author: GROSS, J.

text:
    Luis HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1489.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2004.

      Jose R. Iglesia of Jose R. Iglesia, P.A., Coral Gables, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Luis Hernandez appeals his convictions of possession of cocaine between twenty-eight and 200 grams, possession of LSD, and possession of cannabis in excess of twenty grams.

The police discovered the drugs during the search of an apartment rented by Hernandez’s girlfriend, Eveyette Swaskee. Holding a valid search warrant, the police broke in through the front door of the apartment. Hernandez argues that the police violated the Florida and Federal Constitutions and section 933.09, Florida Statutes (1999). We find no error in the trial court’s denial of the motion to suppress.

Section 933.09 provides:

The officer may break open any outer door, inner door or window of a house, or any part of a house or anything therein, to execute the warrant, if after due notice of the officer’s authority and purpose he or she is refused admittance to said house or access to anything therein.

Approximately twelve police officers arrived at the residence with a search warrant. Detective Richard Friedman knocked hard on the front door three or four times. He yelled that it was the police and that they had a search warrant. Friedman waited about five seconds and detected no response. He heard footsteps inside the residence. Friedman banged on the door again, announced that it was the police with a search warrant, and again received no response. At that point, the officers began their attempt to enter, using a sledge hammer on the steel front door. The consensus of the state’s testimony was that about fifteen seconds transpired between the officers’ first announcement of their presence and the time they began to ram the door. It took at least five minutes to pry the door open.

We find no constitutional or statutory violation. Recently, the United States Supreme Court unanimously held that a fifteen to twenty second wait before forcible entry satisfied both the Fourth Amendment and 18 U.S.C. § 3109, which is almost identical to section 933.09. See United States v. Banks, — U.S. -, 124 S.Ct. 521,157 L.Ed.2d 343 (2003).

A second issue concerns the admission into evidence of an unopened letter addressed to Hernandez that was taken from the bedroom during the search. The letter contained some paperwork from Memorial Health Care System. The envelope was addressed to Luis Hernandez at the apartment which was the subject of the search warrant.

Defense counsel objected to the admission of the envelope, arguing that it was inadmissible hearsay — an out-of-court statement of the person who addressed the letter, offered to prove that the appellant lived at the residence where drugs were found. The trial court overruled this objection, and the letter was admitted into evidence.

The trial court’s ruling was correct. The name and address on the envelope did not fall within the statutory definition of hearsay.

Part of the definition of hearsay is that it is a “statement ... offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(e), Fla. Stat. (2001). The evidence code defines a statement as “[a]n oral or written assertion” or “[n]onverbal conduct of a person if it is intended by the person as an assertion.” § 90.801(l)(a)l., 2. Appellant’s name- and address printed on an envelope was not an assertion, nor was the placement of the name and address on the envelope nonverbal conduct intended as an assertion. See United States v. Singer, 687 F.2d 1135, 1147 (8th Cir.1982); Bernadyn v. State, 152 Md.App. 255, 831 A.2d 532, 537-39 (2003) (holding that medical bill, mailed to defendant at particular address was admissible non-hearsay). The writing of the name and address was not intended to “communicate [the] thought, idea, or fact” that Hernandez lived at the address. Charles W. Ehrhardt, Florida Evidenoe § 801.2, at 672, (2002 ed.).

As one court has observed, “[f]rom the sender’s conduct in writing or affixing the name and address and mailing the material so addressed ... it may be inferred that the sender believes the person named lives at that address.” State v. Peek, 89 N.C.App. 123, 365 S.E.2d 320, 322 (1988). Conduct, such as placing an address on an envelope, “offered as evidence that the person acted as he did because of his belief in the existence of the condition sought to be proved” is not a statement that falls within the hearsay rule. 6C Fla. Stat. Ann. 293, Law Revision Council Note— 1976 (1999) (quoting Advisory Committee Note to Proposed Federal Rule of Evidence 801). The drafters of the code excluded such implied assertions from the definition of hearsay because the likelihood of fabrication was less than that associated with assertive verbal conduct and the danger of the unreliability of the evidence, so “minimal in the absence of an intent to assert,” did' not “justify the loss of the evidence on hearsay grounds.” Id.

It is also significant that the envelope was offered not to prove “the truth of the matter asserted” under section 90.801(l)(c), but as circumstantial evidence that Hernandez stored his property, including his correspondence, in the bedroom. The presence of the envelope in the bedroom tended .to prove that appellant controlled the room, and that the contraband found there belonged to him. See United States v. Hazeltine, 444 F.2d 1382, 1384 (10th Cir.1971) (holding that envelope bearing inmate’s name and address was not hearsay, and was admissible to establish that cell and locker in which heroin was seized were controlled by the inmate); People v. Hester, 87 Ill.App.3d 50, 42 Ill. Dec.611, 409 N.E.2d 106, 109 (1980) (stating that letters addressed to defendants properly admitted to “the question of the defendants’ presence at and control over the apartment to which the letters were addressed”); State v. McCurry, 582 S.W.2d 733, 734 (Mo.Ct.App.1979) (concluding that telephone bill properly admitted in evidence because it was a personal effect of defendant, showing his connection to a bedroom where contraband was found); Shurbaji v. Commomowealth, 18 Va. App. 415, 444 S.E.2d 549, 551 (1994) (finding that utility bills addressed to defendant and found in master bedroom along with cocaine were not hearsay).

AFFIRMED.

FARMER, C.J., and TAYLOR, J., concur.


source: Caselaw Access Project

author: SHEVIN, Judge.

license: Public Domain

text:
    Ciro Miguel PEREIRA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1400.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 2004.
    Paul J. Kneski, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before COPE, LEVY and SHEVIN, JJ.
   SHEVIN, Judge.

We reverse the order denying defendant’s motion for post conviction relief, and remand this matter to the trial court for an evidentiary hearing on grounds of ineffective assistance of trial counsel raised in defendant’s motion. See McLin v. State, 827 So.2d 948 (Fla.2002) (where no eviden-tiary hearing held on ineffective assistance of counsel appellate court must accept defendant’s factual allegations to the extent they are not refuted by the record). We affirm the trial court’s order as to the remaining issues raised.

Affirmed in part, reversed in part, and remanded for an evidentiary hearing.


author: WELLS, Judge.

text:
    Robert E. BUCHMAN, Appellant, v. Nancy CANARD, Appellee.
    No. 3D03-914.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 2004.

      Michael A. Nuzzo, Miami; David B. Pa-kula, for appellant.
    Daniels, Kashtan, Downs & Robertson and Madelyn Simon Lozano, Miami, for appellee.
    Before SCHWARTZ, C.J., and COPE, and WELLS, JJ.
   WELLS, Judge.

Robert E. Buchman appeals an order confirming and ratifying an arbitration award, winding up his partnership with Nancy Canard and distributing partnership assets. That order, among other things, awarded damages to Canard in an amount equal to her proportionate share of those partnership assets wrongfully transferred by Buchman and also awarded prejudgment interest on that amount from the date of the wrongful transfer. On appellee Canard’s concession that prejudgment interest should not have been awarded, that portion of the order under review is reversed. See Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 215 (Fla.1985); Pharmacy Mgmt. Servs., Inc. v. Perschon, 622 So.2d 75, 76 (Fla. 2nd DCA 1993). The balance of the order under review is affirmed.

Affirmed in part, reversed in part.


author: PER CURIAM.

text:
    H. Paul HETT, Petitioner, v. Ronnie C. WHITE, et al., Respondents.
    No. 4D03-2156.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2004.
    H. Paul Hett, Sanderson, pro se.
    No appearance for respondent.
   PER CURIAM.

Paul Hett seeks review of the trial court’s order granting his request for indi-gency status, yet dismissing his mandamus petition pursuant to section 57.085(6), Florida Statutes (2003). Through the mandamus petition filed after he exhausted administrative remedies, Hett was challenging disciplinary action taken by the Department of Corrections.

Pursuant to Schmidt v. Crusoe, 28 Fla. L. Weekly S367, — So.2d -, 2003 WL 1987971(Fla. May 1, 2003), Hett is entitled to relief as the review he seeks in the circuit court is a “collateral criminal proceeding” and, therefore, falls outside the requirements of section 57.085. Accordingly, we grant Hett’s petition and quash the order of the trial court.

WARNER, KLEIN and MAY, JJ., concur.


author: SCHWARTZ, Chief Judge.

text:
    Graciela ADJIMAN, Paola Adjiman and Alberto Ventura, as Administrator of the Estate of Alan Adjiman, Appellants, v. Dario ADJIMAN, Appellee.
    No. 3D03-570.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 2004.

