author: WEIMER, Justice |,VICTORY, J., TRAYLOR, Justice,

text:
    Ronald Joseph AUTHEMENT v. SHAPPERT ENGINEERING and St. Paul Fire & Marine Insurance Company.
    No. 2002-C-1631.
    Supreme Court of Louisiana.
    Feb. 25, 2003.
    Rehearing Denied April 25, 2003.

      Michael J. Samanie, Houma, Stephen S. Stiplecovieh, for Applicant.
    Frank R. Whiteley, III, Metairie, for Respondent.
   WEIMER, Justice

This matter comes before the court on the issue of whether the failure of a workers’ compensation carrier to authorize prepayment requested by a doctor prior to examination of a workers’ compensation claimant is a failure to provide payment of medical benefits such that penalties are triggered. See LSA-R.S. 23:1201(E) & (F) and 23:1203(A). Additionally we are called upon to resolve a split in the circuits regarding whether a failure to authorize a medical procedure for an employee otherwise eligible to receive workers’ compensation benefits is deemed to be a failure to provide compensation benefits such that penalties can be imposed. Based on the facts and circumstances of this case, we reverse the court of appeal and reinstate the decision of the worker’s compensation hearing officer in favor of the employee imposing penalties and attorney fees.

FACTS AND PROCEDURAL BACKGROUND

In May of 1997, the claimant sustained a work related injury to his right ankle following which he was treated by multiple health care providers. He underwent two | gsurgical procedures and participated in physical therapy. During December 1999, the claimant filed a disputed claim for compensation alleging that St. Paul Fire & Marine Insurance Co. (St.Paul), the employer’s workers’ compensation carrier, refused to authorize certain testing and treatment as recommended by the treating physician. In the petition, he sought penalties, attorney fees and litigation expenses. The defendants answered denying that any benefits were due.

The record reflects that during November 1999, Dr. James Laskey, a podiatrist, recommended treatment by an orthopedist. The claimant chose Dr. Christopher Cenac as his treating orthopedist and was seen by him for the first time on January 5, 2000. On that date, Dr. Cenac recommended that a functional capacity evaluation be completed and following that evaluation, recommended that Mr. Authement see a foot and ankle specialist such as Dr. Robert Dehne at the LSU Medical School.

As early as January 25, 2000, plaintiffs counsel communicated with St. Paul asserting a formal demand to make appropriate financial arrangements for Mr. Authement to be examined by Dr. Dehne as soon as possible.

By letter dated February 11, 2000, St. Paul authorized the functional capacity evaluation recommended by Dr. Cenac on January 5. By letter dated February 15, 2000, Dr. Cenac informed St. Paul that the functional capacity evaluation was scheduled for March 1, 2000. In that letter Dr. Cenac wrote, “Please communicate with my office relative to the recommendation for the patient to be seen by Dr. Robert Dehne at LSU Medical School.”

On March 27, 2000, plaintiff amended his disputed claim for compensation seeking evaluation by Dr. Dehne as recommended by Dr. Cenac.

| oOn May 4, 2000, defense counsel wrote to plaintiffs counsel stating that there was no objection to Mr. Authement seeing Dr. Dehne. Mr. Authement was advised to make an appointment and have Dr. Dehne call defense counsel’s office for approval.

The next day, on May 5, 2000, counsel for Mr. Authement wrote to counsel for St. Paul advising that Dr. Dehne required a $750 prepayment. The letter requested that payment be made as soon as possible so that Mr. Authement could be seen by Dr. Dehne. Then again, on June 22, 2000, by letter to counsel for St. Paul, plaintiffs counsel indicated that pursuant to a discussion on June 21, it was his understanding that St. Paul agreed to authorize treatment by Dr. Dehne at LSU. The letter again requested that St. Paul forward ad-vanee payment of $750 directly to the doctor.

On July 21, 2000, the day the matter was initially set for trial, counsel for defendant provided plaintiffs counsel with a report from Dr. Cenac dated March 20, 2000. The report recommended that Mr. Authement see a surgical podiatrist such as Dr. Robert Dehne or alternatively, Dr. Way-brun Hebert. This report indicates that as early as March 20, 2000, the insurer was given the choice of two specialists recommended by Dr. Cenac. However, the claimant had not been previously provided with the name of the alternate specialist. Meanwhile, he was unable to see Dr. Dehne, because Dr. Dehne required a $750 prepaid deposit prior to the examination and the employer/insurer would not provide the prepayment.

On July 24, 2000, defense counsel finally wrote to claimant’s counsel that the surgical podiatrist chosen by claimant, Dr. Dehne, refused to treat the patient within the payment structure set in the workers’ compensation reimbursement schedule. A suggestion was made that claimant could choose Dr. Hebert, an alternate surgical podiatrist, as his treating physician.

| immediately, Mr. Authement made an appointment with Dr. Hebert who first treated him on July 26, 2000, and continued to treat him through November 2000.

The parties proceeded to a trial on the merits on February 12, 2001. The issue before the court was whether the insurer was arbitrary and capricious and thus liable for attorney fees and penalties for its failure to comply with Dr. Cenac’s reeom-mendation of January 5, 2000, that Mr. Authement be seen by a specialist such as Dr. Robert Dehne.

The morning of the trial, the parties agreed to submit the matter on briefs. They also agreed that the letters exchanged between counsel and the doctors’ reports would be attached to the briefs and submitted as evidence.

On February 23, 2001, the court rendered judgment in favor of Mr. Authement and against Shappert Engineering finding the employer’s actions were “arbitrary, capricious and without probable cause in failing to authorize medical treatment in this matter.” The court awarded penalties in the amount of $2,000 and attorney fees in the amount of $7,000. Defendants perfected a suspensive appeal.

The court of appeal, relying on a prior holding of the First Circuit, determined that failure to authorize treatment does not equate to failure to provide payment. The court held that the workers’ compensation hearing officer erred in finding that the employer’s action resulted in liability for penalties and attorney fees. The court of appeal disagreed with claimant’s argument that penalties and attorney fees applied at least from the time the employer authorized treatment, but refused to prepay Dr. Dehne’s fee. The court held the employer is statutorily obligated to reimburse the | ^claimant for necessary medical treatment, but is not required to prepay medical expenses.

Additionally, the court examined the provisions of LSA-R.S. 23:1142 which provides for attorney fees if the employer arbitrarily and capriciously denies consent to incur more than $750 for any non-emergency diagnostic testing or treatment and found that the statute does not provide for the imposition of a penalty. Since there was no proof that treatment would exceed $750, the court found this statute did not apply. Authement v. Shappert Engineering, 2001-0934 (La.App. 1 Cir. 5/10/02), 818 So.2d 928.

We granted a writ to consider the split in the circuits.

DISCUSSION

In this matter, the appellate court reasoned that “a ‘failure to authorize medical treatment’ does not equate to a ‘failure to provide payment’ as set forth in La. R.S. 23:1201(F)” and, thus, does not result in liability for penalties and attorney fees. Authement, 2001-0934 at 4-5, 818 So.2d at 931. The court concluded that the workers’ compensation hearing officer erred in reasoning that the failure to authorize medical treatment in this matter resulted in liability for penalties and attorney fees and reversed the judgment of the workers’ compensation hearing officer. Additionally, relying on Howard v. Our Lady of the Lake Regional Medical Center, 99-1826 (La.App. 1 Cir. 9/22/00), 768 So.2d 293, 297-298, the court found the obligation of the employer or insurer is that of reimbursement. Pursuant to Howard, the court found that the employer was not required to prepay a medical expense.

| «Review of the jurisprudence indicates all other circuits recognize that the failure to authorize a medical procedure for an employee eligible to receive workers’ compensation is deemed to be the failure to furnish compensation benefits warranting penalties and attorney fees under LSA-R.S. 23:1201.

In Sims v. Sun Chemical Corporation, 34,947 (La.App. 2 Cir 8/22/01), 795 So.2d 439, 441, the Second Circuit found that defendants’ refusal to authorize the initial surgical procedure was a violation of its duty to provide medical care pursuant to LSA-R.S. 23:1203(A). Relying on Howard, supra, appellants argued that the obligation to furnish medical treatment was limited to reimbursement, therefore, only the failure to provide payment would subject the employer to penalties and attorney fees. However, the Second Circuit, citing previous opinions of that court, held that absent a finding that the claim was reasonably controverted, an employer’s failure to authorize a medical procedure for an employee eligible to receive workers’ compensation is deemed to be the failure to furnish compensation warranting penalties and attorney fees.

In Savoy v. Double Diamond Casino, 2002-25 (La.App. 3 Cir. 5/8/02), 816 So.2d 973, the Third Circuit affirmed the award for penalties for failure to authorize an MRI recommended by plaintiffs treating physician. The MRI had been requested in May 2000 and remained denied at the time of the appeal. The appellate court, citing the provisions of LSA-R.S. 23:1201(F), increased the award for penalties from $1,000 to $2,000 and increased the award for attorney fees from $2,000 to $4,000 to cover the appeal.

17Similarly, in Gross v. Maison Blanche, Inc., 98-2341 (La.App. 4 Cir. 4/21/99), 732 So.2d 147, the Fourth Circuit upheld an award for penalties and attorney fees for the refusal to authorize medical treatment which was reasonable and necessary.

In Adams v. Bayou Steel Corporation, 01-1392 (La.App. 5 Cir. 4/10/02), 813 So.2d 1285, the Fifth Circuit held that the employer’s failure to authorize a medical procedure for a claimant otherwise eligible to receive workers’ compensation is deemed to be the failure to furnish compensation benefits triggering the penalty provisions.

