author: GROSS, J.

text:
    John F. SHEILS, P.E., Appellant, v. FLORIDA ENGINEERS MANAGEMENT CORPORATION, Appellee.
    No. 4D03-4393.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2004.
    Alexander D. Varkas, Jr. and Robert A. Sweetapple of Sweetapple, Broeker, Var-kas & Feltman, Boca Raton, for appellant.
    Douglas D. Sunshine, Tallahassee, for appellee.
   GROSS, J.

John F. Sheils appeals the decision rendered by the State of Florida, Board of Professional Engineers, concluding that he committed professional misconduct. The Board’s construction of the applicable statute is consistent with legislative intent. The findings of fact adopted by the Board are supported by competent substantial evidence in the record. Therefore, we affirm.

On July 23, 2002, the Florida Engineers Management .Corporation (FEMC) filed an administrative complaint against John F. Sheils, alleging that Sheils had committed professional misconduct in a letter written on April 12, 2001, following his inspection of a residence, in violation of section 471.033(g), Florida Statutes (2002), and Rule 61G15-19.001(6)(b) of the Florida Administrative Code.

A formal hearing was held before an administrative law judge (ALJ) on April 14, 2003.

The ALJ’s findings of fact detailed the history of the residence about which Sheils prepared his report. In 1998, Phil and Kate Kribbs hired Al Pestaña to replace a roof on their Lake Worth home. Pestaña installed a new shingle roof over the preexisting shake roof and the Palm Beach County Building Inspector issued a Certificate of Completion.

After a dispute arose over the quality of Pestana’s work, the Kribbses hired a roofing consultant who opined that the roof work had serious defects.

Pestaña hired appellant to examine the roof and issue a report. Appellant conducted a physical examination of the visible portions of the interior and exterior of the roof. Appellant then sent the April 12, 2001 inspection report/letter to Pestaña that is the basis for the finding of professional misconduct.

The ALJ focused on the contents of the letter and appellant’s inspection:

The report states that the roof would withstand winds of 70 miles per hour and a “major storm.” As [the appellant] knew at the time, the applicable design wind speed is 100 miles per hour over a specified interval. At the hearing, [the appellant] acknowledged, as he did in the report, that he mentioned 70 miles per hour because this is the maximum wind speed that shingles must withstand before detaching from the sheathing. However, the perils of detached shingles and a detached roof are entirely different in gravity. The issue of concern to the Building Department and the Kribbses was the peril of an inadequately attached roof detaching from the house during the design storm event — a far more dangerous contingency than detached shingles.
[The appellant’s] references to “major storms” and 70 miles per hour, in the absence of any mention of the design storm and whether the roof meets this more demanding standard, constitutes a deliberate attempt to mislead the Kribbses and possibly the Building Department concerning the adequacy of the means by which Mr. Pestaña had attached the roof to the Kribbs’ house. This deliberate attempt to mislead constitutes misconduct in engineering.

The ALJ concluded that appellant had committed professional misconduct.

[FEMC] established by clear and convincing evidence that [appellant’s] inspection report is inconsistent with and contradictory to the initial statements of inadequacy made in the same report. Additionally, [FEMC] established that [appellant’s] report does not directly address the structural integrity of the roof to the approved specifications or whether the sheathing meets the minimum requirements of the applicable code. [Appellant’s] report is further misleading with regards to [appellant’s] irrelevant reference to the shingles allowable wind load of 70-mph and his attempt to equate compliance to the code requirements by stating that the roof deck surpasses the alleged 70-mph requirement. Additionally, [appellant’s] use of the vague and imprecise criteria of a “major storm” in his misapplication of the estimated 8,000 nails through the plywood, combined with an uncalculated number of nails that penetrated the trusses and slats, to reach the unfounded conclusion that the roof deck “could” be held down is also misleading. The evidence further establishes that the Building Department was fallaciously [misled] by [appellant’s] report in that it took no further action to withdraw the Certificate of Completion as a result of [appellant’s] fallacious conclusion that the roof was adequate and upon [appellant’s] confirmation of his conclusion to Mr. Sherpitis and the Building Department.

Concluding that the ALJ’s findings of fact were supported by substantial, competent evidence, the Board’s Final Order adopted the ALJ’s findings of fact and conclusions of law. The Board followed the ALJ’s recommended penalty of a reprimand, an administrative fine of $1,000, two years probation, and costs. Additionally, the Board required appellant to take an approved course in professionalism and ethics.

Appellant challenges the Board’s conclusion that he committed professional misconduct in the inspection report/letter.

Under section 120.68(7)(b), Florida Statutes (2003), this court cannot substitute its judgment for that of the agency regarding the weight of the evidence on any disputed finding of fact. “While an agency may reject conclusions of law without limitation, neither an administrative agency nor a reviewing court may reject an administrative hearing officer’s findings of fact, as long as those findings are supported by competent, substantial evidence in the record.” Szniatkiewicz v. Unemployment Appeals Comm’n, 864 So.2d 498, 502 (Fla. 4th DCA 2004).

Section 471.033(l)(g) states that disciplinary action may be taken against an engineer for “[e]ngaging in fraud or deceit, negligence, incompetence, or misconduct, in the practice of engineering.” • In turn, Rule 61G15-19.001(6)(b) of the Florida Administrative Code defines “misconduct” in the practice of engineering to include being “misleading ... in any professional report” or “omitting relevant and pertinent information from such report ... when the result of such omission would or reasonably could lead to a fallacious conclusion on the part of the client, the employer, or the general public.”

FEMC presented the expert testimony of Joseph Berryman, who opined that the appellant’s discussion of the 70 miles per hour speed approval for shingles was irrelevant to the purpose of the inspection, as the value to be given to the shingles was unrelated to wind load requirements for attaching the sheathing. Berryman testified that there is a 100 miles per hour wind load pursuant to the 1994 Standard Building Code, which rendered meaningless the letter’s mention of the 70 miles per hour figure for shingles.

The expert also indicated that the report’s discussion of the roof withstanding a “major storm” was misleading because, “[a] major storm could be any type of storm. It can be any type of — any—it’s unquantified. The code quantifies wind speeds.”

The expert testified that the report, viewed in its entirety, was misleading, as the conclusion that the roof was adequate was inconsistent with findings in earlier parts of the letter: “My opinion is to the — this report being misleading, it could be used to basically draw any conclusion that the reader may wish to draw. Now one of two, it either — it’s not an acceptable roof and does not meet the specifications as would be expected, or that it is an acceptable roof and it would hold down the deck in a major storm.” Such evidence, accepted by the ALJ, is sufficient to support the finding of professional misconduct.

Appellant argues at length that FEMC failed to prove that he engaged in any deceit or fraudulent behavior regarding the issuance of the letter. However, professional misconduct is not only synonymous with fraud and deceit. The rule provides that misconduct may occur if the engineer is “untruthful, deceptive, or misleading in any professional report.” Fla. Admin. Code R. 61G15-19.001(6)(b) (emphasis added). The ALJ focused on the misleading nature of the report, and not on whether appellant was guilty of deceit, fraud, or deception.

Appellant forcefully contends that the homeowner, the engineer hired by the homeowner, and the Building Department did not agree with his findings, such that no one was misled by his conduct. The ALJ found that the appellant attempted to mislead, not that the appellant in fact misled anyone. A finding of professional misconduct does not require that an engineer succeed in misleading a third party.

Finally, appellant argues that our review of the letter should lead us to conclude that at most, the letter was “vague and contradictory.” However, the law requires this court to defer to the Board’s application of the statute and rule regarding professional misconduct, which impose high standards of professionalism upon engineers. See, e.g., Pub. Employees Relations Comm’n v. Dade County Police Benevolent Ass’n, 467 So.2d 987, 989 (Fla.1985).

AFFIRMED.

TAYLOR and HAZOURI, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jose Fernando Aguir ROSARIO, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4891.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2004.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Jose Rosario appeals his convictions for battery and false imprisonment. We affirm without prejudice to any right Rosario may have to file a timely, legally sufficient motion for postconviction relief in the trial court.

Affirmed.

FULMER and SILBERMAN, JJ., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.


author: FULMER, Judge.

text:
    Ernest C. MURPH, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-2085.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2004.
   FULMER, Judge.

Ernest C. Murph appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Murph claims his sentence violates double jeopardy because the enhancement of his sentence contains two punishments for one criminal episode. This claim is facially insufficient because Murph failed to explain the enhancement of his sentence and the two punishments. See Powell v. State, 841 So.2d 580, 581 (Fla. 2d DCA 2003) (affirming the denial of a rule 3.800(a) claim where the defendant failed to explain the basis of his claim). A motion to correct illegal sentence that does not assert any facts or law to support a claim for relief is facially insufficient. Williams v. State, 773 So.2d 1176, 1176 (Fla. 2d DCA 2000). As to this claim, we affirm without prejudice to any right Murph may have to file a facially sufficient rule 3.800(a) motion. We affirm the denial of Murph’s remaining claims without comment.

Affirmed.

SALCINES and VILLANTI, JJ„ concur.


text:
    Keith McCRARY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5920.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2004.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Affirmed without prejudice to any right Keith McCrary may have to seek appropriate postconviction relief.

