text:
    Jami S. WAGNER, n/k/a Jami S. Washburn, Appellant/Former Wife, v. Thomas H. WAGNER, Appellee/Former Husband.
    No. 1D04-57.
    District Court of Appeal of Florida, First District.
    Nov. 5, 2004.

      Tracy S. Carlin and Rebecca Bowen Creed of Mills & Carlin, P.A., Jacksonville, for Appellani/Former Wife.
    Michael T. Webster, Shalimar, for Ap-pellee/Former Husband.
   WEBSTER, J.

Appellant (the former wife) seeks review of a non-final order granting appel-lee’s (the former husband’s) “Motion for Temporary Relief,” by which the former husband sought to terminate his spousal support obligation and reduce his child support obligation. We have jurisdiction. Art. V, § 4(b)(1), Fla. Const.; Fla. R.App. P. 9.130(a)(3)(C)(iii). To determine whether the trial court’s rulings were correct, we must look to the parties’ marital settlement agreement. Our examination of the pertinent provisions of that document satisfies us that, notwithstanding the parties’ arguments to the contrary, both in the trial court and here, those provisions are patently ambiguous. The trial court did not hold an evidentiary hearing or make findings regarding the meaning of the ambiguous language. We cannot perform those responsibilities on appeal. Accordingly, because we cannot determine on the present record whether the trial court’s rulings were correct, we must reverse and remand for such proceedings.

I.

The parties, who have two minor children, were divorced in California in 1999. The California court’s judgment incorporates the parties’ marital settlement agreement, and directs that spousal and child support be paid as set forth in the agreement. The pertinent provisions for our purposes are found in section 4.01 of the parties’ agreement, which is titled “Family Support”:

Husband shall pay to Wife family support. Family support shall all be deductible from taxable income by Husband, and included in taxable income by Wife. Husband shall pay [W]ife $85,000 per year family support based on his gross annual pay of $70,000.... This $35,000 is to be distributed to [W]ife as follows: $1900 each month ($950 on the 1st of each month and $950 on the 15th of each month), $5400 due in the month of October upon [H]usband receiving his Air Force bonus, and the remaining $6200 Husband will pay Wife on or before April 15th of the following year. Any additional income [H]usband earns, including all bonuses and moonlighting income, Husband shall pay [W]ife a total of 42% of his gross, distributed as follows: within 14 days of [H]usband receiving income Husband shall pay to [W]ife 31% of the gross, and [H]usband shall pay Wife the additional 11% on or before April 15th of the following year. If Husband earns more than $113,000, Wife shall receive no family support on the increment Husband earns above $113,000 per year.
Family support at this rate shall remain in effect until June 30,1999. Commencing on July 1, 1999, Husband agrees to pay Wife $2850 monthly (to be paid $1425 on the 1st and 15th of the month) as family support. Husband agrees to pay an additional $2000 family support to Wife on October 31, 1999 and October 31, 2000. Husband shall also pay to Wife an additional $4200 in family support on or before April 1, 2000 and $4200 on or before April 1, 2001. Family support at this rate shall terminate on August 15, 2001. On August 16, 2001, Husband agrees to pay [W]ife family support at the rate of thirty percent of his gross income with a cap on the gross income subject to the 30 percent assessment for family support. The cap shall be $150,000 of gross income including all bonuses and non-taxable income. Husband shall pay Wife family support at this rate bi-monthly until August 15, 2004. On August 16, 2004, Husband shall begin paying to Wife family support at the rate of 25 percent of his gross income including bonuses and nontaxable income up to a cap of $250,000 of gross income.
Husband shall pay family support in bi-monthly payments until August 15, 2015 [which is three days before the younger child’s eighteenth birthday], or until his death. Family support shall terminate upon death of Wife or August 15, 2015, whichever is sooner. Family support shall not be subject to modification as to amount or duration based upon parental time shared with the parties’ children. The parties agree that family support shall not be subject to modification based upon the earned income of Wife unless Wife’s earned income exceeds $50,000 per year. Either party may apply for modification of family support based upon inflation, standard cost of living, changes in the value of the American dollar, or any extreme medical condition of the parties’ children.
Family support and spousal support is [sic] non-modifiable as to duration, with the exception of the death of either party or remarriage of Wife. The termination date for family support and spousal support of August 15, 2015 is absolute and is not modifiable under any circumstances. Spousal support and/or family support may not be request [sic] for any period after August 15, 2015, nor will any court have jurisdiction to order spousal support and/or family support to be paid for any period after August 15, 2015, regardless of any circumstances that may arise and regardless of whether any motion to modify family support and/or spousal support is filed before, on or after August 15, 2015. Accordingly, in no event, and under no circumstances shall Husband be obligated to pay spousal support and/or family support on or after August 15, 2015....

Also relevant is section 6.20, which provides that, except as otherwise specified in the agreement, “th[e] agreement shall be governed by and construed in accordance with the laws of the State of California.”

The parties and their children eventually all found their way to Florida, where, in November 2002, the former husband filed a “Petition to Domesticate California Decree and Modify Same.” In that petition, the former husband alleged that all of the parties resided in Okaloosa County; that, by virtue of the settlement agreement which had been made a part of the California judgment, he was “obligated to pay ‘family support’ to the Former Wife in the current amount of $45,000.00 per year”; that such “ ‘family support’ [wa]s clearly support for the Former Wife and children of the parties”; that, “[ujnder the terms of the Marital Settlement Agreement, the parties contemplated the amount of ‘family support’ would be modifiable upon the remarriage of the Former Wife”; that, because the former wife had remarried, “the Former Husband should have no further continuing obligation to pay any form of spousal support whatsoever to the Former Wife”; and that, while he acknowledged his continuing obligation to pay child support, the amount should be established by reference to Florida’s child support guidelines. The petition requested that the trial court domesticate the California judgment; modify that judgment “by terminating the portion of ‘family support’ which is truly spousal support to the Former Wife”; and direct him “to pay only support for the minor children of the parties in an amount to be established utilizing Florida Child Support Guidelines.” The former wife filed an answer and affirmative defenses, in which she took the position that the settlement agreement spoke for itself, and denied allegations of the petition which were inconsistent with the agreement; pointed out that the agreement provided it was to be governed and construed according to California law; claimed that, pursuant to the settlement agreement, the former husband had waived his right to seek modification on the grounds alleged in his petition; and “denie[dj that Former Husband’s support obligation should be modified and ... that Florida Child Support Guidelines [wejre applicable.”