In this matter, the carrier eventually authorized Mr. Authement to see Dr. Dehne. However, the authorization was not made until May 4, 2000, despite the initial recommendation by Dr. Cenac on January 5, 2000, and requests in the interim that Mr. Authement see Dr. Dehne. Thus, four months lapsed between the initial recommendation of Dr. Cenac and the eventual authorization. Nothing in the record establishes a justification for this delay in authorization. Further, there was an alternative recommendation by Dr. Ce-nac that Dr. Hebert was available to treat Mr. Authement. This alternative recommendation was not shared with Mr. Authement until July 24, 2000. Meanwhile, Mr. Authement went without treatment by a recommended specialist for over seven months.

While the workers’ compensation statute does not address a failure to authorize medical treatment as such, we find the position taken by the Second, Third, Fourth, and Fifth circuits more reflective of the benevolent goals of the workers’ compensation law to ensure prompt medical attention to injured workers.

1 ¡Additionally, we note that the title of a statute may be instructive in determining legislative intent. Green v. Louisiana Underwriters Insurance Company, 571 So.2d 610 (La.1990). The title to LSA-R.S. 23:1201 now states: “Time and place of payment; failure to pay timely; failure to authorize; penalties and attorney fees.” (Emphasis added.)

The legislature amended LSA-R.S. 23:1201 by 1995 La. Acts No. 1137, § 1, effective June 29, 1995. “Failure to pay timely” and “failure to authorize” as well as “attorney fees” were added to the title as part of the amendment. Subsection E providing a time frame for payment of medical benefits was also added. Although the language of the statute itself is not instructive regarding the consequences of a failure to authorize medical treatment, with the addition of “failure to authorize” in the title, the legislature apparently contemplated that a failure to authorize medical treatment would be a consideration in determining whether to subject the payor to penalties. Louisiana Revised Statute 23:1201(F)(2) states, in part, that the penalty and attorney fee provisions “shall not apply if the claim is reasonably controverted.” Based on this language, a penalty and attorney fee can be imposed for the failure to authorize treatment except where “the claim is reasonably controverted.”

One purpose of the workers’ compensation statute is to promptly provide compensation and medical benefits to an employee who suffers injury within the course and scope of employment. The employer is obligated to “furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal.” LSA-R.S. 23:1203(A). Thus, we conclude that a failure to authorize treatment can result in the imposition of penalties and attorney fees except when the claim is reasonably controverted. Depending on the circumstances, a failure to authorize treatment is effectively a failure to furnish treatment.

IflA related issue in this matter concerns the compensation carrier’s failure to authorize prepayment for medical services. Medical benefits shall be paid within 60 days after the employer or insurer receives written notice thereof. LSA-R.S. 23:1201(E). There is no requirement in LSA-R.S. 23:1201(E) that the services be rendered before payment. Although prepayment may not be the usual method of payment for services, it is not prohibited. Under LSA-R.S. 23:1142(B)(1) a health care provider may not incur more than $750 in non-emergency diagnostic testing or treatment without the consent of the entity responsible for paying the medical expense and the employee. Dr. Dehne’s request was for $750.

Based on the facts of this case, there were no restrictions imposed on the authorization for Mr. Authement to see Dr. Dehne. Nothing in the authorization sent by the attorney for the workers’ compensation carrier indicated any limitation related to reimbursement or that Dr. Dehne would require prepayment or that the claimant would advance the funds. After the employer unconditionally authorized examination by Dr. Dehne, the refusal to prepay the charge was a “failure to provide payment.” LSA-R.S. 23:1201(F).

On the day following notification that the request to see Dr. Dehne was authorized, plaintiffs counsel sent a letter to defense counsel indicating that Dr. Dehne requested prepayment of $750 prior to examination. It is critical to note that from May 4 to July 24, nothing was done by the insurance carrier to facilitate examination of Mr. Authement by Dr. Dehne. Significantly, the insurer never informed claimant that he could not be treated by Dr. Dehne because the doctor required prepayment and/or was unwilling to treat him within the reimbursement |inschedule set by the workers’ compensation statute. Eighty days passed before the insurer notified Mr. Authement that he could not see Dr. Dehne. Revised Statute 23:1201(E) requires that medical benefits be paid within 60 days after written notice.

The defendants, citing Howard, supra, contend that LSA-R.S. 23:1201(F), when read in conjunction with LSA-R.S. 23:1203(B), only obligates the employer or insurer to reimburse a claimant for necessary medical treatment and there is no obligation to prepay a medical expense. Although LSA-R.S. 23:1203(B) mentions “reimbursement,” it is clear from the context that this is not a reference to an obligation to prepay or reimburse a claimant’s medical expenses. Rather, this provision states that the obligation of an employer to pay medical expenses is limited to the lesser of an amount determined under the reimbursement schedule published annually pursuant to LSA-R. S. 23:1034.2 or the actual charge. Thus, “reimbursement” in the context of LSA-R.S. 23:1203(B) references a limitation on the amount the employer must pay for medical expenses. Revised Statute 23:1202(B) merely applies the “reimbursement schedule” to the obligation to furnish medical and related expenses. See 13 H. Alston Johnson, III, Louisiana Civil Law TREATISE: WORKERS’ COMPENSATION LAW AND PRACTICE § 287 n. 39 at 721 (4th ed.2002). This provision has no application to the prepayment versus reimbursement of medical expenses issue raised in this matter. Instead of LSA-R.S. 23:1203(B), the applicable provisions are LSA-R.S. 23:1201(E) & (F) and LSA-R.S. 23:1203(A). InNone of these provisions limits the obligation of the employer to pay medical expenses to reimbursement of those expenses.

In sum, the insurer delayed authorization for four months. Thereafter, the insurer authorized the medical treatment, but failed and refused to authorize the payment so that the treatment could be provided. Defendants essentially argue that once treatment was authorized, their responsibility was complete. However, LSA-R.S. 23:1201(E) requires that medical benefits shall be paid within 60 days after notice. Revised Statute 23:1201(F) imposes a penalty for “failure to provide payment.” A failure to provide payment is precisely what occurred in this matter. The workers’ compensation carrier failed to provide payment for over 80 days and failed to respond although the carrier had notice of another doctor who was apparently prepared to see the claimant without the prepayment. Meanwhile, the employee was deprived of treatment for that entire time.

The workers’ compensation scheme was not designed for the worker to pay the costs of his medical treatment. It is the obligation of the employer to pay for the cost of medical services, not the obligation of the employee. The employee should not be denied treatment because a controversy exists as to who will advance costs so that treatment will be rendered.

As stated in Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41, 46, awards of penalties and attorney fees in workers’ compensation cases are essentially penal in nature. The purpose of imposition of penalties and attorney fees is to discourage indifference and undesirable conduct by employers and insurers. The crucial inquiry in determining whether to impose penalties and attorney fees on an employer is whether the employer had an articulable and objective reason to deny benefits at the time it took action. Id.

| i;,The determination of whether an employer or insurer should be cast with penalties and attorney fees in a workers’ compensation action is essentially a question of fact. Factual findings are subject to the manifest error or clearly wrong standard of review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. The record available to the workers’ compensation hearing officer contained sufficient factual information from which to conclude the employer/insurer failed to provide medical treatment as recommended by the claimant’s treating physician. Failure to authorize medial treatment equates to failure to provide benefits in accordance with the provisions of the workers’ compensation law. Failure to prepay the medical expenses under the facts and circumstances of this case was a failure to provide payment, thus triggering the imposition of penalties and attorney fees.

CONCLUSION

For the foregoing reasons, we find the workers’ compensation hearing officer did not abuse his discretion in awarding penalties and attorney fees. We reverse the judgment of the court of appeal and reinstate the judgment of the workers’ compensation hearing officer. Defendants are east with all costs of this proceeding.

REVERSED; WORKERS’ COMPENSATION JUDGMENT REINSTATED.

TRAYLOR, J., dissents in part and assigns reasons.

VICTORY, J., dissents and assigns reasons.

|,VICTORY, J.,

dissenting.

I cannot agree with the majority’s conclusion that an employer’s failure to prepay medical expenses will trigger the penalty provision of La. R.S. 23:1201(F). With respect to the holding on that issue I agree with the sentiments expressed by Justice Traylor in his dissent.

Furthermore, I cannot agree with the majority’s conclusion that penalties and attorney’s fees can be imposed on an employer under La. R.S. 23:1201(F) for an employer’s failure to authorize medical treatment.

The statute as issue, La. R.S. 23:1201(F), states, in pertinent part:

Failure to provide payment in accordance with this section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney’s fees for each disputed claim[.] (emphasis added)

At the very core of legislative interpretation we are guided by Articles 9 and 11 of the Civil Code. Article 9 states, “[w]hen a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” I fail to understand what is unclear and ambiguous about applying a provision which states, “If X does not pay timely, then he will be subject to a penalty.” Also, with | ¡(respect to whether this law will lead to absurd consequences, it must be remembered that it is the application which should not lead to absurd consequences and not the non-application of a law. Notwithstanding this distinction, it is entirely within the province of the legislature to decide in what instances a law should be applied, and it must be presumed that the legislature had . a good reason for only penalizing non-payments as opposed to non-authorizations for medical treatment.