ALTENBERND, C.J., and SILBERMAN and VILLANTI, JJ„ Concur.


author: STRINGER, Judge.

text:
    Morris K. ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-2376.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2004.
   STRINGER, Judge.

Morris K. Anderson challenges the summary denial of his motion for postconviction relief. He alleges that his designation as a sexual predator violates his right to due process because the statute under which he was so designated fails to provide procedural safeguards. We affirm.

In its brief order denying Anderson’s motion, the trial court cited to Milks v. State, 848 So.2d 1167 (Fla. 2d DCA 2003), and Givens v. State, 851 So.2d 813 (Fla. 2d DCA 2003). In both Milks and Givens, this court held that procedural due process did not require a hearing to prove a defendant’s actual dangerousness before designating him as a sexual predator. This line of reasoning is in conflict with the Third District’s opinion in Espindola v. State, 855 So.2d 1281 (Fla. 3rd DCA 2003) (holding that the absence of a provision allowing for a hearing to determine whether a defendant presents a danger to the public sufficient to require registration and public notification violates procedural due process).

However, Milks, Givens, and Es-pindola are appeals of final orders declaring the defendants “sexual predators.” The order on appeal here is the denial of a motion for postconvietion relief, and such a claim may not be raised pursuant to either Florida Rule of Criminal Procedure 3.800 or 3.850. See Angell v. State, 712 So.2d 1132 (Fla. 2d DCA 1998). But see Kidd v. State, 855 So.2d 1165 (Fla. 5th DCA 2003); Nicholson v. State, 846 So.2d 1217 (Fla. 5th DCA 2003) (holding that a claim of error regarding a sexual predator designation “must be preserved by contemporaneous objection or a timely Rule 3.800(b) motion”).

As in Angelí, our affirmance is without prejudice to Anderson’s right to pursue any available civil remedies. See Angell, 712 So.2d at 1132; see also Jackson v. State, 801 So.2d 212 (Fla. 2d DCA 2001).

Affirmed.

FULMER and WALLACE, JJ., Concur.


text:
    Joseph HARDING, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1969.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2004.
    Joseph Harding, pro se, petitioner.
    Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition is granted and Joseph Harding is hereby afforded a belated appeal from the order denying his motion to withdraw plea and vacate illegal sentence in case number 16-1995-CF-1799 in the Circuit Court for Duval County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

ERVIN, PADOVANO and LEWIS, JJ., concur.


author: WOLF, C.J.

text:
    Wayman STAGE, Appellant, v. OVERNITE TRANSPORTATION and Gallagher Bassett Services, Inc., Appellees.
    No. 1D03-1319.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2004.
    Bradley Guy Smith, of Smith, Feddeler, Smith & Miles, P.A., Lakeland; Susan W. Fox, of Fox & Loquasto, P.A., Tampa; and Wendy S. Loquasto, of Fox & Loquasto, P.A., Tallahassee, for appellant.
    Denise P. Murray and Warren K. Spon-sler, of Sponsler, Bennett, Jacobs & Cris-tal, P.A., Tampa, for appellees.
   WOLF, C.J.

Claimant raises three issues on appeal, one of which we determine has merit, whether the Judge of Compensation Claims (JCC) erred in awarding the employer/carrier (E/C) credit for an alleged overpayment of impairment benefits. Based on the E/C’s failure to properly raise the issue of appellant’s impairment rating or the credit or an award of credit prior to the hearing before the JCC, we reverse the award of credit regarding the temporary total disability. See Oak Constr. Co. v. Jackson, 522 So.2d 1068, 1072 (Fla. 1st DCA 1988). In all other respects the order of the JCC is affirmed.

BENTON and VAN NORTWICK, JJ., Concur.


text:
    Margaret HAMMELL, Appellant, v. TAD PROPERTIES, L.L.C., d/b/a Microtel Inn & Suites Lake City, Florida, and Lake City Hospitality, Inc., a foreign corporation, Appellees.
    No. 1D03-4873.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2004.
    Matthew F. Minno, of The Minno Law Firm, P.A., Tallahassee, for appellant.
    Michael R. D’Lugo, of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Orlando, for appellees.
   WOLF, C.J.

Appellant appeals an award of attorneys’ fees and costs based on a proposal for settlement made by appellees pursuant to Florida Rule of Civil Procedure 1.442, and sections 45.061 and 768.79, Florida Statutes. We must reverse because the proposal for settlement was invalid as it failed to state the amount and terms attributable to each defendant as required by rule 1.442(c)(3). See Hilyer Sod, Inc. v. Willis Shaw Express, Inc., 817 So.2d 1050 (Fla. 1st DCA 2002), approved, 849 So.2d 276 (Fla.2003).

BOOTH and BENTON, JJ., Concur.


text:
    James TUBWELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-5366.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2004.
    Nancy A. Daniels, Public Defender and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General and Sheron Wells, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The defendant appeals his conviction for felony battery and the five-year sentence imposed as punishment for the crime, contending that the trial court erred in failing to renew the offer of appointed counsel at several critical stages of the proceeding. We find no error in the hearing to determine whether the defendant was capable of making an informed choice of self-representation, and that the offer of counsel made during this hearing applied to all of the proceedings before the jury. However, the offer to provide appointed counsel was not renewed prior to the sentencing hearing. Because, we are unable to conclude that this error was harmless, we conclude that the defendant is entitled to a new sentencing hearing.

Accordingly, we affirm the conviction but reverse for resentencing.

ERVIN, PADOVANO and LEWIS, JJ., Concur.


text:
    CIBER, INC., Petitioner, v. STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILIES and American Management Systems, Inc., Respondents.
    No. 1D04-2899.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2004.
    J. Stephen Menton and Richard M. Ellis of Rutledge, Ecenia, Purnell & Hoffman, P.A., Tallahassee, for petitioner.
    Karen D. Walker, Jeffrey M. Schumm and Susan L. Kelsey of Holland & Knight LLP, Tallahassee, for respondent American Management Systems, Inc.
    W. Robert Vezina, III, Mary Piccard Vance and Josefina M. Tamayo, for respondent Department of Children and Families, Tallahassee.
   PER CURIAM.

As the Department of Children and Families has entered an order denying the request for administrative hearing, the petition for writ of mandamus is denied as moot. See Turner v. Singletary, 623 So.2d 537 (Fla. 1st DCA 1993).

ERVIN, PADOVANO and LEWIS, JJ., concur.


author: KLEIN, J.

text:
    M. Ross SHULMISTER, Appellant, v. CITY OF POMPANO BEACH, a Florida municipality, and Pompano Beach Redevelopment Agency, Appellees.
    No. 4D03-2919.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2004.

      M. Ross Shulmister, Pompano Beach, pro se, for appellant.
    Susan F. Delegal of Holland & Knight LLP, Fort Lauderdale, for appellees.
   KLEIN, J.

We now withdraw our opinion filed on August 18, 2004 and replace it with this opinion.

This appeal involves whether the City of Pompano Beach, under its charter, can convey property designated as a recreation facility without a referendum. We conclude that it can.

In 1976, the City adopted a charter which provided that within a short period the City would certify an inventory of all property owned by the City and assign a designation to each parcel. The charter generally authorized the City to sell or dispose of city property by resolution adopted by the city commission. Certain property, however, including recreational facilities, could be transferred only after approval in a referendum election. The property in this case, a parking lot near the ocean, was designated “recreational facility” in 1977. The charter authorizes the commission to redesignate property by ordinance.

In this case, instead of holding a referendum, the City redesignated a recreational facility (parking lot near ocean) to a different classification which did not require a referendum to sell or transfer. At the same meeting the City passed a resolution authorizing the transfer of the property to the City of Pompano Beach Community Redevelopment Agency. Appellant contended in this suit that the transfer without a referendum violated the charter.

The relevant provisions are in section 253 of the charter, which provides in part:

(a) Power to sell. The City of Pompano Beach is empowered to sell or dispose of any lands, improvements, public buildings, recreational parks or other lands now owned or hereafter acquired by said city, except as otherwise provided herein.
(b) Resolution declaring surplus. Before any lands, the title to which is vested in the City of Pompano Beach, shall be sold, the City Commission shall adopt a resolution at a regular or special meeting of the City Commission particularly describing the land by legal description, reference to a recorded plat or government survey, its location by street number, if there be any, a description of all improvements located upon the land, and shall declare how said land has been used since same has belonged to the city, why it is no longer needed for public purposes, and that the city does declare same surplus and desires to sell the same.
* * *
(f) Notwithstanding any power to sell as herein described, the City Commission shall not have the authority to dispose of property, or of airspace over property, that is designated as follows:
(1) Airport or airpark;
(2) Park;
(3) Golf course;
(4) Recreational facility.
Any property designated airport, park, golf course, or recreational facili- • ties shall be disposed of only after said disposal shall be approved by the majority of voters in an election called, for the purpose of approving the disposition of said parcel or parcels.
Within one hundred twenty (120) days after the effective date of this subsection, the City Commission shall meet at public hearing after fourteen (14) days notice in a newspaper of general circulation in the city, and certify an inventory of all property owned by the City of Pompano Beach that is for purposes other than right-of-way, and shall assign a designation to said properties. Said designations shall be done by ordinance and the City Commission shall use the above designations plus any other designations deemed proper by the City Commission.
Any subsequent changes to the original designations shall only be made by the same process.