In the trial court, both parties argued that their settlement agreement was unambiguous. The former husband argued that no spousal support order had ever been entered; that, even had there been a spousal support order, pursuant to California law, the obligation to pay spousal support terminates by operation of law upon the receiving spouse’s remarriage unless the parties have agreed otherwise in writing, which was not the case here; that, pursuant to California law, a family support order is treated the same as a child support order; that, pursuant to the Uniform Interstate Family Support Act (UIF-SA) (ch. 88, Fla.Stat.(2002)), the trial court had jurisdiction to domesticate the California judgment and to modify the amount of family support; and that, pursuant to UIFSA, the trial court was obliged to apply the Florida child support guidelines in ruling on the motion to modify. The former wife took the position that California law controlled as to all questions because of the choice of law provision in the settlement agreement; that neither a spousal support nor a child support order was involved, as those terms are understood pursuant to California law; that, pursuant to California law, family support includes both spousal support and child support, but that the respective amounts are unallocated; and that the trial court could not terminate spousal support or modify child support. Adopting the former husband’s reasoning, the trial court eventually ruled that the former husband’s obligation to pay spousal support terminated automatically upon the former wife’s remarriage and that, based upon the Florida child support guidelines, the former husband’s sole remaining financial obligation to the former wife consisted of monthly child support in the amount of $2,621.00. This appeal follows.

II.

As all connected with this case have apparently recognized, its outcome depends upon the previously cited language of section 4.01 of the parties’ settlement agreement. Although the parties have consistently argued that the pertinent language of that section is unambiguous, we reach the opposite conclusion. It seems to us that the language is patently ambiguous in several respects.

Pursuant to either Florida or California law, a settlement agreement of the type involved here, entered into voluntarily after full disclosure and then ratified by a court, is a contract, subject to interpretation like any other contract. E.g., Zern v. Zern, 737 So.2d 631, 633 (Fla. 1st DCA 1999); In re Marriage of Benjamins, 26 Cal.App.4th 423, 31 Cal.Rptr.2d 313, 315 (1994). If the terms are clear and unambiguous, their interpretation presents a question of law for determination by the court. E.g., Rothstein v. Honeywell, Inc., 519 So.2d 1020, 1021 (Fla. 3d DCA 1987); City of El Cajon v. El Cajon Police Officers’ Ass’n, 49 Cal.App.4th 64, 56 Cal.Rptr.2d 723, 727 (1996). Similarly, whether an ambiguity exists in a contract is a question of law. E.g., Centennial Mortgage, Inc. v. SG/SC, Ltd,., 772 So.2d 564, 565-66 (Fla. 1st DCA 2000); Wolf v. Superior Court, 114 Cal.App.4th 1343, 8 Cal.Rptr.3d 649, 656 (2004). However, when an ambiguity exists and the parties’ intent can be resolved only by resort to conflicting extrinsic evidence, a question of fact is presented, which must be resolved by the trier of fact. E.g., Centennial Mortgage, 772 So.2d at 566; Wolf, 8 Cal.Rptr.3d at 662. Because whether an ambiguity exists in the settlement agreement presents a question of law, our standard of review is de novo. E.g., Centennial Mortgage, 772 So.2d at 566.

Section 4.01 of the parties’ agreement is titled “Family Support.” California law defines “family support” as “an agreement between the parents, or an order or judgment, that combines child support and spousal support without designating the amount to be paid for child support and the amount to be paid for spousal support.” Cal. Fam.Code § 92 (West 2004). It is a hybrid support obligation which permits the parties to take maximum advantage of favorable tax provisions. Id. § 4066. It is relatively clear from the language of section 4.01 that the parties intended the term “family support” to have the definition ascribed to it pursuant to California law. However, once that hurdle is overcome, things become far less clear.

Although California law provides that “family support” includes both spousal and child support, the parties’ agreement is silent regarding the portions of the family support that are to be allocated to spousal and child support, respectively. Pursuant to California law, spousal support normally terminates by operation of law upon the death of either party or the remarriage of the receiving party; however, the parties may agree otherwise, provided their agreement is in writing. Id. § 4337. The parties’ agreement is unclear as to whether they contemplated that the spousal support component of the family support would terminate automatically upon the former wife’s remarriage. The first two sentences of the fourth paragraph of section 4.01 are, in our opinion, irreconcilable. The first reads, “Family support and spousal support is [sic] non-modifiable as to duration, with the exception of the death of either party or remarriage of Wife.” However, the second sentence appears to contradict the first. It says, “The termination date for family support and spousal support of August 15, 2015 is absolute and is not modifiable under any circumstances.” While the first sentence might be read as suggesting that the spousal support portion of the payment may be terminated upon the former wife’s remarriage, the second sentence seems to indicate that remarriage is to have no impact upon the obligation to continue to pay that portion of the family support. Further support for the latter interpretation is found in paragraph three of section 4.01, the second sentence of which states that “[fjamily support shall terminate upon death of Wife or August 15, 2015, whichever is sooner.” To all of this confusion is added the fact that the parties did not state what portions of the family support payment were to be allocated to spousal and child support, respectively.

Problems also exist regarding the child support component. In addition to the failure to identify the portion of the family support payment attributable to child support, the agreement is unclear regarding what events will permit one of the parties to request a modification in the amount to be paid. While it does state that “[e]ither party may apply for modification of family support based upon inflation, standard cost of living, changes in the value of the American dollar, or any extreme medical condition of the parties’ children,” it does not expressly limit the circumstances that will justify a request for modification to those specified. The former husband neither alleged nor proved the occurrence of any of the specified circumstances. Accordingly, to the extent the parties’ intent was to limit the circumstances to those specified, it would appear the trial court should have denied the former husband’s request to modify the amount of child support.