Article 11 states, “[t]he words of law must be given their generally prevailing meaning.” Surely it could not be said with any seriousness that the generally prevailing meaning of “payment” is synonymous with the generally prevailing meaning of “authorize.”

The basis for the majority’s holding that a failure to authorize medical benefits equates to a failure to pay for medical benefits is that in 1995 the words “failure to authorize” were added to the title of La. R.S. 23:1201(F). From this, the majority concludes that the legislature “apparently contemplated” that a failure to authorize medical treatment would trigger the penalty provisions of La. R.S. 23:1201(F). If that is so, why did the legislature, when amending the title and other subsections of La. R.S. 23:1201, not simply add the words “or authorization” after the words “[fjail-ure to provide payment” in subsection F of the statute? The legislature is fully aware that the title to a statute is not the law, and if they had intended to include failures to authorize medical treatment within the ambit of La. R.S. 23:1201 they would have included such in the text of the statute.

The majority opinion not only violates the most basic rules of legislative interpretation, but also completely disregards the well established, judicially created rules which have been specifically tailored to the situation before us. (1) Workers compensation statutes are to be liberally construed; however, when a provision is penal in nature, it must be strictly construed, Williams v. Rush Masonry, Inc., 737 So.2d 41 (La.1999), and (2) in order to determine the object of a statute, the title may be considered, though it cannot be used to enlarge the text. Melancon v. Mizell, 216 La. 711, 44 So.2d 826 (1950) (emphasis added).

As judges, ours is not to create the law, rather it is to apply the law according to the intent of the legislature, a principle recently reiterated by this court. Smith v. Southern Holding, Inc., 839 So.2d 5, (La.2003). We have several rules, some legislative and some judicial, which we are bound to follow in order to adhere to this principle. Unfortunately, the majority has chosen to ignore these rules in reaching its result.

For these reasons, I respectfully dissent.

TRAYLOR, Justice,

dissenting in part.

While I agree with the majority that the plaintiff is entitled to attorney fees and penalties for the employer’s failure to authorize treatment with Dr. Dehne for four months and the failure to authorize a functional capacity evaluation for forty days, I dissent from the portion of the majority’s opinion which determines that an employer’s refusal to prepay medical services is a failure to authorize under La. Rev. 23:1201(E). The statute requires that medical benefits “shall be paid within sixty days after the employer or insurer receives written notice thereof.” Furthermore, under the Workers’ Compensation Act, an employer’s liability for such payments is set out in La.Rev.Stat. 23:1034.2 and is explicitly deemed to be for the “reimbursement” of medical expenses. Both the word “paid” and “reimbursement” set forth in the Act contemplate that services are payable after they have been actually incurred, not that an employer be required to prepay for services to be rendered in the future. Moreover, in my view, the employer authorized the plaintiff to treat with Dr. Dehne — it was the doctor who refused to treat the plaintiff without a prepayment of $750. Dr. Dehne later completely refused to treat plaintiff under the reimbursement schedule set forth in the Act. Accordingly, I dissent from the portion of the opinion which would allow such a prepayment.

      . Prior to that time, claimant had treated with Dr. Gary Guidry, an orthopedist he claims was chosen by the employer.

      . In the letter from Dr. Cenac to St Paul dated January 5, 2000, Dr. Dehne is referred to as Dr. Robert Dana, a specialist in foot and ankle injuries. All subsequent references are to Dr. Dehne, who is apparently the same person.

      . The trial was continued to a later date.

      . See Howard v. Our Lady of the Lake Regional Medical Center, 99-1826 (La.App. 1 Cir. 9/22/00), 768 So.2d 293, 297-298. The court of appeal acknowledged contrary holdings in other circuits, citing Sims v. Sun Chemical Corporation 34,947 (La.App. 2 Cir. 8/22/01), 795 So.2d 439, 441; George v. Guillory, 00-00591 (La.App. 3 Cir. 11/2/00), 776 So.2d 1200, 1208-1209; and Gross v. Maison Blanche, Inc., 98-2341 (La.App. 4 Cir. 4/21/99), 732 So.2d 147, 151. These cases will be discussed infra.

      . Based on our resolution of this matter, we are not called upon to address the provisions of LSA-R.S. 23:1142, which were discussed by the court of appeal. We express no opinion regarding the evaluation of this provision by the court of appeal.

      . Authement v. Shappert Engineering and St. Paul Fire & Marine Ins. Co., 02-1631 (La. 10/25/02), 827 So.2d 1175.

        . See Gay v. Georgia Pacific Corporation, 32,653 (La.App. 2 Cir. 12/22/99), 754 So.2d 1101; Roach v. Eagle Water, Inc., 31,912 (La.App. 2 Cir. 5/5/99), 737 So.2d 182; Fisher v. Lincoln Timber Co., 31,430 (La.App. 2 Cir. 1/24/99), 730 So.2d 973; and Ward v. Phoenix Operating Co., 31,656 (La.App. 2 Cir. 2/24/99), 729 So.2d 109.

      . The record also reflects a delay of forty days between the original recommendation by Dr. Cenac for a functional capacity evaluation of Mr. Authement and the insurer's authorization for that examination.

      . The court of appeal suggests that Mr. Authement was free to pay the $750 required to see Dr. Dehne and then submit a reimbursement claim. This presupposes an injured worker has the financial ability to advance these funds. However, it is not the injured worker's obligation to pay the medical expenses. Rather, it is the employer’s obligation. LSA-R.S. 23:1203(A).

      . LSA-R.S. 23:1203(B) provides:
      The obligation of the employer to furnish such care, services, treatment, drugs, and supplies, whether in state or out of state, is limited to the reimbursement determined to be the mean of the usual and customary charges for such care, services, treatment, drugs, and supplies, as determined under the reimbursement schedule annually published pursuant to R.S. 23:1034.2 or the actual charge made for the service, whichever is less. Any out-of-state provider is also to be subject to the procedures established under the office of workers’ compensation administration utilization review rules.

      . LSA-R.S. 23:1034.2 provides for the establishment and promulgation of a “reimbursement schedule” for medical expenses.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In Re Bernard Joseph BLAIR, II.
    No. 2002-B-2164.
    Supreme Court of Louisiana.
    Feb. 25, 2003.
    Rehearing Denied April 25, 2003.

      Charles B. Plattsmier, Baton Rouge, Eric K. Barefield, New Orleans, for Applicant.
    Ernest L. Jones, New Orleans, for Respondent.
   PER CURIAM.

This disciplinary proceeding arises from one count of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Bernard Joseph Blair, II, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

For over twenty years, respondent’s mother-in-law, Beverly Victorianne, lived next door to Alicemae Casanave, a woman in her eighties. Ms. Victorianne, a retired nurse, became close friends with Ms. Casa-nave and assisted her in her daily needs. In the summer of 1997, Ms. Casanave’s cousin, Mary Ellen Strong, took Ms. Casa-nave from New Orleans to Atlanta for a period of time. During that time, Ms. Casanave purportedly executed a quitclaim deed, dated August 2, 1997, which provided that Ms. Casanave was transferring her home, valued at approximately $100,000, to Ms. Strong for the sum of $10.

When Ms. Casanave returned to New Orleans, her health and mental acuity had declined. She advised Ms. Victorianne and her other friends she had been abducted against her will and feared that Ms. Strong would put her in a nursing facility in order to get her home. Another neighbor contacted Ms. Casanave’s next of kin, Marguerite | ¡..Thompson, Ph.D., a niece who resided in New York, to advise of her aunt’s abduction and her marked change in health.

In early August, 1997, Dr. Thompson arrived in New Orleans. She consulted respondent about protecting Ms. Casa-nave’s legal rights. After meeting with Dr. Thompson, Ms. Casanave and Ms. Vic-torianne, respondent suggested Ms. Casa-nave execute a power of attorney in favor of Dr. Thompson. Respondent had Ms. Casanave and Dr. Thompson each sign an employment contract providing that he would be paid a retainer, in addition to an hourly fee for rendered legal advice and services.

On August 7, 1997, respondent prepared the power of attorney by which Ms. Casa-nave gave Dr. Thompson a power of attorney. Approximately one month later, respondent drafted a new power of attorney making Dr. Thompson and Ms. Victorianne co-mandataries over Ms. Casanave’s affairs. He also prepared interdiction papers in the event Ms. Casanave became incapacitated. Respondent completed the work on September 15, 1997, and was paid $867.50 directly by Ms. Casanave. Dr. Thompson did not pay respondent any fees. Thereafter, Dr. Thompson returned to New York.

Over the course of the following two to three weeks, respondent had numerous discussions with Ms. Casanave regarding the preparation of a will. In these discussions, Ms. Casanave advised respondent that she only wished to leave a portion of her estate to Dr. Thompson and wanted to leave the bulk of the estate to various religious organizations and certain relatives and friends, including respondent’s mother-in-law, Ms. Victorianne, and her two children. Ms. Casanave provided respondent with a one-page document, dated September 30, 1991 (six years earlier), | ..¿written and signed by her which enumerated her bequests. Specifically, the document provided she wanted to leave her home and its contents to Ms. Victorianne and her children. Respondent prepared the will as instructed, which included, among others, testamentary dispositions to Dr. Thompson, and respondent’s mother-in-law, brother-in-law and spouse. The will was executed on October 11, 1997, in the presence of two witnesses.

Almost two years later, in June, 1999, Ms. Casanave passed away. Shortly thereafter, Dr. Thompson learned that Ms. Casanave’s will made disposition to persons other than herself and her daughter. At about the same time, Ms. Strong produced the quitclaim deed that purportedly showed she was the actual owner of Ms. Casanave’s home.

