once between May of 2000 and the hearing in November of 2000. Finally, the record supports the conclusion that there is no reasonable expectation of significant improvement in BJL’s condition. Although the trial court did not specifically articulate a finding of the best interests of the children, we find this error to be harmless. The evidence in the record indicates that the children’s best interests would be served by the termination of the parental rights of BJL, a woman who has repeatedly failed to provide proper supervision for her children and who failed even to appear and defend herself in these termination proceedings.\nWe do find, however, manifest error in the trial court’s decision to terminate the rights of LDH. The grounds for termination of his rights were specified in the petition as those listed in La.Ch.Code art. 1015(5), namely, that more than a year has elapsed since the children were removed from the parent’s custody, that the parent has failed to substantially comply with the case plan, and that there is no reasonable expectation of improvement in the parent’s condition or conduct. LDH has never had custody of the twin boys since the first year of their lives. He was out of the country when the boys were removed from their mother’s custody, and there is no evidence that the Department attempted to place the boys with LDH at any time during the |7course of these proceedings. LDH has complied with the requirements of the case plan to a certain extent; it may be necessary for the Department to consider revising certain elements of the plan based on LDH’s work schedule, his promise to end the relationship with MJ if necessary, and his ultimate verification of compliance with substance abuse services. It is this court’s conclusion that LDH has shown a definite possibility of improvement in his condition as evidenced by his consistent visitation with the boys, his sincere desire to gain custody of the boys, and his attempts to fulfill the requirements of the Department.\nThe trial court failed to find and we, likewise, find nothing in the record to support a conclusion that termination of LDH’s parental rights would be in the best *860interests of these nine-year-old, essentially unadoptable boys whose foster parents, of three years’ duration, no longer want them. Accordingly, we are compelled to reverse that portion of the judgment terminating the parental rights of LDH.\nFor the foregoing reasons, the judgment of the trial court is reversed insofar as it terminates the parental rights of LDH. In all other respects, the judgment of the trial court is affirmed. This matter is ' remanded to the trial court for a hearing to determine the appropriate disposition necessary to serve the best interests of ADH and CAH at the present time, with a goal of reuniting ADH and CAH with their father LDH.\nAFFIRMED IN PART, REVERSED IN PART, AND REMANDED.\n\n. Pursuant to Rule 5.2, Uniform Rules — • Courts of Appeal, the use of initials will be used to protect the identities of the minor children.\n\n", "ocr": true, "opinion_id": 7740411 } ]

"2001-02-09"

[ "785 So. 2d 27" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re: Gaffey, Bernard; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. B, No. 95-464; to the Court of Appeal, Third Circuit, No. 99 00840.\nDenied.\n", "ocr": true, "opinion_id": 7740493 } ]

"2001-04-04"

[ "785 So. 2d 573" ]

[ { "author_str": "Stevenson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nSTEVENSON, J.\nThis is an appeal from an order granting summary judgment for the defendant on a multi-count complaint which arose out of an employer-employee relationship turned sour. Appellants, the owners of a company which had previously employed appel-lee, Barry Nevins, alleged that Nevins stole money from the company and forged their names onto stock certificates, giving him an interest in the company. Appellants further alleged that Nevins negligently contributed to the untimely death of one of his former employers, Joyce Donigan, by tampering with her intravenous apparatus and improperly giving her non-prescribed medications while she was hospitalized for cancer treatments. Appellants allege that Nevins’ misdeeds continued even after Joyce Donigan’s death from cancer, when he forged her mother’s signature on an authorization form which caused her to be cremated against her wishes and those of her family. Because genuine issues of fact exist with regard to at least some of the claims, we reverse the summary judgment in part.\nDonigan Nutrition Center (DNC) was incorporated in 1994 under the ownership of Joyce Donigan and her mother, Jane Donigan. At the end of 1995 or early 1996, Nevins came to work for Joyce Doni-gan at DNC. Nevins was originally hired at an hourly rate, but soon became a salaried employee. Nevins began to spend more time at the DNC store as Joyce Donigan’s health declined due to breast cancer and forced her to miss work.\nJoyce Donigan was admitted to Boca Raton Hospital in February 1998, and passed away on March 14, 1998. Allegedly, during her final hospitalization, Joyce Donigan sold Nevins 300 shares of DNC corporate stock for $3,0Q0, and transferred her remaining shares to Jane Donigan. Appellants allege, however, that Joyce Do-nigan did not actually sell the stock to Nevins, but rather that Nevins forged Joyce’s and Jane’s signatures on the stock certificates. Nevins was fired from DNC in June of 1998.\nDuring her hospitalization for breast cancer, Nevins allegedly gave Joyce Doni-gan injections of Anvirzel, a drug used for alternative cancer treatment, and increased her intravenous morphine drip without authorization, both of which allegedly accelerated her death. Later, after Joyce’s death, Nevins is alleged to have forged Jane Donigan’s name onto an authorization form for Joyce Donigan’s cremation.\n• On January 26, 1999, appellants filed an amended complaint against Nevins, seeking damages for the alleged criminal practices pursuant to chapter 772, Florida Statutes (1999), in counts I and II; count III alleged civil theft; count IV was a conversion claim; count V was a wrongful death claim; count VI alleged tortious interference with the disposition of a dead human *575body. Ultimately, the trial judge granted summary judgment in favor of the defendant on all counts.\n\nCivil theft and conversion\n\nWe reverse the entry of summary judgment on counts III and IV, civil theft and conversion, respectively, insofar as they concern the theft of DNC stock certificates and Nevins’ forgery of Joyce and Jane Donigans’ names onto the stock certificates. From our review of the record, we conclude that genuine issues of fact remain as to whether the signatures on the stock certificates were forgeries.1\n\nWrongful death\n\nWe reverse the summary judgment as to the wrongful death claim in count V. The trial court apparently granted the summary judgment because the probate court had denied Jane Donigan’s claim that Nevins should not be entitled to any benefits under Joyce Donigan’s will based on the so-called. Slayer Statute, which states:\nA surviving person who unlawfully and intentionally kills or participates in procuring the death of the decedent is not entitled to any benefits under the will or under the Florida Probate Code, and the estate of the decedent passes as if the killer had predeceased the decedent.\n§ 732.802(1), Fla.Stat. (1999). The trial judge determined that the Slayer’s Act did not apply since the evidence indicated that Joyce Donigan died from cancer. We find that the conclusion in the probate court does not control here. First, the Slayer’s Act requires an intentional act, here, appellants claim both an intentional act on the part of Nevins and, in the alternative, negligence. Second, appellants concede that it was the cancer which ultimately caused the death of Joyce Donigan, but allege that Nevins’ actions hastened and accelerated the moment of her death. Several people testified that they saw Nev-ins inject Joyce with a drug that they later discovered was an alternative drug for cancer treatment. Deposition testimony also revealed that several people claimed to have seen Nevins tamper with Joyce’s morphine drip. We find that genuine issues of material fact exist as to whether Nevins’ actions were a proximate cause of accelerating Joyce Donigan’s untimely death.\n\nTortious interference with rights involving dead human bodies\n\nLastly, we reverse the summary judgment as to count VI, tortious interference with rights involving dead human bodies. To state a cause of action for the intentional infliction of emotional distress, a complaint must allege facts which, if proven, would also support an award of punitive damages. See Rupp v. Jackson, 238 So.2d 86 (Fla.1970); Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950). These decisions have recognized such a cause of action in a variety of factual situations involving the care of dead bodies and are exemplified by the following statement set out in Kirksey:\nThe right to recover, in such cases, is especially appropriate to tortious interference with rights involving dead human bodies, where mental anguish to the surviving relatives is not only the natural and probable consequence of the character of wrong committed, but indeed is frequently the only injurious consequence to follow from it.\nId. at 189.\nAppellee contended that appellants’ argument should fail because claims of tor-*576tious interference with rights involving dead human bodies are proper only as against funeral homes. We disagree with that argument since “Florida cases have recognized causes of action based upon interference with a dead relative’s body in a variety of circumstances where the underlying conduct alleged rises to the level of intentional misconduct or malice.” Crocker v. Pleasant, 778 So.2d 978, 987 (Fla.2001) (citing Kirker v. Orange County, 519 So.2d 682, 684 (Fla. 5th DCA 1988) (right of action for mutilation of dead body based on right of next of kin to bury body in an unmutilated condition); Smith v. Telophase Nat’l Cremation Soc’y, Inc., 471 So.2d 163, 165 (Fla. 2d DCA 1985) (intentional infliction of mental distress for failure to properly dispose of decedent’s ashes); Sherer v. Rubin Mem’l Chapel, Ltd., 452 So.2d 574, 575 (Fla. 4th DCA 1984) (holding that relatives of deceased alleged facts sufficient to impute malice in mishandling of corpse); Scheuer v. Wille, 385 So.2d 1076, 1078 (Fla. 4th DCA 1980) (claim of intentional infliction of emotional distress for unauthorized embalming precluded entry of summary judgment for funeral home)).\nJane Donigan denies that it was her signature on the authorization for cremation form. According to section 470.0255, Florida Statutes, “[a] cremation may not be performed until a legally authorized person gives written authorization for such cremation.” Jane Donigan contends that her signature on this crucial authorization form was forged by Nevins. Nevins asserted his Fifth Amendment right to remain silent when questioned about the signatures on the authorization for cremation form; thus, genuine issues of fact were in dispute as to whether Nevins forged Jane Donigan’s name on the authorization form. See Atlas, 708 So.2d at 299. If Nevins did forge Jane Donigan’s name, a jury could conclude that he interfered with the disposition of Joyce Donigan’s body.\nWe have considered the other issues raised in this appeal and find no error. Accordingly, this cause is reversed and remanded for proceedings consistent with this decision.\nGROSS and HAZOURI, JJ., concur.\n\n. We affirm the summary judgment as to counts I and II.\n\n", "ocr": true, "opinion_id": 7740573 } ]

"2001-03-14"

[ "785 So. 2d 872" ]