The trial court held that,' because the last sentence set forth above authorizes changes to the original designations of property by ordinance, the City could, by ordinance, change the designation of “recreational facility,” and then transfer the property by resolution.

Appellant argues that this interpretation makes that part of the charter requiring a referendum in order for the City to sell or transfer section 253(f) property meaningless. Unruh v. State, 669 So.2d 242 (Fla.1996) (courts should avoid interpretations which render parts of a statute meaningless). Another principle, however, requires courts to adopt interpretations which harmonize related, but conflicting provisions, so that both can be given effect. Jones v. State, 813 So.2d 22 (Fla.2002).

We are not persuaded by the appellant that allowing the City to redesignate and then transfer this property makes the referendum requirement meaningless. The drafters of the charter may well have intended to give the City two methods for disposing of section 253(f) property, depending on the circumstances. For example, if the City owned a golf course which it wanted to sell, but knew that the issue would be controversial, it would have the option of submitting the issue to an election. On the other hand, if the City owned a small parcel which had been designated a recreational facility, but was no longer being used, and the disposition of it was not controversial, the City would have the option of not going to the expense and delay involved in an election. This interpretation gives effect to both provisions.

We therefore affirm.

WARNER and TAYLOR, JJ., concur.


text:
    Jerome LEE, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 2D03-1803.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2004.

      James Marion Moorman, Public Defender, and Celene Humphries, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Seig, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

We affirm on all points raised in Jerome Lee’s direct appeal. Our affirmance renders the State’s cross-appeal moot.

FULMER, NORTHCUTT, and STRINGER, JJ., Concur.


text:
    In re Oliver Wendell HOLMES, III.
    No. 2004-OB-2451.
    Supreme Court of Louisiana.
    Nov. 3, 2004.
   ORDER

The Office of Disciplinary Counsel (“ODC”) is conducting an investigation into allegations that respondent mishandled client and third-party funds. Prior to the filing of formal charges in that matter, respondent filed a petition seeking to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Oliver Wendell Holmes, III, and the concurrence thereto filed by the ODC,

IT IS ORDERED that Oliver Wendell Holmes, III, Louisiana Bar Roll number 23136, be and he hereby is permitted to permanently resign from the practice of law in Louisiana in lieu of discipline, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5(c) of the Rules of Professional Conduct, as amended March 24, 2004. By operation of those rules, Oliver Wendell Holmes, III shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

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


author: |,PER CURIAM.

text:
    Janice HUTCHINSON, Individually and on Behalf of Her Minor Child, Bryant Sibley, Jr. v. WESTPORT INSURANCE CORPORATION, the Law Offices of Jumonville & Lee, Jan P. Jumonville and Patrick F. Lee.
    No. 2004-C-1592.
    Supreme Court of Louisiana.
    Nov. 8, 2004.
   |,PER CURIAM.

Writ granted. The judgment of the court of appeal is reversed and the district court order of dismissal is reinstated.

This writ application concerns whether the district court’s order of dismissal of plaintiffs’ lawsuit for failing to comply with the court’s order to respond to discovery was properly reversed by the court of appeal.

Plaintiffs filed a legal malpractice action against defendant law firm and its insurer. This malpractice action arose from a failure of defendant law firm to timely file an action for damages sustained by the minor child, Bryant Sibley, Jr., in an automobile accident.

The defendants in this matter served interrogatories and requests for production of documents upon the plaintiffs on August 16, 2002, seeking discovery in this matter that was set for trial on April 21, 2003. Ms. Hutchinson was representing herself and her minor son in proper person, despite the detailed advice from the district court judge regarding the disadvantages of proceeding without counsel. On October 11, | R2002, defendants filed a motion to compel answers to interrogatories and responses to requests for production of documents, alleging plaintiffs had failed to properly respond to discovery served upon them:

The district court granted the motion to compel on November 27, 2002, ordering plaintiffs to respond within fifteen days from receipt of the order. Plaintiffs moved for, and were granted, an extension of thirty days to comply with that order. Plaintiffs having failed to comply with the ordered discovery, defendants filed a motion to dismiss on January 21, 2003.

The court heard the motion on April 11, 2003. After hearing from Ms. Hutchinson, the court granted the motion to dismiss, noting that defense counsel had patiently attempted to work with the plaintiffs to make it easy for them to comply with discovery because of their unrepresented status. The court of appeal reversed the judgment of dismissal and remanded the matter to the district court. For the following reasons, we grant the defendants’ writ and reverse.

The trial court has much discretion in imposing sanctions for failure to comply with discovery orders, and its ruling should not be reversed absent an abuse of discretion. Lirette v. Babin Farms, Inc., 02-1402, p. 3 (La.App. 1 Cir. 4/2/03), 843 So.2d 1141, 1143; Garza v. Int'l. Maint. Corp., 97-317, p. 3 (La.App. 3 Cir. 10/29/97), 702 So.2d 1021, 1023. Dismissal, however, is a draconian penalty which should be applied only in extreme circumstances. Horton v. McCary, 93-2315, p. 10 (La.4/11/94), 635 So.2d 199, 203. Dismissal is a sanction of last resort only to be imposed where a party has failed to comply with a court order of discovery and only after an opportunity to be heard has been afforded the litigant. Garza, 97-317 at p. 5, 702 So.2d at 1024.

pin Horton, we adopted from the federal courts four factors to consider before taking the drastic action of dismissal. These factors are: (1) whether the violation was willful or resulted from inability to comply; (2) whether less drastic sanctions would be effective; (3) whether the violations prejudiced the opposing party’s trial preparation; and (4) whether the client participated in the violation or simply misunderstood a court order or innocently hired a derelict attorney. Horton, 93-2315 at pp. 10-11, 635 So.2d at 203. With these standards in mind and having reviewed the record, we find the district court did not abuse its discretion in imposing the sanction of dismissal for plaintiffs’ failure to comply with its discovery order. The appellate court noted the following:

In the matter before us, Ms. Hutchinson is the client and is directly and solely responsible for the failure to comply with the discovery order which led to the dismissal. She was impatient, unrealistic in her expectations of damages and dissatisfied with the representation of several attorneys. Consequently, she demanded self-representation despite the trial court’s warning that such procedure was unwise. Further, she was given special consideration and extra time to respond to discovery. Hutchinson v. Westport Ins. Corp., 04-138, p. 10 (La.App. 5 Cir. 5/26/04), 875 So.2d 891, 897.

Notwithstanding that these factual findings were not found to be manifestly erroneous and absent a clear showing that the district court judge had abused his discretion, the court of appeal reversed the district court’s order and remanded the matter to the district court “with a warning that her case will be dismissed if the new order of the trial court is not obeyed timely.”

Although dismissal is a harsh remedy, this case is deserving of a harsh remedy, as these tactics and delays frustrate the judicial system. The record contains sufficient evidence of plaintiffs’ willful disobedience and fault to justify dismissal. Horton, 93-2315 at p. 11, 635 So.2d at 203. Much of the discovery was easily answerable, even by a lay person. For example, defendants requested, inter alia, plaintiffs’ name, | ¿address and date of birth, the names of hospitals, climes and healthcare practitioners who treated Bryant for his injuries, and copies of all medical bills related to this accident. Other questions concerned Bryant’s two prior visits to North Oaks Hospital for head injuries. Plaintiffs’ response to every interrogatory or request was either “could you be more specific” or “objection; due to the lack of sufficient evidence.” These responses demonstrate plaintiffs’ complete failure to make a good faith effort to respond to the discovery. At the hearing on the motion, defense counsel informed the court that plaintiffs’ failure to cooperate in discovery made it impossible for the defense to proceed and placed the defense at a disadvantage if they had to try the case without the discovery.

The record fully supports a conclusion that plaintiffs’ failure to comply with discovery was willful, and thus, the trial court did not abuse its discretion in ordering dismissal. Litigants cannot refuse to make a good faith effort to respond to discovery; if they do they run the risk of incurring sanctions, up to and including dismissal and default. In our view, plaintiffs’ egregious conduct warrants the harsh remedy of dismissal.

DECREE

The judgment of the court of appeal is reversed. The trial court’s order of dismissal is reinstated.

REVERSED.

CALOGERO, C.J., and JOHNSON, J., dissent and would deny the writ.

      . The record shows plaintiffs hired and then discharged four law firms to represent them in the malpractice action. The Fields Law Firm, the fifth successive law firm representing the plaintiffs, sought and was granted a motion to withdraw as counsel of record, after determining plaintiffs’ expectations were far greater than the quantum associated with the facts and specials of this matter.


author: JjPER CURIAM.

text:
    In re Lawrence A. MANN.
    No. 2004-B-1850.
    Supreme Court of Louisiana.
    Nov. 8, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

JjPER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Lawrence A. Mann, an attorney licensed to practice law in Louisiana but currently on interim suspension.