      Hyman, Kaplan, Ganguzza, Spector & Mars and Marc A. Rubin, Miami, for appellants.
    Roland Gomez and Richard M. Gomez, Miami Lakes, for appellee.
    Before SCHWARTZ, C.J., and COPE and WELLS, JJ.
   SCHWARTZ, Chief Judge.

Fourteen year old Paola Adjiman was seriously injured and ten year old Man Adjiman was killed when a minivan driven by their father Dario Adjiman was involved in an intersection collision and they were thrown from the vehicle. Their representatives sued their father on theories both that he had negligently operated the vehicle and that he had negligently failed to insure that the children had fastened their seatbelts. This is an appeal from orders which struck those portions of the complaint which dealt with the latter theory for failure to state a cause of action. Because, however, the negligent operation claim seeking the same relief remains pending in the trial court, the order striking the seatbelt theory of relief is not subject to review at this time. Mendez v. West Flagler Family Ass’n, 303 So.2d 1 (Fla.1974); Vila v. B.F. Goodrich Co., 383 So.2d 766 (Fla. 3d DCA 1980).

Accordingly, the appeal is dismissed entirely without prejudice to appropriate appellate review of the issue presented on appeal from a reviewable final judgment.

Appeal dismissed.

      . This theory was, in turn, founded on dual claims that the duty to do so arose both from the common law, see Insurance Co. of North America v. Pasakarnis, 451 So.2d 447 (Fla.1984); Machin v. Walgreen, 835 So.2d 284 (Fla. 3d DCA 2002); Dellapenta v. Dellapenta, 838 P.2d 1153 (Wyo.1992) and by statute, see § 316.614, Fla. Stat. (1997)("(4) It is unlawful for any person: (a) To operate a motor vehicle in this state unless each passenger of the vehicle under the age of 16 years is restrained by a safety belt or by a child restraint device pursuant to s. 316.613....”).


author: KLEIN, J.

text:
    Brian RIVERA, Appellant, v. Naomi A. Harris RIVERA, Appellee.
    No. 4D03-1429.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2004.

      Brian L. Kimber, West Palm Beach, for appellant.
    Eric C. Cheshire of Cheshire & Gonzalez, P.L., West Palm Beach, for appellee.
   KLEIN, J.

Appellant raises two issues involving the judgment dissolving his marriage. We affirm the first issue, involving the admission of evidence, because, in the absence of a transcript of the final hearing, appellant is unable to demonstrate prejudicial error.

The second issue involves appellant’s attempt to address the problem created by the lack of a transcript through Florida Rule of Appellate Procedure 9.200(b)(4), which provides:

If no report of the proceedings was made, or if the transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection. The statement shall be served on the appellee, who may serve objections or proposed amendments to it within 10 days of service. Thereafter, the statement and any objections or proposed amendments shall be submitted to the lower tribunal for settlement and approval. As settled and approved, the statement shall be included by the clerk of the lower tribunal in the record.

Appellant prepared a statement of evidence which he submitted to appellee for her approval, but she did not respond. Appellant then moved the court to approve his statement of the evidence, but after a hearing attended by both parties, in which the appellee did not agree, the court denied the motion, leaving appellant with no record.

Appellant argues that 9.200(b)(4) requires the court to approve a statement of the evidence for proceedings; however, we disagree. In this case, as will often be the case, the appellant’s motion for the court to approve the statement of the evidence was filed months after the case was tried. Expecting a trial judge to confirm the details of a trial, months and numerous other intervening trials later, where the parties do not agree, is not realistic.

Rule 9.200(b)(4), by its terms can be used where there was no court reporter in attendance, or there was a court reporter but the transcript cannot be obtained. The rule is of little practical use in the former situation, because a prevailing party at a trial which was not reported has no incentive to cooperate and therefore make it easier for the nonprevailing party to appeal. That is precisely what happened in this case. If a trial judge is able to approve a unilateral statement, the judge should do so, but the rule does not require it. Affirmed.

MAY, J., and HOROWITZ, ALFRED J., Associate Judge, concur.


text:
    Dwayne M. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-472.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2004.
    Michael D. Dicembre, Orlando, for appellant.
    No appearance required for appellee.
   PER CURIAM.

We affirm, but note express conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), as we did previously in Hernandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003).

KLEIN, HAZOURI and MAY, JJ., concur.


text:
    Hal KASS and Gullan Kass, Appellants, v. Ruth KASS, Appellee.
    No. 4D03-1720.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2004.
    Robert Pasin of Law Office of Robert Pasin, Coral Springs, for appellants.
    Daniel E. Oates and Andrew J. Daire of Daniel E. Oates, P.A., Pompano Beach, for appellee.
   PER CURIAM.

Affirmed. See Caufield v. Cantele, 837 So.2d 371, 377-78 (Fla.2002).

STONE, WARNER and STEVENSON, JJ., concur.


text:
    James WARE, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Semco II Incorporated, Appellees.
    No. 4D03-3786.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2004.
    James Ware, Delray Beach, pro se.
    No appearance for appellees.
   PER CURIAM.

Affirmed. Fla. R.App'. P. 9.315(a).

STONE, POLEN and HAZOURI, JJ., concur.


author: PLEUS, J.

text:
    Frank ALLIY, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2989.
    District Court of Appeal of Florida, Fifth District.
    Jan. 23, 2004.
    James B. Gibson, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

The defendant appeals from his convictions, entered pursuant to a negotiated plea of no contest, for four counts of attempted capital sexual battery. He argues that the trial court erroneously adjudicated him guilty of life felonies rather than first degree felonies.

The State responds that the written judgments and sentences do not reflect that the defendant was convicted of life felonies and thus no error exists.

The record reflects that the defendant was charged with four counts of capital sexual battery. As part of a negotiated plea, the defendant agreed to plead to four counts of attempted capital sexual battery. During the plea colloquy, both the prosecutor and defense counsel agreed that attempted capital sexual battery was still a life felony. While the “life” designation was used to compute the guidelines score-sheet, it does not appear on the judgments or sentences. In accordance with the plea agreement, the defendant was sentenced to a downward departure of concurrent terms of ten years imprisonment on each count, to be followed by 20 years of sexual offender probation.

The fact that the court and parties erroneously announced, at the plea hearing and during sentencing, that attempted capital sexual battery remained a life felony and even used the designation in preparation of the guidelines scoresheet, is not reversible error. It is the written judgments and sentences which control, and neither designate the offense as life felonies. Any error in a guidelines score-sheet is harmless when the defendant’s sentences are the product not of the score-sheet, but of a negotiated plea agreement. Ruff v. State, 840 So.2d 1145 (Fla. 5th DCA 2003); Hill v. State, 730 So.2d 322 (Fla. 1st DCA 1999). Any oral misstatements did not amount to harmful error under the circumstances of this case. Accordingly, the defendant’s judgments and sentences are affirmed. AFFIRMED.

SAWAYA and GRIFFIN, JJ., concur.


author: SHARP, W., J.

text:
    Timmie C. HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-633.
    District Court of Appeal of Florida, Fifth District.
    Jan. 23, 2004.
    James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SHARP, W., J.

Henderson appeals from the trial court’s order which revoked his probation, after accepting his plea of nolo contendere. He was sentenced to 18 months in prison, and no objection to the plea was raised prior to or at sentencing. Thereafter, Henderson filed a pro se pleading entitled “Request for Appeal,” which in its body indicated he wanted to withdraw his plea due to a misunderstanding of the charges. Without obtaining a ruling on his “Request,” he filed a timely pro se notice of appeal. An amended notice of appeal was filed by the public defender. We affirm.

Henderson claims on appeal that he is entitled to an evidentiary hearing on his motion to withdraw his plea. However, after a defendant has been sentenced, he must show a manifest injustice before he can successfully prevail in withdrawing his plea. See LeDuc v. State, 415 So.2d 721 (Fla.1982); Lynn v. State, 687 So.2d 39 (Fla. 5th DCA 1997). Henderson has not demonstrated manifest injustice in this case, even if we considered he successfully preserved this issue for appeal. See Leonard v. State, 760 So.2d 114, 116, n. 13 (Fla.2000); Gray v. State, 847 So.2d 1100 (Fla. 4th DCA 2003); Ruff v. State, 840 So.2d 1145 (Fla. 5th DCA 2003).

Our affirmance, however, is without prejudice to Henderson to file a motion pursuant to Florida Rule of Criminal Procedure 3.850 for post-conviction relief seeking to withdraw his plea, should he be able to allege and demonstrate appropriate grounds for this relief. See Ruff; Lynn.