[ { "author_str": "Tobias", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nh TOBIAS, Judge.\nSTATEMENT OF CASE\nOn 24 August 1998, in case number 400-865, defendant, Gregory R. Julian (“Jul*874ian”), was charged by bill of information with one count of possession of heroin, a violation of La. R.S. 40:966. In the same bill of information, defendant, William C. Whitley (“Whiltey”), was charged with possession with \"the intent to distribute cocaine, a violation of La. R.S. 40:967. On the same date, in case number 400-868, Julian was also charged by bill of information with possession of marijuana, second offense, a violation of La. R.S. 40:966. On 26 August 1998, the defendants pled not guilty to all charges. After a suppression hearing on 9 August 1999, the trial court denied the defendants’s motions to suppress the evidence, and the defendants went to trial on that same date. Whitley was found guilty of attempted possession of cocaine. Julian was found guilty of attempted possession of heroin and possession of marijuana, second offense. The defendants waived delays, and the trial court immediately sentenced both defendants — Whitley to five years at hard labor (but the sentence was suspended and he was placed on active | ¡.probation for three years) and Julian to thirty months at hard labor on the heroin charge. The trial court suspended Julian’s sentence and placed him on three years active probation. The State filed a multiple bill of information on 25 January 2000 alleging Julian was a multiple felony offender. He admitted to the allegations of the multiple bill, and on 7 April 2000, the trial court vacated the original sentence imposed and resen-tenced Julian under the multiple offender statute to thirty months at hard labor. On the same date, the trial court sentenced Julian on the marijuana conviction to two years at hard labor.\nBoth cases were consolidated for appeal.\n\nSTATEMENT OF FACTS\n\nAgent Michael Hutton, a special agent with the Federal Bureau of Alcohol, Tobacco and Firearms, participated in Whitley’s arrest on 3 June 1998. He had participated in a surveillance of 1517 La-freniere Street immediately prior to the Whitley’s arrest. He and other officers received a call on the ATF “guns hotline” regarding drug activity at the residence.. In addition, they had received numerous previous complaints concerning the residence! After receiving the complaints, Agent Hutton and his partner, Sue Pécora, set up a surveillance of the residence. The officers were on the scene less than one minute when they observed an individual, who matched the description given by the callers to the hotline, come out of an alleyway on the left side of the residence and speak with a man who was standing outside of the residence. This individual was later identified as Whitley. The second subject was holding currency in his hand. After a brief conversation, Whitley removed some type of plastic object from his right pants pocket, opened it, took something out of it, and handed it to the second subject. Whitley took ^currency from the second subject, and the second subject walked off. The officers believed that they had just watched a narcotics transaction and radioed the other task force members to move into the area. Agents Hutton and Veal arrested Whitley. Officer Randy Lewis and Agent Pé-cora went'down the alleyway from which Whitley had come. Other officers attempted to locate and arrest the buyer (the second subject) but were unable to apprehend him.\nAgent Hutton conducted a pat down of Whitley. He felt a plastic container in Whitley’s pants pocket. The officer believed this was the container that Whitley had used during the narcotics transaction that they had observed. Believing the object to be narcotics, the officer removed the object from Whitley’s pocket and found *875it to be a white film container. Agent Hutton opened the container and found it to contain six pieces of a rock like substance (later determined to be crack cocaine). Whitley was then arrested. Currency in the amount of $67.00 was found on WThitley in the search incident to the arrest. After advising the Whitley of his rights, Whitley admitted to agent Hutton that he was selling cocaine.\nAfter observing what appeared to be a narcotics transaction, Agent Pécora and Officer Lewis walked down the alleyway towards the rear of the residence while Agents Hutton and Veal arrested Whitley. At the alleyway, the officers came upon an unlocked wooden gate, entered the alleyway and proceeded down to the rear yard. They observed four people in the yard, three men and one woman. The officers noted that a small vial and a canister on the top of a washing machine in the yard, which they believed contained crack cocaine. Some of the subjects were standing near this washing machine. All four people were arrested, including |4defendant Julian.1 Jerome Whitley was standing near the washing machine and was counting money as the officers approached. A subsequent search revealed additional currency on him.\nOfficer Randy Lewis assisted in the surveillance and arrest of Julian. He testified that when Officer Lewis and Agent Pécora walked into the rear yard after proceeding down the alleyway, they noticed four people standing around a washing machine. A bottle containing several pieces of rock like substance (later identified as crack cocaine), a scale, several pieces of partially smoked marijuana cigarettes, and' a film container containing a rock like substance (later determined to be crack 'cocaine) were found on top of the washing machine. Jerome Whitley was standing next to the washing machine counting money. Gregory Julian was standing by the alleyway near the house, a few feet from the washing machine. The officers observed Julian throw a bag of green vegetable material which they believed to be marijuana near the side of the house as they entered the yard. All four people were arrested and subsequently searched. Jerome Whitley was found to be in possession of $223.00. The officers found four packets of heroin on Gregory Julian in addition to the bag of marijuana he had thrown by the house. After the officers arrested Julian and advised him of his rights, Julian told the officers that he did not sell heroin. He stated that he was a heroin user.\n\nERRORS PATENT AND JULIAN’S ASSIGNMENT OF ERROR NUMBER 3\n\nA review of the record for errors patent reveals none.\n| JULIAN’S ASSIGNMENT OF ERROR NUMBER 1 AND WHITLEY’S ASSIGNMENT OF ERROR NUMBER 1\nIn these assignments, the defendants argue that the trial court erred when it denied the defendants’ motion to suppress evidence. The defendants argue that the officers did not have probable cause to arrest Whitley because the pat down search exceeded the scope of authority allowed under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and the plain feel doctrine. The defendants also suggest that the officers exceeded their authority when they entered the backyard without a warrant.\nIf a police officer stops a person whom he reasonably suspects is committing, has committed, or is about to eom-*876mit a crime, the officer may demand of the person his or her name, address, and an explanation of his or her actions. La. C.Cr.P. art. 215.1(A). If the officer reasonably suspects that he or she is in danger, the officer may frisk the outer clothing of such person for a dangerous weapon. La.C.Cr.P. art. 215.1(B). If the officer reasonably suspects that the person possesses a dangerous weapon, the officer may search the person. La. C.Cr.P. art. 215.1(B); State v. Curtis, 96-1408, pp. 2-3 (La.App. 4 Cir. 10/2/96), 681 So.2d 1287, 1289. “The officer need not be absolutely certain that the person is armed, but the officer must be warranted in his belief that his safety or that of others is in danger.” State v. Williams, 98-3059, p. 4 (La.App. 4 Cir. 3/3/99), 729 So.2d 142, 144, quoting State v. Smith, 94-1502, p. 5 (La.App. 4 Cir. 1/19/95), 649 So.2d 1078, 1082.\nIf in the course of a frisk pursuant to La.C.Cr.P. art. 215.1(B) an officer feels an object whose contour or mass makes its identity as contraband immediately apparent, the officer may seize it under the “plain feel” exception to |fithe warrant requirement. Minnesota v. Dickerson, 508 U.S. 366, 377, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334, (1993); State v. Anderson, 96-0810 (La.App. 4 Cir. 5/21/97), 696 So.2d 105; State v. Williams, 98-3059, pp. 6-7 (La.App. 4 Cir. 3/3/99), 729 So.2d 142, 145-146.\nIn the case at bar, Agent Hutton had received complaints of narcotics activity at the Whitley residence, 1517 Lafreni-ere Street. After setting up a surveillance of the area, the officer observed Whitley exit the residence from the gated alleyway that lead to the fence enclosed rear yard. Whitley walked towards the front of the house where he met a man who was standing outside the residence. Agent Hutton observed Whitley engage in a narcotics transaction with the unknown man. Hutton testified that he saw Whitley take an object out of a film canister and give it to the man. The unidentified man then gave Whitley currency. Agent Hutton radioed the other task force members to move into the area. Agents Hutton and Veal then proceeded to arrest Whitley.\nAgent Hutton not only had reasonable cause to stop Whitley, but his observation of a narcotics transaction also provided probable cause to arrest Whitley. Probable cause to arrest exists when the facts and circumstances, either personally known to the arresting officer or of which he has reasonably trustworthy information, are sufficient to justify a person of ordinary caution in believing that the person to be arrested has committed a crime. State v. Fisher, 97-1133, pp. 4-5 (La.9/9/98), 720 So.2d 1179. In State v. Johnson, 94-1170 (La.App. 4 Cir. 8/23/95), 660 So.2d 942, 946, writs denied 95-2331, 95-3044 (La.2/2/96), 666 So.2d 1092, 1105, this court stated:\nThe determination of probable cause, although requiring something more than bare suspicion, does not require evidence sufficient to support a conviction. Probable [7cause, as the very name implies, deals with probabilities. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). The determination of probable cause, unlike the determination of guilt at trial, does not require the fine resolution of conflicting evidence that a reasonable doubt or even a preponderance standard demands, and credibility determinations are seldom crucial in deciding whether the available evidence supports a reasonable belief that the person to be arrested has committed a crime. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); State v. Rodrigue, 437 So.2d 830 (La.1983). The determination of proba*877ble cause involves factual and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Ogden and Geraghty, 391 So.2d 434 (La.1980).\nAs the officers had probable cause to arrest Whitley, the seizure of the film canister and cocaine therein was valid as incidental to the arrest. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, (1969); State v. Tomasetti, 381 So.2d 420 (La.1980).\nJulian argues that Officer Lewis and Agent Pécora did not authority to enter the backyard without a search warrant. However, he is incorrect. Upon viewing the narcotics transaction and finding cocaine on defendant Whitley, the officers had probable cause to believe that contraband was in an area of the home down the alleyway. At the end of the alleyway was a fenced yard. Thus, exigent circumstances existed to enter the yard through the gate and alleyway to search for further contraband.\nIn State v. Page, 95-2401, p. 10 (La.App. 4 Cir. 8/21/96), 680 So.2d 700, 709, writ den. 96-2352 (La.2/21/97), 688 So.2d 522, this court discussed the warrantless entry into a protected area:\nThere is a justified intrusion of a protected area if there is probable cause to arrest and exigent circumstances. State v. Rudolph, 369 So.2d 1320, 1326 (La.1979), cert. den., Rudolph v. Louisiana, 454 U.S. 1142, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982). Exigent circumstances are exceptional circumstances which, when coupled with probable cause, justify an entry into a “protected” area that, without those exceptional circumstances, would be unlawful. Examples of exigent circumstances have been found to be escape of the defendant, avoidance of a possible violent confrontation that could cause injury to the officers and the public, and the destruction of evidence. State v. Hathaway, 411 So.2d 1074, 1079 (La.1982).\nState v. Roebuck, 530 So.2d 1242 (La.App. 4 Cir.1988); State v. Woods, 591 So.2d 1323 (La.App. 4 Cir.1991); State v. Tate, 623 So.2d 908 (La.App. 4 Cir.1993); and State v. Hunter, 621 So.2d 161 (La.App. 4 Cir.1993) are all cases which, by analogy, support the proposition that the officers in this case were warranted in their entering the rear yard through the gate and alleyway without the necessity of a warrant.\nIn the case at bar, the officers had received complaints of narcotics activity at Whitley’s residence at 1517 Lafreniere Street. Further, Agents Hutton and Pé-cora observed Whitley engage in a narcotics transaction in the front of the residence. The officers testified that they observed Whitley walk from the alleyway on the side of the house that lead to the rear yard of the house. The alleyway lead to the front of the residence where Whitley engaged in an apparent narcotics transaction. The officers subsequently arrested Whitley and found a rock like substance that they believed to be crack cocaine on his person. Given these circumstances, probable cause existed to believe that contraband was down the alleyway and/or in the backyard.\nFurthermore, the facts of the case indicate that exigent circumstances existed which permitted the warrantless search. In the present case, the police officers entered the backyard because they observed Whitley walking from the alleyway that lead to the rear yard towards the front of the residence immediately prior to the |8narcotics transaction. The officers had reasonable concerns and beliefs that any narcotics stored in the yard would be *878destroyed if they did not act quickly. Whitley’s actions suggested that the narcotics were kept in the alleyway and/or backyard or rear of the house.\nTherefore, the trial court did not err when it denied the defendants’ motions to suppress evidence. These assignments are without merit.\n\nJULIAN’S ASSIGNMENT OF ERROR NUMBER 2\n\nDefendant Julian also argues that the trial court erred when it allowed the State’s witnesses to read another witness’s testimony prior to testifying even though the trial court had granted defendant’s motion for sequestration of witnesses pursuant to La. C.E. art. 615.\nJulian suggests that it was improper for the State to allow Agents Hutton and Pé-cora to read the transcript of Officer Lewis’ testimony from the suppression hearing prior to testifying at the trial. The record reveals that only Officer Lewis testified at the suppression hearing. On the morning of trial, defense counsel moved for and obtained a sequestration order. Almost immediately thereafter, defense counsel became aware that Agents Hutton and Pécora had read Officer Lewis’s suppression hearing testimony earlier, before his motion for sequestration was made and granted. And they were still reading the transcript or had finished reading it while the motion was being made and for a short time thereafter. Defense counsel sought to prevent Agents Hutton and Pécora from testifying, arguing that their reading of Lewis’s testimony constituted a violation of the sequestration order. The trial court disagreed and allowed the officers to testify-\n|in In State v. Firmin, 93-1849, p. 4 (La.App. 4 Cir.1994), 637 So.2d 1143, 1145, this Court stated:\nL[a].C.E. art. 615 does not expressly prohibit the reading of prior sworn testimony before trial. Sequestration begins when the order for sequestration issues and ends with the close of all testimony. A witness may read his prior testimony before trial to refresh his memory. Additionally, the rule does not bar, prior to trial, communications or discussions of the circumstances of a case or the reading of prior testimony between witnesses.\nThe defendant in Firmin attempted to disqualify three witnesses who had read their testimony from the preliminary hearing held in the case. This court concluded the trial court did not err when it denied the defendant’s motion to prevent the witnesses from testifying. The court noted that no evidence of collusion among the witnesses existed and that defense counsel was granted wide latitude in the cross-examination of the witnesses.\nIn the case at bar, the testimony reviewed was from a suppression hearing. A review of the hearing transcript reveals that no sequestration order was entered during that suppression hearing. Furthermore, Officer Lewis testified at the suppression hearing concerning the police report of the incident, which included information he obtained from Agents Hutton and Pécora. Thus, one can reasonably say that Agents Hutton and Pécora were reviewing their own information that they had given to Officer Lewis. Additionally, La. C.E. art. 615B, which permits a judge to disqualify a witness for violating a sequestration order, also provides the judge with other remedies: contempt or appropriate instructions to the jury. From the totality of the record, we do not find the trial court abused its discretion in the manner it handled the matter. In addition, defense counsel was granted latitude in his cross-examination of the officers.\n*879InTherefore, the trial court did not err when it denied the defendant’s request to exclude the testimony of Agents Hutton and Pécora.\nThis assignment of error is without merit.\n\nCONCLUSION\n\nFor the foregoing reasons, the defendants’s convictions and sentences are affirmed.\n\nAFFIRMED.\n\nPLOTKIN, J., dissents with reasons.\n\n. The others who were arrested include Delores Whitley, Jerome Whitley and Glenn Whitley.\n\n", "ocr": true, "opinion_id": 7740746 }, { "author_str": "Hplotkin", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nhPLOTKIN, J.,\ndissenting with reasons.\nThe critical issue before this Court is whether the evidence against Gregory Julian should have been suppressed because it was seized without a search warrant.\nIn United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326, the United States Supreme Court held that:\n[T]he Fourth Amendment protects the curtilage of a house and ... the extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself. [Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214 (1984)]. We identified the central component of this inquiry as whether the area harbors the “intimate activity associated with the ‘sanctity of a man’s home and the privacies of life.” ’ Ibid, (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886)).\nId. at 300, 107 S.Ct. at 1139.\n“The question of whether the backyard came within the curtilage of defendant’s home or was an “open view” over which defendant had no expectation of privacy is determined by the factors enumerated in United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987).” State v. Smith, 99-3056 (La.4/20/00), 767 So.2d 1, n. 1. In Dunn, the Court stated:\nDrawing upon the Court’s own cases and the cumulative experience of the lower courts that have grappled with the task of defining the extent of a home’s curti-lage, we believe that curtilage questions should be resolved with particular reference to four factors: [1] the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of |gthe uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing by.\nId. at 301, 107 S.Ct. at 1139.\nIn the case at bar, police seized evidence from the backyard of defendant William Whitley’s home. An eight-foot tall fence and a gate enclose the backyard. The backyard adjoins the home and is used for social purposes. From their vantage point, the police conducting surveillance of Whitley in the front yard, could not observe the backyard area. Under the factors enumerated in Dunn, Whitley’s backyard is included in the curtilage of the home and is protected by the Fourth Amendment from unreasonable search and seizure.\nThe majority finds that the police officers did not need a warrant due to exigent circumstances, such as the possibility of destruction of the evidence.\nThe burden of proof falls upon the State to affirmatively show that an exigent circumstance exists. State v. Talbert, 449 So.2d 446, 447 (La.1984). Examples of exigent circumstances include escape of a defendant, avoidance of a possible violent confrontation that could cause injury to the public or the police officers, and destruction of evidence. State v. Tanner, *88096-0708, p. 6 (La.App. 4 Cir. 5/21/97), 696 So.2d 111, 114, writ denied, 97-1665 (La.11/21/97), 703 So.2d 1306 (citing State v. Hathaway, 411 So.2d 1074 (La.1982)).\nCircumstances which may lead an officer to reasonably conclude that evidence will be destroyed before a search warrant can be obtained include: 1) the degree of urgency and the time necessary to obtain a warrant; 2) a reasonable belief that contraband is about to be removed; 3) the possibility of danger to officers guarding the site while a warrant is obtained; 4) information indicating that the perpetrators are aware that the police are on their trail; and 5) the ready destruction of contraband and the knowledge that efforts to dispose of the drugs and to escape are characteristic behavior of narcotics traffickers. State v. Sterling, 94-0794 (La.App. 4 Cir. 7/27/94), 641 So.2d 696 [writ denied, 94-2213 (La.11/18/94), 646 So.2d 379], citing United States v. Rubin, 474 F.2d 262 (3rd Cir.l973)[cert. denied, Agran v. U.S., 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973) ].\nId. at pp. 6-7, 696 So.2d 114-115.\n| aHere, police officers testified that they did not obtain a search warrant because they were concerned that evidence may be destroyed. However, the police officers testified that prior to their search, they did not believe that other people were in the backyard. Additionally, approximately eleven officers were present at the scene. Certainly one of them could have left to obtain a warrant while the other officers secured the area. The testimony of the police officers does not support a finding that they reasonably thought the evidence would be destroyed.\nThe State has not met its burden of proof.\nI would reverse the judgment of the trial court, that admitted the evidence as to defendant Julian, and remand the case to the trial court. Accordingly, I respectfully dissent.\n", "ocr": true, "opinion_id": 7740747 } ]

"2001-03-16"

[ "787 So. 2d 311" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Sessions & Fishman L.L.P., et al.; Nathan, Max Jr.; Cohen, Stanley, Autin, Richard J.; — Defendants; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, Nos. 491-883, 536-561; to the Court of Appeal, Fifth Circuit, Nos. 00-CA-1077, 00-CA-1078.\nDenied.\nCALOGERO, C.J., and VICTORY, J., would grant the writ.\n", "ocr": true, "opinion_id": 7741300 } ]

"2001-07-05"

[ "788 So. 2d 401" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nAffirmed. Martin v. Rivers, 72 So.2d 789, 791-92 (Fla.1954) (The operator of the train “had the right, from the facts in the record here, to believe that the deceased was in possession of his faculties and his normal senses, and that with all of the signals of danger, the extent of which were almost overwhelming, he would not walk directly into the path of a moving train.”).\n", "ocr": true, "opinion_id": 7741591 } ]

"2001-07-13"