III.

Because the parties disagree as to the intent of their agreement in these ambiguous areas, the trial court should have taken evidence regarding that intent. Because it did not, we are unable to determine whether its ultimate rulings were correct. Accordingly, we must reverse and remand. On remand, the trial court should schedule an evidentiary hearing. The first issue it should resolve is whether the parties intended that the spousal support component of the family support payment would terminate upon the former wife’s remarriage. If it determines they did, it may again enter an order to that effect. However, if it determines that the parties did not, it must deny the former husband’s request to terminate spousal support. ■

The second issue the trial court must resolve is what portions of the family support payment the parties intended to allocate to spousal and child support, respectively. See County of Orange v. Anderson, 2004 WL 1701156, at *9 (Cal.Ct.App. July 30, 2004) (holding that, when the spousal support portion of family support terminates because of remarriage, the trial court must take evidence to determine the proper allocation between spousal support and child support). If the trial court concludes that the parties intended spousal support would terminate upon the former wife’s remarriage, its order should terminate only that portion of family support it finds to be attributable to spousal support. If it finds that such was not the parties’ intent, it shall leave the spousal support component undisturbed. However, in either case, it must next determine what events the parties intended would justify a request to modify the amount of support paid, and whether such an event occurred. If it finds that no such event occurred, it must deny the former husband’s request to modify the child support component of family support. If it finds that such an event did occur, it should then proceed to the merits of the former husband’s request.

On the merits of the request to modify the child support component, we are satisfied that, notwithstanding the choice-of-law provision in the parties’ agreement, the appropriate substantive law is that of Florida. See § 88.6131, Fla. Stat. (2002) (a part of UIFSA stating that, when the parties reside in Florida and the child does not reside in the issuing state (i.e., California), the trial court may modify the issuing state’s child support order, applying “the procedural and substantive law of this state”); In re Marriage of Crosby & Grooms, 116 Cal.App.4th 201, 10 Cal.Rptr.3d 146 (2004) (holding that, notwithstanding a provision in the parties’ marital settlement agreement that Idaho law would control, because the parties and their children had since moved from Idaho, the trial comet was obliged by UIFSA, public policy and general choice-of-law principles to apply California substantive law — as the law of the forum state — to a request for modification of the amount of child support). Because the parties and their children now all live in Florida, it is the only state having a legitimate interest in this dispute. Accordingly, should the trial court conclude that a modification is appropriate, it should determine the amount by reference to the Florida child support guidelines.

The order granting the former husband’s “Motion for Temporary Relief’ is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED and REMANDED, with directions.

WOLF, C.J., and BARFIELD, J., Concur.


source: Caselaw Access Project

author: HAWKES, J. ERVIN, J., ALLEN, J.,

license: Public Domain

text:
    CITY OF WINTER SPRINGS, Appellant, v. WINTER SPRINGS PROFESSIONAL, etc., Appellees.
    No. 1D03-3157.
    District Court of Appeal of Florida, First District.
    Nov. 5, 2004.

      Jeffery E. Mandel and David A. Young, Akerman Senterfitt, Orlando, for Appellant.
    Tobe Lev, Egan, Lev & Siwiea, P.A., for Winter Springs Professional Firefighters, Local 3296, Orlando, and Jack E. Ruby, Florida Public Employees Relations Commission, Tallahassee, for Appellees.
   HAWKES, J.

Appellant, City of Winter Springs, appeals from a final order of the Public Employee Relations Commission [PERC], finding that Appellant committed unfair labor practices by imposing “pay freeze” language on Appellee’s, Winter Springs Professional Firefighters’ [Union] members in a new collective bargaining agreement [CBA] for 2001-2002, and by imposing a management rights article that had been amended after the Union declared an impasse. We reverse PERC’s final order on both issues and remand for a determination consistent with this opinion.

Procedural & Factual History

Appellant and the Union have had a collective bargaining relationship since 1991. While previous CBA’s were silent on the issue, the 1997 CBA provided that if the parties did not reach a new CBA by the time the current CBA expired, wages would be “frozen” until a new CBA was reached. The “pay freeze” language was renewed in subsequent CBA’s through September 30, 2001.

In September of 2001, the Union notified Appellant it wished to renegotiate several articles that had been included in previous CBA’s, including possible removal of the “pay freeze” language. During formal negotiations for the 2001-2002 CBA, Appellant sought to continue the “pay freeze” language and add a management rights article. The Union did not accept these proposals, and in February 2002, declared an impasse. The parties waived the Special Master process and no subsequent resolution was reached. The Union argued the management rights article could not be taken to impasse because it waived the Union’s right to bargain.

Impasse Resolution Hearing Before the City Council

On October 24, 2002, in accordance with section 447.403(4), Florida Statutes, both parties submitted their positions and written recommendations for resolving the impasse to the legislative body, and to each other. Appellant’s recommendations contained an amended management rights proposal that was more favorable to the Union. The proposal included a proviso that it was not intended to waive any' of the Union’s rights to impact bargain.

On October 29, 2002, an impasse resolution hearing was conducted before the Winter Springs City Council. The Union maintained its objection to the management rights article, but the Council ultimately adopted the amended version; the “pay freeze” language was again imposed for any hiatus following the 2001-2002 CBA. Though the resulting CBA was presented for ratification to the Union, it was not presented to the bargaining unit employees.

The Union then filed an unfair labor practice charge, alleging Appellant violated section 447.501(l)(a) and (c), Florida Statutes by imposing the “pay freeze” language and the management rights article through the impasse process. After an evidentiary hearing, the hearing officer issued his recommended order, finding the Union had no reasonable expectation to continued wage increases following expiration of the 2000-2001 CBA. The hearing officer found the history between the parties was more supportive of the “pay freeze” language as constituting status quo, and thus, the City’s imposition of the language in the 2001-2002 CBA did not violate the collective bargaining laws. However, the hearing officer found Appellant violated the statute, and therefore committed an unfair labor practice, by imposing the management rights article because the City’s proposal had been amended following declaration of impasse, and because it contained a waiver of the Union’s right to impact bargain.