. Thereafter, Dr. Thompson retained attorney George Chaney to challenge the will, on the ground Ms. Casanave lacked testamentary capacity. In connection with this litigation, Dr. Thompson moved to disqualify respondent from representing the succession, primarily on the basis that his testimony would be required to determine the decedent’s capacity. Respondent, on behalf of himself and Ms. Victorianne (the executrix of Ms. Casanave’s succession), filed a reconventional demand against Dr. Thompson and Mr. Chaney.

Around the same time, respondent’s wife, who had retained independent counsel, learned respondent had engaged in a prohibited transaction by drafting a will which provided a testamentary gift to her as his spouse. Accordingly, she renounced her interest in the succession.

|4During the course of the litigation, respondent gave a deposition stating he was retained for the purpose of protecting Ms. Casanave from being abducted again by her cousin. Respondent testified he considered Ms. Casanave to be his only client, and that he had never received legal fees from Dr. Thompson. Respondent maintained that the second power of attorney was drafted because Ms. Casanave wanted his mother-in-law included' in the' revised power of attorney to assist in handling Ms. Casanave’s affairs with Dr. Thompson, who intended to return to New York. Additionally, respondent testified Ms. Casa-nave made it clear she did not wish to leave her entire estate to Dr. Thompson, and that she did not want the terms of her testament disclosed to anyone.

Mr. Chaney, Dr. Thompson’s counsel in the succession litigation, conducted his own investigation into the testamentary capacity of Ms. Casanave. He spoke to several persons, including Marie Langie, who was a longtime friend of the decedent. She advised him that although Ms. Casanave was “fragile” when she returned from Atlanta, her mental state had improved at the time the will was drafted and that she had testamentary capacity. Mr. Chaney also spoke to respondent and, after determining respondent had been unaware of the prohibition on attorneys from making a testamentary gift to an immediate family member in a client’s will, he concluded there was no fraud involved on respondent’s part. Based on his investigation, Mr. Chaney concluded the will should be given effect as written, in the absence of the disposition to respondent’s wife.

Ultimately, other counsel was retained to represent the succession. The parties entered into settlement negotiations, culminating in a consent judgment. Pursuant to this judgment, Ms. Strong received the house in accordance with the quitclaim. Respondent’s wife’s portion was returned to the estate and the remaining legacies were left intact.

^DISCIPLINARY PROCEEDINGS

Formal Charges

Based on a complaint from Dr. Thompson, the ODC commenced an investigation into respondent’s conduct in this matter. Based on this investigation, the ODC filed one count of formal charges against respondent alleging he violated Rules 1.4 (failure to communicate), 1.7(b) (engaging in a conflict of interest) and 1.8(c) (preparing an instrument for a client giving a member of the attorney’s immediate family a testamentary gift) of the Rules of Professional Conduct.

Respondent filed an answer. He admitted he had violated Rule 1.8 when he drafted the will providing for a testamentary disposition in favor of his wife, but maintained any violation was unintentional. He denied that he failed to communicate with his client. He further denied the ODC’s allegations that he engaged in a conflict of interest by representing Ms. Casanave and Dr. Thompson simultaneously. According to respondent, he did not consider Dr. Thompson to be his client in the matter. Moreover, he claimed he had no duty to inform Dr. Thompson of the contents of Ms. Casanave’s will, as Ms. Casanave expressly requested that he keep the existence and the contents of the will confidential.

Formal Hearing

A formal hearing was conducted before the hearing committee. The parties submitted documentary evidence, including the record from the contested succession. In addition, several witnesses testified at the hearing, including Mr. Chaney, Dr. Thompson, Dr. Thompson’s daughter and respondent.

Mr. Chaney testified he believed respondent was unaware of the Rule 1.8(c) prohibition which bars an attorney drafting a will from making a testamentary gift to | fihimself or an immediate family member. Further, he stated respondent took immediate and concerted efforts to cure the problem.

Dr. Thompson testified respondent and Ms. Victorianne used undue influence over Ms. Casanave to gain control over her home and its contents. According to Dr. Thompson, her aunt would never have bequeathed the house to a non-family member.

Respondent denied that he exercised any influence over Ms. Casanave regarding the testamentary dispositions to be made. He asserted he was unaware of the prohibition of making a testamentary gift to his wife when he drafted the will, and contended the issue never concerned him because he and his wife have a separate property regime. Respondent expressed remorse for his unintentional misconduct.

Recommendation of the Hearing Committee

The hearing committee determined the ODC proved by clear and convincing evidence that respondent engaged in a conflict of interest in violation of Rules 1.7(b). The committee rejected respondent’s position that Ms. Casanave was his only client, noting that the undisputed evidence established Dr. Thompson had signed a retainer agreement, the committee found no merit in respondent’s argument that Ms. Casa-nave was his only client. It also determined respondent improperly represented his mother-in-law as executrix and himself in the will contest litigation instituted by his own client, Dr. Thompson.

The committee also found respondent violated Rule 1.8(c), as he admitted to drafting a will making a prohibited legacy to his wife. The committee concluded respondent’s violation was unintentional and negligent, and that he expressed remorse for his actions. However, the committee found respondent’s “willful blindness” of the potential conflicts of interest suggests a heightened potential for risk to the public if unchecked.

17Pespite its finding that respondent represented Dr. Thompson, the committee determined there insufficient evidence to find respondent violated Rule 1.4 by falling to communicate with her. It concluded respondent had no obligation to inform Dr. Thompson that he was drafting a will for Ms. Casanave. In support, it relied on respondent’s uncontradicted testimony that Ms. Casanave urged respondent to not disclose the existence and terms of her will.

Citing Standards 2.7 and 4.32 of the ABA’s Standards for Imposing Lawyer Sanctions, the hearing committee determined the baseline sanction for respondent’s misconduct was suspension with probation. The committee concluded vulnerability of the victim was the only aggravating factor. It recognized in mitigation respondent’s lack of prior disciplinary record, full disclosure and cooperation with the ODC, inexperience in the practice of law (admitted in 1991, approximately six years at the time of the misconduct) and remorse.

Based on its findings, the hearing committee recommended that respondent be suspended from the practice of law for a period of six months, with all but one month deferred. It further proposed respondent be subjected to a practice monitor during his suspension, attend an additional hour of CLE in the area of ethics and professionalism, and attend a course in law practice-management skills.

Recommendation of the Disciplinary Board

The disciplinary board concurred in the findings of the hearing committee relative to the violations of Rules 1.7(b) (engaging in a conflict of interest) and 1.8(c) |s(preparing an instrument for a client giving a member of the attorney’s immediate family a testamentary gift). It also agreed with the committee there was insufficient evidence of a violation of Rule 1.4 (failure to communicate) noting that, because the ODC’s position accepts that both Ms. Ca-sanave and Dr. Thompson were respondent’s clients, respondent was obligated to maintain Ms. Casanave’s client-confidences as instructed and could not have informed Dr. Thompson of the will’s contents.

The board determined respondent negligently violated duties owed to his client, resulting in actual injury in that a lawsuit spanning one year ensued following the filing of the petition to probate Ms. Casa-nave’s will. The board pointed out the suit was largely based upon allegations concerning respondent’s breach of his ethical duties to his clients, which also called into question the validity of the portions of the will.

Like the committee, the board agreed the baseline sanction was a suspension, and adopted the aggravating and mitigating factors cited by the committee. However, the board modified the committee’s proposed sanction, and recommended that in addition to the six month suspension recommended by the committee, respondent be placed on supervised probation for six months and be required to successfully complete the ethics school program offered through the Louisiana State Bar Association (“LSBA”). One board member dissented to the leniency of the proposed sanction.

The ODC filed a timely objection to the board’s recommendation. As a result, the court docketed the matter for briefing and argument in accordance with Supreme Court Rule XIX, § 11(G)(1)(b).

IciDISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. Y, § 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. 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.

The record clearly supports the conclusion that respondent violated Rule 1.8(c) by preparing a will which contained a legacy in favor of his wife. Respondent admitted to violating this rule, although he claims his violation was unintentional.

With regard to the conflict of interest charges, the central finding by the committee was its determination that respondent represented Dr. Thompson. Respondent asserts that it was his intent (and, he believed, the intent of all the parties) that his representation of Dr. Thompson was contingent on Ms. Casa-nave’s interdiction. Because this event never took place, respondent maintains his representation of Dr. Thompson never commenced. However, respondent’s position is contradicted by the retainer agreement between Dr. Thompson and respondent, which places no limitations or conditions on the representation. Under these circumstances, the committee’s factual finding that respondent represented Dr. Thompson is not clearly wrong.

Having represented Ms. Casanave and Dr. Thompson simultaneously, it is obvious that an irreconcilable conflict existed when Ms. Casanave asked respondent to prepare a will that adversely affected Dr. Thompson’s rights. That conflict was exacerbated when respondent represented the executrix of Ms. Casanave’s will in 1 mconnection with Dr. Thompson’s suit challenging the validity of the will. These actions plainly violate Rule 1.7(b).

The ODC asks us to find a violation of Rule 1.4 on the ground that respondent failed to communicate with Dr. Thompson regarding his involvement in the preparation of Ms. Casanave’s will. This we decline to do. Of course, as stated above, respondent should not have placed himself in this position. However, once he did, we cannot fault respondent for respecting Ms. Casanave’s wishes that the existence of and terms of her will not be disclosed to anyone.