UNDERLYING FACTS

During all times pertinent to these proceedings, respondent was a partner in the New Orleans law firm of Leake, Anders-son & Mann, where his practice was concentrated primarily in the area of insurance defense. In 1996 or 1997, respondent and his law firm acquired a new client, ATC Leasing Company (“ATC”), a self-insured trucking company headquartered in Kenosha, Wisconsin. The company was referred to the firm by its claims manager, Bruce Bennett, with whom respondent has been friends for the last eleven years. In the fall of 2000, Mr. Bennett told respondent that he needed assistance and was in fear for his life because his gambling was out of control. Respondent’s agreement to help Mr. Bennett led to his participation in four separate schemes involving ATC’s settlement of fraudulent personal injury claims and payment for legal services that were not rendered. These payments totaled approximately $96,000, which was shared by respondent with Mr. Bennett and|2another participant in the scheme, all without the knowledge or consent of respondent’s law firm or his client, ATC.

The Regional Counsel Scheme

Mr. Bennett suggested that respondent become “regional counsel” for ATC, with the understanding that checks for attorney’s fees would be sent to respondent at his home (bypassing the Leake, Andersson & Mann law firm), deposited into his personal bank account, and then “kicked back” to Mr. Bennett. Respondent agreed to this scheme, and on Mr. Bennett’s instructions, ATC paid respondent a total of $35,000 for serving as “regional counsel.” While respondent would occasionally offer Mr. Bennett legal advice or perform some services as “regional counsel,” the work he performed did not justify the $35,000 in fees paid to him by ATC. From these funds, respondent retained between $20,000 and $22,000 to cover any tax liability; he “kicked back” the balance to Mr. Bennett.

The Shannon Williams Claim

In November 2000, Mr. Bennett assigned respondent to investigate and defend the personal injury claim of Shannon Williams, stemming from an accident involving an ATC driver. After the file was opened, respondent determined that no suit was filed on behalf of Ms. Williams within one year of the date of the accident, and accordingly, he informed Mr. Bennett that Ms. Williams’ personal injury claim was prescribed and that ATC had no exposure under Louisiana law. Nevertheless, Mr. Bennett proposed and respondent agreed to proceed as though Ms. Williams had a viable pending tort claim, so as to create an additional source of funds to be paid by ATC and “kicked back” to Mr. Bennett. Respondent subsequently “settled” Ms. IsWilliams’ fictitious claim for $39,000, created bogus correspondence, pleadings, and settlement documents to support the “file,” and obtained a “settlement” check from Mr. Bennett drawn on the account of ATC. The check was delivered to Fritz Stoller, a New Orleans defense attorney whom respondent recruited to act as “counsel” for Ms. Williams. In December 2000, Mr. Stoller deposited the check into his “client trust account.”

The Medical Lienholder Claim

Respondent successfully settled a legitimate tort claim against ATC for $10,000 less than the reserve established by Mr. Bennett. Thereafter, Mr. Bennett proposed and respondent agreed that the excess reserve would serve as an additional source of funds to be “kicked back” to Mr. Bennett. Respondent again enlisted Mr. Stoller’s aid, this time to pose as counsel for a fictitious medical lienholder. On Mr. Bennett’s instructions, ATC paid the sum of $10,000 to Mr. Stoller through respondent in order to satisfy the “lien.” In January 2001, Mr. Stoller deposited the check into his “client trust account.”

The proceeds of the checks issued by ATC in connection with the Shannon Williams claim and the medical lienholder claim were shared by Mr. Bennett, Mr. Stoller, and respondent. Out of the total of $49,000 paid by ATC in those matters, Mr. Stoller retained approximately $20,000; he paid the $29,000 balance to respondent, who in turn “kicked back” an undetermined amount to Mr. Bennett.

| ¿The “Girlfriend” Claim

In January 2001, Mr. Bennett authorized a $12,000 “settlement” of a fictitious claim against ATC. Respondent provided Mr. Bennett with the name of his girlfriend to be used as the claimant in the case. Mr. Bennett forwarded the “settlement” check to respondent, who kept approximately $4,000 for himself. Respondent “kicked back” the balance to Mr. Bennett.

These matters, as well as other similar matters involving Mr. Bennett, ultimately came to the attention of federal authorities. In January 2002, after respondent learned that he was the subject of a federal investigation, he self-reported his misconduct to the ODC. On March 4, 2002, the United States Attorney for the Eastern District of Wisconsin filed a single count bill of information charging respondent with a violation of 18 U.S.C. §§ 2 and 2314, the interstate transportation of a security obtained by fraud. Respondent pleaded guilty to the charge, which is a felony under federal law.

On September 20, 2002, the district court sentenced respondent to serve five months in a halfway house, followed by three years of supervised release, five months of which were to be served in home confinement with electronic monitoring. Respondent was ordered to perform a total of 90 hours of community service in lieu |fiof a fine. On the day of sentencing, respondent, together with Mr. Stoller, paid $96,275 in restitution to ATC in accordance with the plea agreement each entered into with the Government.

DISCIPLINARY PROCEEDINGS

On June 19, 2002, the ODC filed one count of formal charges against respondent, alleging that his conduct constituted a violation of Rules 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act reflecting adversely 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 Rules of Professional Conduct. Respondent answered the formal charges and admitted his misconduct, but requested a hearing in mitigation.

Formal Hearing

When this matter proceeded to a formal hearing on April 16, 2003, the ODC introduced documentary evidence in support of the formal charges, including the bill of information against respondent, the plea agreement between respondent and the Government, and the district court’s judgment in the criminal case. The ODC also introduced the bogus defense file that respondent created in connection with the Shannon Williams scheme, the deposition of Mr. Bennett, and the bank records of Mr. Stoller’s “client trust account.”

Respondent stipulated to the introduction of the ODC’s exhibits and introduced the transcript of the sentencing hearing in his criminal case. Respondent also introduced testimony concerning his good character and reputation in the community. In his own testimony, respondent admitted that his conduct was wrong and “pretty | fistupid,” but suggested that he was not trying to enrich himself by agreeing to help Mr. Bennett. Rather, respondent testified that his only motivation was concern for his friend, whom he honestly believed “was in danger of some bodily harm or problems with his life and he was calling out to me.”

Hearing Committee Recommendation

The hearing committee’s findings of fact, based upon the evidence and testimony presented at the hearing, include the following:

1. Respondent’s conduct in all respects was knowing and intentional.
2. The actual injury caused by respondent’s conduct can be quantified at or about $96,000 ($35,000 in “regional counsel” fees, plus $39,000 for the Williams “settlement,” plus $10,000 for the medical lienholder “settlement,” plus $12,000 for the “settlement” check endorsed by respondent’s girlfriend).
3. Respondent’s failure to disclose to his client its employee’s fraudulent and criminal conduct caused ATC Leasing to suffer a total loss at the hands of Bennett amounting to nearly $740,000.
4. Respondent contends that he acted out of concern for the safety of a friend and not out of greed. However, respondent does not dispute that he retained a portion of the funds that came through his hands as a result of his dealings with Bennett.

Based on these factual findings, the committee concluded that respondent violated Rules 8.4(a), 8.4(b), and 8.4(c) of the Rules of Professional Conduct, as charged in the formal charges.

|7The committee determined that respondent violated duties owed to his client, the public, and as a professional. Respondent’s misconduct was knowing and intentional and caused substantial harm to his client. Under the ABA’s Standards for Imposing Lawyer Sanctions, the baseline sanction for respondent’s conduct is disbarment.

As aggravating factors, the committee recognized respondent’s dishonest or selfish motive, a pattern of misconduct, multiple offenses, vulnerability of the victim, and substantial experience in the practice of law (admitted 1981). In mitigation, the committee acknowledged the absence of a prior disciplinary record, full and free disclosure to the ODC, character and reputation, and remorse. The committee found that respondent’s payment of restitution to ATC was forced or compelled, and thus was neither an aggravating nor a mitigating circumstance.

In light of the seriousness of respondent’s conduct, and considering the permanent disbarment guidelines set forth in Appendix E to the Rules of Lawyer Disciplinary Enforcement, the committee recommended that respondent be permanently disbarred.

Respondent filed an objection to the sanction recommended by the hearing committee, contending that permanent disbarment is too harsh and that no more than a three-year suspension should be imposed given the mitigating factors present in this case.

Disciplinary Board Recommendation

After reviewing the record, the disciplinary board concurred in the hearing committee’s factual findings and its application of the Rules of Professional | ¡¡Conduct. Likewise, the board agreed with the committee that respondent engaged in multiple instances of intentional conversion of client funds with substantial harm to the client, and pleaded guilty to serious criminal conduct involving misrepresentation, fraud, misappropriation, and theft. Respondent’s conduct violated duties owed to his client, the public, and as a professional. The board also agreed that disbarment is the baseline sanction for respondent’s misconduct.

The board adopted the aggravating and mitigating factors found by the committee. In addition, the board found the record supports the mitigating factor of the imposition of other penalties or sanctions, in the form of the sentence imposed in respondent’s criminal case.