AFFIRMED.

GRIFFIN and MONACO, JJ„ concur.


author: LPER CURIAM.

text:
    In re Nancy YEAGER.
    No. 2003-B-2479.
    Supreme Court of Louisiana.
    Nov. 7, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

LPER CURIAM.

This matter arises from a petition for consent discipline filed by respondent, Nancy Yeager, an attorney licensed to practice law in the State of Louisiana but currently on interim suspension. For her misconduct, respondent proposed that she be suspended from the practice of law for three years, followed by a one-year period of probation with conditions. The Office of Disciplinary Counsel (“ODC”) concurred in respondent’s petition, and the disciplinary board recommended the proposed discipline be accepted.

UNDERLYING FACTS

The petition for consent discipline encompasses four separate files investigated by the ODC. The underlying facts of these matters are not in dispute, having been stipulated to by the parties.

Investigative File No. 11131

On March 8, 2000, a representative of the Family Dollar Store in Covington notified police that respondent had left the store with a package of washcloths that she had not paid for. When the Covington Police Department approached respondent, she gave her name as Rita Magee. The police searched respondent’s vehicle and [¿found the following merchandise that was not listed on her receipt: a package of twelve Cannon washcloths valued at $4.99; one pair of imitation pearl earrings valued at $2.00; and three pasted paisley wallpaper borders valued at $1.00. Respondent was arrested and charged with shoplifting, but the matter was not prosecuted by the district attorney’s office. Respondent represents that she did not intend to steal the merchandise and that she was willing to pay for the items, but that there had been a misunderstanding with store personnel.

Investigative File No. 13150

In October 1998, Patricia Walters retained respondent to represent her in a divorce proceeding. Thereafter, respondent failed to communicate adequately with her client and failed to diligently move the case forward. In October 2000, respondent notified Ms. Walters that she would no longer be handling her case. Ms. Walters requested an accounting from respondent, but respondent failed to comply with this request. In April 2001, Ms. Walters filed a complaint against respondent with the ODC.

Investigative File No. 13W0

Charmain Schwab retained respondent to handle a personal injury matter arising out of an automobile accident that occurred in May 1997. In July 2000, respondent settled Ms. Schwab’s claim for $9,557. Respondent failed to place these funds into a client trust account, and instead deposited the settlement into an account where Ms. |sSchwab’s funds were commingled with funds belonging to respondent. Respondent also failed to timely pay $2,160 to Ms. Schwab’s medical providers; however, she made restitution of these sums in June and October, 2001, after a complaint was filed with the ODC.

Investigative File No. 11863

In October 2001, respondent was arrested and charged with forgery and theft stemming from her purchase of $197.78 in groceries using a check drawn on a closed account. Following the screening of the criminal charges, the District Attorney’s Office placed respondent in a pre-trial diversion program. Respondent failed to self-report the matter to the ODC.

DISCIPLINARY PROCEEDINGS

The ODC conducted an investigation into the complaints filed against respondent. Respondent and the ODC then filed a joint petition for interim suspension, which this court granted on October 23, 2002. In re: Yeager, 02-2530 (La.10/23/02), 830 So.2d 293.

Prior to the institution of formal charges, respondent filed a petition for consent discipline, admitting her conduct in the four investigative files at issue violated Rules 1.3 (failure to act with diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.15 (safekeeping property of clients or third persons), 1.16 (termination of the representation), 3.2 (failure to expedite litigation), 8.3(a) (failure to report professional misconduct), 8.4(b) (commission of a criminal act reflecting |4adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Louisiana Rules of Professional Conduct. In mitigation, respondent suggested that she suffered personal and emotional problems stemming from the death of her husband and the closure of her law practice; made a good faith effort to pay restitution and to rectify the consequences of her misconduct; cooperated with the ODC in the investigation and resolution of the - complaints filed against her; and demonstrated remorse. In aggravation, respondent acknowledged that she has a prior disciplinary record. For her misconduct, respondent proposed that she be suspended from the practice of law for three years, followed by a one-year period of probation with conditions. The ODC concurred in respondent’s petition for consent discipline, suggesting that disbarment is not warranted in light of the mitigating factors present in this case.

Disciplinary Board Recommendation

The disciplinary board found that respondent violated duties owed to her clients, the public, the legal system, and as a professional. The board observed that although the record contains little information concerning respondent’s state of mind, her conduct appears to have been negligent in some instances and knowing or intentional in others. As a result of her conduct, respondent caused damage to Ms. Walters by her failure to timely provide information necessary for her client to make informed decisions. Respondent also failed to provide a timely accounting. She IsCaused damage in the form of delay and frustration to Ms. Walters, as well as to Ms. Schwab. By her failure to appropriately handle client funds, respondent caused delay and frustration not only to her client, but also to her client’s third-party medical providers. Respondent’s dishonest behavior relative to the shoplifting, forgery, and theft arrests, as well as her failure to self-report these matters, caused damage to the legal system and to the profession, causing delay and unnecessary expenditure of funds. The baseline sanction for such misconduct is a suspension from the practice of law.

Based upon its review of the record, the board determined the aggravating factors present include respondent’s prior disciplinary offenses, a pattern of misconduct, and multiple offenses. In mitigation, the board recognized respondent’s personal and emotional problems, good faith effort to make restitution and to rectify the consequences of her misconduct, remorse, and a cooperative attitude toward the disciplinary proceedings. After reviewing the pri- or jurisprudence of this court dealing with misconduct similar to respondent’s, the board determined the proposed consent discipline is appropriate. Accordingly, the board recommended that respondent be suspended from the practice of law for three years, followed by a one-year period of probation governed by the conditions set forth in the petition for consent discipline.

DISCUSSION

The rule violations present in this case, as admitted by respondent, principally involve her neglect of legal matters, failure to communicate with a client, commingling of client funds, failure to timely pay third-party medical providers, failure to properly | r,terminate the representation of her client, failure to self-report professional misconduct, commission of a criminal act, and dishonest and deceitful conduct. The sole issue presented for the court’s consideration is whether the three-year suspension proposed by respondent and concurred in by the ODC is an appropriate sanction for the misconduct.

In fashioning an appropriate sanction, we are mindful that the purpose of lawyer disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain appropriate standards of professional conduct to safeguard the public, to preserve the integrity of the legal profession, and to deter other lawyers from engaging in violations of the standards of the profession. Louisiana State Bar Ass’n v. Guidry, 571 So.2d 161 (La.1990). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

In prior cases involving misconduct similar to respondent’s, this court has imposed lengthy suspensions to disbarment. Respondent has suggested, and the ODC has agreed, that the mitigating factors present in this case warrant the imposition of a suspension. After reviewing the record in its entirety, we agree. In particular, we find respondent has made a good faith effort to rectify the consequences of her misconduct and demonstrates remorse and a cooperative attitude toward the disciplinary proceedings. In light of these facts, we conclude a three-year suspension is an appropriate sanction for respondent’s misconduct.

17Accordingly, we will accept the petition for consent discipline and suspend respondent from the practice of law for three years, retroactive to the date of her interim suspension.

DECREE

Upon review of the findings and recommendation of the disciplinary board, and considering the record filed herein, it is ordered that Nancy Yeager, Louisiana Bar Roll number 21160, be suspended from the practice of law for three years, retroactive to her October 23, 2002 interim suspension. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Respondent also had in her possession merchandise that she had purchased from the Family Dollar Store and for which she had a receipt.

      . Respondent’s husband died in 1999, and by mid-2000, she was winding down her law practice so that she could return to the nursing profession.

      .According to the joint stipulation of facts filed with the petition for consent discipline, the check "was from a closed account from an office where Ms. Yeager used to work.” No further explanation is provided.

      . Respondent was admonished by the disciplinary board in 1998 for misconduct that violated Rules 8.2(a) (making a false statement concerning the qualifications or integrity of a judge or a candidate for election to judicial or legal office) and 8.2(b) (requiring a lawyer who is a candidate for judicial office to comply with the applicable provisions of the Code of Judicial Conduct) of the Rules of Professional Conduct. No further explanation of respondent’s misconduct in that matter is provided in the petition for consent . discipline, and there is no copy of the admonition in the record presently before the court.

      . The board determined that a lengthy suspension from the practice of law is the appropriate sanction in cases involving neglect, failure to disburse third-party funds, and dishonesty, citing In re: Kleinpeter, 00-1966 (La. 11/28/00), 774 So.2d 95, and In re: Le-Blanc, 98-0800 (La.5/29/98), 713 So.2d 449. This court imposed three-year suspensions in both Kleinpeter and LeBlanc.