PERC then issued its final order, rejecting the hearing officer’s finding regarding the “pay freeze” language, and instead finding the imposition of this language in the 2001-2002 CBA constituted an unfair labor practice. Additionally, PERC found Appellant also committed an unfair labor practice merely by proposing an amended management rights article because the amendment occurred after declaration of impasse. PERC never reached the issue of whether the management rights article contained a waiver of the Union’s right to impact bargain.

Imposition of the “Pay Freeze” Language

The court must determine whether imposing “pay freeze” language in a subsequent CBA following impasse resolution proceedings, constitutes an unfair labor practice within the meaning of section 447.501(l)(a) and (c), Florida Statutes.

Agencies are bound to honor a hearing officer’s findings of fact unless they are not supported by competent, substantial evidence. Belleau v. Dep’t of Environ. Protection, 695 So.2d 1305, 1307 (Fla. 1st DCA 1997) (citations omitted).

In the present case, the hearing officer found the prior CBA expressly limited anniversary pay raises to the term of the agreement. As a result, the hearing officer found persuasive the City’s argument that the anniversary pay raises had never become part of the status quo. Moreover, the hearing officer found that both sides were aware pay raises would stop when the contract expired; consequently, the employees did not have a reasonable expectation that the annual raises would continue. The history between the parties suggested to the hearing officer that the “pay freeze” language was more closely in line with the status quo.

To support its order, PERC relies on some of its previous orders and a Florida Supreme Court case for the proposition that a legislative body may not impose a waiver of bargaining rights. PERC’s reliance is misplaced. In those situations there was an explicit waiver of the employer’s obligation to bargain over wages, hours, terms and conditions of employment. Notably, Palm Beach Junior Coll. Bd. of Tr. v. United Faculty of Palm Beach Junior Coll., 475 So.2d 1221, 1223 (Fla.1985) involved a management rights clause which clearly stated the employer was not obliged to bargain collectively. PERC also cites to a previous order which held a party may agree to a waiver in prior contracts, but the party may not renew the waiver indefinitely. As a consequence, PERC concludes it is irrelevant that the Union agreed to the pay freeze language in prior contracts, and Appellant violated its bargaining position by imposing the “pay freeze” language because it contained a waiver of the employees’ bargaining rights.

The hearing officer is correct that wages, hours, terms and conditions of employment are mandatory subjects of bargaining. See § 447.309(1) Fla. Stat. (2002), and Citrus, Cannery, Food Processing and Allied Workers v. City of Sarasota, 29 FPER ¶ 87 (2003). Absent waiver, exigent circumstances, or legislative body action after bargaining impasse, changes to such subjects cannot be made “without providing notice to the employee’s bargaining agent and an opportunity to conduct meaningful negotiations before implementing the change.” See Citrus, Cannery, Food Processing and Allied Workers 29 FPER ¶ 87.

The disagreement between the hearing officer and PERC seems to rest on whether the Union employees, as part of the status quo, established entitlement to continued receipt of wage increases when a CBA expired. PERC maintains the employees had a right to continue the status quo and the imposition of the “pay freeze” language waived this right to continued receipt of provided benefits. However, as noted by the hearing officer, the parties have repeatedly used the “pay freeze” language in prior CBA’s thus indicating the status quo, if any, was that the employees had no expectation of continued receipt of wage increases once a CBA expired.

Here, the proposal contained the same “pay freeze” language that had been used from 1996-2001. The hearing officer found the CBA’s plain language merely continued the existing practice of freezing wages until a new CBA was reached. A waiver, if there was one, would have to be clearly stated. A review of the challenged provision reveals there is nothing waiving Appellant’s obligation to bargain, nor is there any provision requiring the Union to waive its bargaining rights over wage increases.

When a dispute exists over terms and conditions of employment to be incorporated into a CBA, the parties are entitled to have the impasse resolved by a legislative body. See § 447.403(4)(c)-(e), Florida Statutes (2004). “It is appropriate to declare impasse if, after a reasonable period of negotiation, a dispute exists between the parties regarding a mandatory subject of bargaining.” United Faculty of Florida v. Florida Bd. of Education, 28 FPER ¶ 33232 (2002). Appellant did nothing wrong by maintaining its request to insert the language, and when the dispute could not be resolved, the proper statutory process was utilized.

No waiver of the Union’s bargaining rights occurred by Appellant’s legislative imposition of the “pay freeze” language to the 2001-2002 CBA. PERC erred by finding Appellant had violated the collective bargaining laws by imposing the language, and thus, the final order must be reversed on this issue.

Imposition of the Management Rights Article

The second issue we must decide is whether PERC erred by concluding Appellant committed an unfair labor practice by imposing a management rights article that was amended following declaration of impasse.

“[A]n agency’s interpretation of a statute it is charged with administering should not be rejected so long as its interpretation is consistent with the legislative intent and is supported by competent, substantial evidence.” Cleveland v. Florida Dep’t of Children and Families District: 07 Seminole Unit 55205, 868 So.2d 1227, 1229 (Fla. 1st DCA 2004).

PERC concedes the facts of the case raise the “novel” issue of whether a party can materially change its last proposal presented before declaration of impasse, where the parties waived the appointment of a special master and the amended proposal was submitted to the legislative body prior to the impasse resolution hearing. Appellant correctly notes that PERC itself has ruled that after the special master process has been completed and the special master’s recommendation issued, parties may change their positions before the legislative body without violating the mandatory duty to bargain in good faith pursuant to section 447.501(l)(c), provided the position is a topic which has been previously negotiated at the bargaining table. See City of Miramar v. Gen. Ass’n of Miramar Employees, 7 FPER ¶ 12357 (1981). Otherwise, restricting parties from making any changes “would discourage both settlement efforts in general and post-impasse negotiations in particular.” City of Miramar, 7 FPER ¶ 12357.