Turning to the issue of an appropriate sanction, the board rejected respondent’s argument that the mitigating factors present justify the imposition of a sanction less than permanent disbarment. The board found respondent’s conduct is serious and fits within Guideline 1 of the permanent disbarment guidelines (“repeated or multiple instances of intentional conversion of client funds with substantial harm”), as well as Guideline 6 (insurance fraud). The board noted that respondent engaged in calculated and dishonest conduct by engaging in multiple instances of intentional conversion of client funds, which resulted in substantial harm to his client. Furthermore, respondent participated in a scheme to defraud ATC by having the company pay non-existent or non-viable claims for damages. Although ATC was self-insured, the board found that “insurance fraud” is a broad concept, and accordingly, determined Guideline 6 is applicable to respondent’s misconduct.

[ nBased on this reasoning, the board recommended respondent be permanently disbarred. The board also recommended that respondent be assessed with all costs and expenses of these proceedings.

Neither respondent nor the ODC filed an objection in this court to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). When the disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990). The discipline to be imposed depends on the seriousness of the offense and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

In the instant case, respondent stands convicted of one count of the interstate transportation of a check obtained by fraud. Respondent’s conduct is both criminal and unethical, and clearly warrants serious discipline. The only issue that we must resolve is the appropriate sanction to be imposed.

We recognize that several mitigating factors are supported by the record, including the absence of a prior disciplinary record, character and reputation, imposition of other penalties or sanctions, and remorse. Respondent has also demonstrated a cooperative attitude toward the disciplinary proceedings. Nevertheless, these mitigating factors do not diminish either the egregious nature of | inthe conduct at issue or the substantial actual harm that results to the integrity of the profession whenever a lawyer is convicted of a serious crime.

Respondent has admitted that he planned and entered into a scheme with Mr. Bennett to obtain payment of fraudulent tort claims. Respondent recruited another attorney, Fritz Stoller, to assist in negotiating the fraudulent claim checks by posing as counsel for fictitious clients. Respondent also received payment for legal services he had purportedly rendered to his client, ATC Leasing Company, when in fact, he had not provided the legal services and was not entitled to the payment. Respondent’s client lost approximately $96,000 as a direct result of the fraudulent schemes perpetrated by respondent and Mr. Bennett. It is particularly disturbing that respondent used his skills as an attorney to facilitate the commission and concealment of these schemes, going so far as to manufacture a defense file in connection with the “settlement” of the prescribed Shannon Williams claim.

Under these circumstances, disbarment is clearly appropriate. However, in their respective reports, the hearing committee and the disciplinary board have concluded that respondent’s offenses are so egregious that he should be permanently prohibited from applying for readmission to the bar.

We agree. 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. For purposes of the instant case, Guidelines 1 and 6 are relevant. Those guidelines provide:

_|jjGUIDELINE 1. Repeated or multiple instances of intentional conversion of client funds with substantial harm.
GUIDELINE 6. Insurance fraud, including but not limited to staged accidents or widespread runner-based solicitation.

While the misconduct at issue here is different from the kinds of conversion typically seen by this court, Guideline 1 is nonetheless applicable. Much like the lawyer who pockets his client’s settlement funds or steals money earmarked for a medical provider, the fraudulent schemes in which respondent participated resulted in a conversion of funds to the detriment of his client. Guideline 6 is also implicated, as the undisputed evidence shows respondent manufactured fraudulent personal injury claims in an attempt to defraud ATC. This conduct is precisely the type of reprehensible conduct we sought to address in Guideline 6.

Under the circumstances of this case, the imposition of any sanction less than permanent disbarment would require us to ignore the seriousness of respondent’s conduct and the grave harm he has visited upon his client and the legal profession. We will therefore accept the disciplinary board’s recommendation and permanently disbar respondent.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that that the name of Lawrence A. Mann, Louisiana Bar Roll number 9096, 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. |1%A11 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.

      . In re: Mann, 02-0239 (La.2/6/02), 807 So.2d 828.

      . Respondent and Mr. Stoller had at one point in time worked together in the same law firm. Like respondent, Mr. Stoller has faced both federal criminal charges and disciplinary proceedings arising out of his participation in the scheme. Mr. Stoller is presently on interim suspension. See In re: Stoller, 02-1131 (La.5/8/02), 816 So.2d 848.

      . ATC suffered a total loss at the hands of Mr. Bennett amounting to nearly three-quarters of a million dollars. Mr. Bennett ultimately pleaded guilty to charges of bank fraud and the interstate transportation of a security obtained by fraud. He was sentenced to serve 37 months in federal prison.

      .The following are the elements of the offense of the interstate transportation of a security obtained by fraud:
      1. That the check in question was obtained by fraud.
      2. That the check had a value of at least $5,000.
      3. That respondent caused the check to be transmitted or transferred in interstate commerce, in this case from Wisconsin to Louisiana.
      4. That at the time respondent transmitted or transferred the check, or caused it to be transmitted or transferred, he knew it had been obtained by fraud.

      . The hearing committee made 38 specific factual findings, 37 of which were not disputed by respondent or the ODC. The undisputed facts are incorporated into the "underlying facts” section of this opinion.

      . The board’s report contains a lengthy discussion of why the hearing committee correctly found that respondent did not violate Rule 8.4(d) (engaging in conduct prejudicial to the administration of justice) "as charged” in the formal charges. However, Rule 8.4(d) is mentioned nowhere in the formal charges filed against respondent.


text:
    In re Stacy C. AUZENNE.
    No. 2004-B-2520.
    Supreme Court of Louisiana.
    Nov. 8, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that in the course of handling a legal matter for a client, respondent dealt improperly with a person not represented by counsel. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Stacy C. Auzenne, Louisiana Bar Roll number 21995, be publicly reprimanded.

IT IS FURTHER ORDERED that respondent shall enroll in and attend the next session of Ethics School offered by the Louisiana State Bar Association’s Practice Assistance and Improvement Committee.

IT IS FURTHER ORDERED that 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.


text:
    In re James E. SHIELDS.
    No. 2004-B-1454.
    Supreme Court of Louisiana.
    Nov. 8, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel seeks review of a recommendation of the disciplinary board that the formal charges against respondent, James E. Shields, be dismissed. Having reviewed the record and the briefs of the parties, we find the disciplinary board reached the correct result in dismissing the formal charges.

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


author: LKUHN, J.

text:
    Rhonda Dyess, Wife of/and Cecil D. DYESS v. AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY.
    No. 2003 CA 1971.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.
    Writ Denied Oct. 29, 2004.

      Clifford E. Cardone, New Orleans, Counsel for Plaintiffs/Appellees Rhonda Dyess, wife of/and Cecil D. Dyess.
    Arthur H. Andrews, Baton Rouge, Counsel for Defendant/Appellant American National Property and Casualty Company.
    Before: WHIPPLE, KUHN, and McDonald, jj.
   LKUHN, J.

In this appeal, we consider whether an uninsured/underinsured motorist bodily injury (“UM”) coverage form, which is in the format prescribed by the Louisiana Commissioner of Insurance pursuant to Louisiana Revised Statutes 22:1406 D(l)(a)(ii) and is signed by the insured, validly rejects UM coverage where the selection rejecting such coverage is not marked with the insured’s initials but is marked with only an “X.” Our learned brother, trial judge Robert H. Morrison, III, granted the insured’s motion for summary judgment, finding the purported rejection to be insufficient to reject UM coverage. We affirm.

I. PROCEDURAL AND FACTUAL BACKGROUND

Plaintiffs, Rhonda and Cecil Dyess, filed suit against their alleged UM insurer, American National Property and Casualty Co. (“ANPAC”), seeking to recover damages for Ms. Dyess’ bodily injuries. Ms. Dyess alleged that she sustained serious injuries as the result of a motor vehicle accident that occurred on March 7, 2001. She asserted that while operating her 2000 Plymouth Voyager, she was struck by a vehicle that crossed the centerline of the highway upon which she was traveling. The vehicle in question was operated by Brett Starns, owned by Melvin T. Allday, and insured by State Farm Mutual Automobile Insurance (“State Farm”). State Farm has paid the Dyesses the limits of its liability policy in settlement of them claims against Allday, and the record further establishes that Ms. Dyess’ injuries exceeded the amount of the policy limits. ANPAC’s answer also concedes that Starns was an underinsured motorist. ANPAC maintained, [¡¡however, that the Dyesses’ claims should be dismissed because Ms. Dyess had rejected UM coverage before the accident by signing a form that indicated she did not want to purchase such coverage.

ANPAC and the Dyesses filed cross-motions for summary judgment on the issue of whether ANPAC’s policy provided UM benefits at the time of the accident. By judgment dated April 14, 2003, the trial court signed a judgment in favor of the Dyesses and against ANPAC, granting the Dyesses’ motion for summary of judgment and imputing UM coverage to ANPAC’s policy of insurance in limits equal to the policy’s liability limits. The judgment further decreed that “after an express determination that there is no reason for delay,” the judgment was designated final and appealable pursuant to Louisiana Code of Civil Procedure Article 1915(B). ANPAC has appealed, urging the trial court erred, as |4a matter of law, in finding that the rejection of UM coverage by the use of an “X” rather than the initials of the signer was legally insufficient.