      . The petition for consent discipline also provides for a one-year period of probation with conditions. However, such issues, along with any other relevant factors, may be addressed if and when respondent applies for reinstatement. See In re: Welcome, 02-2662 (La. 1/24/03), 840 So.2d 519; In re: Harris, 99-1828 (La.9/17/99), 745 So.2d 1172.


author: JjPER CURIAM.

text:
    In re William S. MONTGOMERY.
    No. 2003-B-2265.
    Supreme Court of Louisiana.
    Nov. 7, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

JjPER CURIAM.

Pursuant to Supreme Court Rule XIX, § 21(A), the Office of Disciplinary Counsel (“ODC”) has filed a motion for reciprocal discipline against respondent, William S. Montgomery, an attorney licensed to practice law in the States of Louisiana and Texas, based upon discipline imposed by the State Bar of Texas.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In 1993, Dan Wise retained respondent for tax planning and family estate services. In June 1995, Mr. Wise entrusted his entire life savings of approximately $102,000 to respondent. Pursuant to an agreement between the parties, respondent was to invest these funds in certificates of deposit. However, respondent commingled and converted the funds to his own use. Moreover, respondent made false representations to Mr. Wise with respect to the whereabouts and security of the funds. Upon learning of respondent’s deception in 1999, Mr. Wise attempted to communicate with respondent concerning the matter, to no avail. In November 2000, Mr. Wise filed a complaint against respondent with the State Bar of Texas.

| ¡/Respondent failed to participate in the disciplinary proceedings, and following a hearing, he was found to be in default and all facts alleged in the charging document were taken as true. Based on those facts, respondent was found to have violated the Texas Disciplinary Rules of Professional Conduct, and it was ordered that he be disbarred from the practice of law in the State of Texas. The disbarment judgment further ordered that respondent pay restitution to Mr. Wise in the amount of $101,983.33, plus interest, and pay attorney’s fees to the Chief Disciplinary Counsel of the State Bar of Texas in the amount of $2,400. Commission for Lawyer Discipline v. Montgomery, Docket Number H0110024570 before the Evidentiary Panel for State Bar District No. 4E14, State Bar of Texas.

By order of this court dated August 11, 2003, respondent was given thirty days pursuant to Supreme Court Rule XIX, § 21(D) to show why the imposition of discipline in this state would be unwarranted. Respondent failed to file any response in this court.

I ¿DISCUSSION

The imposition of reciprocal discipline against respondent based upon the Texas judgment is clearly appropriate under the facts of this case. Respondent has failed to file any pleadings in this court demonstrating that the imposition of identical discipline in Louisiana would be unwarranted, and there is no suggestion of such upon the face of the record before us. Moreover, there is little doubt that respondent’s conduct would warrant discipline in Louisiana, given that it involves conversion of client funds and other dishonest and deceitful conduct.

Accordingly, we will impose reciprocal discipline pursuant to Supreme Court Rule XIX, § 21.

DECREE

Considering the motion for reciprocal discipline filed by the Office of Disciplinary Counsel and the record filed herein, it is ordered that the name of William Spencer Montgomery, Louisiana Bar Roll number 9579, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked.

      . Supreme Court Rule XIX, § 21(A) provides: Upon being disciplined by another state disciplinary agency, a lawyer admitted to practice in Louisiana shall promptly inform disciplinary counsel of the discipline. Upon notification from any source that a lawyer within the jurisdiction of the agency has been disciplined in another jurisdiction, disciplinary counsel shall obtain a certified copy of the disciplinary order and file it with the board and with the court.

      . Supreme Court Rule XIX, § 21(D) provides: Upon the expiration of thirty days from service of the notice pursuant to the provisions of paragraph B, this court shall impose the identical discipline unless disciplinary counsel or the lawyer demonstrates, or this court finds that it clearly appears upon the face of the record from which the discipline is predicated, that:
      (1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
      (2) There was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or
      (3) The imposition of the same discipline by the court would result in grave injustice; or
      (4) The misconduct established warrants substantially different discipline in this state.
      If this court determines that any of those elements exists, this court shall enter such other order as it deems appropriate. The burden is on the party seeking different discipline in this jurisdiction to demonstrate that the imposition of the same discipline is not appropriate.


text:
    In re Gilda R. SMALL.
    No. 2003-B-1736.
    Supreme Court of Louisiana.
    Dec. 3, 2003.
    Rehearing Denied Feb. 6, 2004.

      Charles B. Plattsmier, Baton Rouge, Julie B. White, for applicant.
    Leslie J. Schiff, Opelousas, Gilda R. Small, Mansura, for respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

JjPER CURIAM.

This attorney disciplinary proceeding involves four counts of misconduct filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Gilda R. Small, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

General Background Facts

After being admitted to the bar in 1983, respondent operated a solo practice. In late 1990, she became associated with the law office of attorney Janice Clark (hereinafter referred to as “Clark firm”). In the summer of 1992, Ms. Clark began campaigning for a judgeship. During the time Ms. Clark campaigned for office, respondent operated the Clark firm by herself. Ms. Clark won the election, took her oath of office in October 1992, and began her term on January 1, 1993. Respondent entered into a verbal agreement with her, whereby respondent would remain in the Clark firm’s office and take over the firm’s pending cases. Dele Adebamiji, another Louisiana attorney, was also hired to assist in the disposition of the pending cases. Respondent remained with the Clark firm until July 1994. The disciplinary complaints subject of these proceedings involve those cases handled by respondent during her tenure with the Clark firm.

19Count I — Blakes Matter.

Lawrence Blakes was involved in an accident on December 23, 1992. According to Mr. Blakes, he went to the office of the Clark firm and met respondent, who advised him that she was handling his personal injury matter. At that time, he executed an employment agreement with respondent and provided her documentation. Mr. Blakes maintains respondent neglected to ever contact him again.

By contrast, respondent asserts Mr. Blakes’ personal injury matter was on a list of cases left for her to take over following Judge Clark’s election. Respondent denies she ever met Mr. Blakes prior to January 1994, more than one year after she took over the case at the request of Judge Clark, at which time he allegedly came to her office at her direction to execute pleadings relative to his pauper status. She asserts she advised him at that time that she would be co-counsel with Mr. Adebamiji on the case.

In any event, it is undisputed respondent failed to adequately communicate with Mr. Blakes and neglected to take any formal action in the case until January 1994, more than one year after the accident, when she filed an untimely suit on her client’s behalf against the tortfeasor and two insurance carriers. Thereafter, Mr. Blakes made numerous efforts to contact respondent, but was unable to reach her. Ultimately, Mr. Blakes was forced to retain new counsel.

In September 1994, Mr. Blakes filed a complaint with the ODC. Several months later, respondent replied to the complaint alleging she relocated her office and did not 13have the financial means to send written notice of her relocation to her clients, including Mr. Blakes.

Count II — Square Matter

In July 1993, Fannie Square retained respondent to institute succession proceedings, paying respondent a total of $575. Five months later, respondent had not filed suit on behalf of her client.

In December 1993, Ms. Square filed a complaint with the ODC, alleging respondent refused to communicate with her and seeking a return of the unearned fee. Six months later, respondent replied to the complaint, alleging she had drafted the succession pleadings, but had not filed them because her client owed additional court costs for the filing. Respondent advised the ODC that she would return her client’s file and money. Thereafter, respondent failed to return her client’s property, and did not take any measures to file the suit.

Count III — Moore Matter

In August 1992, Ralph and Creóla Moore retained respondent for $410 to represent their interests in amicable custody proceedings. The Moores were seeking custody of Mr. Moore’s son from a prior marriage. Respondent drafted the necessary pleadings and advised Mrs. Moore the pleadings had been filed.

More than one year later, Mrs. Moore learned the pleadings had never been filed. Upon being confronted with this fact, respondent agreed to provide restitution. ^However, she failed to do so and failed to communicate with her client. During this time, Mr. Moore died of leukemia, leaving the custody mater unresolved.

Mrs. Moore filed a complaint with the ODC. Respondent filed a response admitting that some of the funds were owed to her client, but that she had been unable to make payment due to financial problems. Respondent has made no efforts at restitution.

Count IV — Thomas Matter

In September 1992, Geraldine Thomas retained respondent for $625 to represent her in divorce proceedings. Although respondent drafted the divorce pleadings, she neglected to have Mrs. Thomas’ husband served. Four years after Mrs. Thomas retained respondent, respondent had not performed the work for which she had been retained, nor did she return the unearned fee to Mrs. Thomas.