Finding respondent engaged in professional misconduct, we now turn to the discussion of an appropriate sanction. The purpose of disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain the appropriate standards of professional conduct, to preserve the integrity of the legal profession and to deter other lawyers from engaging in violations of the standards of the profession. In re: Vaughan, 00-1892 (La.10/27/00), 772 So.2d 87; In re: Lain, 00-0148 (La.5/26/00), 760 So.2d 1152. 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. In re: Redd, 95 1472 (La.9/15/95), 660 So.2d 839.

The appropriate sanction for a violation of the conflict 'of interest provisions of Rule 1.7 has generally been a suspension, all or part of which may be deferred. |1tThis court has not previously had the occasion to confront a violation of Rule 1.8(c), but the baseline sanction would appear to fall within the same general range. As an aggravating factor, we recognize vulnerability of the victim. In mitigation, we find respondent lacks a prior disciplinary record, was relatively inexperienced in the practice of law at the time of the offense and has demonstrated sincere remorse for his actions.

Considering the case as a whole, we conclude respondent’s actions were the result of negligence rather than due to any improper motive. Accordingly, we find a three-month suspension from the practice of law is responsive to the misconduct.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Bernard Joseph Blair, II be suspended from the practice of law in Louisiana for a period of three months. 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 the finality of this court’s judgment until paid.

      . It is unclear from the record whether Ms. Casanave actually executed the deed. There is a suggestion that the deed was forged or that she lacked capacity and/or was under duress when she prepared the quitclaim.

      .Respondent testified at the formal hearing that the first three discussions regarding the preparation of the will took place in the presence of Dr. Thompson during her stay in New Orleans. In contrast, Dr. Thompson alleged she was never present for a conversation where her aunt discussed the desire for or terms of a will. Her testimony also contradicts the testimony of her own daughter, Georgene Thompson.

      . Dr. Thompson had not seen her aunt since visiting New Orleans at the time the power of attorney was drafted.

      . Rule 1.8(c) provides "a lawyer shall not prepare an instrument giving the lawyer-Or person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee.”

      . Standard 2.7 provides probation is a sanction that allows a lawyer to practice law under specified conditions. The provision notes that probation may be imposed alone or in conjunction with a reprimand or admonition, as well as a condition to readmission or reinstatement.
      Standard 4.32 provides suspension is generally appropriate when a lawyer is negligent in determining whether the representation of a client may be materially affected by the lawyer's own interest, or whether the representation will adversely affect another client, and causes injury or potential injury to a client.

      . Under the ODC's theory, respondent is placed in a “catch-22” position: if he were to reveal the information regarding the will to Dr. Thompson, he would violate his duty to Ms. Casanave, but if he did not, he would be guilty of failure to communicate with Dr. Thompson.

      . See, e.g., In re: Faucheux, 02-0054 (La.5/24/02), 818 So.2d 734 (fully deferred six month suspension, subject to a one year period of probation imposed on attorney who, among other things, engaged in a conflict of interest in connection with a domestic proceeding); In re: Caillouet, 01-2461 (La.11/9/01), 800 So.2d 367 (fully deferred six month suspension, subject to a six month period of probation, imposed on district attorney who represented a husband in a divorce matter after his wife filed criminal battery charges); In re: Toups, 00-0634 (La.11/28/00), 773 So.2d 709 (fully deferred six month suspension, subject to a two year period of probation, imposed on an assistant district attorney who, while representing a wife in divorce proceedings, failed to withdraw from the representation when he learned the wife had filed criminal battery charges against her husband and, rather, acquiesced in the request of the husband’s attorney, who was also an assistant district attorney, that the case against his client be continued or dismissed).

      . In In re: Grevemberg, 02-B-2721, 838 So.2d 1283, (La. 2003), rendered this day, we imposed a one-year suspension for a violation of Rule 1.8(c). A greater sanction was justified in that case because we found the attorney knowingly disregarded his ethical obligations under Rule 1.8(c) by continuing litigation at a time when he was clearly aware he was in violation of the rule. By contrast, respondent’s violations of the rules in the instant case were more negligent than intentional.


text:
    Jesse Clarence BROWN v. Gordon RAMSAY.
    No. 2003-CC-0912.
    Supreme Court of Louisiana.
    March 31, 2003.
   In re Brown, Jesse Clarence; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, First Justice Of The Peace Court, No. 222-2003; Second Parish Court for the Parish of Jefferson Div. A, No. 10-00529; to the Court of Appeal, Fifth Circuit, No. 03-C-358.

Writ denied.


text:
    Louis and Jennifer BLALOCK, Individually and on Behalf of Their Minor Child, Julie Blalock, et al. v. NEW HORIZON KIDS QUEST, IV, INC., et al.
    No. 2003-CC-0849.
    Supreme Court of Louisiana.
    April 2, 2003.
   In re New Horizon Kids Quest IV Inc. et al.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 2002-3998; to the Court of Appeal, Third Circuit, No. CW 03-00264.

Stay denied. Writ denied. Consolidated with 2003-CC-0850.

KNOLL, J., recused.


text:
    Kenyawn AUGUSTINE, et al. v. NEW HORIZON KIDS QUEST, IV, INC., et al.
    No. 2003-CC-0850.
    Supreme Court of Louisiana.
    April 2, 2003.
   In re New Horizon Kids Quest IV Inc. et al.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 2002-3996-A; to the Court of Appeal, Third Circuit, No. CW 03-00268.

Stay denied. Writ denied. Consolidated with 2003-CC-0849.

KNOLL, J., recused.


text:
    Gene ALONZO, et al. v. STATE of Louisiana, et al.
    No. 2003-CC-0631.
    Supreme Court of Louisiana.
    April 2, 2003.
   In re Alonzo, Gene et al.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. A, No. 79-080; to the Court of Appeal, Fourth Circuit, No(s). 2003-C-0188, 2003-C-0209.

Denied.

KIMBALL, J., would grant the writ.

TRAYLOR, J., would grant the writ.


text:
    STATE of Louisiana v. Clifford DUPLESSY. (In re Martin E. Regan, Jr., Contempt).
    No. 2003-OK-0946.
    Supreme Court of Louisiana.
    April 2, 2003.
   In re Regan, Martin; — Other; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 01-4066; to the Court of Appeal, Fifth Circuit, No. 03-KA-183.

Denied.

CALOGERO, C.J., recused.


text:
    STATE ex rel. Treleah SMITH v. STATE of Louisiana.
    No. 2002-KH-1286.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Smith, Treleah; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 409-006; to the Court of Appeal, Fourth Circuit, No. 2002 K 0455.

Denied.


text:
    STATE of Louisiana v. Archester SMITH.
    No. 2002-K-1502.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re State of Louisiana; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. D, No. 204,532; to the Court of Appeal, Second Circuit, No. 35,699-KA.

Denied.

TRAYLOR, J., would grant the writ.

KNOLL, J., would grant the writ.


text:
    Devonna C. JOSEPH v. J.E. MERIT CONSTRUCTORS, INC.
    No. 2002-C-2295.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re J.E. Merit Constructors, Inc.;— Defendant; Applying for Writ of Certiora-ri and/or Review, Parish of E. Baton Rouge, Office of Workers’ Compensation Div. 0, .No. 00-01761; to the Court of Appeal, First Circuit, No. 2001 CA 1666.

Denied.

TRAYLOR, J., would grant the writ.


text:
    STATE of Louisiana v. Perry POOLER.
    No. 2002-K-2588.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Pooler, Perry; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. E, No. 94015; to the Court of Appeal, First Circuit, No. 2002 KA 0136.

Denied.


text:
    STATE ex rel. Clayton FAGGIN v. STATE of Louisiana.
    No. 2002-KH-1195.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Faggin, Clayton; — -Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, Nos. 336-838, 386-681; to the Court of Appeal, Fourth Circuit, No(s). 2001-K-0653, 2001-K-0565.

Denied. 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.


text:
    STATE ex rel. Kirk ROBERTSON v. STATE of Louisiana.
    No. 2002-KH-1209.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Robertson, Kirk; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 9904355; to the Court of Appeal, Fifth Circuit, No(s). 01-KH-1200, 01-KH-1420, 01-KH-1263.

Denied.


text:
    STATE ex rel. Larry LOYA v. STATE of Louisiana.
    No. 2002-KH-1236.
    Supreme Court of Louisiana.
    April 4, 2003.
   In.re Loya, Larry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. H, No. 8385-87; to the Court of Appeal, Third Circuit, No. KH 01-638.

Denied.


text:
    STATE ex rel. Francis J. GERRETS v. STATE of Louisiana.
    No. 2002-KH-1245.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Gerrets, Francis; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 95-3186; to the Court of Appeal, Fifth Circuit, No. 02-KH-241.

Denied.


text:
    STATE ex rel. Robert D. JOHNSON v. STATE of Louisiana.
    No. 2002-KH-1246.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Johnson, Robert D.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Beauregard, 36th Judicial District Court Div. B, No. CR169-2001; to the Court of Appeal, Third Circuit, No(s). KH 01-01449, KH 02-00046.

Denied.


text:
    STATE ex rel. Robert SPENCER v. STATE of Louisiana.
    No. 2002-KH-1247.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Spencer, Robert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 10-81-395.

Denied.


text:
    STATE ex rel. Jimmy NEE v. STATE of Louisiana.
    No. 2002-KH-1252.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Nee, Jimmy; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 97-4616; to the Court of Appeal, Fifth Circuit, No. 02 KH 144.