II. ANALYSIS

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions, and is favored. La. C.C.P. art. 966 A(2). A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B. The movant bears the burden of proving that he is entitled to a summary judgment. La. C.C.P. art. 966 C(2). Whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can properly be resolved within the framework of a motion for summary judgment. Reno v. Travelers Home and Marine Ins. Co., 2002-2637, p. 3 (La.App. 1st Cir.11/7/03), 867 So.2d 751, 753.

Appellate review of a summary judgment is on a de novo basis. Jones v. Estate of Santiago, 2003-1424, p. 5 (La.4/14/04), 870 So.2d 1002, 1006. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Cressionnie v. Intrepid, Inc., 2003-1714, p. 3 (La.App. 1st Cir.5/14/04), 879 So.2d 736, 738-39.

When interpreting an insurance contract, the court must attempt to discern the common intent of the insured and insurer. Reno v. Travelers Home and Marine Ins. Co., 2002-2637 at p. 3, 867 So.2d at 753. Analysis should begin with a review of the words in the insurance contract, and the contract must be enforced Las written when the words are clear and explicit and lead to no absurd consequences. Id. The validity of a waiver or rejection of a UM coverage form is determined by the law in effect at the time the waiver was executed. Id.

At the time of the accident, Louisiana Revised Statutes 22:1406 D provided as follows in pertinent part:

(l)(a)(i) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state ... unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom; however, the coverage required under this Section is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage, in the manner provided in Item D(l)(a)(ii) of this Section....
(ii) ... such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. ... A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage. ...

(Emphasis added.)

Pursuant to this statutory authority, the Commissioner promulgated a form for the rejection or selection of UM coverage on April 28, 1998, in La. Bulletin LIRC 98-01.

Lin the present case, Ms. Dyess purchased the applicable ANPAC policy on March 5, 2001. On that date, she met with ANPAC agent, Doug Jones, to discuss insurance coverage for her Plymouth Voyager and to sign the paperwork necessary to bind coverage. One of the documents she signed was the UM coverage form promulgated by the Commissioner, which we include herein:

|7Based on the evidence presented by the parties, it is unclear whether Ms. Dyess or someone else marked the “X” on the UM form. Ms. Dyess submitted an affidavit, in which she stated that: 1) she signed and dated a blank UM form, 2) she did not put the “X” on the form, and 3) she did not know who placed the “X” on the form. Additionally, in her deposition testimony, Ms. Dyess testified that she specifically recalled not placing an “X” on the form. She also explained that she would not have affixed an “X” because the form directed the use of initials for making a selection. She further stated that when she signed the form, she was unsure whether she wanted the UM coverage and did not make a decision at that time. She planned to advise Jones within a couple of days regarding whether she wanted the coverage after discussing the matter with her husband, but the accident occurred two days later. She indicated that as of the time of the accident, she and her husband had not yet made a decision.

Doug Jones’s deposition testimony established that he did not remember that Ms. Dyess put the “X” on the form, but he asserted, “I know we would not put an ‘X for a client. We would not do that.” Jones testified that Ms. Dyess would have had to make a decision regarding the UM coverage in order for him to bind coverage. He stated that before Ms. Dyess left his office, she paid an initial payment towards the six-month policy premium.

The mandatory UM coverage provisions of Louisiana Revised Statutes 22:1406(D) embody strong public policy. Richardson v. Lott, 2003-0189, p. 7 (La. App. 1st Cir.11/7/03), 868 So.2d 64, 70, writ denied, 2003-3324 (La.2/13/04), 867 So.2d 707. The object of UM coverage is to provide full recovery for automobile accident victims who suffer damages caused by a tortfeasor who is |snot covered by adequate liability insurance. Henson v. Safeco Ins. Companies, 585 So.2d 534, 537 (La.1991). Nevertheless, such coverage may be specifically rejected pursuant to the statutory guidelines. Id. The statute’s provisions, however, are to be liberally construed in favor of coverage such that statutory exceptions to the UM coverage requirements are interpreted strictly. Richardson v. Lott, 2003-0189 at p. 7, 868 So.2d at 70.

Insurers in Louisiana are required to include UM coverage unless specifically rejected by the insured. Henson v. Safeco Ins. Companies, 585 So.2d at 539. It is the rejection of UM coverage, and not its acceptance; that must be the affirmative act of the insured. Id. Unless the insured’s expression of his desire to reject or select lower limits of UM coverage meets the formal requirements of law, the expression does not constitute a valid rejection. Richardson v. Lott, 2003-0189 at p. 8, 868 So.2d at 71.

In the present case, the Dyesses urge that Ms. Dyess engaged in no affirmative act that indicated that she rejected UM coverage, and that the purported rejection is ineffective.

In Henson v. Safeco Ins. Companies, 585 So.2d at 535, the named insured signed an application for automobile liability insurance, on which the insurance agent had filled in numerous answer boxes including one which rejected UM coverage. The insured did not sign a separate UM rejection form. Since the application form had already been filled out, the insured was required to affirmatively change the form in order to accept UM coverage. The Henson court found that the insured’s mere signing of the application form, without his marking 1 flthe rejection section himself or initialing the mark made by the agent, was insufficient to establish an affirmative rejection of UM coverage. Id. at 539-540.

But in a number of eases following Henson, the courts have found that where a separate rejection form has been utilized, the fact that someone other than the insured placed the “X” on the form did not result in the invalidation of the rejection. For example, see Knight v. Owens, 03-1064, p. 8 (La.App. 5th Cir.2/23/04), 869 So.2d 188, 193 (finding a valid rejection where the insured’s legal representative signed immediately below a pre-selected, checked box indicating an entire rejection of UM coverage); Dabney v. Plaisance, 2002-0710, p. 9 (La.App. 4th Cir.12/4/02), 832 So.2d 1103, 1109, writ denied, 2003-0376 (La.4/21/03), 841 So.2d 804 (a pre-printed waiver form was found to specifically reject UM coverage, where the form was filled out by the insurance agent upon the instructions of the insured); Odom v. Johnson, 97-546, pp. 15-16 (La.App. 3d Cir.12/10/97), 704 So.2d 1254, 1263, writs denied, 1998-0778, 1998-0826, 1998-0876 (La.5/1/98), 718 So.2d 419, 420, and 421 (where the insured’s legal representative placed her initials next to the rejection box in which an insurance agent had placed the typewritten “XX”, the court found a valid rejection). However, none of these cases involved the UM coverage form prescribed by the Commissioner because each of the UM forms were executed prior to the promulgation of the Commissioner’s form. Accordingly, we do not find the reasoning of these cases to be determinative of the issue presented in this case.

The form at issue directs the insured to make a selection regarding UM coverage by “initialling] only one option.” And the word “initials” appears underneath the blank line next to each option. The language of the form |inimmediately above the insured’s signature line also references the insured’s “choice ... made by my initials on this form .... ” Accordingly, based on the clear and explicit language of the contract, we conclude that proper execution of the form pursuant to-Louisiana Revised Statutes 22:1406 D(l)(a)(ii) requires that the initials of the insured or his legal representative be marked next to the coverage selection. Thus, we conclude that a designation with only an “X” is insufficient to constitute a valid rejection of UM coverage. Such an interpretation is consistent with a liberal interpretation of Louisiana Revised Statutes 22:1406 D in favor of UM coverage. Requiring that the insured or his representative affix initials serves the valid purpose of mandating an affirmative act, and if the authenticity of the initials is contested, the initials provide a selection that is susceptible of being identified as a mark made by the insured or his representative.

Accordingly, we find that the UM rejection was invalid and that the Dyesses established as a matter of law that they were entitled to a judgment establishing that ANPAC’s policy provided UM benefits at the time of the accident. Because we reach this conclusion, whether Ms. Dyess or someone else marked the “X” on the UM form is immaterial.

III. CONCLUSION

For these reasons, we affirm the trial court’s judgment in favor of the Dyesses. Appeal costs are assessed against ANPAC.

AFFIRMED.

      . Cecil Dyess also claims lo have suffered "mental and physical damages as a result of ANPAC's arbitrary and capricious refusal to settle or pay plaintiff's claims.”

      . In separate written reasons certifying the judgment as final and appealable, the trial court stated:
      In light of the fact that liability is not seriously contested, and the court has been given reason to understand that liability will be stipulated by [ANPAC], and in light of the fact that if this court's ruling is affirmed Ms. Dyess’ denial that she placed the "X” on the form will be rendered moot, and in light of the fact that both parties have requested the court to certify this judgment as final and appealable, and in light of the fact that this case will likely resolve itself once the issue presented in the motion is finally determined, and thus judicial economy would be served, this court determines that there is no reason for delay and accordingly certifies the judgment signed on April 14, 2003 [as] final and appealable
      Based on the factors set forth in Motorola, Inc. v. Associated Indem. Corp., 2002-1351, pp. 16-17 (La.App. 1st Cir. 10/22/03), 867 So.2d 723, 732, we determine the trial court did not abuse its discretion in designating this judgment as final and appealable. Because the issue of the validity of the UM rejection is not intertwined with remaining issues regarding the insured's entitlement to recover for her personal injuries, there is no relationship between the adjudicated and unadjudicated claims. Additionally, there is no likelihood that the issue regarding UM rejection will be mooted out by further proceedings in the trial court, there is no possibility that this court will have to review the UM issue again if it is presently reviewed, there are no other claims by defendant that will affect the resolution of the UM issue, and since liability is apparently not seriously contested, a decision on the UM issue at this time will likely facilitate resolution of any remaining issues, resulting in reduced litigation costs and fostering judicial economy.