[ "788 So. 2d 1136" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nDENIED. In 1998, this court warned Mr. Adkins about filing frivolous, successive pleadings. Adkins v. State, 729 So.2d 955 (Fla. 5th DCA 1998). Notwithstanding that warning, and in addition to his other post-conviction motions, he has now filed an untimely third Based upon his numerous and successive meritless pro se filings, we hold that Mr. Adkins is precluded from filing any additional pro se appeals, pleadings, motions or petitions per*1137taining to his conviction and sentence for Sexual Battery of a Child Under Twelve Years of Age in trial court Case No. 92-34004-CFAES, unless reviewed and signed by an attorney licensed to practice in the State of Florida. The clerk of this court is directed not to accept from Mr. Adkins, as petitioner or appellant, any further pro se pleadings or filings which relate to that case. See Jackson v. Florida Dep’t of Corrections, 790 So.2d 398 (Fla. 2001); Vickson v. Singletary, 734 So.2d 376 (Fla.1999); Isley v. State, 652 So.2d 409, 410-11 (Fla. 5th DCA 1995); Carnes v. State, 781 So.2d 489 (Fla. 5th DCA 2001).\nHARRIS, PETERSON, and PALMER, JJ., concur.\n", "ocr": true, "opinion_id": 7741759 } ]

"2001-04-12"

[ "789 So. 2d 586" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Hodges, Robert George; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. F, Nos. 8418-92, 9627-94; to the Court of Appeal, Third Circuit, No. 99-1940-KH.\nDenied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.\n", "ocr": true, "opinion_id": 7741988 } ]

"2000-06-27"

[ "789 So. 2d 1014" ]

[ { "author_str": "Nesbitt", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nNESBITT, Senior Judge.\nBuilding contractor Pórtela Investments, Inc. appeals from a final judgment entered in favor of homeowners Roberto and Maryann Piedra. The Piedras sued Pórtela claiming breach of a limited warranty wherein the builder warranted to the homeowners its liability for defects that arose in the home within one year of closing. Some months after closing, the homeowners did file such a suit and made such a claim. As time passed, more defects appeared and eventually a trial resulted on the homeowners’ third amended complaint. The builder admits its liability for defects arising from poor workmanship, but ar*1015gues its warranty expressly disavowed liability for damages resulting from settlement and cracking. The builder also maintains that the homeowners failed to prove exactly the nature and extent of the damage at the one year mark.\nThe trial judge deciding the case adopted the position of the homeowners’ expert. He testified that the homeowners’ damages arose largely from defects resulting from poor workmanship at onset. Consequently, we find no error in that portion of the trial court’s final judgment finding liability for those damages. See Hudson v. Prudential Property & Casualty Insurance Co., 450 So.2d 565, 568 (Fla. 2d DCA 1984); Stonewall Ins. Co. v. Emerald Fisheries, Inc., 388 So.2d 1089 (Fla. 3d DCA 1980). See also Mori v. Matsushita Electric Corp. of America, 380 So.2d 461 (Fla. 3d DCA 1980).\nThe same expert also testified, however, that tile cracking in at least one room was due to settlement of the structure. Under the express terms of the warranty, no coverage was provided for that particular damage. Consequently, that portion of the judgment awarding damages for that “defect” is vacated. The cause is- remanded to the trial court to either order a remittitur or enter a judgment based upon the record. See Konover v. Hochman 439 So.2d 994, 995 (Fla. 4th DCA 1983).\nAffirmed in part, reversed in part, and remanded.\n", "ocr": true, "opinion_id": 7742078 } ]

"2001-04-20"

[ "790 So. 2d 638" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re: Ly, Harold V. et al. d/b/a; Lee’s Chinese Restaurant; Ly, Ann Leng; Scottsdale Insurance Company; — Defendants; Applying for Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. N, No. 91756; to the Court of Appeal, Third Circuit, No. 00-01747.\nDenied.\n", "ocr": true, "opinion_id": 7742387 } ]

"2001-04-19"

[ "791 So. 2d 123" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nb The plaintiff-appellant, Bobbie K. Pi-tre, filed suit to have the April 7, 2001 judicial election for Division “A” declared null and void. From a ruling of the trial court granting a judgment of involuntary dismissal in favor of defendant and inter-venors, the plaintiff appeals. We find the appeal to be without merit and not supported by one scintilla of evidence.\nIn this judicial election, there were two candidates, the plaintiff, Bobbie K. Pitre, and Kent Savoie. Mr. Pitre received 516 votes, while Mr. Savoie received 5,283 votes. On April 12, 2001, Mr. Pitre filed a petition naming only the Secretary of State as a defendant. The petition to recall the election results and for injunctive relief, alleged that many of the qualified voters who usually vote, did not vote in this election. The petition stated that “if fear, distortion, intimidation or communicated lies, among other possibilities, including extreme and obvious miscommuni-cation from less than partial and credible sources, prevailed in an individual’s decision to cast a vote or not is self explanatory; this would obviously be unconstitutional and said election results would be overturned.” The petition sought that the judicial election held on April 7, 2001, be declared null and void due to the fact that it was impossible to determine the result of the election and that a number of qualified voters were denied the right to vote by election officials sufficient to change the result of the election. Mr. Savoie intervened in the proceedings along with the Commissioner of Elections. A hearing was set for April 16, 2001. At the trial on the merits, five witnesses were questioned by the plaintiff. When the plaintiff rested his case, the defendants moved for a judgment of involuntary dismissal. The trial court granted the judgment of involuntary dismissal, finding that there was an absence of |¡>“any evidence of anything that would give any reason to overturn this election.” It is from this ruling which appellant appeals. The defendant and intervenors filed motions to dismiss the appeal for untimeliness.\n\n*125\nTIMELINESS OF APPEAL\n\nThe defendant and intervenors filed motions to dismiss the appeal based on untimeliness. They argue the judgment was rendered at 6:10 P.M. on April 16, 2001, and that the plaintiff did not file his appeal until 9:06 A.M. on April 18, 2001, which is beyond the twenty-four hour time limit established by La.R.S. 18:1409.\nPursuant to La.Code Civ.P. art. 2121, an appellant may either request an appeal orally or by written motion. It is clear from the record that Mr. Pitre orally requested an appeal from the trial court’s ruling on the date of the hearing. We find his oral request for an appeal timely and need not address the timeliness of the written motion.\n\nMERITS\n\nIn Arvie v. Skinner, 98-1769, p. 4 (La. App. 3 Cir. 11/24/98), 722 So.2d 90, 93, writ denied, 98-2935 (La.12/3/98), 731 So.2d 270, quoting Colvin v. Franklin Parish School Board, 28,718 (La.App. 2 Cir. 2/22/96), 668 So.2d 1310, this court stated the plaintiffs burden of proof in an election contest is as follows:\nIn an election contest which seeks to have the results of an election declared null and void, the plaintiff bears the burden of proof. The plaintiffs burden is two-fold. The plaintiff must first prove either fraud or irregularities are present. Then the plaintiff must prove that, but for the fraud or irregularities, the outcome of the election would have been different. Huckaby v. Hunter, 427 So.2d 1 (La.App. 2d Cir.1983), writ denied, 427 So.2d 1197 (La.1983). In Moreau v. Tonry, 339 So.2d 3 (La.1976), the Louisiana Supreme Court rejected the argument advanced by the plaintiff that if the number of irregularities exceed the difference between the candidates, the outcome of the election cannot be determined. The Moreau court held that an election may only be upset if the Done contesting the election can show that, but for irregularities or fraud, the election result would have been different.\nIn the present case, the plaintiff called five witnesses to testify: Wayne Frey, an Assistant District Attorney for Calcasieu Parish, who is the Chief Felony Prosecutor; Darren Martin, District Manager for the Department of Elections; Jimmy Andrus, Clerk of the Fourteenth Judicial District Court; Paulette Dartez, Election Coordinator for the Cal-casieu Parish Clerk of Court’s Office; and Angela Quienalty, Registrar of Voters for Calcasieu Parish. Testimony of all five witnesses was essentially the same. The cumulative testimony of the plaintiffs witnesses clearly proved that there were no irregularities in the April election, and that there were no mechanical malfunctions of the machines other than a printer being offline which was easily corrected. There was no evidence presented to show that a single voter was denied his right to vote during the election. There was not a scintilla of evidence offered at the hearing to support any of the plaintiffs vague allegations. We therefore find plaintiffs appeal totally baseless and without any merit.\nFor these reasons the judgment of the lower court is affirmed at appellant’s cost.\n\nAFFIRMED.\n\n", "ocr": true, "opinion_id": 7742595 } ]

"2001-07-24"

[ "791 So. 2d 1164" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nBefore us are two consolidated cases concerning the sale of Alachua General Hospital.\nWe affirm all issues raised in both appeals. In Case 1D00-2829, Appellants have failed to demonstrate any special injury, and therefore only have standing to raise the issue of whether the sale of Alachua General Hospital violated Article VII, section 10 of the Florida Constitution. We hold that the sale was constitutional *1165because the only bonds issued in connection with this transaction were revenue bonds, which do not pledge the full faith and credit of the State of Florida or Alachua County. See Linscott v. Orange Co. Indus. Dev. Auth., 443 So.2d 97 (Fla.1983). Because the 1983 conveyance of Alachua General Hospital involved no obligation of public funds and no use of public credit, no violation of Article VII, section 10, of the Florida Constitution occurred.\nAs to all other issues raised in Cases 1D00-2815 and 1D00-2829, we affirm.\nAFFIRMED.\nBOOTH, KAHN and PADOVANO, JJ., concur.\n", "ocr": true, "opinion_id": 7742806 } ]

"2001-08-22"

[ "793 So. 2d 132" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nAffirmed. See Columbro v. State, 777 So.2d 1208 (Fla. 5th DCA 2001).\nDELL, WARNER and KLEIN, JJ„ concur.\n", "ocr": true, "opinion_id": 7743210 } ]

"2001-06-20"

[ "793 So. 2d 235" ]