Denied.

KNOLL, J., recused.


text:
    STATE ex rel. Harry PORTER v. STATE of Louisiana.
    No. 2002-KH-1255.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Porter, Harry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 11 — 96— 21; to the Court of Appeal, First Circuit, No. 2001 KW 0930.

Denied.


text:
    STATE ex rel. Ernest STOKES v. STATE of Louisiana.
    No. 2002-KH-1256.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Stokes, Ernest; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 83459.

Denied.


text:
    STATE ex rel. Ganey HYMES III v. STATE of Louisiana.
    No. 2002-KH-1257.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Hymes, Ganey III; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Vernon, 30th Judicial District Court Div. A, Nos. 55680, 55681, 54292, 58195; to the Court of Appeal, Third Circuit, No. KH 01-01424.

Denied.


text:
    STATE ex rel. Larry BROUSSARD v. STATE of Louisiana.
    No. 2002-KH-1260.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Broussard, Larry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 98-5899; to the Court of Appeal, Fifth Circuit, No. 02 KH 26.

Denied.


text:
    STATE ex rel. Henry SMITH III v. STATE of Louisiana.
    No. 2002-KH-1274.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Smith, Henry III; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. C, No. 332,640; to the Court of Appeal, First Circuit, No. 2000 KA 2411.

Denied.


text:
    STATE ex rel. Cassondra LEVERT v. STATE of Louisiana.
    No. 2002-KH-1285.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Levert, Cassondra; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 268-685.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2380 (La.9/5/95), 660 So.2d 1189.


text:
    STATE of Louisiana v. Terry Lane RHODES.
    No. 2002-KO-1118.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Rhodes, Terry Lane; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Natchitoches, 10th Judicial District Court Div. A, No. C1214; to the Court of Appeal, Third Circuit, No. KA 01-1257.

Denied.


text:
    STATE ex rel. David MARTELLO v. STATE of Louisiana.
    No. 2002-KH-1136.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Martello, David; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 390-454; to the Court of Appeal, Fourth Circuit, No. 2002-K-0275.

Denied.


text:
    STATE ex rel. Joseph LEWIS v. STATE of Louisiana.
    No. 2002-KH-1139.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Lewis, Joseph; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 9-99-453; to the Court of Appeal, First Circuit, No. 2001 KA 0222.

Denied.


text:
    STATE ex rel. Rodney G. HUNTER v. STATE of Louisiana.
    No. 2002-KH-1141.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Hunter, Rodney, G.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Desoto, llth Judicial District Court Div. A, No. 981333; to the Court of Appeal, Second Circuit, No. KH 02-36113.

Denied.


text:
    STATE of Louisiana v. Gregory BROWN.
    No. 2002-KO-1143.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Brown, Gregory; — -Defendant; Applying for Writ of Certiorari and/or Review, Parish of East Feliciana, 20th Judicial District Court Div. B, No. 98-CR-941; to the Court of Appeal, First Circuit, No. 2001 KA 0214.

Denied.


text:
    STATE ex rel. Marvin JACKSON v. STATE of Louisiana.
    No. 2002-KH-1183.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Jackson, Marvin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 99-3339; to the Court of Appeal, Fifth Circuit, No. KH-1353.

Denied.


text:
    STATE ex rel. Rennie ATWELL v. STATE of Louisiana.
    No. 2000-KH-3233.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Atwell, Rennie; Plaintiff; Applying for Motion to Enforce this Court’s Order dated May 11, 2001; Parish of Orleans, Div. “A”, No. 248-717.

Motion to Enforce granted. The district court is ordered to comply with this Court’s earlier order, see State ex rel. Rennie Atwell v. State, 00-3233 (La.05/11/01), 792 So.2d 5, within thirty days, if it has not done so already. The district court is further ordered to provide this Court with proof of compliance.


text:
    STATE ex rel. Howard RAPP v. STATE of Louisiana.
    No. 2001-KH-0190.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Rapp, Howard; Plaintiff; Applying for Motion to Enforce this Court’s Order dated June 22, 2001; Parish of Orleans Criminal District Court, Div. “J”, No. 291-025; to the Court of Appeal, Fourth Circuit, No. 2000-K-2254.

Motion to Enforce granted. The district court is ordered to comply with this Court’s earlier order, see State ex rel. Rapp v. State, 01-0190 (La.6/22/01), 793 So.2d 1259, within thirty days. The district court is further ordered to provide this Court with proof of compliance.


text:
    STATE of Louisiana v. James K. KRITZMAN, Jr.
    No. 2002-KO-0378.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Kritzman, James K. Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. E. No. 274797; to the Court of Appeal, First Circuit, No. 2001 KA 0873.

Denied.

CALOGERO, C.J., JOHNSON, J., and KNOLL, J,

would grant the writ application. The record of the habitual offender adjudication does not indicate that the state proved that defendant’s 1993 guilty plea in Michigan to malicious destruction of personal property over $100, a felony offense in that jurisdiction, “if committed in this state would be a felony.” La.Rev. Stat. 15:529.1(A)(1); State ex rel. Wilson v. Maggio, 422 So.2d 1121, 1123-24 (La.1982); State v. Berndt, 416 So.2d 56, 58-59 (La.1982). The district court should be ordered to hold another habitual offender adjudication at which the state will have the opportunity to prove that defendant’s Michigan conviction would have constituted a felony if committed in Louisiana.


text:
    STATE ex rel. Ernest M. SERIO v. STATE of Louisiana.
    No. 2002-KH-1101.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Serio, Ernest, M.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 76-2281.

Denied. Moot. The district court has acted.


text:
    STATE of Louisiana v. Craig M. GORDON.
    No. 2002-KO-1105.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Gordon, Craig M.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. A, No. 394-663; to the Court of Appeal, Fourth Circuit, No. 2001-KA-1700.

Denied.


text:
    STATE of Louisiana v. Larry R. PRICE.
    No. 2002-KO-1116.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Price, Larry R.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. L, No. 398-639; to the Court of Appeal, Fourth Circuit, No(s). 99-KA-1894, 2001-KA-1991.

Denied.

JOHNSON, J., would grant the writ.


text:
    INTERNATIONAL RIVER CENTER, et al. v. JOHNS-MANVILLE SALES CORPORATION, et al.
    No. 2002-CC-3060.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Johns-Manville Sales Corporation et al.; Standard Roofing Co.; Henry C. Beck Co.; Beck, Henry C. Co.; Johns-Manville International; United States Fidelity & Guarantee Co.; 'Beck, Henry C.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. H, No. 85-17624; to the Court of Appeal, Fourth Circuit, No. 2002-C-1902.

Granted.


text:
    NABORS DRILLING USA v. David DAVIS.
    No. 2003-C-0136.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Davis, David; — Defendant; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation, District No. 4, No. 01-05706; to the Court of Appeal, Third Circuit, No. 02-0751.

Granted.


text:
    Jody and Lora BORDELON, Individually and on Behalf of Their Minor Child, Brandon v. MEDICAL CENTER OF BATON ROUGE and Andrew T. Zaruski, M.D.
    No. 2003-C-0202.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Medical Center of Baton Rouge et al.; Zaruski, Andrew T. M.D.; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 452,336; to the Court of Appeal, First Circuit, No. 2001 CA 2164.

Granted.


text:
    Shirley STINER v. ANTONI’S ITALIAN CAFE.
    No. 2003-C-0209.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Antoni’s Italian Cafe; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, Office of Workers’ Compensation-Dist. 04, No. 01-07329; to the Court of Appeal, Third Circuit, No. 02-747.

Granted.


text:
    Sylvia GREEN v. K-MART CORPORATION, et al.
    No. 2002-C-3198.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re K-Mart Corporation et al.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. F, No. 88,853-F; to the Court of Appeal, Third Circuit, No. 2001-0675.

Writ granted. The filing of a bankruptcy petition operates as a stay of all judicial and non-judicial proceedings, with certain enumerated exceptions. 11 U.S.C. Section 362(a). The stay is effective automatically and immediately upon the filing of a bankruptcy petition. Formal service of process is not required, and no particular notice need be given in order to subject a party to the stay. 3 Collier on Bankruptcy Section 262.02 (15th ed.1996); See also, Gulfco Finance v. McCormick, 577 So.2d 778, 780 (La.App. 2d Cir.1991). The Court of Appeal erred in proceeding with oral argument despite the bankruptcy filing. The decision of the Court of Appeal is therefore vacated and this case, is remanded to that court for re-argument and decision, affording counsel for all of the parties the opportunity for participation therein.


text:
    STATE ex rel. Patrick WILSON v. STATE of Louisiana.
    No. 2002-KH-1258.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Wilson, Patrick; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish - of E. Baton Rouge, 19th Judicial District Court Div. C, No. 5-96-12.

Granted for the sole purpose of transferring the application to the court of appeal with instructions to appellate judges to act on relator’s application filed via certified mail on January 23, 2001. The court of appeal is ordered to provide this Court with a copy of its judgment.


text:
    STATE ex rel. Donald R. MATTHEWS v. STATE of Louisiana.
    No. 2002-KH-0363.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Matthews, Donald; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. A, No. 3675-95; to the Court of Appeal, Third Circuit, No. KH 01-00672.

Writ granted in part; otherwise denied; sentence amended. Relator’s sentence is amended to provide that he serve 20 years imprisonment at hard labor without benefit of parole eligibility for 15 years. The district court is directed to make an entry in the minutes reflecting this change. See State v. Tate, 99-1483 (La.11/24/99), 747 So.2d 519. In all other respects the application is denied.