It is clear the management rights article was a topic that had previously been negotiated at the bargaining table. To support its finding that an unfair labor practice occurred when the management rights article was amended after declaration of impasse, PERC relied on its own prior decisions recognizing that “[an] insulated period begins when the special master process is waived and ends when the legislative body resolves the impasse.” Jacksonville Ass’n of Firefighters, IAFF, Local 122 v. City of Jacksonville, 15 FPER ¶ 22327 (1989). The City of Jacksonville case, however, held that parties were prohibited from engaging in ex parte communications with the legislative body regarding the merits of their position when the legislative body assumes the role of a quasi-judicial body. The record is clear that no ex parte communication was made by management to the legislative body. Appellant sent by fax a copy of its written recommendations to counsel for the Union on the same day it sent them to the legislative body.

We agree with Appellant that PERC’s application of its insulated period rule, as applied to the facts of this case, appears to be contrary to the statutory framework provided in section 447.403(4)(a) and (b). Here, if the parties utilized a special master, who in turn, submitted a recommended decision to the legislative body, either party would have had the right, under the statute, to reject the special master’s recommendation and submit its own recommended proposal to the legislative body as a means of resolving the impasse. Similarly, if the parties agreed to waive the appointment of the special master altogether, they had the right, as provided in section 447.403(2)(a), to proceed directly to resolution of the issues before the legislative body. Clearly that body has the same powers to conduct a hearing as does the special master, and the same proposed changes in the bargaining process could be submitted by either or both parties to the legislative body as could be made to the special master during impasse.

It appears the legislature, by its enactment of the resolution of impasse provisions of section 447.403, chose to provide an alternative to the special master process, whereby parties can seek a resolution of their disagreements before the public employer, acting in its quasi-judicial role. It seems inconsistent, given the statutory framework, for PERC to recognize that if parties utilize the special master process to its conclusion, either party may then change its position at impasse before the legislative body, as a means of encouraging settlement efforts, but, if the parties instead choose to waive such process, they cannot later alter their previously negotiated positions before the legislative body. Such an interpretation is inconsistent with legislative intent, and therefore, clearly erroneous.

PERC’s attempted distinction between the facts in City of Miramar and the present case appears superficial. PERC argues that in City of Miramar, the party changed its position during the special master process, whereas here, the amended proposal was presented to the legislative body instead of a special master. This argument fails to consider the statutory procedure allowing the parties to waive the appointment of a special master and proceed directly to impasse resolution proceedings by the legislative body.

We therefore hold, pursuant to section 447.403, that parties are allowed to change their positions during impasse, whether before a special master or before a legislative body, provided that the amended proposals do not touch on a topic that has not been previously negotiated at the bargaining table. Thus, both the hearing officer and PERC erred when they found that Appellant committed an unfair labor practice by submitting an amended management rights proposal to the legislative body, following declaration of impasse.

REVERSED and REMANDED for a determination consistent with this opinion.

ERVIN, J., Concurs with opinion; ALLEN, J., Dissents with opinion.

ERVIN, J.,

concurring.

I fully concur with Judge Hawkes’ opinion. I write separately only to address what appears to be a misconception by Judge Allen as to the correct standard of review over the Public Employee Relations Commission’s construction of the contractual “pay freeze” language. His dissenting opinion appears to suggest that our standard is that of clearly erroneous, meaning that a reviewing court should defer to the agency’s interpretation so long as it falls within the permissible range of interpretations. See State Dep’t of Health & Rehabilitative Servs. v. Framat Realty, Inc., 407 So.2d 238, 242 (Fla. 1st DCA 1981). This extremely deferential rule has traditionally been applied to an agency’s construction of a regulatory statute it is charged with enforcing. See Fla. Wildlife Fed’n v. Collier County, 819 So.2d 200, 203 (Fla. 1st DCA 2002). It was perhaps best described in this court’s seminal decision in McDonald v. Department of Banking and Finance, 346 So.2d 569, 579 (Fla. 1st DCA 1977), as follows:

[W]here the ultimate facts are increasingly matters of opinion and opinions are increasingly infused by policy considerations for which the agency has special responsibility, a reviewing court will give correspondingly less weight to the hearing officer’s findings in determining the substantiality of evidence supporting the agency’s substituted findings.

As McDonald instructs, it is only where an agency’s opinion is “infused with special considerations for which” it has been entrusted “special responsibility” that its decision should be honored by a reviewing court.

The language of the contract, set out by Judge Hawkes in footnote six of his opinion, clearly and unambiguously provides that salaries will remain frozen at the rate established under the expired collective bargaining agreement until a new agreement is reached. The Commission, not a party to the contract, need not be accorded any deference regarding an interpretation of a contract that is not susceptible to different interpretations. Because the interpretation of a contract is one of law, it is therefore the subject of de novo review. See Avatar Dev. Corp. v. De Pani Constr., Inc., 834 So.2d 873, 876, n. 2 (Fla. 4th DCA 2002), and, if a contract is on its face clear and unambiguous, a reviewing court will enforce such language according to its terms. See Paddock v. Bay Concrete Indus., Inc., 154 So.2d 313, 315 (Fla. 2d DCA 1963). Thus, the important policy considerations, referred to by Judge Allen, are non-existent in circumstances where a contract, as here, plainly expresses the parties’ intent.

ALLEN, J.,

dissenting.

The concept of maintenance of the status quo is a settled proposition in Florida public employment collective bargaining law. Consistent with this concept, when a collective bargaining agreement expires, the status quo regarding public employee wages under the expired collective bargaining agreement must be maintained during negotiation of a new agreement, and it has been recognized that the best evidence of the status quo under the expired contract is the precise wording of the expired contract. But when the right to maintenance of the status quo regarding wages during this interim period has been specifically and voluntarily waived through contractual agreement between the parties to a collective bargaining agreement, such as occurred in the 1997-2001 collective bargaining agreements between the parties in the present case, the involved public employees may not rely upon the status quo doctrine for interim continuation of the wage provisions of an expired agreement. See generally Escambia Education Association v. School Board of Escambia County, 10 FPER ¶ 15160 (1984). See also School Board of Orange County v. Palowitch, 367 So.2d 730 (Fla. 4th DCA 1979).