[ { "author_str": "Hkostelka", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nhKOSTELKA, J.\nHarold Melton (“Melton”) and Millennia Group, L.L.C. (“Millennia”) appeal the trial court judgment which ordered specific performance of a residential Buy/Sell Agreement (“the agreement”). We amend the judgment, and as amended, affirm.\nFacts\nOn September 26, 1997, Melton and Kimberly and Edward Campbell (“Campbell”) entered into the agreement for the purchase of a home in Shreveport, Louisiana. Melton, the seller of the residence, secured the services of Lynn Roos (“Roos”), a real estate broker, to sell the home. At the time of the agreement, however, Roos served as the dual agent for both Melton and Campbell. Generally, the agreement provided that the home was to be sold “as is” as of the closing date “on or before December 8,1997.” Additional provisions of the contract provided for acceptable roof, foundation and mechanical system structural reports and that “any single mechanical item repair that exceeds $2000.00 the Seller has the option to repair or the contract will be null & void.... ”\nOn October, 21, 1997, Campbell informed Melton that structural reports revealed the cost to remedy the problems discovered would be in the “$25,000-$40,000 range.” In response to this letter, Melton sent a facsimile transmission (“fax”) to Campbell on October 27, 1997, in which he suggested that Campbell find another residence and “exercis[ed][his] option under the ‘Additional Provisions’ paragraph of the 9-26-97 sales agreement (10241 Ellerbe Road) to declare it null and void.”\nOn October 28, 1997, Campbell faxed Melton a letter in which he explained that he believed the additional provisions clause gave Campbell, 12not Melton, the option to nullify the contract. He additionally assured Melton of his intent to take the house “as is” but expressed concern over several items which had been revealed in the structural reports which he estimated would cost approximately $15,000 to remedy. On October 29, 1997, Melton forwarded a certified letter to Campbell again claiming the additional provisions clause, by its own terms, gave him the option to nullify the contract upon his declining to make repairs in excess of $2,000.\nOn October 30, 1997, Campbell’s attorney forwarded Melton a certified letter once more stating that Melton’s interpretation of the additional provisions clause was erroneous and that Campbell “intend[ed] to close on the purchase of the property in accordance with and under the subject Buy/Sell Contract on or before December 8, 1997.... ” The attorney also explained that if Melton did not participate in the sale closing, legal action would be instituted. Including essentially the same information, Campbell’s attorney transmitted a letter to Melton’s attorney on November 3, 1997. When Melton did not respond to the correspondence, Campbell’s attorney sent another letter to Melton and his attorney on November 5, 1997, in which he reiterated Campbell’s willingness to participate in the sale of the property “in accordance with the terms and provi*238sions of the Buy/Sell Agreement ... on or before December 8, 1997 .... ” and intent to assert his legal rights to enforce the contract in the event Melton did not execute the sale of the property. Further pre-sale correspondence from the sale closing attorney to Melton, which included a settlement statement reflecting no deductions for repairs and informing him lathe closing date was set for December 2, 1997, prompted no response from Melton.\nMelton’s failure to appear at the December 2, 1997 closing precipitated further correspondence from Campbell’s attorney to Melton and his attorney on December 4, 1997. The letter described Melton’s actions as “legal breaches and violations of the above referenced Buy/Sell Agreement dated September 26, 1997 -” which entitled Campbell to file suit against Melton unless he complied with the sale agreement within five days of the letter. When Melton failed to do so, Campbell instituted suit for breach of contract and specific performance and filed a Notice of Lis Pen-dens on December 18,1997. In his answer to the petition, on January 29, 1998, Melton included a reconventional demand against Campbell seeking attorney fees.\nOn December 23, 1997, Melton sold the residence to Millennia through its Manager, John Hensarling (“Hensarling”), who moved into the residence. On that same day, Millennia sold a portion of the property to Huey and Melanie McGaha (“McGa-ha”). On April 28, 2000, Campbell amended the petition to add Millennia1 and McGaha as defendants to the suit.\nOn May 10, 1999, Melton sought a motion for summary judgment on the grounds that the additional provisions clause was unambiguous as a matter of law and provided that based upon the discovery of any single |4mechanical cost over $2,000, Melton had the option to repair it or the contract, by its own terms, would be null and void.2\nCampbell followed with a motion for summary judgment on August 24, 1999 arguing that they possessed the option to void the contract and when they elected not to do só, Melton was bound to sell them the house for $400,000 by December 8,1997.\nIn separate judgments, the trial court denied both motions for summary judgment on December 6, 1999. The two-day trial of the matter commenced on June 14, 2000.3 After hearing the testimony and reviewing the evidence, the trial court ruled in favor of Campbell finding Melton had breached the agreement. Resultantly, the court ordered Melton to convey full, complete and unencumbered title of the property to Campbell and nullified all property rights acquired by Millennia and McGaha and assessed Melton with attorney fees and court costs. This appeal ensued.\nDiscussion\n\nContract Provisions\n\nAn agreement whereby one party promises to sell and the other promises to buy a thing at a later time, or upon the happening of a condition, or upon performance of some obligation by either party, is a bilateral promise of sale or contract to *239sell. Such an agreement gives either party the right to demand specific performance. A contract to sell must set | Kforth the thing and the price, and meet the formal requirements of the sale it contemplates. La. C.C. art. 2623.\nThe interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046. A provision susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that renders it ineffective. La. C.C. art. 2049. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050.\nIn this case, it is undisputed that Melton and Campbell entered into a valid agreement on September 26, 1997. At trial, all parties agreed that it was their intent to buy and/or sell the residence for a price of $400,000 on or before December 8, 1997. Nevertheless, difficulties arose due to the parties’ interpretation of the additional provisions clause of the agreement. On appeal, we are faced with the task of interpreting this provision and determining its effect upon the parties’ rights.\nBoth Melton and Campbell frame their arguments around the interpretation of the second portion of the additional provisions clause, i.e., which party had the option to nullify the contract under certain circumstances. Nevertheless, because we find that the option to repair portion of the clause resolves the issues presented, it is unnecessary to address the ambiguity of the entire provision. As pointed out above, the additional provisions clause states that “any single mechanical item repair |fithat exceeds $2,000.00 the Seller has the option to repair or the contract will be null and void.”\nMelton apparently argues that it is the mere “discovery” of a repair over $2,000 which triggered the operation of the nullity option. Under Melton’s interpretation, it was Campbell’s presentation of over $2000 in repairs which gave him the option to nullify the contract. However, under this reading of the clause, Melton could exit the agreement even when Campbell chose to pay for the repairs. To interpret the provision in that manner not only violates the overall intent of the parties, i.e., the sale of the house for $400,000, but obviously leads to absurd consequences.\nEven Campbell urges it was Melton’s refusal to make repairs which activated their option to nullify the contract. Inherent in the nature of the act of refusal is the existence of a demand. Indeed, common sense dictates that it would be illogical to conclude that one ever refuses to do something without first being asked to do it. Therefore, we find implicit in that portion of the clause which gives Melton a choice to pay or refuse repairs over $2000 is the requisite that a demand be first made upon him by Campbell for responsibility of the costs. Accordingly, regardless of who possessed the right to nullify, for either party, the clear and explicit intent of the parties was that the nullity provisions of the contract remained inoperative until some payment of over $2,000 was demanded.\nIndeed, it is the issue of whether a demand for payment of costs was made by Campbell which ultimately determines the parties’ rights. The record shows that there were two letters from Campbell to Melton which precipitated Melton to exercise his claimed option to nullify the contract. [7In its findings of fact, the trial *240court concluded that neither correspondence, dated October 21 and 28, 1997, which informed Melton of the results of the structural reports, qualified as formal demands but were rather “invitation[s] to discuss the matter_” We agree.\nRegarding the October 21, 1997 correspondence, Campbell testified that his purpose in writing the letter was to inform Melton of the results of the inspections and of the numerous undisclosed defects or problems which were revealed therein. Indeed, we can discern no language within the body of the communication which could be interpreted as a demand. Moreover, a letter from Roos to Melton, which informs Melton that in his October 27th correspondence Campbell was “just making you aware of the situation” and not asking Melton to “make any repairs,” clearly corroborates Campbell’s aim in writing the letter. Where factual findings are pertinent to the interpretation of a contract, those factual findings will not be disturbed unless manifest error is shown. Hampton v. Hampton, 97-1779 (La.App. 1st Cir.06/29/98), 713 So.2d 1185. Under these circumstances, we find no error in the trial court’s conclusion that this correspondence was inadequate to qualify as a demand.\nIn the October 28, 1997 letter, Campbell clearly informed Melton of his intent to “accept the house ‘as is’ ” and “to keep [his] word.” He also informed Melton of his desire to “go forward with the closing .... ” The obvious point of difficulty in the language of the letter is Campbell’s discussion of Melton’s responsibility for undisclosed difficulties with three mechanical systems for which he “consider[ed] [Melton] to be responsible” |«and requested Melton “to rebate back to [Campbell] only the cost to fix these items” which totaled approximately $15,000.\nCampbell testified that when he wrote the letter, he was still willing to go forward and close on the house and absorb all that liability. Campbell further explained that he was not demanding repair but simply informing Melton of the undisclosed problems which had been discovered and giving him an opportunity to cure them. Obviously, the trial court resolved the discrepancy in the language in favor of Campbell’s explanation that the language was merely informative. With the conflicting language contained therein, it is certainly reasonable to read the correspondence in that manner. Moreover, Campbell’s actions following the correspondence corroborate their intent to buy the home on or before December 8, 1997 for $400,000. An October 30, 1997 correspondence from Campbell’s attorney to Melton plainly advised that “[M]y Clients intend to close on the purchase of the property in accordance with and under the subject Buy/Sell Contract on or before December 8, 1997.... ” Clearly, the settlement statement which was made part of the closing package mailed to Melton by the closing attorney revealed no further deductions other than that which was agreed to by the parties in the original agreement. Under these circumstances, we again cannot find the trial court’s conclusion that this letter was merely an invitation for further discussion, rather than a demand for repairs, to have been clearly wrong. Hampton, supra. Because no demand was made upon Melton, he remained bound by the original terms of the contract until the actual December 2, 1997 closing date. Accordingly, the trial court |flcommitted no error in concluding that Melton’s failure to execute the sale breached the agreement.\n\nSpecific Performance\n\nThe agreement provides that “in the event of nonperformance by either party, the other party shall have the right to specific performance and/or damages *241and reasonable attorney fees.” In their petition, Campbell prayed for both remedies against Melton, Millennia and McGa-ha. On appeal, Melton has assigned the issue of specific performance as error but failed to argue it in brief. Accordingly, as to Melton, it is appropriate that we consider this claim abandoned. URCA Rule 2-12.4.\nNevertheless, Millennia has provided argument in brief regarding the propriety of specific performance under the circumstances. This apparently results from the trial court judgment which orders “Specific Performance ... against the Defendants, Harold Keith Melton, Millennia Group L.L.C., Huey Edward McGaha and Melanie Skinner McGaha.” It is apparent that the only parties bound by the specific performance provisions of the agreement are Campbell and Melton. See La. C.C. art. 2623. Therefore, insofar as the judgment orders specific performance of the contract against Millennia and McGaha, it is improper. It will be necessary that we amend the judgment to delete this error.\nNevertheless, we find no error in the trial court award of specific performance of the contract by Melton. Upon the failure to perform an obligation to deliver a thing, the court shall grant specific performance if demanded. However, if specific performance is impracticable, the court may allow damages. La. C.C. art. 1986. Courts are empowered to withhold |1flspecific performance in some exceptional cases even when specific performance is possible, i.e., when the disadvantages of the remedy outweigh its advantages. J. Weingarten, Inc. v. Nor-thgate Mall, Inc., 404 So.2d 896 (La. 1981). Such cases include those where specific relief is impossible, would involve disproportionate costs, would introduce compulsion into close personal relationships, or compel the expression of special forms of artistic or intellectual creativity, or would have a negative effect upon the interest of third parties. Id.\nWe are mindful of the precarious positions in which Millennia and McGaha find themselves. Their purchase of the home occurred approximately three and one-half years ago and it is apparent the parties have relied upon the validity of the agreement. Hensarling testified that he had expended approximately $111,000 in repairs and improvements, taxes, insurance premiums and interest on the house note. Of course, McGaha did not participate in the proceedings but apparently resides in a house on the property. Even so, it is also equally clear that Campbell filed a Notice of Lis Pendens on December 18, 1997, five days prior to the supposed sale to Millennia and McGaha.\nWe are called under these facts to balance the disadvantages or costs to Millen-nia and McGaha which would result from specific performance of the contract against the policy considerations underlying enforcement of the public records doctrine.\nGenerally, a third party dealing with property is charged with knowledge revealed by recorded instruments affecting property. Ridgedell v. Succession of Kuyrkendall, 98-1224 (La.App. 1st Cir.05/19/99), 740 So.2d 173. It is also the law that parties have constructive notice of the existence and contents of a recorded instrument affecting immovable property. Where such an instrument contains language which fairly puts a purchaser on inquiry as to the title, and he does not avail himself of the means and facilities at hand to obtain knowledge of the true facts, he is to be considered as having bought at his own risk and peril, Id.\nSpecifically, a notice of lis pen-dens may be recorded to give notice of the *242pendency of an action affecting immovable property. La. C.C.P. art. 3751. The purpose of a notice of lis pendens is to give effective notice to third parties of the pen-dency of litigation affecting title to real property. Whitney Nat. Bank v. McCrossen, 93-2160 (La.App. 4th Cir.03/29/94), 635 So.2d 401, writ denied, 94-1108 (La.07/01/94), 639 So.2d 1164. The recor-dation of the notice of lis pendens makes the outcome of the suit of which notice is given binding on third parties. Ducote v. McCrossen, 95-2072 (La.App. 4th Cir.05/29/96), 675 So.2d 817.\nIt is unquestionable that both Millennia and McGaha will be at the very least inconvenienced by the enforcement of the agreement between Melton and Campbell. It is also apparent that costs have been expended due to Millennia and McGaha’s ostensible purchases of the property over three years ago. However, we are unprepared to determine that under the circumstances of this case, those costs or disadvantages are sufficient to override the entrenched policy considerations attendant to the enforcement of the public records doctrine in this state. Indeed, the comments to La. C.C. art. 1986 note that “the court may allow damages ... instead of specific performance if the latter is impracticable, as when the obligation is l^to deliver a thing and the obli-gor has sold the thing to another person protected by the laws of registry....” (Emphasis added.) The language clearly suggests an exclusion from the definition of impracticable those who are unprotected by the public records doctrine. Therefore, we are constrained to conclude that Millennia and McGaha purchased the subject property at their peril and assumed the risks inherent in the purchase of a home which has a title clouded by a notice of lis pendens. Unfortunately, those risks included the ultimate determination that Melton would be bound by his 1997 agreement to sell the residence to Campbell and the ramifications which might follow. Accordingly, we decline to disturb the trial court’s choice of a remedy.\n\nAnswer to Appeal\n\nBy way of answer, Campbell has prayed for reasonable attorney fees for defending the appeal. As a general rule, attorney fees may not be awarded to a successful litigant unless specifically provided for by statute or contract. Curtis v. Curtis, 28,698 (La.App.2d Cir.09/25/96), 680 So.2d 1327. Moreover, on appeal, an increase in attorney fees may be awarded where a party who was awarded attorney fees by the trial court is forced to and successfully defends an appeal. Id. In the present case, the provisions of the agreement clearly provide for attorney fees in the event of nonperformance by either party. Because the trial court awarded attorney fees to Campbell and he has successfully defended this appeal, an award of attorney fees on appeal is, therefore, appropriate. We find that a reasonable award for this appeal is $1,000.\n1 ^Conclusion\nFor the foregoing reasons, we amend the trial court judgment to delete only that portion of paragraph 1 which orders specific performance of the contract by Mil-lennia Group, L.L.C. and Huey Edward McGaha and Melanie Skinner McGaha, thereby maintaining specific performance of the contract by Melton. In all other respects the'judgment is affirmed at appellants’ costs including paragraph 2 of said judgment which orders the nullification of the sales of the property from Melton to Millennia and Millennia to McGaha and the expungement of same from the public records. Campbell is awarded an additional $1,000 in attorney fees for defending the appeal.\n*243JUDGMENT AMENDED, AND AS AMENDED, AFFIRMED.\nAPPLICATION FOR REHEARING\nBefore BROWN, WILLIAMS, STEWART, GASKINS, and KOSTELKA, JJ.\nRehearing denied.\n\n. Deposit Guaranty National Bank, Inc., from which Millennia had secured financing, was also made a defendant by the amendment to the petition.\n\n\n. Although not yet a party to the lawsuit, Millennia filed an Amicus Curiae memorandum in support of the summary judgment arguing similarly to Melton.\n\n\n.Millennia also filed an exception of no cause or right of action on June 7, 2000 which the trial court took under advisement and denied in its oral reasons for judgment.\n\n", "ocr": true, "opinion_id": 7743388 } ]

"2001-09-28"

[ "795 So. 2d 243" ]