KIMBALL, J., would deny the writ.

TRAYLOR, J., would deny the writ.

WEIMER, J., would deny the writ.


text:
    Sharon R. COATS v. HERITAGE MANOR OF ALEXANDRIA REHABILITATION NURSING CENTER, et al.
    No. 2002-C-2990.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Coats, Sharon R.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. G, No. 196,723; to the Court of Appeal, Third Circuit, No. 02-658.

Writ granted in part; with regard to the survival action there are issues of material fact which would preclude summary judgment. Otherwise denied.

TRAYLOR, J., would deny the writ.


text:
    Rick E. WHITE v. JERRY’S MACHINE & FABRICATION, INC.
    No. 2003-C-0283.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re White, Rick; — Plaintiff; Applying for Writ of Certiorari and/or Review Workers’ Compensation, District-03, No. 00-06166; to the Court of Appeal, Third Circuit, No. 02-0320.

Not considered; not timely filed.


text:
    STATE ex rel. James MORRISON v. STATE of Louisiana.
    No. 2000-KH-580.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re James Morrison; Applying for Motion to Enforce this Court’s order dated March 31, 2000; Parish of Orleans Criminal District Court Div. C, No. 233-762.

Motion to Enforce granted. The district court is ordered to comply with this Court’s earlier order, see State ex rel. James Morrison v. State, 00-0580 (La.3/31/00), 758 So.2d 805, within thirty days. The district court is further ordered to provide this Court with proof of compliance.


text:
    STATE ex rel. Denaud EGANA v. STATE of Louisiana.
    No. 2000-KH-2351.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Egana, Denaud; Plaintiff(s); Applying for Motion to Enforce this Court’s Order dated September 22, 2000; Parish of Jefferson, 24th Judicial District Court Div. “I”, No. 98-1038; to the Court of Appeal, Fifth Circuit, No. 00-KH-909.

Denied. Moot. The court of appeal has acted.


text:
    STATE of Louisiana v. Marcus Doron FLOYD.
    No. 2002-K-2769.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Floyd, Marcus Doron; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lincoln, 3rd Judicial District Court Div. B, No. 47896; to the Court of Appeal, Second Circuit, No. 36,422-KA.

Denied.


text:
    STATE of Louisiana v. Pedro BACOT.
    No. 2002-K-2781.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Bacot, Pedro M.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. C, No. 309-826; to the Court of Appeal, Fourth Circuit, No. 2000-KA-2283.

Denied.


text:
    STATE of Louisiana v. Emanuel RANDALL.
    No. 2002-K-2788.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re State of Louisiana; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. A, No. 363-554; to the Court of Appeal, Fourth Circuit, No. 2002-KA-0248.

Denied.


text:
    STATE of Louisiana v. John J. CHO.
    No. 2002-K-2874.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Cho, John J.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. F, No. 00-0205; to the Court of Appeal, Fifth Circuit, No. 02-KA-274.

Denied.


text:
    STATE of Louisiana v. Carlos Dewayne WADE.
    No. 2002-K-2875.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Wade, Carlos Dewayne; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. K, No. 209,434; to the Court of Appeal, Second Circuit, No. 36,295-KA.

Denied.


text:
    STATE of Louisiana v. John TRACY.
    No. 2002-K-2900.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Tracy, John; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. James, 23rd Judicial District Court Div. B, No. 3042; to the Court of Appeal, Fifth Circuit, No. 02-KA-0227.

Denied.

CALOGERO, C.J., recused.


text:
    STATE of Louisiana v. Robert J. BURT.
    No. 2002-K-2915.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Burt,"Robert J.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. J, No. 422-503; to the Court of Appeal, Fourth Circuit, No. 2002-KA-0258.

Denied.

KNOLL, J., would grant the writ.


text:
    William Wall MORRIS v. BASS ENTERPRISES PRODUCTION COMPANY, et al.
    No. 2002-C-3084.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Bass Enterprises Production Company; Bass Partnership; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 44-127; to the Court of Appeal, Fourth Circuit, No. 2001-CA-1242.

Denied.


text:
    Morris Miller WILLSON v. UNOPENED SUCCESSION OF Elbert DAVIS, et al.
    No. 2003-C-0108.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Willson, Morris Miller Jr., et ux.; Willson, Bridget Pecanty; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Concordia, 7th Judicial District Court Div. A, No. 35950; to the Court of Appeal, Third Circuit, No. 02-0475.

Denied.


text:
    Shirley M. AVANTS and Jim W. Miley v. John Neely KENNEDY, Secretary, Department of Revenue and Taxation, State of Louisiana, and Elmer Litchfield, Sheriff of East Baton Rouge Parish.
    No. 2003-C-0203.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Kennedy, John Neely Secretary Department of Revenue and Taxation; Revenue and Taxation, Dept of; Louisiana, State of; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 434575; to the Court of Appeal, First Circuit, No. 2002-CA-0830.

Denied.

CALOGERO, C.J., would grant the writ.

VICTORY, J., would grant the writ.

WEIMER, J., would grant the writ.


text:
    Andrew WATSON, et al. v. Dr. Steven BRAZEEL and the Medical Protective Company.
    No. 2003-C-0217.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Brazeel, Steven Dr. et al.; Medical Protective Co.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. B, No. 98-0350; to the Court of Appeal, Second Circuit, No. 36,499-CA.

Denied.

VICTORY, J., would grant the writ.


text:
    LOUISIANA ASSOCIATED GENERAL CONTRACTORS, INC. v. LOUISIANA DEPARTMENT OF AGRICULTURE AND FORESTRY, Louisiana Agricultural Finance Authority, and Bob Odom, Commissioner.
    No. 2003-CC-0288.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Louisiana Department of Agriculture & Forestry et al.; Louisiana Agricultural Finance Authority; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 466,794; to the Court of Appeal, First Circuit, No. 2002 CW 2507.

Denied.


text:
    John W. PERTUIS v. ARCHITECTURAL FABRICATIONS, INC.
    No. 2003-C-0231.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Pertuis, John W.; — Plaintiff; Applying for Writ of Certiorari and/or Review Office Of Workers’ Compensation Administration District 5, No. 00-09046; to the Court of Appeal, First Circuit, No. 2001 CA 2684.

Denied.

CALOGERO, C.J., would grant the writ.

JOHNSON, J., would grant the writ.


text:
    Lance A. TARANTO v. STRANCO, INC. Lance A. Taranto v. Stranco, Inc.
    No. 2003-C-0273.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Taranto, Lance A.; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Comp. Dist. 6, Nos. 99-02473, 99-03752,; to the Court of Appeal, First Circuit, No(s). 2002 CA 0243, 2002 CA 0244.

Denied.


text:
    In re Joyce WOODS Applying for Medical Review Panel.
    No. 2003-C-0277.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Ochsner Clinic, L.L.C.; Ochsner Foundation Hospital; Emory, Brooks M.D.; McConnel, Richard M.D.; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. L, No. 573-920; to the Court of Appeal, Fifth Circuit, No. 02-CA-685.

Denied.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.

KNOLL, J., would grant the writ.


text:
    ALBERTSON’S, INC. v. Jessica MOULDS.
    No. 2003-C-0280.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Albertson’s, Inc.; — Plaintiff; Applying for Writ of Certiorari and/or Review Workers’ Compensation-Dist 03, No. 01-04376; to the Court of Appeal, Third Circuit, No. 02-753.

Denied.

KIMBALL, J., recused.


text:
    Evelyn LEMONS v. SAFEWAY INSURANCE COMPANY OF LOUISIANA.
    No. 2003-C-0285.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Safeway Insurance Company of Louisiana; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Cal-casieu, 14th Judicial District Court Div. E, No. 2000-004206; to the Court of Appeal, Third Circuit, No. 02-687.

Denied.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.

KNOLL, J., would grant the writ.


text:
    Judy BELLARD v. Johnny R. BIDDLE, Jr., M.D.
    No. 2003-C-0286.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Bellard, Judy; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 97-7524; to the Court of Appeal, Third Circuit, No. 02-241.

Denied.

JOHNSON, J., would grant the writ.


text:
    LOUISIANA ASSOCIATED GENERAL CONTRACTORS, INC. v. LOUISIANA DEPARTMENT OF AGRICULTURE AND FORESTRY, Louisiana Agricultural Finance Authority, and Bob Odom, Commissioner.
    No. 2003-CC-0289.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Louisiana Department of Agriculture & Forestry et al.; Odom, Bob Commissioner; Louisiana Agricultural Finance Authority; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of'E. Baton Rouge, 19th Judicial District Court Div. I, No. 466,794; to the Court of Appeal, First Circuit, No. 2002 CW 1666.

Denied.


text:
    Joseph A. SAGE, M.D. v. RADIOLOGY AND DIAGNOSTIC SERVICES, L.L.C.
    No. 2003-C-0292.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Sage, Joseph A. M.D.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 2000-11454; to the Court of Appeal, First Circuit, No. 2001 CA 2445.

Denied.


text:
    Shane CLAVIER and Jamie Clavier v. LAY DOWN SERVICES, INC., et al.
    No. 2003-CC-0296.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Lexington Insurance Co.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Cameron, 38th Judicial District Court Div. 0, No. 10-14577; to the Court of Appeal, Third Circuit, No. CW-02-01325.