In June 1996, Mrs. Thomas filed a complaint with the ODC. Respondent replied to the complaint, denying any misconduct on her part and claiming she had earned the entire fee.

DISCIPLINARY PROCEEDINGS

Formal Charges

After investigation, the ODC filed four counts of formal charges against respondent alleging numerous violations of the Rules of Professional Conduct. With respect to the Blakes matter, the ODC alleged respondent’s misconduct violates Rules 1.1 (incompetence), 1.3 (lack of diligence) and 1.4 (failure to communicate). In the Square matter, the ODC alleged respondent’s actions violate Rules 1.3, 1.4, 1.15(b) |s(failure to promptly deliver funds or property owed to a client or third party and failure to render a full accounting upon request) and 1.16(d) (failure to protect client interests upon termination of representation). As to the Moore matter, the ODC alleged respondent’s misconduct violates Rules 1.3, 1.4, 1.15(a) (failure to keep client and third party funds separate from the lawyer’s own property), 1.15(b) and 1.16(d). Finally, in the Thomas matter, the ODC alleged respondent’s misconduct violates Rules 1.3, 1.4 and 1.5(f)(6) (failure to account for or refund unearned fee, and/or place disputed funds in trust).

Respondent filed two answers to the formal charges, essentially denying misconduct on her part. Specifically, she alleged she earned most, if not all, of the fees in each client matter.

Formal Hearing

Prior to the formal hearing, the parties entered into a joint stipulation of facts providing, among other things, the client matters were not completed and fees not returned. Additionally, the stipulation provided that: “At all times during her representation of the complainants in these matters ... respondent was well aware that she was suffering from emotional disabilities such that she was incapable of practicing law alone.”

The complainants and respondent’s former secretary testified on behalf of the ODC. Respondent testified on her own behalf, essentially reasserting the defenses she raised in response to the charges. Additionally, she denied the existence of an attorney-client relationship with Mr. Blakes subject of Count I.

| ^Recommendation of the Hearing Committee

The hearing committee found clear and convincing evidence of professional misconduct. It determined respondent’s actions harmed her clients’ interests. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the committee recognized the baseline sanction is suspension. In aggravation, it recognized respondent’s prior disciplinary record, pattern of misconduct, multiple offenses, and little, if any, restitution. Considering these factors, the committee recommended respondent be suspended for a period of one year and one day, subject to a two-year period of probation, with conditions to reinstatement.

Recommendation of the Disciplinary Board

The disciplinary board adopted the committee’s factual findings and concluded respondent knowingly violated duties owed to her clients. In addition to the aggravating factors cited by the committee, the board recognized respondent’s refusal to acknowledge the wrongful nature of her misconduct and the vulnerability of the victims. As a mitigating factor, the board identified respondent’s personal and emotional problems.

Based on its consideration of the record, the board recommended that respondent be suspended from the practice of law for one year and one day, followed by a two-year period of supervised probation upon reinstatement. It also proposed that respondent be required to render a full accounting to her clients and refund all unearned fees.

|7Respondent filed an objection to the board’s recommendation. Accordingly, the matter was docketed for briefing and argument in accordance with Supreme Court Rule XIX, § 11(G).

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343, 348; Louisiana, State Bar Ass’n v. Boutall, 597 So.2d 444, 445 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

Respondent’s arguments are primarily factual in nature. She contends the committee erred in finding she neglected her clients’ matters. Additionally, she disputes the existence of an attorney-client relationship in the Blakes matter.

The committee’s determination that respondent violated the professional rules as charged turned in large measure on the credibility determinations the committee made after hearing respondent and the complainants testify. In disciplinary matters where credibility determinations are central to the determination of misconduct, we have rarely rejected the factual findings of the committee, observing that the committee “acts as eyes and ears of this court and is in a superior position to observe the nuances of demeanor evidence not revealed in a record.” In re: Bolton, 02-0257 (La.6/21/02), 820 So.2d 548, 553.

|sIn the instant case, the committee was presented with two competing versions of the facts. Respondent is unable to demonstrate that the hearing committee was clearly wrong in accepting the testimony of the complainants over her own testimony. See Stobart v. State of Louisiana, through Dept. of Trans. and Dev., 617 So.2d 880, 883 (La.1993) (“... [W]here two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.”). Accordingly, we accept the committee’s findings that respondent abandoned her clients’ legal matters, failed to communicate with her clients, failed to account for and refund unearned fees, and made no efforts at restitution.

Having found evidence of professional misconduct, the next issue presented for our consideration is the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent’s misconduct is serious in nature. Because of her neglect of Mr. Blakes’ case, no suit was filed on his behalf within the prescriptive period. Her neglect of the Square and Thomas matters caused these matters to be delayed for a period of several years. Her neglect of the Moore matter is particularly egregious, as Mr. Moore died without knowing the resolution of the custody case. Her failure to refund unearned fees to her clients, all of whom were in necessitous financial circumstances, | ¡¡caused them actual harm by depriving them of their funds for an extended period of time.

The baseline sanction for similar misconduct is generally a suspension from the practice of law for a period of one year and one day. See In re: Dooley, 02-2152 (La.2/14/03), 841So.2d 745 (one-year and one day suspension imposed stemming from neglect of a legal matter, failure to communicate with a client upon abandonment of law practice, as well as failure to cooperate with the ODC); In re: Vaughan, 00-1892 (La.10/27/00), 772 So.2d 87 (one-year and one day suspension imposed stemming from neglect of a legal matter, failure to communicate with the client, failure to account for his fee, failure to take any efforts to resolve a fee dispute with his client, and abandonment of law practice); In re: Bivins, 98-2513 (La.12/11/98), 724 So.2d 198 (one-year and one day suspension with probation imposed for three counts of misconduct arising from neglect of two client matters and abandonment of law practice); In re: Kendrick, 98-0623 (La.4/3/98), 710 So.2d 236 (one-year and one day suspension stemming from neglect of legal matter, failure to return fee, failure to communicate, and subsequent abandonment of his practice).

While we accept the mitigating factor of respondent’s personal and emotional problems during the time of the misconduct, this mitigating factor is offset by the large number of aggravating factors, including a pattern of misconduct, multiple offenses, prior disciplinary record, vulnerable victims and failure to make restitution. Under these circumstances, .we see no basis to deviate from the baseline suspension. Accordingly, we will suspend respondent from the practice of law for a period of one year and one day.

hnDECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Gilda R. Small, Louisiana Bar Roll number 2114, is suspended from the practice of law for a period of one year and one day. It is further ordered respondent render ac-countings to her clients and refund any unearned fees. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . The employment contract was not placed into evidence.

      . For reasons which are not clear from the record, respondent listed Mr. Adebamiji as counsel of record for Mr. Blakes and signed his name on the petition. It does not appear Mr. Adebamiji was aware of this pleading. According to respondent, she had blanket authority from Mr. Adebamiji to sign his name to pleadings.

      . Initially, respondent failed to cooperate in the ODC’s investigation of Mr. Blakes' complaint. In 1995, the disciplinary board issued an admonition to respondent based on her failure to cooperate.

      .The formal charges allege Ms. Square paid respondent $175. Presumably, this is a typographical error, as the undisputed evidence in the record demonstrates Ms. Square paid respondent a $510 flat fee and $65 in court costs, for a total of $575.

      . Originally, there were six counts of formal charges filed against respondent; however, two of these counts were later withdrawn by the ODC.

      . Respondent has been admonished on four occasions by the disciplinary board. Three of these arose from her failure to cooperate with the ODC and one arose from her failure to return client property. Additionally, respondent has been declared ineligible to practice law on several occasions based on her failure to pay bar dues or comply with her mandatory continuing legal education requirements.

      . However, the board observed there was insufficient evidence in the record to determine whether respondent suffered from a mental disability.

      . The hearing committee also recommended that respondent’s reinstatement be conditioned upon a mental health evaluation to determine if she is emotionally competent to resume the practice of law. Although such a condition may be beneficial, we decline to impose it at this time. Conditions of reinstatement, along with any other relevant factors, may be addressed if and when respondent applies for reinstatement. See Supreme Court Rule XIX, § 24(E); In re: Harris, 99-1828 (La.9/17/99), 745 So.2d 1172.


author: hPER CURIAM.

text:
    In re J. Blake DESHOTELS.
    No. 2003-B-2060.
    Supreme Court of Louisiana.
    Dec. 12, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

hPER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, John Blake Deshotels, who is currently on interim suspension for threat of harm to the public. In re: Deshotels, 01-3219 (La.12/12/01), 803 So.2d 967.