      . Pursuant to Acts 2003, No. 456, § 3, Louisiana Revised Statutes 22:1406(D) has been amended and redesignated as 22:680. The amendments contained therein are not pertinent to this appeal,


author: | ¡WHIPPLE, J.

text:
    Rick FERRINGTON v. LOUISIANA BOARD OF PAROLE and Louisiana Department of Public Safety and Corrections.
    No. 2003 CA 2093.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.

      Rick Ferrington, Homer, Pro Se.
    Robert B. Barbor, Baton Rouge, for Defendants/Appellees, Louisiana Department of Public Safety and Corrections and Board of Parole.
    Before: WHIPPLE, KUHN and MCDONALD, JJ.
   | ¡WHIPPLE, J.

Rick Ferrington, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (the DPSC), appeals a judgment of the district court dismissing his petition for writ of habeas corpus and judicial review, on the basis of Ferringtoris failure to exhaust administrative remedies. For the following reasons, we amend.

FACTS AND PROCEDURAL HISTORY

On May 30, 2002, Ferrington filed an application for writ of habeas corpus and petition for judicial review, naming as defendants the DPSC and the Louisiana Board of Parole (Parole Board). In his pleadings, Ferrington claimed that, although his confinement was originally lawful, because of an intervening series of circumstances and the application of an allegedly unconstitutional statute, the custody had become unlawful. Specifically, as alleged by Ferrington and established by the record on appeal, Ferrington was sentenced in 1991 to twelve years at hard labor for a conviction of simple burglary. He was eligible for a reduction of his sentence by earning “good time” credit, and he opted to receive “double good time” at the rate of thirty days for every thirty days spent in actual custody in lieu of wages. See LSA-R.S. 15:571.3.

In 1997, after serving six years in prison, Ferrington was released due to diminution of sentence “as if released on parole,” and was placed under parole supervision for the remainder of the original full term of his sentence, pursuant to LSA-R.S. 15:571.5. Under that statute, if the released person violates a condition of parole, the Parole Board can revoke the release and ^recommit the person to custody for the remainder of the original full term of the sentence. In 2001, Fer-ringtoris parole was revoked due to his being convicted of a new felony while on parole.

In his pleadings filed in the district court below, Ferrington alleged the unconstitutionality of LSA-R.S. 15:571.5, insofar as it required that he be released “as if on parole” where his release was based on the accrual of good time credits and contended that its application herein accordingly resulted in a deprivation of his constitutional rights. He requested that the court issue a writ of habeas corpus and order his release from further custody.

In response to Ferringtoris pleadings, the DPSC and the Parole Board filed a motion to dismiss Ferringtoris suit, contending that Ferrington had failed to exhaust administrative remedies available to him through the DPSC’s Administrative Remedy Procedure for Adult Inmates, as required of an inmate prior to filing to suit. See LSA-R.S. 15:1172(B). The DPSC and the Parole Board further averred that, in accordance with earlier rulings of the district court in other cases wherein the court rejected identical arguments, Ferringtoris suit should be dismissed.

The district court rendered judgment in accordance with the recommendation of the commissioner and dismissed Ferring-toris suit without prejudice on the basis that Ferrington had failed to exhaust administrative remedies. From this judgment, Ferrington appeals.

DISCUSSION

On appeal, Ferrington contends that the district court erred in finding that his claim was governed by the Corrections Administrative Remedy Procedure (CARP), LSA-R.S. 15:1171, et seq. Fer-rington asserts that his claim is not a time computation complaint as stated by the commissioner, but, instead, his claim is a habeas corpus application challenging the | ¿defendants’ legal authority to place him on supervised release and to revoke his release, a claim not subject to administrative remedies.

We agree with Ferrington that his claim herein is not governed by CARP under LSA-R.S. 15:1171-1179. As noted by this court in Madison v. Ward, 2000-2842, p. 6 (La.App. 1st Cir.7/3/02), 825 So.2d 1245, 1251 (en banc), LSA-R.S. 15:1171(B) grants authority to the DPSC and to each sheriff to adopt administrative remedy procedures in compliance with federal law to receive, hear and dispose of all offender “complaints and grievances.” CARP is currently the exclusive remedy by which an offender may challenge the DPSC’s time computations relative to good time, even where an inmate incorrectly labels his claim a writ of habeas corpus. LSA-R.S. 15:1171(B); Madison, 2000-2842 at pp. 6-7 & n. 9, 825 So.2d at 1251-1252 & n. 9. However, where a prisoner claims he is entitled to immediate release under LSA-C.Cr.P. art. 362 (on grounds other than those relative to time computations), his challenge is properly raised by a writ of habeas corpus under the criminal jurisdiction of the appropriate district court. Madison v. Ward, 2000-2842 at p. 11, 825 So.2d at 1254.

Nonetheless, Madison does not end our analysis. In Bernard v. Louisiana Department of Public Safety and Corrections, 2000-1912, p. 2 (La.App. 1st Cir.9/20/02), 843 So.2d 413, 414 (on rehearing), writ denied, 2002-2613 (La.1/9/04), 862 So.2d 975, an inmate whose parole had been revoked challenged LSA-R.S. 15:571.5’s requirement that an inmate released pursuant to good time credits be released “as if released on parole,” just as Ferrington has challenged herein. While noting this court’s en banc opinion in Madison, another panel of this court found that the inmate’s claim was not truly a habeas corpus claim. Bernard, 2000-1912 at p. 2, 843 So.2d at 414. The Bernard court noted that the statute, LSA-R.S. 15:571.5, which |fithe inmate challenged as unconstitutional on its face or as applied to him, had never been declared unconstitutional, but rather, had been upheld in a number of cases. Thus, the court concluded that the triggering event for a habeas corpus claim, i.e., the application of an unconstitutional statute, had not occurred. Accordingly, the Bernard, court held that the inmate’s claim did not meet the criteria for classification as a true writ of habeas corpus. Bernard, 2000-1912 at p. 2, 843 So.2d at 414.

Likewise, in the instant case, we conclude that, while not a claim governed by CARP, Ferrington’s claim is also not one that could be raised through post-conviction habeas corpus under LSA-C.Cr.P. art. 362(2) in that LSA-R.S. 15:571.5 has been upheld on numerous occasions and, thus, there was no application of a statute declared unconstitutional to trigger a true habeas corpus claim. See Bernard, 2000-1912 at p. 2, 843 So.2d at 414.

Rather, as instructed by this court in its en banc consideration in Madison, such a claim involving a liberty interest or asserting deprivation of a constitutionally protected right is a traditional civil matter over which the district court retains original jurisdiction. See Madison, 2000-2842 at p. 10, 825 So.2d at 1254; Bernard, 2000-1912 at pp. 2-3, 843 So.2d at 414; see also Hull v. Stalder, 2000-2730, p. 5 (La.App. 1st Cir.2/15/02), 808 So.2d 829, 832. Thus, Ferrington’s claim herein should have been considered by the district court acting under its original jurisdiction. Bernard, 2000-1912 at pp. 2-3, 843 So.2d at 414. The district court erred in ruling that his claim was governed by CARP and should be dismissed for failure to exhaust administrative remedies.

Nonetheless, because Ferring-ton’s claim was initiated as a civil action by a prisoner seeking redress from a governmental entity, his claim was subject to the screening provisions of the Prison Litigation Reform Act | B(PLRA), LSA-R.S. 15:1188. See Bernard, 2000-1912 at pp. 2-3, 843 So.2d at 414. Louisiana Revised Statute 15:1188(A) provides, as follows:

The court shall review, before docketing if feasible or, in any event, before service on the defendants, a petition in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. On review, the court shall identify cognizable claims or dismiss the petition, or any portion of the petition, if the petition is frivolous, is malicious, fails to state a cause of action, seeks monetary relief from a defendant who is immune from such relief, or fails to state a claim upon which relief can be granted.

After reviewing the instant matter pursuant to the PLRA, the commissioner ordered the Clerk of Court to proceed with service of Ferrington’s pleadings upon defendants. However, we conclude that under the facts as presently alleged herein, Ferrington has failed to state a cause of action, and his suit should have been dismissed accordingly. This court, as an appellate court, has authority to raise an exception of no cause of action on its own motion, and, accordingly, we do so herein. LSA-C.C.P. art. 927(B); Colquitt v. Claiborne Parish Louisiana, 36,260, p. 3 (La.App. 2nd Cir.8/14/02), 823 So.2d 1103, 1105.