Denied.


text:
    Phyllis M. BROUSSARD v. CITGO PETROLEUM CORPORATION.
    No. 2003-C-0301.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Broussard, Phyllis M.; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation-District 03, No. 01-07969; to the Court of Appeal, Third Circuit, No. 02-895.

Denied.


text:
    PALACE PROPERTIES, L.L.C. v. SIZELER HAMMOND SQUARE LIMITED PARTNERSHIP.
    No. 2003-C-0306.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Sizeler Hammond Square Limited Partnership et al.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. G, No. 2000-001280; to the Court of Appeal, First Circuit, No. 2001 CA 2812.

Denied.

WEIMER, J., recused.


text:
    John and Jane ROACH v. Burde L. KAMATH, Riverside Court Condominium Association Inc., ABC Insurance Company and XYZ Insurance Company.
    No. 2003-C-0308.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Roach, John et al.; Roach, Jane;— Plaintiff(s); Applying for Writ of Certiora-ri and/or Review, Parish of Orleans, Civil District Court Div. F, No. 00-14339; to the Court of Appeal, Fourth Circuit, No. 2002-CA-1309.

Denied.


text:
    Allen J. THIBODEAUX, Sr. and Kathy Thibodeaux v. SHELTER MUTUAL INSURANCE COMPANY.
    No. 2003-CC-0317.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Shelter Mutual Ins. Co.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Martin, 16th Judicial District Court Div. A, No. 61818 A; to the Court of Appeal, Third Circuit, No. CW 02-01214.

Denied.

TRAYLOR, J., would grant the writ.


text:
    JEFFERSON DOOR COMPANY, INC. v. FORMAN CONSTRUCTION, INC. a/k/a H. Forman Construction, Inc., James G. Chauvin, and Stefanie Faulkner Gallagher, Wife of/and Daniel J. Gallagher.
    No. 2003-C-0318.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Gallagher, Stefanie F.; Gallagher, Daniel J.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 556-751; to the Court of Appeal, Fifth Circuit, No. 02-CA-941.

Denied.


text:
    J. Jude QUEBEDEAUX and Wendy Quebedeaux v. The DOW CHEMICAL COMPANY and John Dandridge, Reliance Insurance Co. and Dorinco Reinsurance Co.
    No. 2003-C-0319.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Dow Chemical Co. et al.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. B, No. 43,046; to the Court of Appeal, First Circuit, No. 2000 CA 0465.

Denied.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.

WEIMER, J., would grant the writ.


text:
    Heman LEBLANC and Joann Leblanc v. WESTERN HERITAGE INS. CO. and Anthos “Boy” Williams, d/b/a Boyz Auto Repair.
    No. 2003-C-0320.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Leblanc, Heman; Leblanc, Joann; — Plajntiff(s); Applying for Writ of Certiorari and/or Review, Parish of St. John, 40th Judicial District Court Div. C, No. 41294; to the Court of Appeal, Fifth Circuit, No. 02-CA-788.

Denied.


text:
    The COUNCIL OF the CITY OF NEW ORLEANS v. ALL TAXPAYERS, PROPERTY OWNERS, CITIZENS OF the CITY OF NEW ORLEANS and Non-Residents Owning Property or Subject to Taxation Therein, et al.
    No. 2003-C-0626.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Bagert, Jennifer; All Taxpayers Property Owners & Citizens of New Orleans; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 02-18357; to the Court of Appeal, Fourth Circuit, No. 2003-CA-0189.

Denied.


text:
    Sherry WATTERS, et al. v. DEPARTMENT OF SOCIAL SERVICES, et al.
    No. 2003-CC-0787.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Clarendon America Insurance; United National Insurance; American Equity Insurance Company; Evanston Insurance Company; Great Lakes Reinsurance (UK), PLC; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. J, Nos. 01-17775, 01-18355; to the Court of Appeal, Fourth Circuit, No. 2003-C-0484.

Denied.

KIMBALL, J., would grant the writ.

JOHNSON, J., would grant the writ.


text:
    STATE in the Interest of C.F., E.M., J.R., C.S.
    No. 2003-CK-0808.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Public Safety & Correct Dept.;— Other; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Orleans Parish Juvenile Court, Nos. 01-113-09-QF, 01-226-13-QF, 01-234-01-QF, 00-346-02-QF.

Denied.

TRAYLOR, J., would grant the writ.


text:
    STATE ex rel. Thomas YOUNG v. STATE of Louisiana.
    No. 2003-KH-0825.
    Supreme Court of Louisiana.
    April 4, 2003.
   In re Young, Thomas; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 432-445.

Denied.


text:
    Ronald M. LAMARQUE v. BARBARA ENTERPRISES, INC., and Tara O’Meallie.
    No. 2003-CC-1001.
    Supreme Court of Louisiana.
    April 9, 2003.
   In re Barbara Enterprises, Inc. et al.; O’Meallie, Tara; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. M, No. 02-13281; to the Court of Appeal, Fourth Circuit, No. 2003-C-0575.

Denied.


author: CHARLES R. JONES, Judge.

text:
    Michael Joseph GALLO v. Brenda Ann Conner GALLO.
    No. 2002-CA-0575.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 2003.
    Lee V. Faulkner, Jr., Gretna, LA, for Plaintiff/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY).
   CHARLES R. JONES, Judge.

The appellant, Michael Gallo, appeals the judgment of the district court denying his request for reimbursement for child support in the amount of $22,125. We reverse.

' Michael Gallo and Brenda Ann Connor Gallo were married in 1978. During the course of there marriage, three children were born. The couple divorced in August 1992. Thereafter, Mr. Gallo found out that Ms. Gallo had sexual relations with another man which led him to believe that his youngest daughter was not biologically his. Mr. Gallo sought to disavow paternity of his youngest daughter on September 4, 1998. Mr. Gallo paid interim support via a consent judgment in the amount of $550 per month and arrears of $4400 at a rate of $200 per month for the child in question. On July 13, 2000, a paternity test was ordered which revealed that Mr. Gallo was not the father of the youngest daughter. A September 20, 2000 judgment dismissed the Income Assignment Order as to Mr. Gallo who then filed a Rule to Show Cause in the Civil District Court for the Parish of Orleans to compel Ms. Gallo to show cause why the district court should not order her to reimburse him $22,125 for past support payments. In addition, Mr. Gallo sought $481.12 for health insurance, $300 for the DNA testing, $350 for court costs and $790 for | ¡¡attorney fees. Mr. Gallo was awarded attorney’s fees in the amount of $500 and reimbursement for DNA testing in the amount of $300. However, in all other respects, the district court dismissed Mr. Gallo’s rule. It is from this judgment that he takes this timely appeal. This matter was submitted on briefs from Mr. Gallo only.

In his sole assignment of error, Mr. Gallo argues that the district court erred in denying his claim for reimbursement of funds paid to Ms. Gallo for child support when DNA testing subsequently excluded him as the child’s father.

Mr. Gallo argues that this Court has previously approved a district court judgment which terminated child support when the presumptive father has proven that he is not the biological father. Mr. Gallo relies on this Court’s decision in State v. Prosper, 580 So.2d 1085 (La. 4 Cir.1991), wherein we cited the Supreme Court decision in State v. Jones, 481 So.2d 598 (La.1986), stating that:

... the use of the conclusive presumption that the husband of the mother is the father of the child, La.C.C. art. 184, to prove the essential element of “parenthood” in a prosecution under La.R.S. 14:74 “clearly violates the federal and state constitutional guarantees of due process.” The court concluded that “the term ‘parent’ in La.R.S. 14:74(2) encompasses only the persons who begot or brought forth the child and cannot constitutionally be expanded by interpretation to include a person who is merely presumed in the civil law to be the biological parent.” Supra at 1087

We find that Prosper and Jones are distinguishable from the instant case in that those defendants were charged with criminal neglect of family, and had not made any previous support payments.

Mr. Gallo further argues that he was deceived and misled into believing that the youngest daughter was his child and therefore he is entitled to a refund. We agree.

l3In State v. Jackson, 575 So.2d 507 (La.App. 5 Cir. 2/14/1991), our colleagues on the Louisiana Fifth Circuit granted Mr. Jackson reimbursement from the state for child support after the paternity tests excluded him as the father. However, Jackson is also distinguishable from the instant case because the sole question in Jackson was whether the State or the mother should reimburse the alleged father for child support payments he erroneously made. The Supreme Court in Jackson granted certiorari and set aside the portion of the judgment of the court of appeal which found that the state was liable to Mr. Jackson for reimbursement of child support payments. However, the Supreme Court in Jackson clearly indicated that the father is entitled to reimbursement.

Mr. Gallo is seeking reimbursement from Ms. Gallo, not the state. We find that the Supreme Court in Jackson did not preclude Mr. Jackson from receiving reimbursement since the Fifth Circuit clearly stated that the sole question was from whom reimbursement should be sought.

Mr. Gallo proved that he is not the father of Ms. Gallo’s youngest daughter, and that he has been paying child support for Ms. Gallo’s youngest daughter under the mistaken belief that he was the father of the child. We find no basis in law that prohibits reimbursement from the mother once an alleged father is proven not to be the father of the child. We further find that the district court erred in denying Mr. Gallo’s claim for reimbursement.

Decree

For the reasons stated herein, the judgment of the district court denying Michael Gallo’s claim for reimbursement in the amount of $22,125 for child support and medical payments is hereby reversed. All costs are assessed to Brenda Ann Conner Gallo.

REVERSED.