FORMAL CHARGES

The formal charges, which were filed on January 7, 2002, consist of seventeen counts of misconduct, as follows:

Count I — The Marcantel & Pierce Matters

Respondent was retained to represent Steve Marcantel and James Pierce in connection with criminal matters. In the Marcantel matter, respondent was ordered to file an appellate brief, but he failed to do so. Subsequently, the Third Circuit Court of Appeal ordered respondent to show cause why he should not be held in contempt of court for failure to comply with an order of the court. Similarly, respondent failed to file a brief in the Pierce matter, and once again, the Third Circuit ordered respondent to show cause why he should not be held in contempt of court. Following a hearing on October 7, 1999, the Third Circuit found respondent in contempt of court with Qrespect to both cases, and imposed a $500 fine, a 60-day jail sentence, suspended, and a two-year period of unsupervised probation.

The ODC alleges that respondent’s conduct constitutes a violation of the following provisions of the Louisiana Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in the representation of a client), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

Count II — The Godeaux Matter

Kay Godeaux retained respondent to represent her son in a personal injury matter. Respondent settled the claim without consulting his client, and thereafter he failed to provide his client with an accounting of the settlement funds. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Godeaux.

The ODC alleges that respondent’s conduct constitutes a violation of the following provisions of the Rules of Professional Conduct: Rules 1.4 (failure to communicate with a client), 1.15 (safekeeping property of clients or third persons), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(g) (failure to cooperate with the ODC in its investigation).

Count III — The Pete Matter

Linda Pete retained respondent to represent her daughter in a personal injury matter. Respondent failed to communicate with Ms. Pete during the course of the ^representation, and after he settled the claim, he failed to provide Ms. Pete with an accounting of the settlement funds. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Pete.

The ODC alleges that respondent’s conduct constitutes a violation of the following provisions of the Rules of Professional Conduct: Rules 1.4, 1.15, 8.1(c), 8.4(a), 8.4(c), and 8.4(g).

Count IV — The Pierce Matter

In connection with the representation of James Pierce that is the subject of Count 1, respondent failed to file an appeal on behalf of his client with this court, and refused to refund the unearned fee he was paid. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Pierce.

The ODC alleges that respondent’s conduct constitutes a violation of the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.5 (fee arrangements), 8.1(c), 8.4(a), 8.4(d), and 8.4(g).

Count V — The Cates Matter

Miranda Cates retained respondent to represent her in a personal injury matter. Respondent failed to communicate with Ms. Cates in the course of the representation and failed to file suit on her behalf in a timely fashion. As a result, Ms. Cates’ claim has prescribed. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Cates.

|4The ODC alleges that respondent’s conduct constitutes a violation of the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 8.1(c), 8.4(a), and 8.4(g).

Count VI — The Martin Matter

Quentin Martin retained respondent to represent him in a personal injury matter. Respondent neglected Mr. Martin’s case for a considerable period of time, then settled the personal injury claim and failed to provide Mr. Martin with an accounting of the settlement funds. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Martin.

The ODC alleges that respondent’s conduct constitutes a violation of the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.15, 8.1(e), 8.4(a), 8.4(c), and 8.4(g).

Count VII — The Jacobs Matter

In December 1999, David Jacobs retained respondent to represent him in connection with a Social Security appeal. Respondent failed to communicate with Mr. Jacobs, neglected the matter, and misrepresented the status of the appeal to his client. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Jacobs.

The ODC alleges that respondent’s conduct constitutes a violation of the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 8.1(c), 8.4(a), 8.4(c), and 8.4(g).

| fPount VIII — The Richard Matter

Kevin Dwayne Richard retained respondent to represent him in a personal injury matter. Respondent failed to communicate with Mr. Richard in the course of the representation, then settled the personal injury claim and failed to pay Mr. Richard’s healthcare providers. In addition, the check drawn on respondent’s trust account representing Mr. Richard’s portion of the settlement was returned for insufficient funds. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Richard.

The ODC alleges that respondent’s conduct constitutes a violation of the following provisions of the Rules of Professional Conduct: Rules 1.4, 1.15(a) and (b), 8.1(c), 8.4(a), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c), and 8.4(g).

Count IX — The Seale Matter

In 2000, Mark Seale paid respondent $5,000 to handle various legal matters. Respondent failed to communicate with Mr. Seale and refused to return his files so that Mr. Seale could retain other counsel. Mr. Seale eventually filed suit against respondent in the 15th Judicial District Court seeking the return of his flies. The trial judge, Judge Marilyn Castle, ordered respondent to appear in court on September 10, 2001, but he failed to do so. The matter was reset for November 12, 2001, but again respondent failed to appear. Judge Castle then ordered respondent arrested and held in the Ville Platte jail until he delivered Mr. Seale’s files. Mr. Seale did eventually | r,receive his files, but many of his personal records were missing. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Seale.

The ODC alleges that respondent’s conduct constitutes a violation of the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.15(a), 1.16(d) (termination of the representation), 8.1(c), 8.4(a), 8.4(d), and 8.4(g).

Count X — The Guillory Matter

In February 2001, Mark and Mary Guil-lory paid respondent $1,000 to file an appeal in a child support and visitation matter. Respondent failed to communicate with his clients and failed to file the appeal, leading Mr. and Mrs. Guillory to request the return of the fee they paid. Respondent refused to refund the fee. Thereafter, both respondent and his clients were ordered to show cause why the appeal should not be dismissed for failure to pay court costs. Respondent failed to appear, and because Mr. and Mrs. Guillory could not pay the court costs themselves, the appeal was dismissed. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. and Mrs. Guillory.

The ODC alleges that respondent’s conduct constitutes a violation of the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5, 8.1(c), 8.4(a), 8.4(c), 8.4(d), and 8.4(g).

Count XI — The Paxton Matter

In January 1999, Michael Paxton retained respondent to represent him in a medical malpractice case. In August 1999, respondent told Mr. Paxton that he had filed for a medical review panel, but thereafter, Mr. Paxton was unable to eommuni-cate |7with respondent. Respondent apparently misrepresented the status of the matter to Mr. Paxton, as no evidence exists relating to a medical review panel proceeding on his behalf. Mr. Paxton was unable to obtain his file from respondent and his medical malpractice claim is now prescribed. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Paxton.

The ODC alleges that respondent’s conduct constitutes a violation of the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.16(d), 8.1(c), 8.4(a), 8.4(c), and 8.4(g).

Count XII — The Jerry Chaisson Matter

In 2000, Jerry Chaisson retained respondent to represent him in connection with a false imprisonment claim. Respondent failed to communicate with Mr. Chaisson, neglected the matter, and failed to appear in court for hearings. He also failed to return Mr. Chaisson’s files, and failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Chaisson.

The ODC alleges that respondent’s conduct constitutes a violation of the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.16(d), 8.1(c), 8.4(a), and 8.4(g).

Count XIII — The Allen Chaisson Matter

In July 2000, Allen Chaisson paid respondent $1,500 to handle a succession matter. Respondent failed to communicate with Mr. Chaisson, neglected the matter, and failed to return Mr. Chaisson’s files. Respondent also refused to refund the unearned fee he was paid, and failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Chaisson.

|sThe ODC alleges that respondent’s conduct constitutes a violation of the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5, 1.16(d), 8.1(c), 8.4(a), and 8.4(g).

Count XIV— The Beauboeuf Matter

Misty Beauboeuf retained respondent to represent her in a personal injury matter. Respondent failed to communicate with Ms. Beauboeuf and put her case in jeopardy of being dismissed for his failure to respond to discovery. Respondent was ordered by the trial court to file answers to discovery no later than January 19, 2001, but he failed to obey the court order. Respondent also failed to appear for Ms. Beauboeufs deposition, which was then taken without counsel present. He also failed to return Ms. Beauboeufs files, and failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Beauboeuf.

The ODC alleges that respondent’s conduct constitutes a violation of the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.16(d), 8.1(c), 8.4(a), 8.4(d), and 8.4(g).

Count XV — The Virginia Guillory Matter

In April 2001, Virginia Guillory paid respondent $500 to handle a criminal matter for her son. Respondent failed to communicate with his client, neglected the criminal matter, and refused to refund the unearned fee he was paid. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Guillory.

The ODC alleges that respondent’s conduct constitutes a violation of the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5, 8.1(c), 8.4(a), and 8.4(g).

| yCount XVI — The D.I. Restaurant Matter

Respondent drew a $183 check on his operating account payable to D. I.’s Restaurant. On March 24, 2001, the check was returned for insufficient funds. Respondent refused to make the check good and criminal proceedings were initiated against him for intentionally issuing a worthless check. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by the owner of the restaurant.