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations presented. Industrial Companies, Inc. v. Durbin, 2002-0665, p. 6 (La.1/28/03), 837 So.2d 1207, 1213. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. LSA-C.C.P. art. 931. Therefore, the court reviews the petition and accepts the well-pleaded allegations of fact as true, and the issue at trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. B & C Electric, Inc. v. East Baton Rouge Parish School Board, 2002-1578, p. 4 (La.App. 1st Cir.5/9/03), 849 So.2d 616, 619.

j7Even accepting the allegations of Fer-rington’s pleadings as true, it is plain that Ferrington is not legally entitled to the relief sought, i.e., to have LSA-R.S. 15:571.5 declared unconstitutional and to be immediately released from prison. This court has previously upheld the constitutionality of LSA-R.S. 15:571.5 and has rejected many of the arguments made by Ferrington herein. See Frederick v. Ieyoub, 99-0616 (La.App. 1st Cir.5/12/00), 762 So.2d 144, writ denied, 2000-1811 (La.4/12/01), 789 So.2d 581 (rejecting substantive due process and equal protection challenges to LSA-R.S. 15:571.5); State v. Duncan, 98-1730, pp. 3-6 (La.App. 1st Cir.6/25/99), 738 So.2d 706, 709-710 (holding that loss of previously earned good time credit does not constitute multiple punishment for the same offense and therefore does not constitute double jeopardy); Tauzier v. Cain, 96-1934 (La.App. 1st Cir.6/20/97), 696 So.2d 650 (rejecting ex post facto challenge to LSA-R.S. 15:571.5); and Bancroft v. Louisiana Department of Corrections, 93-1135 (La.App. 1st Cir.4/8/94), 635 So.2d 738 (rejecting arguments of duress, ex post facto violation and breach of contract). Accordingly, we conclude that even accepting the allegations of Ferrington’s pleadings as true, he has failed to state a cause of action in that he is not legally entitled to the relief sought. See Frederick, 99-0616 at p. 7, 762 So.2d at 149.

While it is true that where a petition fails to state a cause of action, a plaintiff should be allowed to amend his demand if the grounds of the objection can be removed by amendment, LSA-C.C.P. art. 934; Frederick, 99-0616 at p. 7, 762 So.2d at 149, we conclude that no amendment could possibly cure the deficiencies in Fer-rington’s claims. Accordingly, Ferring-ton’s claims should have been dismissed with prejudice.

I «CONCLUSION

For the above and foregoing reasons, the May 27, 2003 judgment of the trial court is amended to reflect that Ferring-ton’s claims are dismissed with prejudice on the basis that Ferrington has failed to state a cause of action. Costs of this appeal are assessed against Rick Ferring-ton.

AMENDED.

      . In his petition for judicial review, Ferring-ton acknowledged that he had not presented his complaint through the prisoners' grievance procedure, as required prior to filing a petition for judicial review, see LSA-R.S. 15:1172(B), but, instead, referred the court to his application for writ of habeas corpus.


author: I,PER CURIAM.

text:
    SECRETARY, DEPARTMENT OF REVENUE, STATE OF LOUISIANA v. GAP (APPAREL), INC.
    No. 2004 CW 0263.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.

      Otha Curtis Nelson, Jr., Barry L. Kelly, David M. Hansen, Leslie C. Strahan, Baton Rouge, Jack M. Alltmont, Sharon Cormack Mize, Edward J. Rivera, New Orleans, Counsel for Plaintiff-Respondent Department of Revenue, State of Louisiana.
    William F. Grace, Jr., New Orleans, Paul H. Frankel, Craig B. Fields, Roberta Moseley Nero, New York, NY, Counsel for Defendant-Relator Gap (Apparel), Inc.
    Before: WHIPPLE, KUHN, and McDonald, jj.
   I,PER CURIAM.

The Louisiana Department of Revenue (the Department) filed the underlying suit against Gap Apparel, Inc. (Apparel) in an effort to collect unpaid corporation income taxes and unpaid corporation franchise taxes for various periods. Apparel did not file tax returns for the relevant periods, but the Department conducted a corporate income and franchise tax audit and determined that Apparel owed taxes for those periods. When Apparel failed to pay the amounts demanded, the Department filed the underlying suit. Apparel responded to the petition by filing a declinatory exception pleading the objection of lack of personal jurisdiction, which the trial court overruled. This writ application followed.

The Due Process test requires that in order to subject a nonresident defendant to a personal judgment, the defendant must have certain minimum contacts with the forum state, such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. State of Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 160, 90 L.Ed. 95 (1945); de Reyes v. Marine Mgmt. & Consulting, 586 So.2d 103, 105 (La.1991). With regard to taxation, the Due Process Clause requires some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax. The income attributed to the state for tax purposes must also be rationally related to values connected with the taxing state. Quill Corp. v. North Dakota, 504 U.S. 298, 306, 112 S.Ct. 1904, 1909-1910, 119 L.Ed.2d 91 (1992). If a foreign corporation purposefully avails itself of the benefits of an economic market in the forum state, it may subject itself to the state’s personal jurisdiction even if it has no physical presence in the state. Quill Corp., 504 U.S. at 306, 112 S.Ct. at 1911.

The Gap, Inc. (The Gap) is a Delaware corporation that owns and operates, either directly or through its various subsidiaries, over 2600 stores throughout the ^United States. Approximately 41 of these stores, including Gap, Old Navy, and Banana Republic stores, are located in Louisiana. As part of its business, The Gap had created, developed, and registered various trademarks, trade names, and service marks (the marks) that were used in the various retail stores throughout the United States, including those in the state of Louisiana. Prior to 1997, The Gap transferred the various marks to GPS (Delaware), Inc., one of its subsidiaries. Pursuant to a corporate reshuffling in 1997, the Board of Directors of The Gap voted to transfer the marks to Apparel. In December 1998, Apparel became a wholly-owned subsidiary of GPS (Merchandise), Inc., which was itself a wholly-owned subsidiary of GPS (Delaware), Inc.

After the marks were transferred, Apparel and The Gap entered into an agreement whereby Apparel granted a license to The Gap authorizing The Gap and its affiliates (the licensees) to use the various marks in connection with the manufacture, advertising, marketing, distribution, and sale of their products in the United States of America, its states, territories, and/or possessions (the territory). The agreement also allowed the licensees to affix the marks to the products. For the use of the marks, the licensees paid Apparel a royalty based on the net sales of the licensed products throughout the territory. The Department contends that Apparel received approximately $11.9 million from the licensees during the relevant tax periods as royalties for the use of the marks calculated as a percentage of the sales in Louisiana.

Apparel is a California corporation with its principal place of business in that state. It is engaged in two businesses: (1) the licensing and protection of the marks it owns, and (2) the provision of warehousing and distribution services. Apparel contends that it does not have any of the traditional contacts with Louisiana necessary to confer personal jurisdiction. Specifically, Apparel contends that it is a |4foreign corporation that is not, and never has been, licensed to do business in Louisiana. It has never had any offices, employees, agents, or directors in Louisiana. Apparel has never owned, rented, used, or possessed any real or personal property in the state, nor has it sold, manufactured, tested, advertised, promoted, or distributed any products in Louisiana. The marks that Apparel owns are not registered in Louisiana, and the licensing agreements regarding the use of the marks were not entered into in Louisiana. Furthermore, all of the meetings of Apparel’s Board of Directors were conducted in California and, therefore, outside Louisiana.

While Apparel may not have a physical presence in Louisiana, its intangible property clearly has a connection with Louisiana. In United Gas Corp. v. Fontenot, 241 La. 488, 129 So.2d 748 (1961), the Louisiana Supreme Court discussed the difficulties in determining the location or “situs” of intangible assets and property rights for taxation purposes. Because those assets have no physical location by their very nature, the jurisprudence has developed three separate doctrines applicable to their taxation. First, such property is normally taxable at the legal domicile of the owner, which in the case of a corporation is the state of incorporation. Second, if the intangible property is used in another state in such a way as to become an integral part of a business carried on within the state, the intangible property acquires a “business situs” in that state and is subject to taxation in that state. Finally, where the business of the corporation is actually managed and functioning in a state other than the state of incorporation, a “commercial domicile” exists in the state where the corporation’s principal place of business is, and the corporation’s intangibles may be taxed there. United Gas Corp., 129 So.2d at 758.

|fiIn the matter before this court, it is clear that the marks licensed by Apparel have been used in Louisiana in such a way as to become an integral part of the licensees’ businesses in this state. Numerous marks (i.e. Gap, Baby Gap, Gap Kids, Pro Fleece) have been licensed by Apparel and used by the licensees to conduct and promote their businesses in this state. Clearly, the intangibles have acquired a business situs in Louisiana and are subject to taxation in this state.

WRIT DENIED.

      . The warehousing and distribution services are not connected to Louisiana and are not at issue in this matter.

      . This case dealt with corporate income tax. The Louisiana Supreme Court also addressed the issue of "business situs” in the companion case of United Gas Corp. v. Fontenot, 241 La. 564, 129 So.2d 776 (1961), which dealt with corporate franchise tax. Both taxes are at issue in the matter before this court.