[ { "author_str": "Sawaya", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nSAWAYA, J.\nTony Nix, pro se, appeals the denial of his 3.850 motion after an evidentiary hearing was held addressing only some of his claims. Our thorough review of the record shows that of the nine issues advanced on appeal, only grounds eight and nine which raise possible sentencing errors have merit and require an evidentiary hearing. We remand for a hearing thereon as explained seriatim.\nNix was convicted of burglary and grand theft after a jury trial in September 1997 and was sentenced to 176.9 months of incarceration. The appeal of this judgment and sentence was per curiam affirmed by this court. Nix v. State, 727 So.2d 948 (Fla. 5th DCA 1998). Nix then filed the instant 3.850 motion for post conviction relief, an amendment and then an addendum thereto. In his motions, Nix asserted, inter alia, that he was entitled to relief under Heggs v. State, 759 So.2d 620 (Fla.2000), because an unconstitutional 1995 guidelines score sheet had been used to calculate his sentence and that his sentence was illegal because he had been sentenced both as a habitual offender and under the guidelines, contrary to King v. State, 681 So.2d 1136 (Fla.1996), receded from, on other grounds, Carter v. State, 786 So.2d 1173 (Fla.2001).\nAs to his Heggs claim, Nix argued below that the sentence imposed under the 1995 guidelines would have been a departure sentence under the 1994 guidelines. He alleged that the score sheet total under the 1994 guidelines would have been 91.4 months as opposed to the 176.9 month total under the 1995 guidelines. He pointed out that he had committed the offenses on July 29, 1996, which was within the window period of Heggs. See Trapp v. State, 760 So.2d 924, 928 (Fla.2000) (holding that the window period opened on October 1, 1995, and closed on May 24, 1997). Thus, Nix concluded, he is entitled to re-sentencing.\nThe trial court summarily denied this claim on the basis that Nix was sentenced as a habitual offender and, therefore, his sentence was not subject to the sentencing guidelines, citing Arce v. State, 762 So.2d 1003 (Fla. 4th DCA 2000) (affirming denial of motion to correct sentence where the defendant was sentenced as a habitual offender to a twenty-year prison term; noting that under section 775.084(4)(e), a habitual offender sentence is not subject to the guidelines provisions of section 921.001). The trial court did not attach any documents to support its conclusion *245that Nix was sentenced as a habitual offender.\nOn appeal, Nix argues that although he was found to be a habitual offender, he was in fact sentenced pursuant to the 1995 guidelines. He attached a portion of the sentencing transcript which shows:\nTHE COURT: Well, no, I wouldn’t do it that way. I would do it the way — I would declare him — as the record stands now — under this order, he’s a habitual felony offender, non-violent, coming into the possibility of higher sentence, but he’ll be sentenced to the Guidelines, so if there is an appeal and the sentence is upheld, then the only possibility is the deletion of habitual offender status.\nHe’s being sentenced within the Guidelines to this amount because he scores up that much. So, that’s the answer to that question. I just sent the Score sheet back, but I think that is — let me take a look and make sure that’s the maximum allowed.\nThere was a great deal of confusion at the 3.850 hearing regarding Nix’s sentence. Although the trial court summarily denied the Heggs claim on the basis that Nix was sentenced as a habitual offender, the trial court made the opposite statement at the 3.850 hearing when the Heggs issue was broached:\nTHE COURT: He wasn’t habitualized.\n* * *\nJudge Weinberg did not habitualize Mr. Nix. I don’t know why he didn’t habitu-alize. Had I been the trial judge, I would have habitualized and given him 60 years.\nTHE DEFENDANT: All of my commitment papers with DOC says H.O., habitual offender.\nTHE COURT: He didn’t declare you to be a habitual offender.\nTHE DEFENDANT: And in that case — can I speak with Mr. Woolbright? MR. WOOLBRIGHT: Well then if he wasn’t, he wasn’t found to be a habitual offender, would he fall under the Heggs decision?\nTHE COURT: If he wasn’t habitual-ized, he would fall under the Heggs decision. It’s my understanding he was not habitualized. He was sentenced under the guidelines.\nI guess he did, he did declare him to be a habitual felony offender, but he still sentenced him within the guidelines range.\n[[Image here]]\nHe declared him to be a habitual felony offender, but he did not sentence him to an enhanced sentence. He just sentenced him within the range.\nThe trial court later reiterated that “because he was sentenced as a habitual offender, the Heggs decision does not apply to it.” Nix then protested that under King a person could not be sentenced as a habitual offender and pursuant to the guidelines. The trial court rejected that argument:\nTHE COURT: No, sir. He sentenced you as a habitual offender. He just did not add the extra 15 years that he could have added had he wanted to on each count.\nWith that, the 3.850 hearing ended.\nThe State argues that because Nix was found to be a habitual offender, Nix is not entitled to resentencing, citing Mitchell v. State, 775 So.2d 428, 428 (Fla. 5th DCA 2001) (affirming the habitual offender sentence because habitual offender sentences are not affected by Heggs and noting, “An habitual offender sentence is not a guidelines sentence.”). Mitchell cited Ford v. State, 763 So.2d 1273 (Fla. 4th DCA 2000) *246(holding that a habitual offender sentence is not a guidelines sentence even if the actual sentence imposed coincides with the bottom of the guidelines). The State also contends that Nix has no right to relief under Heggs because Nix was sentenced as a habitual offender and thus he could have been sentenced to the same amount of time under the 1994 guidelines without a departure. See Abaunza v. State, 781 So.2d 486 (Fla. 4th DCA 2001) (holding that because the habitualized defendant could have received the same sentence under the 1994 guidelines without a departure as was actually imposed pursuant to the habitual offender statute, defendant was not entitled to relief under Heggs).\nThe problem with addressing the technical aspects of Nix’s argument is that the record does not contain the actual sentencing documents or the complete sentencing transcript. From the record that was provided, it seems that the sentencing judge found, as a ministerial act, that Nix was a habitual offender, but decided not to impose a habitual offender sentence. This was perfectly permissible by statute. See § 775.084(4)(d), Fla. Stat. (1995) (stating that if the sentencing court finds that a habitual offender sentence is not necessary for the protection of the public, sentence “shall be imposed without regard to this section.”); see also Geohagen v. State, 639 So.2d 611, 612 (Fla.1994) (“[I]f the judge chooses not to impose a habitual offender sentence, the judge must still adhere to the sentencing guidelines.”). What cannot be discerned is whether the trial court actually adjudicated Nix as a habitual offender. If he was adjudicated as a habitual offender, Nix would not be entitled to Heggs relief. On the other hand, if he was sentenced under the unconstitutional 1995 guidelines, Nix would have a valid claim for resentencing as he made the appropriate assertions to come within Heggs. Nix’s allegations sufficiently demonstrate the need for further review. See Begley v. State, 769 So.2d 1090 (Fla. 2d DCA 2000) (remanding for a determination whether defendant was sentenced as a habitual offender or under the 1995 guidelines; advising that if the 1995 guidelines were used and if defendant’s sentence would have constituted a departure under the 1994 guidelines, the defendant would be entitled to resentencing).\nIn an addendum to his 3.850 motion, Nix alleged that the sentencing court designated him as a habitual offender and then imposed a guideline sentence, thus improperly imposing a “mixed” sentence. He cites King for the supreme court’s statement that a “sentencing judge may elect to impose an habitual offender sentence or a guidelines sentence, but not both.” Id. at 1140. The trial court denied relief based on its finding that the sentencing court had sentenced Nix as a habitual offender.\nAgain, without the actual sentencing documents, it is impossible to determine exactly how Nix was sentenced. From the information provided, it appears that the sentencing court found that Nix qualified as a habitual offender but did not impose a habitual offender sentence. This option was specifically approved in King. Id. at 1139. Accordingly, we remand for the trial court to determine whether Nix was sentenced as a habitual offender or under the sentencing guidelines. He could not have properly been sentenced as both and, if it is determined that the sentencing court attempted to impose a hybrid sentence consisting of both habitual offender adjudication and a guidelines sentence, Nix will be entitled to resentencing.\nIn sum, we affirm the orders on Nix’s rule 3.850 motion with the exception of the trial court’s ruling on Nix’s Heggs and King claims (grounds eight and nine). On remand, the trial court must review *247the sentencing documents to determine what type of sentence was actually imposed. If the documents show that Nix received a habitual offender sentence, he is not entitled to Heggs relief. However, if the sentencing documents reflect that an improper hybrid sentence was imposed, resentencing will be required.\nAFFIRMED in part; REVERSED in part; REMANDED for further proceedings.\nTHOMPSON, C.J., and PETERSON, J., concur.\n", "ocr": true, "opinion_id": 7744097 } ]

"2001-08-24"

[ "795 So. 2d 325" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Boles, Adolph — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 98-3214; to the Court of Appeal, Fifth Circuit, No. 00-KH-1574.\nDenied.\n", "ocr": true, "opinion_id": 7744161 } ]

"2001-04-19"

[ "797 So. 2d 931" ]