The ODC alleges that respondent’s conduct constitutes a violation of the following provisions of the Rules of Professional Conduct: Rules 8.1(c), 8.4(a), 8.4(b), 8.4(c), and 8.4(g).

Count XVII — The Slate Matter

Mack Slate retained respondent to represent him in connection with a civil rights claim. Respondent failed to communicate with his client and failed to return Mr. Slate’s files. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Slate.

The ODC alleges that respondent’s conduct constitutes a violation of the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.16(d), 8.1(c), 8.4(a), and 8.4(g).

DISCIPLINARY PROCEEDINGS

On January 10, 2002, respondent was personally served with the formal charges while incarcerated in the Evangeline Parish jail in Ville Platte. He failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant |10to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions.

Hearing Committee Recommendation

Noting the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3), the hearing committee agreed that respondent violated the Rules of Professional Conduct as charged. The committee found respondent violated duties owed to his clients, the public, the legal system, and the profession. After consideration of the ODC’s submission in response to the deemed admitted order, the committee concluded that respondent has engaged in persistent and widespread violations of the Rules of Professional Conduct, for which the baseline sanction is disbarment. The committee recognized no mitigating factors, but determined the aggravating factors present include respondent’s prior disciplinary record, dishonest or selfish motive, pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, substantial experience in the practice of law (admitted 1986), and indifference to making restitution. Under these circumstances, the committee recommended that respondent be permanently disbarred.

InNeither respondent nor the ODC objected to the hearing committee’s recommendation.

Disciplinary Board Recommendation

The disciplinary board found that respondent’s misconduct was knowing and intentional, and violated duties owed to his clients, the public, the legal system, and the profession. Respondent’s former clients were wrongfully deprived of funds to which they are entitled; for some, legal rights and remedies were unnecessarily delayed or jeopardized. The legal system suffered actual harm by respondent’s failure to comply with court orders and to diligently pursue his clients’ legal matters. The legal system also suffered actual harm by respondent’s failure to cooperate with the disciplinary investigation. An attorney’s failure to cooperate delays the disciplinary process, unnecessarily diverts the limited resources of the disciplinary system, and impairs the system’s ability to operate efficiently. Finally, respondent violated his duty to the public by failing to maintain his personal integrity. The board adopted the aggravating factors identified by the hearing committee, and agreed that the record does not support a finding of any mitigating factors.

Turning to the issue of an appropriate sanction, the board determined that disbarment is appropriate based upon the AJBA’s Standards for Imposing Lawyer Sanctions and the prior jurisprudence of this court dealing with similar misconduct. Nevertheless, because respondent has demonstrated a complete lack of regard for the |12welfare of his clients and his professional obligations, the board recommended that he be permanently disbarred.

Neither respondent nor the ODC filed a timely objection in this court to the recommendation of the disciplinary board.

DISCUSSION

The deemed admitted facts in this case establish that respondent has failed to communicate with his clients, neglected legal matters and allowed matters to prescribe, disobeyed court orders, failed to return clients’ files, failed to protect clients’ files, converted client funds, failed to provide accountings or to refund unearned fees, and failed to cooperate with the ODC in its investigation. Therefore, the sole issue presented for our consideration is the appropriate sanction for respondent’s misconduct.

In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent’s conduct clearly violated duties owed to his clients, the public, the legal system, and the profession. Unquestionably, the baseline sanction for such misconduct is disbarment. Numerous aggravating factors are present, including prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary-proceeding, refusal to acknowledge |1sthe wrongful nature of the conduct, vulnerability of the victims, substantial experience in the practice of law, and indifference to making restitution. We are unable to discern any mitigating factors from the record.

Having found disbarment is the appropriate sanction, the sole remaining issue presented for our consideration is whether respondent’s conduct is so egregious that he should be permanently prohibited from seeking readmission to the practice of law.

In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might warrant permanent disbarment. While these guidelines are not intended to bind this court in its decision-making process, they present useful information concerning the types of conduct we might consider worthy of permanent disbarment. Guideline 1 applies to “repeated or multiple instances of intentional conversion of client funds with substantial harm.”

The record reveals respondent deprived his clients of significant amounts of funds for a lengthy period of time, creating substantial harm. Likewise, respondent’s failure to account for and refund unearned fees paid by his clients resulted in a conversion of those funds to the detriment of his clients. Therefore, we find respondent’s conduct falls within the scope of this guideline.

We do not lightly impose permanent disbarment. Nonetheless, we are firmly convinced that we would be derelict in our constitutional duty to regulate the practice of law if we did not impose that sanction under the instant facts. Respondent’s actions demonstrate he lacks the requisite moral fitness to practice law in this state. | uRespondent has disregarded and ignored his obligation to uphold the high standards of honesty and righteousness that he assumed when he took the oath as a member of the bar of this state. Louisiana State Bar Ass’n v. Haylon, 250 La. 651, 198 So.2d 391, 392 (1967). He has used his law license not to foster the high standards of the profession, but to exploit his clients for his own benefit. This court cannot and will not tolerate such conduct. Respondent’s actions convincingly demonstrate he does not possess the requisite moral fitness to practice law in this state. He must be permanently disbarred.

Accordingly, we will accept the disciplinary board’s recommendation and impose permanent disbarment.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of John Blake Deshotels, Louisiana Bar Roll number 17545, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. Respondent is ordered to make restitution to his victims and to repay to the Louisiana State Bar Association Client Assistance Fund any amounts paid to claimants on his behalf. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . The record reflects that the personal injury claim was settled for approximately $11,000. Ms. Godeaux denied that her son received any of the proceeds of the settlement.

      . The record reflects that the personal injury claim was settled for approximately $20,000. Ms. Pete acknowledged that she received $4,000 from the proceeds of the settlement on her daughter's behalf.

      . The record reflects that Mr. Martin's personal injury claim was settled for approximately $4,500. Mr. Martin denied receiving any of the proceeds of the settlement.

      . The record does not reflect the amount of Mr. Richard's settlement. Mr. Richard acknowledged that he ultimately received approximately $4,000 from the proceeds of the settlement.

      . A hearing was held in respondent's absence on November 12, 2001, during which information was presented to Judge Castle indicating that respondent was storing clients’ files in an open carport area of his home, exposed to the elements and the public.

      . Respondent filed nothing for the hearing committee's consideration.

      . In In re: Deshotels, 98-1349, 98-1350 (La. 10/9/98), 719 So.2d 402, respondent was suspended for six months, with all but sixty days deferred, followed by a two-year period of probation with conditions, for failure to properly terminate his representation of a client and for a pattern of criminal convictions (two DWI convictions and a disturbing the peace conviction).

      . Six months after the hearing committee issued its recommendation, and one month after oral argument was heard in this matter by the disciplinary board, respondent sent a letter to the board and the ODC claiming an inability to respond to the formal charges and requesting that the record of these proceedings be reopened "for the purpose of providing evidence and argument.” However, respondent subsequently refused to reply to the ODC’s correspondence concerning his request. As a result, the disciplinary board denied the relief requested by respondent.

      . In support of its recommendation of discipline, the board relied upon Guidelines 1 (repeated instances of conversion of client funds with substantial harm) and 9 (serious attorney misconduct preceded by suspension or disbarment for prior instances of serious attorney misconduct) of the permanent disbarment guidelines. However, respondent's 1998 suspension does not constitute "serious attorney misconduct." That term is defined in the permanent disbarment guidelines as "any misconduct which results in a suspension of more than one year." In his prior disciplinary matter, respondent was suspended for six months, with all but sixty days deferred. Accordingly, Guideline 9 is inapplicable in this case.


text:
    In re Stanley R. AARON.
    No. 2003-B-3538.
    Supreme Court of Louisiana.
    Jan. 7, 2004.
   ORDER

Considering the Joint Petition for Interim Suspension filed by respondent, Stanley R. Aaron, and the Office of Disciplinary Counsel,

IT IS ORDERED that Stanley R. Aaron, Louisiana Bar Roll number 2265, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

/s/ Pascal F. Calogero, Jr. Chief Justice, Supreme Court of Louisiana


text:
    In re Robert R. PEEBLES, Jr.
    No. 2003-OB-3505.
    Supreme Court of Louisiana.
    Jan. 7, 2004.
   ORDER

Considering the Joint Petition for Transfer to Disability Inactive Status filed by respondent, Robert R. Peebles, Jr., and the Office of Disciplinary Counsel,

IT IS ORDERED that Robert R. Pee-bles, Jr., Louisiana Bar Roll number 20319, be and he hereby is transferred to disability inactive status pending further orders of this court. All disciplinary proceedings in this matter shall be deferred until such time as respondent resumes active status.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

/s/ Jeffrey P. Victory Justice, Supreme Court of Louisiana


text:
    In re Jack W. CUDWORTH.
    No. 2003-OB-3528.
    Supreme Court of Louisiana.
    Jan. 7, 2004.
   ORDER

Considering the Application for Admission to the State Bar of Louisiana filed by petitioner, Jack W. Cudworth,

IT IS ORDERED that petitioner be and he hereby is granted admission to the practice of law in Louisiana.