Although public employees have no obligation to bargain away their right to maintenance of the wage status quo during the interim period between collective bargaining agreements, they sometimes elect to exchange their rights under this valuable bargaining issue for other contract concessions from public employers. This is what occurred in the negotiations of the parties to this appeal in connection with their 1997-2001 collective bargaining agreements.

The first issue presented in this appeal is whether the appellant committed an unfair labor practice when, without the consent or agreement of the public employees, it perpetuated the waivers contained in the 1997-2001 agreements (the “pay freeze” provisions) beyond the interim period between the 2000-2001 and 2001-2002 agreements by its inclusion of the “pay freeze” language in the city-commission-adopted 2001-2002 collective bargaining agreement. The appellant contends that the inclusion of the 2001-2002 “pay freeze” provision was not a compelled waiver of any public employee bargaining rights, but was instead merely an expression of the preexisting status quo as expressed in the parties’ earlier collective bargaining agreements. PERC has concluded, however, that, while voluntary waivers of the right to interim maintenance of the wage status quo under an expired agreement are lawful, such waivers may not be relied upon to establish the status quo expectations of the parties under succeeding collective bargaining agreements and to thereby excuse any need for a voluntary public employee waiver under the succeeding agreements. Stated otherwise, PERC’s position is that waivers of this sort are acceptable if they are voluntarily given by public employees, but they may not be forced upon public employees in succeeding agreements simply because they were agreed to in prior contracts.

The policy supporting PERC’s ruling is explained as follows: If public employees agree to such a waiver in a single collective bargaining agreement, the waiver should not be considered the status quo for future agreements because this would create a vicious cycle under which a single waiver would establish a status quo, thus removing any future requirement for a voluntary waiver and limiting public employee bargaining rights as to the issue in perpetuity. Because this policy seems reasonable to me, because it appears to be generally consistent with decisional law of the Florida Supreme Court, see, e.g., Palm Beach Junior College Board of Trustees v. United Faculty of Palm Beach Junior College, 475 So.2d 1221 (Fla.1985), and because establishment of the policy falls within PERC’s authority under Chapter 447 of the Florida Statutes, see, e.g., Public Employees Relations Commission v. Dade County Police Benevolent Association, 467 So.2d 987 (Fla.1985), I would not disapprove the policy.

PERC’s application of the long-standing insulated period rule in the context of the facts of the present case also seems reasonable to me and fully consistent with the important public policy rationale underlying the rule. See, e.g., Jacksonville Association of Firefighters v. City of Jacksonville, 15 FPER ¶ 20327 (1989); IAFF, Local 2135 v. City of Ocala, 5 FPER ¶ 10252 (1979), aff'd, 394 So.2d 1156 (Fla. 1st DCA 1981). I would therefore affirm the order under review as to both of the points on appeal.

      . Though the City was the employer, section 447.203(10), Florida Statutes provides that the "legislative body” for purposes of resolving an impasse, can be the governing body of a municipality. Such was the case here, when the Winter Springs City Council sat as the legislative body.

      . The statute provides that a public employer is prohibited from interfering with the collective bargaining rights of public employees, and is further prohibited from refusing to bargain collectively in good faith. § 447.501(l)(a) and (c), Florida Statutes (2004).

      . In such a situation, the appellate court reviews the record to determine if there was sufficient evidence to support the original finding of fact by the administrative law judge. Beverly Healthcare Kissimmee v. Agency for Health Care Admin., 870 So.2d 208, 212 (Fla. 5th DCA 2004).

      . However, if a salary proposal contains a waiver of the employees' right to bargain, it would be transformed into a permissive subject of bargaining, which could not be taken to impasse. See United Faculty of Florida v. Florida Bd. of Education, 28 FPER ¶ 33232 (2002).

      . See City of Delray Beach v. Prof'l Firefighters of Delray Beach, Local 1842, Int'l Ass’n of Firefighters, 636 So.2d 157, 162 (Fla. 4th DCA 1994) ("The employee’s bargaining rights as a rule are included [in a CBA], unless specifically waived,” and "[wjithout express waiver language, the language in the contract cannot simply be interpreted to "imply” waiver.”).

      . The disputed language reads: "Any pay increases after October 1, 2002, are subject to the parties agreeing to same and if no agreement is reached, the employee’s salaries will remain frozen at their September 30, 2002 rate until a new collective bargaining agreement is reached.” This language is the same language used in the previous CBA's except for the applicable year provisions.

      . See also Osceola Classroom Teachers Ass’n. v. School Bd. of Osceola County, 4 FPER 4066 (1978) (citing Pinellas County Police Benevolent Ass’n, 3 FPER 205) (unilateral changes to wages, hours, and terms of employment may only be made after conclusion of the section 447.403 impasse procedure).

      . See also Doyle v. Dep’t of Business Reg., 794 So.2d 686, 690 (Fla. 1st DCA 2001) (applying clearly erroneous standard).

      . PERC also relies on IAFF, Local 2135 v. City of Ocala, 5 FPER ¶ 10252 (1979) for the same idea. However, there too, a party made an ex parte contact with members of the legislative body.


author: PER CURIAM.

text:
    EUROPEAN MARBLE COMPANY and CNA Insurance, Company, Appellants, v. Thomas ROBINSON, Appellee.
    No. 1D03-4655.
    District Court of Appeal of Florida, First District.
    Nov. 5, 2004.

      Jack A. Weiss, of Fowler, White, Boggs, Banker, P.A., St. Petersburg and Edward Duncan, III, of Fowler, White, Boggs, Banker, P.A., Fort Myers, for Appellants.
    Lisa Ann Kalo, of Kalo and Verheul, Sarasota and Robert A. LeVine, of Newman, LeVine and Metzler, P.A., Tampa, for Appellee.
   PER CURIAM.