[ { "author_str": "Pittman", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPITTMAN, Chief Justice,\nfor the Court:\n¶ 1. Today we are for the first time asked to apply the recent amendments to Rule 1.8(e) of the Mississippi Rules of Professional Conduct. The Standing Committee on Ethics held in this matter that the rule absolutely prohibits advances of premiums to maintain a client’s health insurance. In that conclusion it was incorrect, and the matter must be remanded for further consideration in the light of the guidance set forth in this opinion. Rule 1.8(e), as amended, authorizes attorneys, under limited circumstances and with express restrictions, to advance certain costs and expenses on behalf of clients in need. The rule now provides:\n(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, or administrative proceedings, except that:\n1. A lawyer may advance court costs and expenses of litigation, including but not limited to reasonable medical expenses necessary to the preparation of the litigation for hearing or trial, the repayment of which may be contingent on the outcome of the matter; and 2. A lawyer representing a client may, in addition to the above, advance the following costs and expenses on behalf of the client, which shall be repaid upon successful conclusion of the matter.\na. Reasonable and necessary medical expenses associated with treatment for the injury giving rise to the litigation or administrative proceeding for which the client seeks legal representation; and\nb. Reasonable and necessary living expenses incurred.\nThe expenses enumerated in paragraph 2 above can only be advanced to a client under dire and necessitous circumstances, and shall be limited to minimal living expenses of minor sums such as those necessary to prevent foreclosure or repossession or for necessary medical treatment. There can be no payment of expenses under paragraph 2 until the expiration of 60 days after the client has signed a contract of employment with counsel. Such payments under paragraph 2 cannot include a promise of future payments, and counsel cannot promise any such payments in any type of communication to the public, and such funds may only be advanced after due diligence and inquiry into the circumstances of the client.\nPayments under paragraph 2 shall be limited to $1,500 to any one party by any lawyer or group or succession of lawyers during the continuation of any litigation unless, upon ex parte application, such further payment has been approved by the Standing Committee on Ethics of the Mississippi Bar. An attorney contemplating such payment must exercise due diligence to determine whether such party has received any such payments from another attorney during the contin*933uation of the same litigation, and, if so, the total of such payments, without approval of the Standing Committee on Ethics shall not in the aggregate exceed $1,500. Upon denial of such application, the decision thereon shall be subject to review by the Mississippi Supreme Court on petition of the attorney seeking leave to make further payments. Payments under paragraph aggregating $1,500 or less shall be reported by the lawyer making the payment to the Standing Committee on Ethics within seven (7) days following the making of each such payment. Applications for approval by the Standing Committee on Ethics as required hereunder and notices to the Standing Committee on Ethics of payments aggregating $1,500 or less, shall be confidential.\nMiss. Rules of Profl Conduct R. 1.8(e).\nSTATEMENT OF THE CASE\n¶ 2. The matter comes to the Court on a petition for review of the denial by the Standing Committee on Ethics of an application by attorneys seeking approval of a proposal to advance $401.39 per month for medical insurance premiums on behalf of G.M., the client who received serious injuries, is unable to work, and was notified by his employer that his health insurance benefits would cease if he fails to pay the monthly premiums needed to maintain the coverage. When the application was filed with the Ethics Committee, G.M. was undergoing active medical treatment and in need of further surgery.1 The application asks for approval of the monthly payments “until the case is resolved by trial or settlement, or the time that the future need for medical treatment is no longer necessary, whichever occurs first.” G.M. acknowledges that he will remain ultimately responsible to repay those costs regardless of the outcome of the litigation.\n¶ 3. After receiving the application, the Ethics Committee requested further information concerning G.M.’s background, financial condition and need for the advances. The Committee also asked for comment as to whether the application is a continuing request for permission to make future monthly payments. Responding, the attorneys provided a copy of the accident report on the underlying cause of action and a copy of G.M.’s food stamp card as evidence that he is presumably living below the poverty line. They also represented that if the permission is granted, the law firm will review the client’s financial situation each month to determine whether the payments should be made.\n¶4. Ultimately, the Ethics Committee declined approval of the proposal. In doing so, the Committee reasoned that the proposed payments can be approved only if they are authorized by Rule 1.8(e)(2)(a), which allows “medical expenses associated with treatment for the injury giving rise to the litigation”, or by Rule 1.8(e)(2)(b), allowing “reasonable and necessary living expenses incurred.” Finding that the premiums would not be allowed under sub-paragraph (a) since they would cover treatment beyond that associated with the injury under litigation, the Committee then looked to the language of subpara-graph (b), finding that it too failed to authorize the payment of insurance premiums. The Committee stated:\nEven though health insurance payments might make a client’s life easier, the Committee finds that it is not the type advance contemplated by the rule.\n*934The Committee is of the opinion that the Supreme Court did not provide for the payment of insurance premiums in the rule because the rule is designed for extreme cause and that its purpose is to save a client from facing homelessness or starvation or other serious deprivation. Thus, the rule itself states that the expenses “can only be advanced to a client under dire and necessitous circumstances and shall be limited to minimal living expenses of minor sums such as those necessary to prevent foreclosure or repossession or necessary medical treatment.”\nThe Committee finds that the client in this case apparently has sufficient funds to meet minimal living expenses due to the fact that the only relief sought by the petition is the payment of a monthly health insurance premium, which may provide coverage to more people than just the client, but which certainly provides for the payment of treatment of matters not related to the case in question.\nThe Committee notes that there are tens of thousands of people in Mississippi who do not have health insurance [as well as millions nationwide] and that these people somehow survive.\nThe Committee further notes that, since the client has qualified for food stamps, then the client may well qualify for Medicaid.\nMiss. Bar Standing Comm, on Ethics, Dec. No. 99-1 at 6-7 (Nov. 5,1999) (emphasis in original).\nANALYSIS\n¶ 5. The revision of Rule 1.8(e) in Mississippi had its genesis in the invitation issued to the bench and bar by this Court to suggest a mechanism for dealing with the financial distress of impecunious civil litigants with viable and valuable causes of action which they may lose as a result of their financial distress. Miss. Bar v. Attorney HH, 671 So.2d 1293, 1298 (Miss.1995). Attorney HH recognized the need to strike a balance between consideration for the prospect of a client being forced unfairly to settle or abandon a legitimate claim due solely to his poverty and disability against the danger of unseemly bidding wars among attorneys. As now written, Rule 1.8(e) addresses the need with this tension in mind. Although attorneys are now allowed to make some such advances, all above a threshold of $1,500 must be approved by the Ethics Committee.2 In order to prevent the promise of such payments being used as an incentive for employment, the rule prohibits the advances or the promise of them in any amount until sixty days after the attorney is retained. The attorney is obligated to exercise due diligence to determine the financial position of the client and any advances made to him by other attorneys. The attorney cannot promise future payments at any stage of the representation and cannot make the firm’s policy or willingness to make advances known to the public at large. The imposition of these safeguards can be expected to limit strictly the use of the authority to humanitarian concern and the need to prevent the loss of the client’s cause of action due to economic disadvantage.\n¶ 6. Mississippi is not alone in recognizing the need for a relaxation against traditional prohibitions on advances to clients, although it may be said that our new rule is unique in its provisions, including pre-approval by the Ethics Committee, which seek to avoid improper use of what should *935be a humanitarian act. See Ala. Rules of Profl Conduct R. 1.8(e)(3); Cal. Rules of Profl Conduct R. 4-210(A); Minn. Rules of Profl Conduct R. 1.8(e)(3); Tex. Rules of Profl Conduct R. 1.8(d)(1).\n¶ 7. While our rule is itself restrictive, the Ethics Committee decision in the present case, if sustained, would absolutely bar the payment of medical premiums. In that respect, the Committee has misunderstood the language as well as the intent and purpose of the amendments to Rule 1.8(e). Following subparagraph (b), the rule declares that:\n[t]he expenses enumerated in paragraph 2 above can only be advanced to a client under dire and necessitous circumstances, and shall be limited to minimal living expenses of minor sums such as those necessary to prevent foreclosure or repossession or for necessary medical treatment ....\n(emphasis supplied). Thus, necessary medical treatment is expressly included in those types of assistance used to exemplify the nature and extent of the aid condoned. While the medical assistance authorized under Rule 1.8(e)(2)(a) is limited to treatment for the injury underlying the client’s claim in litigation, such limitation does not exclude other medical assistance from the definition of necessary living expenses under subparagraph (b). Nor does the fact that the insurance “may provide coverage to more people than just the client” justify a broad-brush exclusion. In these times, families may well do without critical medical treatment if the bread winner is unable to maintain medical insurance for the children and dependent spouse. By any definition, such deprivation may well be characterized as dire and necessitous, depending on the circumstances and needs of the client.\n¶ 8. An attorney’s payment of a client’s medical insurance premiums should be reviewed on a case-by-case basis to ensure that there is an actual need that is related to the injury subject to the representation or that the client faces dire and necessitous circumstances sufficient to allow advance payment of medical insurance premiums as a necessary living expense exist.\n¶ 9. The Ethics Committee is correct in approaching the allowance of payments by attorneys to clients on a conservative basis. While the rule addresses the real problem of the fact that litigation may be unjustly determined by the plaintiffs dire financial circumstances, there are other contrary dangers to the potential outcome of the representation. If large sums of money are advanced to maintain the client’s lifestyle, settlement may be frustrated because the parties must consider the amount needed not only to compensate the client, but also to recoup the lifestyle expenses advanced. Considerations such as these may not allow a client to be objective and reasonable and consider only the merits of the case. Complicating matters is a potential conflict of interest for the attorney, who will consider the recoupment of advanced expenses against what would otherwise be a reasonable settlement for the client.\n¶ 10. In choosing an attorney, a client’s judgment should always be based on his confidence in the character and capability of the attorney. Allowing attorneys to pay substantial expenses of clients does not allow for an even playing field among attorneys in getting or keeping clients. Many attorneys cannot afford to pay “lifestyle” expenses on behalf of a client. Rule 1.8(e) provides for the payment of “minor sums.” What constitutes a “minor sum” differs in the legal profession. Here, payment of over $400 a month for one client’s medical insurance premiums, when such payments are to be made for an indefinite period of time, is hardly a “minor sum,” *936particularly in the absence of any recurring medical expense or required medical procedure. There is a great potential for abuse and overuse in paying expenses on behalf of a client. Indeed, many arguments can be made that almost any expense is “reasonable and necessary.”\n¶ 11. Returning to the specific question of whether payment of premiums as distinguished from cash advances for medical bills may be an appropriate manner of providing assistance, another very, pragmatic consideration supports a construction which does not automatically exclude premiums from those advances authorized by the rule. An attorney who wishes with the best and most appropriate motivation to assist an impecunious client with medical treatment will often be faced with costs for a single operation or course of treatment which may cost thousands of dollars, but which can require relatively modest out-of-pocket expense if the client’s existing insurance is maintained. To construe Rule 1.8(e) as authorizing approved advances of the direct cost of the treatment while prohibiting the maintenance of his insurance coverage would defeat the goal of the rule in keeping advances to a minimum.\n¶ 12. The Committee in its findings raised the question of whether it has authority to grant approval of a continuing payment, as in the case of monthly insurance premiums. Its doubt appears to be based on the rule’s prohibition against promises of future payments by the attorney to the client. However, a distinction is to be made between an attorney making a promise or commitment to the client to make future payments as against the attorney seeking authority to make such future payments from the Committee. Here the attorneys seek leave to make periodic payments, but expressly declare that “at no time did the undersigned counsel promise future payments as an inducement of employment, or promise future payments.”\n¶ 13. The Committee may have a soundly based concern for approving open-ended periodic payments. In this case, the attorneys seem to have anticipated that concern by asserting that they would be continued “until the case is resolved by trial or settlement, or the time that the future need for medical treatment is no longer necessary, whichever occurs first”’ and in their letter responding to the Committee’s inquiry said that “[i]f we obtained such permission, then we would decide on a monthly basis whether the financial and medical needs of [G.M.] justified payment of the insurance premiums.” The response also said:\nThe reason the request seeks continuing permission is that as a practical matter the Committee is unable to review the request on a monthly basis as the premiums become due. If the Committee wishes to limit the permission to a certain number of payments, or outline a procedure to follow to make the determination as the payments become due, that is understandable.\nWe agree with the suggestion that under circumstances wherein periodic payments may be made it is appropriate and will often be necessary for the Committee to limit the permission to a definable period and to require re-application as needed. Such limitations should be imposed in such a manner as to promote the purpose of the rule and not to stifle legitimate advances. The Committee should also recognize when considering the initial application and any re-applications that it is considering assertions of severe and immediate needs, and it should administer the rule expeditiously and without requiring re-application so frequently as to make justifiable advances impractical. Indeed, the very fact that such advances are allowed *937only in dire and necessitous circumstances requires prompt and efficient handling of the applications.\n¶ 14. The rule imposes on the Ethics Committee a responsibility for determining whether any proposed advances are fully justified within its limitations, and the attorneys seeking approval of the Committee must provide it with sufficient information to make the judgment. A mere recitation of the key phrases from the rule with conclusory assertions is inadequate, and in the present case, it must be said that the attorneys have faded to develop fully the client’s circumstances and need. Full presentation is particularly important in an ex parte proceeding such as this where the only source for information is the petitioner.\n¶ 15. The Ethics Committee was fully justified after receiving the application in requesting further information regarding G.M.’s financial position. While the accident report showing that there was a collision and G.M.’s food stamp card indicating that he had been determined by the Department of Human Services to be in need of the services authorized under the food stamp program are relevant, it cannot be said that every person in Mississippi who qualifies for that program would qualify for advances under Rule 1.8(e). This Court has not relegated to the Department of Human Services the authority to make the determination of qualification under the rule. Beyond the presentation of copies of the accident report and the card, the attorneys here offered nothing more in response to the Committee’s inquiry than the statement that, “we interviewed [G.M.] concerning his financial situation, and believe him to be in dire and necessitous circumstances.” This response supplemented G.M.’s verified application declaring that he has been unable to work because of the accident and has no means of support. The better practice would have been to provide the Committee with a statement or affidavit setting forth his assets, liabilities and income from any sources, his employment, if any, and employment prospects, his living arrangements and support from other sources, his family support and family obligations and other facts which would give the Committee the details necessary to make an independent judgment without simply relying on the conclusion reached by the attorneys. G.M. does not detail what benefit he will receive for $400 a month. There is no indication of whether the insurance coverage is only for him or whether it will cover other family members. While his attorney asserts that there is a need for additional surgery, there is no evidence of such in the form of a medical report, physician’s recommendation, or any documented medical expense that medical insurance is needed to fund. Finally, G.M. has not shown the absence of other sources to provide for his potential medical needs. For example, he has not shown whether his spouse has medical insurance, or, since he has apparently qualified for food stamps, whether his medical expenses can be met with Medicaid.\n¶ 16. The Mississippi Bar’s Standing Committee on Ethics should consider those questions when considering whether payment of the medical insurance premiums in this case will allow for reasonable and necessary medical expenses as contemplated by the rule.\nCONCLUSION\n¶ 17. The Standing Committee on Ethics erred in its conclusion that under all circumstances Rule 1.8(e) prohibits the advances of medical insurance premiums by attorneys to their needy clients and in failing to consider limited approval which would allow monthly payments subject to *938reasonable restrictions and re-applications as needed. The attorneys failed to recognize that the Committee can only do its job diligently after it has been given evidence of the client’s circumstances in sufficient detail. On the other hand, this Court recognizes that both the Committee and the attorneys, in attempting for the first time, to administer and use the new rule, operated under an understandable handicap. For that reason, the best course is to remand this matter to the Committee for further consideration with the guidance of this opinion. This Court as well as all the bench and bar must proceed with caution in our efforts to cure an ill without injecting into the lawyer-client relationship a greater affliction.\n¶ 18. REMANDED TO THE STANDING COMMITTEE ON ETHICS FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.\nBANKS, P.J., MILLS, WALLER and COBB, JJ., concur.\nDIAZ, J., concurs with separate written opinion joined by BANKS, P.J., and McRAE, P.J., and EASLEY, J., join in part.\nMcRAE, P.J., concurs in part and dissents in part with separate written opinion joined by EASLEY, J., and DIAZ, J., joins in part.\nSMITH, J., not participating.\n\n. Rule 1.8(e) requires that the application for approval filed with the Standing Committee be held confidential. For that reason, neither the names of the attorneys nor the client are used in this opinion.\n\n\n. While the lesser advances do not require approval of the Ethics Committee, even those must be reported to the Committee within seven days after they are made.\n\n", "ocr": true, "opinion_id": 7744981 }, { "author_str": "Diaz", "per_curiam": false, "type": "030concurrence", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nDIAZ, Justice,\nconcurring:\n¶ 19. Although I concur with the majority’s opinion and holding to reverse the decision of the Standing Committee on Ethics and remand for further consideration, I write separately to address not only the nature of the Committee’s holding, but the tone in which it was delivered.\n¶20. The sole objective sought throughout our extended judicial system is a just result to each problem posed by our citizenry. Our citizens demand, and of course, deserve that their voices be heard and considered by their peers, men and women who share an equal understanding of human affairs. Holland v. State, 587 So.2d 848, 877 (Miss.1991) (Hawkins, P.J., dissenting). It is left to those who sit in judgment to discern from the facts and law presented which result best affords those seeking our guidance a “just” result. More often than not, these peers will be members of a jury or a trial judge. Occasionally, as is the case before us today, they will be members of a committee, unique in both their stated mission and expertise in matters at law.\n¶ 21. It is an accepted notion that judgment as to what is “just” or “right” is fluid, changing with the times and circumstances that shape it. Id. at 877. Of paramount importance is the principle that when devising the just result, the judiciary avoid condescension in its decision. I believe that some of the language found in the Committee’s decision violated this simple principle, seeming as undignified as it was arrogant.\n¶ 22. Specifically, I take issue with the Committee, in justifying its denial of payments for health insurance, noting that “tens of thousands” of people in Mississippi and “millions” nationwide are without health insurance and yet “somehow manage to survive.” Similar statements lead one to believe that the Committee prefers the pound of cure to the ounce of prevention. Further comments recognizing that “since the client has qualified for food stamps, then the client may well qualify for Medicaid” suggest placing more responsibility upon an already overly burdened program with limited resources. Such afterthoughts presume too much about a situation the Committee knows too *939little about, and they are unnecessary in resolving the issue presented.\n¶ 23. The Committee also pointed out that the client “apparently has sufficient funds to meet minimal living expenses due to the fact that the only relief sought to by the petition is the payment of a monthly health insurance premium.” The Committee concluded that because the client was not “facing homelessness, starvation or other serious deprivation,” the request should be denied. To be sure, lack of health insurance is not as serious a deprivation as homelessness or starvation. However, if one views this request by that standard, a skewed perspective results.\n¶24. Health insurance, to the tens of thousands of Mississippians and millions nationwide who do possess it, is often as important to them and their families as the roof over their heads or the food on their plates. They depend upon it to avoid being forced to choose between paying the ever increasing cost of treating an unexpected illness and keeping the roof over their heads. A court or committee sitting in judgment engenders little respect from those invoking its jurisdiction when it flippantly disregards these daily truths.\nBANKS, P. J., joins this opinion. McRAE, P.J., and EASLEY, J., join this opinion in part.\n", "ocr": true, "opinion_id": 7744982 }, { "author_str": "McRae", "per_curiam": false, "type": "035concurrenceinpart", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMcRAE, Presiding Justice,\nconcurring in part and dissenting in part:\n¶ 25. I concur with the majority in that the Standing Committee on Ethics erred in its conclusion that Rule 1.8(e) prohibits the advances of medical insurance premiums by attorneys to their needy clients under all circumstances. However, I dissent as to sending this case back to the Committee for further review. Too much time has passed for the Court to again rule on this matter. On October 12, 1998, the petitioner, G.M., suffered severe injuries from a serious automobile accident. As a result, petitioner was unable to work. His employer informed him on May 31, 1999, that his health insurance premiums would no longer be paid, and that effective in July of 1999, he would be responsible for his health insurance premium of $401.39 per month. This case was initially filed with the Standing Committee on August 12, 1999. An immediate ruling on these payments was expected, although none was given. Three months later, on November 5, 1999, the Committee denied the petitioner’s request, and he filed a Petition for Review with this Court on January 21, 2000. This case has been undecided for approximately one year and four months, and this is obviously a moot issue. Sending this case back to the Committee for further determination would extend the duration of this request to approximately two years, and petitioner’s health insurance will surely lapse by then, if it has not already.\n¶ 26. Health insurance is just as important as house payments or utility bills. It is protection for your family and self for injury or sickness. If one does not pay the car payment, he may still be able to hitch hike or take a taxi. One can not get health insurance to pay exorbitant medical expenses after the injury or illness occurs. Payments for medical insurance premiums cannot be retroactively applied. The policy is cancelled if premiums are not paid.\n¶ 27. Allowing this case to go back to the Standing Committee would further delay the immediate needs of the petitioner. The client is in need of this money or the coverage, and prolonging this matter any further would provide an insufficient remedy to the attorney’s client. Justice delayed is justice denied.\n¶ 28. This case should not be remanded to the Committee for further proceedings. *940We should hold now that it is covered and allow the expense.\nEASLEY, J., joins this opinion. DIAZ, J., joins in part.\n", "ocr": true, "opinion_id": 7744983 } ]

"2001-09-28"

[ "798 So. 2d 115" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Farrell, Angelo et al.; Angelo Farrell Construction Company; — Defendants; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. F, Nos. 94-04297, 95-09927; to the Court of Appeal, Fourth Circuit, Nos. 99-CA-2726, 99-CA-2727.\nDenied.\n", "ocr": true, "opinion_id": 7745082 } ]

"2001-10-05"

[ "798 So. 2d 968" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Miller, Purnell E.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, Nos. 374-657; to the Court of Appeal, Fourth Circuit, No. 2000-K-1867.\nDenied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.\n", "ocr": true, "opinion_id": 7745288 } ]

"2001-10-05"

[ "798 So. 2d 970" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n*971In re Clarendon National Insurance Co.;- — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Avo-yelles, 12th Judicial District Court Div. B, No. 99-6127; to the Court of Appeal, Third Circuit, No. 01-0051.\nDenied.\n", "ocr": true, "opinion_id": 7745295 } ]

"2001-12-14"

[ "801 So. 2d 309" ]

[ { "author_str": "Palmer", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPALMER, J.\nJ.G. (father) appeals the final order entered by the trial court adjudicating his two children dependent. Although we disagree with the father’s contention that the evidence introduced during the dependency hearing was insufficient to support a finding of dependency, we conclude that the instant order must be vacated because the trial court failed to set forth sufficient written findings to support its dependency adjudication. Absent such findings, this court cannot properly review the court’s ruling. Accordingly, this matter must be remanded to the trial court with instructions to provide the requisite written findings. See J.C.G. v. Dep’t of Children & Families, 780 So.2d 965 (Fla. 5th DCA 2001).\nOrder VACATED and cause REMANDED for further proceedings consistent with this opinion.\nCOBB and GRIFFIN, JJ., concur.\n", "ocr": true, "opinion_id": 7746069 } ]

"2001-12-19"

[ "801 So. 2d 997" ]