/s/ John L. Weimer Justice, Supreme Court of Louisiana


text:
    In re Harold D. LUCIUS, Jr.
    No. 2003-B-2500.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

In this matter, both respondent, Harold Dean Lucius, Jr., and the Office of Disciplinary Counsel (“ODC”) seek review of a ruling of the disciplinary board ordering that respondent be publicly reprimanded.

Having reviewed the record and the briefs of the parties, we find the disciplinary board correctly dismissed Count I of the formal charges.

With respect to Count II, the hearing committee and the disciplinary board made a factual finding that the fee respondent collected was reasonable under the circumstances. This finding is supported by the record. However, having made such a factual determination, the board erred in concluding that respondent violated Rule 1.5(f)(6) in failing to place the disputed portion of the fee into his trust account. As the dissenting members of the board pointed out, the rule requires putting in trust only “an amount which represents the portion of the fee which is reasonably in dispute.” If respondent earned the entire fee, then it follows that no amount of that fee could reasonably have been in dispute. Based on this reasoning, we reject the board’s determination that respondent violated Rule 1.5(f)(6) and dismiss the formal charges against respondent.

Accordingly, it is the judgment of this court that the formal charges against respondent be dismissed.


text:
    In re John R. SISK.
    No. 2003-OB-3258.
    Supreme Court of Louisiana.
    Jan. 13, 2004.
   ORDER

Considering the Petition for Resignation from the Practice of Law filed by respondent, John R. Sisk,

IT IS ORDERED that the request of John R. Sisk, Louisiana Bar Roll number 21881, for resignation from the practice of law be and is hereby granted, pursuant to Supreme Court Rule XVIII, § 5.

/s/ Jeannette Theriot Knoll Justice, Supreme Court of Louisiana


text:
    In re Leonard William CROOKS.
    No. 2003-OB-2737.
    Supreme Court of Louisiana.
    Jan. 14, 2004.
   ORDER

Considering the Joint Petition for Transfer to Disability Inactive Status filed by respondent, Leonard William Crooks, and the Office of Disciplinary Counsel, and the findings and recommendation of the hearing committee,

IT IS ORDERED that Leonard William Crooks, Louisiana Bar Roll number 8384, be and he hereby is transferred to disability inactive status, pursuant to Supreme Court Rule XIX, § 22(C).

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

/s/ Pascal F. Calogero, Jr. Chief Justice, Supreme Court of Louisiana


text:
    William ALCORN and Albert Burns v. CITY OF BATON ROUGE, through the BATON ROUGE POLICE DEPARTMENT.
    No. 2003-C-2682.
    Supreme Court of Louisiana.
    Jan. 16, 2004.
   hPER CURIAM.

In a writ application, the City of Baton Rouge, through the Baton Rouge Police Department (City) urges the court of appeal erred in failing to address the issue of whether plaintiffs’ claims of racial discrimination and race-based harassment that allegedly occurred during their employment as police officers are prescribed. We agree with the City that the prescription issue should be resolved and consequently remand.

In one motion for summary judgment filed by the City in May 1999, the City urged that all claims of former police officers, William Alcorn and Albert Burns, were prescribed. The City filed a memorandum along with the motion, thoroughly briefing the issues of prescription under the applicable federal statutes and state statutory provisions regarding prescription. Additionally, the City urged the plaintiffs’ race-discrimination/harassment claims could not satisfy the federal definition of “adverse employment action” and/or “decision.”

The trial court sustained the prescription defense in connection with plaintiffs’ age-discrimination claim, but dismissed plaintiffs’ race-discrimination/harassment claims on other grounds, apparently agreeing with the City that the requirements of race discrimination in the workplace under federal law were not met. The trial court did not address or rule on the prescription issue as it related to the race-discrimination/harassment claims.

| j>PIaintiffs appealed the summary judgment. In Alcorn v. City of Baton Rouge c/w Burns v. City of Baton Rouge, 99-2464, 99-2465 (La.App. 1 Cir. 11/3/00)(unpublished opinion), the first circuit affirmed the dismissal of the age-discrimination claims on the basis of prescription. However, finding material issues of disputed facts, the first circuit held summary judgment in favor of either side on the race-discrimination/harassment allegations was inappropriate. The first circuit reversed the summary judgment on the race-discrimination/harassment claims and remanded “to the trial court for further proceedings consistent with this opinion.” Id. The appellate court did not address or rule on the prescription issue as it related to the race-discrimination/harassment claims.

After remand, the matter went to a jury trial on the merits. The jury returned a verdict in favor of plaintiffs. The trial court rendered judgment in accordance with that verdict, awarding each former police officer a total of $500,000 for race-based discrimination/harassment. The judgment contained no ruling on the prescription issue as it related to the race-discrimination/harassment claims.

The City appealed. In Alcorn v. City of Baton Rouge, 02-0952, 02-0953, p. 3 (La. App. 1 Cir. 6/27/03), 851 So.2d 1194, 1199, the first circuit acknowledged the City was asserting on appeal that plaintiffs’ claims of race discrimination/harassment were prescribed. However, the first circuit noted the City had not filed an exception of prescription in either the trial court or the appellate court. The first circuit held “[t]he unsuccessful assertion that the claims of racial discrimination, harassment and retaliation were untimely as grounds for seeking a summary judgment prior to the trial on the merits does not provide a procedural vehicle for appellate review of the issue of prescription on the entire record, an issue not considered by the trial court.” Alcorn, 02-0952, 02-0953 at 3-4, 851 So.2d at 1200. The first circuit further found |3that the City’s assigning as error on appeal that the actions have prescribed was insufficient to raise the issue, which must be presented in a formal pleading. In its second opinion, the first circuit did not reach the issue of prescription.

We agree with the City that the first circuit’s failure to recognize the motion for summary judgment as a proper pleading of the issue of prescription looks to the title of the pleading rather than the substance. The holding is contrary to Katz v. Katz, 412 So.2d 1291, 1293 (La.1982), and Cook v. Matherne, 432 So.2d 1039, 1041 (La.App. 1 Cir.1983) (Pleadings should be interpreted according to their true meaning and effect in order to do substantial justice, rather than interpreted according to their caption.). Indeed, in Cobb v. Coleman Oldsmobile, Inc., 346 So.2d 831 (La. App. 1 Cir.), writ denied, 349 So.2d 1269 (La.1977), the first circuit grappled with the problem of prescription being urged in a motion for summary judgment. The motion stated all of the essential allegations for an exception of prescription, and the relief sought was dismissal of the suit on that basis; the first circuit held the motion should be characterized and considered as a peremptory exception of prescription. The first circuit had previously approved the use of the motion for summary judgment as a proper vehicle for raising the issue of prescription. Lasseigne v. Earl K. Long Hospital, 316 So.2d 761 (La.App. 1 Cir.1975). See also, Scott v. Butler Brothers Furniture Company of Baker, Inc., 315 So.2d 809, 810 (La.App. 1 Cir.1975), citing with approval Duhon v. Boustany, 239 So.2d 180, 181 (La.App. 3 Cir.1970), which allowed a motion for summary judgment to be a plea of prescription.

Further, in 1997, the legislature amended LSA-C.C.P. art. 966(E) to provide that a summary judgment may be rendered dispositive of “a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case.” Pri- or to that |4amendment, the statutory provision permitted summary judgment to be “rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.” Professor William E. Crawford has noted the 1997 amendment “greatly expanded” the scope of matters subject to summary judgment. LOUISIANA CODE OF CIVIL PROCEDURE 2004 EDITION, art. 966, Editor’s Note at 81 (William E. Crawford ed., 2004).

Thus, the first circuit erred in failing to determine the merits of the City’s defense of prescription. We remand this matter to the court of appeal to make this determination, pretermitting at this time consideration of all other issues urged by the City in its writ application.

JUDGMENTS VACATED; CASE REMANDED TO THE COURT OF APPEAL.