The emplóyer/carrier (E/C) appeals an order of the judge of compensation claims (JCC) finding that Thomas Robinson sustained a compensable work-related injury. In affirming the JCC’s finding that the work-related injury arose out of and in the course and scope of Mr. Robinson’s employment, we also approve her ruling that the E/C was not entitled to a presumption that Mr. Robinson’s “injury was occasioned primarily by [his] intoxication,” § 440.09(7)(b), Fla. Stat. (2002), and uphold her decision that the E/C “has not shown by the greater weight of the evidence that claimant’s injury was caused primarily by the use of ... alcohol.”

On November 13, 2002, Mr. Robinson sustained life-threatening injuries to the left side of his head while working at European Marble Company. At the time of his accident, Mr. Robinson was in the inventory yard emptying crates that were partially filled with marble tile. The crates were stacked on top of each other, up to three crates high, and Mr. Robinson was standing inside the highest crate. To gain access to the top level of crates, which was between nine and twelve feet high, Mr. Robinson either climbed the crates or used a forklift. The crates sat on cement or dirt packed with a layer of shell stone, or on concrete.

Mr. Robinson has no memory of the day he was injured, and while no one at his place of employment witnessed the accident, several European Marble employees testified about events occurring before and after the accident. Michael Bliss, Mr. Robinson’s supervisor, explained that just before the accident Mr. Robinson was standing in a wooden crate that was stacked on top of two other wooden crates. About fifteen minutes after seeing Mr. Robinson working in the crate, Mr. Bliss returned to Mr. Robinson’s area and saw him “sitting up [on the concrete] holding his back” and noticed that the crate Mr. Robinson had been working in had fallen. According to Mr. Bliss, Mr. Robinson said that he did not know what happened or how the crate fell, but that he did not fall out of the crate. Mr. Robinson complained of a back spasm and a headache. Joseph Lubrano, the president of European Marble, noted that after the accident Mr. Robinson appeared to be responding lucidly when he explained that he had injured his back. Mr. Bliss explained that Mr. Robinson stood up and appeared to be “trying to get his bearings,” but had to sit back down. Mr. Bliss left the area to help another employee and when he returned Mr. Robinson was having a seizure.

At the emergency room, Mr. Robinson was unable to provide information about his injuries because he was “intubated and pharmacologically paralyzed.” After a CT scan, Dr. Ryan S. Glasser, a board-certified neurosurgeon, “performed emergent craniotomy and evacuation of an epidural hematoma and repair of a skull fracture.” In Dr. Glasser’s opinion, Mr. Robinson’s injury was acute and traumatic and consistent with either a blow to the head or a fall from nine to twelve feet onto a concrete surface. Dr. Glasser explained that in light of the sequence of Mr. Robinson’s symptoms — a lucid interval, followed by a seizure — it is unlikely that Mr. Robinson had a seizure in the crate and then fell. He felt that the most logical sequence of events was that Mr. Robinson “had a fall from 10 to 12 feet, ha[d] a blow to his head, recovered] and [wa]s stunned a little bit and then as the hematoma enlarge[d] ha[d] a seizure and bec[a]me[] unconscious.” According to Dr. Glasser, the emergency room record indicated that Mr. Robinson’s blood-alcohol level was 0.053 percent at about 2:50 p.m. The E/C presented evidence through the testimony of Paul L. Doering, a registered pharmacist and pharmacy professor, that Mr. Robinson’s blood-alcohol level must have exceeded .08 percent at the time he was injured.

The medical technologist explained that because Mr. Robinson's blood was drawn for medical (as opposed to legal) purposes his blood sample was not “put in a sealed bag that [is] initialed by the patient, and ... signed every time [it] change[d] hands, ... [or kept] under lock and key when it’s not being processed.” She was uncertain whether Mr. Robinson’s blood was drawn at 2:50 p.m. or whether the test was run at that time and she did not know which testing methodology was used. She also did not know whether the hospital laboratory was licensed and approved by the Agency for Healthcare Administration (AHCA).

The E/C denied compensability and defended on the ground that Mr. Robinson’s injury was occasioned primarily by the influence of alcohol. See § 440.09(3), Fla. Stat. (2002) (“Compensation is not payable if the injury was occasioned primarily by the intoxication of the employee; by the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician”). The judge of compensation claims relied on Temporary Labor Source v. E.H., 765 So.2d 757 (Fla. 1st DCA 2000), to determine that the E/C was “not entitled to a presumption that the injury was occasioned primarily by the influence of a drug or alcohol.” We affirm that conclusion because “this record demonstrates a lack of compliance with” the procedures for testing and maintaining blood alcohol samples set forth in the Florida Administrative Code. Id. at 759; see Fla. Admin. Code ch. 59A-24.

Under section 440.09(7)(b), Florida Statutes (2002), a “presum[ption] that the injury was occasioned primarily by the intoxication of, or by the influence of the drug upon, the employee” arises “[i]f the employee has, at the time of the injury, a blood alcohol level equal to or greater than [0.08 grams of alcohol per 100 milliliters of blood], or if the employee has a positive confirmation of a drug as defined in this act.” In Temporary Labor Source, we affirmed a ruling of the judge of compensation claims that the E/C were not entitled to the presumption that claimant’s injury was occasioned primarily by the influence of cocaine upon the claimant. See 765 So.2d at 759. In affirming, we agreed with the “JCC’s ruling that, while a drug test performed for medical purposes may be admissible to support an intoxication defense under section 440.09(3), the presumption set out in section 440.09(7)(b) does not arise as the result of a positive confirmation drug test using a medically-drawn sample unless the Florida Administrative Code rules required by section 440.09(7)(d) are followed.” Id. Section 440.09(7)(d), Florida Statutes (2002) requires AHCA to “provide by rule for the authorization and regulation of drug-testing policies, procedures, and methods.”

On appeal, the E/C argue that compliance with the Florida Administrative Code rules mentioned in Temporary Labor Source is not required where, as here, the E/C are attempting to prove that the injury was occasioned primarily by claimant’s alcohol intoxication, rather than by the influence of another drug, as in Temporary Labor Source. Thus, according to the E/C, “[a]lcohol intoxication, while in the same statute, does not have the same exact requirements.... [If] Claimant’s blood-alcohol level [at the time of the accident] was at least a .08[] then the statutory presumption exists.”