[ { "author_str": "Farmer", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nFARMER, J.\nDuring trial on charges of the sale of cocaine near a school, defendant sought to question one of the police officers involved in the incident as to his location during surveillance of defendant. The state objected and the trial court sustained the objection on the basis of the surveillance location privilege. Because Florida recognizes such a privilege only in unusual circumstances in which the very safety of the witness would be directly compromised by the disclosure, a showing that was not made in this ease, we reverse for a new trial.\nAt trial the officer testified to surveillance of an intersection with a restaurant on one corner. He described a specialized camera with magnification power that he used to record the events from a distance and explained that it allowed him to view the events as though he were a few feet away. Although he described his location as about “half a block away” from the event, he insisted that he did not want to reveal the precise place of his vantage.\nThe events he described were simple. A male approached the restaurant on a bicycle and rode into its parking lot, stopping by a fence. Another man, whom the officer identified as defendant, walked over from the restaurant to the man on bicycle, and the two engaged in a brief conversation. Defendant then walked over to a telephone booth also located on the parking lot and placed an object on the bottom ledge in the booth. Defendant left the booth, walked back over to the man on the bicycle, and the two exchanged money. The bicyclist then rode over to the phone booth and retrieved an object, placing it in his right-front pocket. The bicyclist was first arrested and found to possess cocaine. Some 20 minutes after that defendant was arrested and charged with the sale. No cocaine was found on defendant, and there is no mention of marked money, or indeed any money, found on defendant.\nWe recently confronted a functionally identical claim by a police-officer-witness to refuse disclosure in Judd v. State, 781 So.2d 440 (Fla. 4th DCA 2001). There we began with the strong interest of a defendant to confront the witnesses against him by a full cross examination of relevant evidence. 781 So.2d at 444; see also State v. Hassberger, 350 So.2d 1, 2 (Fla.1977) (“[w]here disclosure of an informer’s identity is relevant and helpful to the defense of an accused, or is essential to a fair determination of the cause, the privilege must give way.”). In Judd we held that before the trial court can enforce a privilege of non-disclosure during cross examination, the court must address four elements: (1) the state must demonstrate a threat directed to the informant personally or to the informant’s family; (2) the state must disclose in camera the information sought to be withheld; (3) defendant must be allowed to show any special need for the information requested. 781 So.2d at 444. Only after resolving all doubts in favor of the defendant’s right to confront the witnesses against him, may the judge determine that the concern for the safety of the witness overcomes the defendant’s strong interest in a full cross examination *999of the witnesses against him. 781 So.2d at 444; see also Hassberger, 350 So.2d at 4-5. Ultimately we held that trial the court erred in limiting a defendant’s cross examination of the officer who witnessed the crime during a surveillance operation from a private residence because the trial court did not apply the proper procedure to determine the nature of the threat to the officer’s personal safety and defendant showed why there was a need for the information by alleging obstruction of view during the surveillance. 781 So.2d at 445-46.\nAt trial in this case the state witness, the officer who participated in the surveillance and identified the defendant in court, sought to justify the privilege by testifying that: (1) the camera was expensive; (2) because the camera was still being used, disclosing its location would be likely to hamper further criminal investigations- — -if the location of the camera were generally known, police would be hampered in its future use; and (3) disclosing its location, as a general proposition, “would be bad” for future officer safety. He added that the camera was located such that it was not “readily accessible” for him to bring to court. What this latter contention means is unclear. In any event, in view of defendant’s demonstrable need for the information in his cross examination, these reasons clearly fail to provide a proper basis for the trial judge to allow the use of the privilege in this case.\nFurther because we are unable to say beyond a reasonable doubt that the error did not affect the jury’s determination of guilt, we reverse for a new trial. See Goodwin v. State, 751 So.2d 537 (Fla.1999); Coco v. State, 62 So.2d 892, 894-95 (Fla.1953) (“Cross-examination of a witness upon the subjects covered in his direct examination is an invaluable right and when it is denied to him it cannot be said that such ruling does not constitute harmful and fatal error.”).\nGUNTHER and KLEIN, JJ., concur.\n", "ocr": true, "opinion_id": 7746222 } ]

"2001-11-21"

[ "801 So. 2d 1087" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Khomais, Fehr;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, First Parish Court Parish Of Jefferson, No. F1280570; to the Court of Appeal, Fifth Circuit, No. 00-K-1240.\nDenied.\n", "ocr": true, "opinion_id": 7746319 } ]

"2001-12-05"

[ "802 So. 2d 419" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nThe plaintiff buyer appeals from a final order dismissing a complaint for the return of her deposit in a failed real estate transaction. The apparent basis of the ruling was that the plaintiff had not given timely written notice of cancellation as the terms of the agreement arguably required.\nWe reverse as to the seller-deposit holder, La Grande Properties, Inc., because the complaint — perhaps unnecessarily— contained adequate allegations that the requirement in question had been waived by the actions of the seller. See Torres v. K-Site 500 Assocs., 632 So.2d 110 (Fla. 3d DCA 1994); American Somax Ventures v. Touma, 547 So.2d 1266 (Fla. 4th DCA *4201989).1 The case is remanded for appropriate determination of the claim against La Grande on the merits.\nAs to the individual defendant, Raul Vera, the principal of La Grande, however, we agree that no allegation sufficient to pierce the corporate veil has been, or could be made. See Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114 (Fla.1984). Accordingly, the judgment in his favor is affirmed.\nAffirmed in part; reversed in part.\n\n. The order granting attorney's fees is likewise reversed.\n\n", "ocr": true, "opinion_id": 7746402 } ]

"2001-12-07"

[ "803 So. 2d 30" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Collier, Dianne Ranier; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. A, No. 961452; to the *31Court of Appeal, Third Circuit, No. 00 1263-CA.\nDenied.\n", "ocr": true, "opinion_id": 7746740 } ]

"2002-01-09"

[ "803 So. 2d 905" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nAffirmed. See Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991).\nSHAHOOD, TAYLOR, JJ„ and OWEN, WILLIAM C., Jr., Senior Judge, concur.\n", "ocr": true, "opinion_id": 7746851 } ]

"2001-10-03"

[ "804 So. 2d 410" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nAFFIRMED. WRIT OF CERTIORARI DISMISSED.\nPOLEN, C.J., FARMER and GROSS, JJ., concur.\n", "ocr": true, "opinion_id": 7747004 } ]

"2002-01-25"

[ "804 So. 2d 1282" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nMichael Taylor appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because Taylor’s motion is facially insufficient, we affirm the trial court’s order without prejudice to Taylor’s right to raise the issue in a rule 3.800(a) motion which meets the pleading requirement of Bain v. State, 784 So.2d 1168 (Fla. 2d DCA 2001), or in a sworn rule 3.850 motion. See Bryant v. State, 787 So.2d 68 (Fla. 2d DCA 2001).\nAffirmed.\nFULMER, SILBERMAN, and COVINGTON, JJ., Concur.\n", "ocr": true, "opinion_id": 7747188 } ]

"2001-11-21"

[ "805 So. 2d 969" ]

[ { "author_str": "Whatley", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nWHATLEY, Acting Chief Judge.\nThomas D. Jolly timely appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse on the summary denial of his claim that his plea was involuntary after Heggs v. State, 759 So.2d 620 (Fla.2000). We affirm without comment the denial of his other claims.\nWe note first that the trial court has incorrectly scored Jolly’s primary offense on the 1994 sentencing guidelines. Chapter 95-184, section 14, at 1703, Laws of Florida, amended how attempted crimes are scored on the sentencing guidelines. Heggs ruled that chapter 95-184 was unconstitutional for violating the single subject rule. Thus, Jolly’s primary offense of attempted armed robbery with a firearm should have been scored in accordance with section 777.04, Florida Statutes (1993), making it a level seven offense. It appears that the 1994 sentencing guidelines allowed a sentence of 26.1 to 43.5 months.\nJolly entered a plea to the original charges in 1997. On June 14, 2000, he *970pleaded to a violation of probation and was sentenced to sixty months under the 1995 sentencing guidelines. Jolly claims that he pleaded specifically because his sentence would be a certain percentage of the maximum under the 1995 sentencing guidelines. He now claims that his plea is involuntary following the decision in Heggs, and he seeks to withdraw his plea or to be resen-tenced pursuant to Heggs. He has made a facially sufficient claim which the trial court has not refuted. See Enchautequi v. State, 782 So.2d 459 (Fla. 2d DCA 2001).\nJolly’s sentence of sixty months could not have been imposed, absent a departure, under the 1994 sentencing guidelines. If his plea was not negotiated, he is entitled to be resentenced. If the plea was negotiated, he must be given the opportunity to withdraw his plea. We reverse and remand for further proceedings.\nAffirmed in part, reversed in part, and remanded.\nGREEN and DAVIS, JJ., Concur.\n", "ocr": true, "opinion_id": 7747460 } ]

"2001-12-26"

[ "806 So. 2d 780" ]

[ { "author_str": "Daley", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n| .THOMAS F. DALEY, Judge.\nPlaintiff Herndon & Associates, a former insurance broker for Travelers Insurance Company, appeals a judgment that granted it damages in the amount of *781$685.00 against Autin-Gettys-Cohen Insurance Agency (Gettys) and that dismissed its suit against Travelers. On appeal, Herndon argues that the trial court erred in dismissing Travelers. They argue that Travelers was arbitrary and capricious in its refusal to honor Herndon’s clients’ requests to change agent of record from Gettys to the Bush-LeNormand agency, and that Travelers’ actions constituted tortious interference with Herndon’s contractual relationship with their clients. They also argue that the damage award was inadequate against Gettys. After thorough review of the record and the law, we amend the judgment to increase the amount of damages owed to Herndon, and as amended, affirm the judgment.\nIn the late 1980s, plaintiff Herndon & Associates was an insurance broker authorized by Travelers Insurance Company to write Travelers automobile policies, 13other personal lines, and commercial lines. In late 1989, Travelers notified Herndon that it was cancelling its agency contract with Herndon regarding automobile policies and possibly remaining lines as well. Travelers account analyst Barbara Sims testified that this decision was based upon a business plan Travelers instituted in Louisiana in the late 1980s to reduce Travelers’ losses statewide, and that this plan affected all Travelers agencies, not just Herndon. Herndon looked for another Travelers agency with which to place its automobile business and entered into an a verbal brokerage agreement with Lawrence Gettys of defendant Gettys Insurance agency. In their verbal agreement, Gettys agreed to accept Herndon’s Travelers automobile policies and further agreed to share commissions on these policies with Herndon in a 50/50 split. Both Get-tys and Herndon testified that the parties discussed a merger between the two agencies, though no merger was ever reached. Both parties testified that the brokerage agreement was verbal and that no specific duration of the agreement was discussed.\nAt the direction of Travelers, the Hern-don auto policies were transferred to Get-tys by the insureds filling out new applications with Travelers through the Gettys agency. Mr. Jim Herndon testified that this method of transfer was unusual; usually, a policy could be transferred by the insured signing an “agent of record” letter requesting that his policy be listed with the new agent. Herndon also testified that a “bordereau” transfer could have been used, in which Travelers simply changed the agent code on those policies in the computer. Sims and Paul Ratliff, another supervisor with Travelers, both testified that the business plan in place for Louisiana at this time required all insureds desiring an agent transfer to fill out new applications through the new or receiving agency. The reason for this was so the new agency could “reunderwrite” the policy, which was to conduct a current review of the risk |4and get updated policy information, a practice that would help the new local agent and Travelers evaluate the risks involved in the policy and help reduce Travelers’ loss ratios in automobile policies in Louisiana.\nThere was testimony from Lawrence Gettys and Travelers that the transfer of the Herndon policies to Gettys was problematic because Herndon did not follow Travelers’ procedures, and submitted incomplete applications and/or applications signed by Herndon and not the Gettys agency. Sims and Ratliff testified that they notified Herndon of the correct procedures to transfer the policies as per the business plan for Louisiana, i.e. the new applications, several times by phone conversation, but that this procedure was not written in a manual. They said it was not Travelers’ custom to memorialize the business plan in written form because these *782procedures changed from time to time. They were clear, however, that the requirement of new applications for transfers was communicated to Herndon and was a procedure statewide at that time. In any event, the testimony established that the policies were eventually transferred from Herndon to Gettys via new applications through the Gettys agency.\nIn July of 1991, Gettys notified Herndon in writing that it no longer wanted Hern-don’s automobile book, and that Herndon had until the end of the year to find another agency. In September of that year, Gettys also notified Herndon that henceforth it would retain 70%, rather than 50%, of the commissions from former Herndon policies. Lawrence Gettys testified that there were several reasons for this decision. First, he said that the automobile policies showed poor loss ratios and he no longer wanted them. He found that many insureds had lied on the policies, denying tickets and accidents that had in fact occurred. It became too expensive to retain these policies because they had high loss ratios. Both Herndon and Gettys had | .^testified that they discussed a merger of the two agencies, but that it didn’t come to fruition. Gettys testified that it was never his intention to accept only the auto business, as auto policies were high risk and were unattractive to any agent without also receiving the homeowners and commercial lines, which tend have much lower loss ratios. When it became clear that Gettys would not be receiving the other lines, he decided that it was no longer worth servicing Herndon’s automobile policies and notified Herndon in writing in July of 1991 that Herndon had until December 31, 1991, to take the auto policies to another agency, and that any policies not transferred from Gettys at that point would be considered Gettys’ property. Gettys notified Herndon in September of 1991 that from that point until the end of the year, it would pay Herndon 30% of the commissions from its auto book instead of the previous rate of 50%. Gettys testified that he had retained $685.00 in commissions due to Herndon from the end of 1991 because a Mike Sims, who was a subpro-ducer with Herndon, notified him that he was not getting his commissions from Herndon on certain policies that Sims had produced for Herndon. Gettys told Sims that he had to work this out with Herndon, because Gettys had never heard of Sims and didn’t know what, if anything, was due to Sims. Gettys retained the $685.00 in commissions because Sims had made a claim on these funds and he didn’t know whom he should pay.\nAt this point, Herndon testified that it had located the Bush-LeNormand agency, an authorized agent with Travelers, to take its auto book. Herndon testified that Travelers advised them that they could do the transfers by agent of record letters or new applications, whichever it preferred, and that it attempted to make the transfer via agent of record letters. However, Travelers returned the agent of record letters to Bush LeNormand, saying that the letters were not in the proper form. When Herndon resubmitted the letters, Mr. Herndon testified that he was notified that Travelers ^required new applications and that agent of record letters were not acceptable. There was testimony that eventually most of Herndon’s auto business was transferred from Gettys to Bush-LeNormand.\nHerndon sued Gettys, alleging that Get-tys arbitrarily reduced their commissions in breach of their agreement, and prayed for a judgment recognizing Herndon’s right to 50% of the commissions as long as the business remained at Gettys, in perpetuity.\n*783Herndon also sued Travelers, alleging that Travelers refused to allow the transfer of the former Herndon policies from Gettys to Bush LeNormand and thereby cost Herndon to lose the commissions on those accounts.\nTrial was held on November 29 and 30, 1999. Judgment was rendered on June 7, 2000, awarding Herndon $685.00 from Get-tys in unpaid commissions from September to December of 1991, that Mr. Gettys admitted in testimony he owed Herndon.\nOn appeal, Herndon argues that Travelers was arbitrary and capricious in its refusal to honor requests for change of agent of record from Gettys to Bush-Le-Normand by Herndon’s clients, and that Travelers’ actions constituted tortious interference with Herndon’s contractual relationship with its clients. Herndon also argues that the damages were inadequate, as it should receive commissions from all policies it placed at Gettys for as long as those policies remain at Gettys.\nTRAVELERS\nThe trial court dismissed Herndon’s suit against Travelers, finding that it is the customer who chooses the insurance agency, not the broker.\n|7The testimony from the Travelers witnesses established that Herndon was not an agency in good standing with Travelers, which is why its automobile book of business was cancelled in 1989. Herndon argues that prior to September 1, 1991, Travelers had no documented transfer policy of business written between Travelers’ Agents in good standing.\nThe Travelers’ witnesses, Barbara Sims and Paul Ratliff, testified that Travelers had a new business plan in place for the entire State of Louisiana in 1991 designed to reduce its loss ratios. Implementation of this plan reduced the number of agencies authorized to write Travelers’ automobile policies from around 120 to 40-50. Part of this business plan included requiring the insured to fill out a new policy application when transferring an existing policy from one Travelers agency to another, and that policy had to be signed by the new agency. Both Sims and Ratliff testified that this business plan was not specifically documented in any Travelers manuals, but it was communicated personally by them or their immediate assistants to all agencies in the State that were authorized to write Travelers policies in 1990. The same procedure had been required when Herndon transferred its business to Gettys in 1990.\nRatliff testified that once Gettys had the business, Herndon was no longer an owner of that business or an agent of Travelers. He said that Barbara Sims had handled the transfer from Gettys to Bush-LeNor-mand, and it was his recollection that no one requested a bordereau transfer in this instance.\nBarbara Sims testified she was an account analyst at Travelers in 1991 and that she supervised the Bush-LeNormand agency. She testified that the attempted use of agent letters in 1991 to transfer policies from Gettys to Bush-LeNormand was improper, and the correct procedures, new applications, had been communicated to lsall Louisiana agents as per the business plan for the State. She sent the agent of record letters back to Bush-Le-Normand, telling them that they were improper procedure. She never contacted Gettys or Herndon about it, explaining that by that time Herndon was not an entity with Travelers. Sims said that no one requested a bordereau transfer, and in any event she would not have considered it. She had not seen that method used in over twenty years.\nBoth Sims and Ratliff testified that they had no personal animosity towards Hern-don, and had no profit to gain by “sand*784bagging” Herndon’s ability to transfer the policies. Ratliff testified that the procedures required to transfer the business from Gettys to Bush were the same as had been required in the Herndon-Gettys transfer, and he couldn’t figure out why Herndon was having difficulty.\nGettys testified that it was he who requested that Herndon take its business elsewhere in 1991. He gave Herndon almost six months’ notice to do so, which he felt was generous, as the industry custom was 90 days. He testified that he did nothing to hinder this.\nMr. Jim Herndon testified that he handled the transfer of the business from Gettys to Bush-LeNormand. First, he said that Paul Ratliff said he could do it with agent of record letters or by new applications, but then rejected the agent of record letters as being deficient. When new letters were submitted, Herndon said that Ratliff then told him that letters were improper and new applications must be filled out. Herndon also said that he desired a bordereau transfer of the business from Gettys to Bush-LeNormand and notified Travelers, but they never replied. Herndon testified that Travelers frequently changed its mind on the transfer procedures Herndon could use and did everything to impede his moving his business. He further testified that it was embarrassing going to clients for another new application when they had just [ 3done so in 1990 for the transfer to Gettys. It was at this point that Herndon sued Travelers and Gettys.\nMike Herndon, an employee of Herndon during this time period, testified that he handled the transfers of business, though he was not involved in the negotiations between Herndon and Gettys, and Hern-don and Bush LeNormand. He said that Ratliff never told him that he needed new applications to transfer the business from Gettys to Bush-LeNormand. He also admitted that at no time was he an employee of Gettys or a servicing agent for Travelers. Both he and his father Jim acknowledged that it was always the client’s choice of what agent to use. He said that it was clear to him that Gettys would not be assisting Herndon in moving the policies from Gettys to Bush-LeNormand. Virgie Dee at Bush-LeNormand informed him that Travelers informed her that they would no longer accept applications from Herndon because Herndon no longer had those policies and was not an authorized Travelers agent.\nMike Herndon left Herndon agency in 1993 and his contacts with clients ended at that time. He was not aware that Gettys had asked Herndon to take its auto clients back in 1991. It was Mike’s position that Herndon was entitled to the commissions from the original Herndon policies forever, as long as that business stayed at Gettys or wherever they had transferred it. He was not aware of how many original Hern-don clients remained at Gettys, and he had no precise figures on what he thought Gettys owed Herndon.\nTravelers, as the insurance company, had the authority to decide the terms of the transfers. Herndon argues that Travelers impeded the transfers from Get-tys to Bush-LeNormand by requiring new applications from the insured, a situation that was embarrassing and cumbersome to Herndon. The evidence does not support this position. The evidence, further, does not show that Travelers was arbitrary and 1 incapricious in refusing to honor the clients’ requests for transfers. Once the proper procedures were completed, these transfers were accomplished. Further, the evidence shows that Travelers did not interfere in any way with Herndon’s relationship with its clients. Barbara Sims testified that once the transfer was made *785from Herndon to Gettys, the agent of record was Gettys, and that Herndon was a non-entity as far as Travelers was concerned. If Herndon was styling itself as a subagent of either Gettys or Bush-LeNor-mand, she was never told. Sims had no direct contact with Herndon or the clients, only with Bush-LeNormand in telling them that the agent letters were improper to accomplish the transfer from Gettys to Bush LeNormand. Once Travelers can-celled Herndon’s automobile authority, it did not tell Herndon to whom it could transfer the business or in any way prevent the transfers. Travelers did, however, have the authority to dictate the procedures it required for those transfers. The trial court did not err in dismissing Hern-don’s suit against Travelers.\nDAMAGES\nHerndon argues that from January 1, 1992 to 1999, it lost $8,623.07 in commissions because Travelers refused to allow the transfers from Gettys to Bush-LeNor-mand. Herndon argues that it would have been entitled to 50% of the commissions of the business it would have transferred to Bush-LeNormand. No evidence was introduced supporting these contentions or these figures. There was no evidence of the terms of the agreement between Hern-don and Bush-LeNormand. Likewise, the agreement between Gettys and Herndon was verbal. While Herndon testified that it felt it was entitled to 50% of the commissions from policies it placed with Gettys in perpetuity, this was based upon Jim and Mike Herndon’s assumptions h regarding the verbal agreement with Gettys. Get-tys’s testimony did not support their interpretation.\nWe find that Gettys was allowed to terminate its contract with Herndon in the end of 1991. However, we find that Get-tys’s unilateral reduction in the agreed-\nupon commission rate to Herndon prior to the end of the contract in 1991 violated their agreement and is contrary to the law. Both Gettys and Herndon agreed that the commission rate would be a 50-50 split. While Gettys was legally entitled to terminate the arrangement, and did so, there is no support or justification for its lowering of Herndon’s commission from the stated rate before the end of the contract. Therefore, we amend the damage award to reflect that Herndon is entitled to 50% of the commissions through the end of 1991. The evidence indicates that Herndon was paid 30% of those commissions from October through December, and that this amount was $685.00, as testified to by Lawrence Gettys and as reflected in the judgment. If $685.00 was 30% of the commissions, 100% of the commissions was $2,283.33, and 50% of that equals $1,141.67. We therefore increase the damage award to Herndon to a total of $1,141.67 against defendant, Gettys. The judgment in all other aspects is affirmed.\nAFFIRMED AS AMENDED.\n", "ocr": true, "opinion_id": 7747841 } ]

"2002-02-05"

[ "807 So. 2d 481" ]

[ { "author_str": "Irving", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIRVING, J.,\nfor the Court.\n¶ 1. Gordon Kleyle appeals from an order of the Circuit Court of Pearl River County granting judgment on a jury verdict in favor of Bert Burrill in the amount of $3,500 in actual damages and $10,000 in punitive damages. Kleyle brings four is*483sues on appeal: (1) whether the trial judge erred in sustaining BurrilTs motion in li-mine to exclude certain evidence, (2) whether Burrill met his burden of proof, (3) whether the testimony of D.R. Davis was contrary to the facts in this case and therefore, unduly prejudicial to Kleyle’s defense, and (4) whether the trial judge erred when he permitted the trial of this matter knowing that evidence in a criminal proceeding involving Kleyle had been lost or misplaced and that the absence of this evidence was tremendously disadvantageous to Kleyle’s defense.\n¶ 2. We find no prejudicial error; therefore, we affirm the trial court.\nFACTS\n¶ 3. On May 20, 1999, Burrill was flying his registered 1987 Whitman Tailwind airplane in Pearl River County, Mississippi and making an approach to land on the airstrip located on property owned by his brother Tommy. Tommy is Kleyle’s neighbor. While flying, Burrill twice felt what appeared to be “thumps” under the plane. After returning the plane to its local hangar, Burrill checked the plane and found what appeared to be bullet holes. Thereafter, he called the Federal Aviation Administration and the Federal Bureau of Investigations to report the incident. Bur-rill and Tommy removed the bullet while an FBI agent watched. Two round metal balls were removed and given to the FBI agent; the agent gave Burrill a receipt for the evidence. Burrill also filed a complaint with the Pearl River County Sheriffs Department.\n¶ 4. The Pearl River County Board of Supervisors held a board meeting on June 1, 1999. Kleyle attended the meeting to complain about the planes flying over his property and to seek some remedy for this situation. The board meeting was taped by D.R. Davis, former chancery clerk of Pearl River County. He taped the sessions in order to record the minutes accurately. During the board meeting, Kleyle explained that a plane had flown over his house; he then told the board that “I shot at him twice.” Davis gave his tape of the board meeting to Rodney Spears, a police officer, who was present. Tracey Dash, a newspaper reporter, was also present at the board meeting and later wrote an article quoting Kleyle’s statement. Kleyle never called to complain about the accuracy of the article. Thereafter, Burrill filed a civil suit against Kleyle.\nANALYSIS AND DISCUSSION OF ISSUES\n\n1. Exclusion of Evidence\n\n¶ 5. Kleyle contends that the trial court erroneously excluded (a) evidence of his prior criminal proceeding (and its outcome) arising out of some of the same facts and circumstances as the instant claim, (b) evidence of allegations of illegal drug activity in the area of Kleyle’s property, (c) evidence of the activities of airplanes other than that of Burrill’s, (d) evidence of the FBI’s investigation and/or lack thereof, and (e) evidence of the FAA’s investigation and/or lack thereof. Kleyle did not make any proffer as to the specifics of the excluded evidence.\n¶ 6. Our supreme court has recognized many times that each case must be decided by the facts shown in the record and not by mere assertions in the brief. Mason v. State, 440 So.2d 318, 319 (Miss. 1983). Without more than mere assertions, it must be presumed that the rulings of the trial court were correct. Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973).\n¶ 7. This Court has reviewed the record as well as the clerk’s papers and has failed to find evidence that Kleyle, in any way, preserved this issue for appeal. *484Although the “Motion in Limine” filed by Burrill was included in the clerk’s papers, no hearing transcript, objection to the motion, or other materials were made available to this Court which would have allowed us to make a determination as to the substance of this issue.\n¶ 8. Burrill properly notes that “there must be some statement dictated into the record as to what the excluded evidence would have been so that the Court is able to say whether the evidence would have been material or relevant or whether its exclusion constituted prejudicial error.” Martin v. Wadlington, 337 So.2d 706, 708 (Miss.1976). In addition, “[o]ur rule is that in making profert of testimony rejected by the trial court, counsel must cause the record to clearly reflect what he intended to prove by such testimony.” Id. at 708. Although Kleyle represented himself in the lower court, “[pjro se parties should be held to the same rules of procedure and substantive law as represented parties.” Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112, 118 (Miss.1987) (quoted with approval in Ivy v. Merchant, 666 So.2d 445, 449 (Miss.1995)). Since we have nothing to review, we, as already observed, presume that the ruling of the trial judge was correct. This issue lacks merit.\n\n2. Sufficiency of the Evidence\n\n¶ 9. Kleyle asserts that Burrill failed to meet his burden of proof. This is in effect a claim that the evidence is insufficient to support the verdict. Burrill’s burden was to prove to the jury by a preponderance of the evidence that Kleyle was guilty of shooting Burrill’s airplane. The jury, by its verdict, found that Burrill met his burden by providing sufficient evidence of the shooting. What we are left with is essentially a claim by Kleyle that the trial court should have granted him a judgment notwithstanding the verdict.\n¶ 10. To echo the pronouncement in Stubblefield v. Jesco, Inc., 464 So.2d 47, 54 (Miss.1984), the jury’s verdict should stand if there is “evidence of such quality and weight that reasonable and fairminded men in the exercise of impartial judgment might reach different conclusions.” Also, the jury verdict should endure unless allowing it to do so will sanction an unconscionable injustice. Herrington v. Spell, 692 So.2d 93, 100-04 (Miss.1997). This Court finds that reasonable and fairminded men and women in the exercise of impartial judgment might have reached different conclusions in this case and that allowing the jury’s verdict to stand will not sanction an unconscionable injustice. Quite the contrary, the .great weight of the evidence pointed to Kleyle’s liability. The record reflects that Dash, Davis, Spiers, and even Kleyle testified that Kleyle stated to the board of supervisors that he shot at an airplane twice. Burrill’s airplane suffered two bullet holes the same day that Kleyle claimed to have shot twice at an airplane. Also, Kleyle’s witnesses failed to provide testimony to rebut that Kleyle did not shoot at Burrill’s airplane.\n\n3. The Testimony of D.R. Davis\n\n¶ 11. Kleyle alleges that Davis gave false testimony when Davis testified that Kleyle stated that Kleyle went in the house and got Kleyle’s shotgun. He argues that he was prejudiced by this false testimony. Kleyle’s argument on this issue is premised on his contention that evidence from Kleyle’s criminal trial would have proven Davis’s testimony was perjured. He thus reasons that he could have impeached Davis with Davis’s testimony from the criminal trial. Kleyle does not provide any explanation to support the *485allegations of prejudicial effect outside his inability to impeach D.R. Davis with the evidence from the criminal trial.\n' ¶ 12. As stated in issue one, the evidence offered in the criminal proceeding was not proffered and made a part of the record in this appeal. More importantly, the record reflects that Kleyle tried. to impeach Davis’s testimony during trial by asking Davis whether he was sure Kleyle stated he used a shotgun. Davis replied in the affirmative. Obviously, the jury decided that Kleyle’s attempt to impeach failed to mar Davis’s credibility or failed to add to Kleyle’s contentions that he did not shoot at Burrill’s airplane.\n\nJp. Trial in the Absence of the Transcript of the Criminal Proceedings\n\n¶ 13. Again, Kleyle mentions a criminal proceeding in his brief, but the record reflects that, in the court below, Kleyle complained only about not having the actual tape of the board meeting. This Court is unable to find any mention of a criminal proceeding in the record other than in Burrill’s “Motion in Limine.” For the reasons already discussed, we are unable to address this issue. Having found no reversible error in the proceedings below, we affirm the decision of the trial court.\n¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY IS AFFIRMED, AND STATUTORY DAMAGES AND INTEREST ARE AWARDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.\nMcMILLIN, C.J., KING and SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS, CHANDLER and BRANTLEY, JJ., concur.\n", "ocr": true, "opinion_id": 7748067 } ]

"2002-01-25"