We disagree with the E/C’s contention and hold that the Florida Administrative Code rules required by section 440.09(7)(d) also apply to blood-alcohol tests.- In Temporary Labor Source, we explained the history of AHCA’s implementation of the mandate in section 440.09(7)(d):

Chapter 38F-9, Florida Administrative Code (“Drug Testing Rule”), was created in 1991 to implement the mandate of section 440.09(7)(d).... In 1996, all the sections in chapter 38F-9 were repealed, and section 38F-9.015 (“Drug Testing-Criteria”) was created, which provides:
Chapter 59A-24, Florida Administrative Code, Drug-free Workplace Standards, as adopted by the Agency for Health Care Administration, is hereby incorporated herein by reference, and shall be utilized for all drug testing pursuant to Chapter 440, Florida Statutes.

765 So.2d at 758, n. 3. Section 38F-9.015 was later transferred to section 69L-9.015, but that section still provided that chapter 59A-24 “shall be utilized for all drug testing pursuant to Chapter 440, F.S.” Fla. Admin. Code Ann. R. 69L-9.015 (emphasis supplied). Chapter 59A-24 of the Florida Administrative Code treats alcohol as a drug.

Since chapter 440 of the Florida Statutes and chapter 59A-24 of the Florida Administrative Code treat alcohol as a drug, we conclude that chapter 59A-24 of the Florida Administrative Code applies to the blood-alcohol tests discussed in section 440.09(7)(b), which provides: “If the employee has, at the time of the injury, a blood alcohol level equal to or greater than [0.08 grams of alcohol per 100 milliliters of blood], or if the employee has a positive confirmation of a drug as defined in this act, it is presumed that the injury was occasioned primarily by the intoxication of, or by the influence of the drug upon, the employee.” § 440.09(7)(b), Fla. Stat. (2002) (emphasis supplied). “Drug” is defined in section 440.102(l)(c), Florida Statutes (2002), as, among other things, “alcohol, including a distilled spirit, wine, a malt beverage, or an intoxicating liquor.” § 440.102(l)(c), Fla. Stat. (2002). See Vocelle v. Knight Bros. Paper Co., 118 So.2d 664, 667 (Fla. 1st DCA 1960) (“When a statute contains a definition of a word or phrase that meaning must be ascribed to the word or phrase whenever repeated in the same statute unless a contrary intent clearly appears.... Applying these simple rules the legislative intent in enacting Chapter 59-55 is clear and unambiguous. The definition of ‘average weekly wages’ contained in the amendment to Section 443.04 is controlling in determining the meaning of that phrase as used in the amendment to Section 443.05.”); Davis v. Swatts, 556 So.2d 467, 471 (Fla. 1st DCA 1990) (“[A] definition in a statute must not be repugnant with other parts of the act.”). “An agency’s interpretation of the statute that it is charged with enforcing is entitled to great deference.” Level § Communications, LLC v. Jacobs, 841 So.2d 447, 450 (Fla.2003). Therefore, we conclude that chapter 59A-24 of the Florida Administrative Code applies to blood-alcohol tests, and “[b]eeause this record [through the medical technologist’s testimony] demonstrates a lack of compliance with those rules, we affirm the JCC’s ruling that the E/C are not entitled to a presumption that the injury was occasioned primarily by the influence of a drug upon the claimant.” Temp. Labor Source, 765 So.2d at 759.

We decline to disturb the finding of the judge of compensation claims that the E/C failed to meet their burden of establishing “by the greater weight of the evidence that claimant’s injury was caused primarily by the use of drugs or alcohol.” See Wright v. DSK Group, 821 So.2d 455, 456 (Fla. 1st DCA 2002) (holding that where “employer was not entitled to the ... presumption authorized by section 440.09(7)(b) .... it was obliged to establish, by the greater weight of the evidence, that the work-related injury ‘was occasioned primarily by the intoxication of the employee’”) (citations omitted). Thus, “[e]ven though we might have reached a different result if the facts had been for us to find,” Olavarria v. Okeelanta Corp., 741 So.2d 1249, 1250 (Fla. 1st DCA 1999); see also Fla. Mining & Materials v. Mobley, 649 So.2d 934, 934 (Fla. 1st DCA 1995) (“[A] ruling which is supported by competent substantial evidence will be upheld even though there may be some persuasive evidence to the contrary.”), we are compelled to affirm the award of compensation benefits because there is competent substantial evidence to support the finding that “[ujnder these circumstances, it is just as likely that claimant fell from the crates because he was not using any safety devices or ladder.”

Accordingly, we affirm the conclusion of the judge of compensation claims that Mr. Robinson’s work-related injury arose out of and in the course and scope of his employment.-

AFFIRMED.

BENTON, PADOVANO, and HAWKES, JJ., concur.

      . For example, Rule 59A-24.003 provides that "[i]n addition to the definitions set forth in section 112.0455(5), F.S., as used in this rule chapter the following terms shall mean....” Fla. Admin.Code Ann. R. 59A-24.003. Section 112.0455(5)(a), Florida Statutes (2002), states in part that: " 'Drug' means alcohol, including distilled spirits, wine, malt beverages, and intoxicating liquors....” Further, Rule 59A-24.004(2)(b) and Rule 59A-24.006(4)(e), (f) provide specific instructions applicable only to tests for alcohol.

      . Section 440.102(l)(c) is appropriately looked to even if "this act” refers to chapter 90-201, Laws of Florida, and not to chapter 440 of the Florida Statutes, because chapter 90-201 added the following language to section 440.09: "[0]r if the employee has a positive confirmation of a drug as defined in this act.” Ch. 90-201, § 11, at 910, Laws of Fla. Chapter 90-201 also created section 440.102, Florida Statutes, and defined "drug,” as, among other things "alcohol, including distilled spirits, wine, malt beverages, and intoxicating liquors.” Ch. 90-201, § 13, at 912, Laws of Fla.


text:
    In re: Gerald A. BOSWORTH
    No. 2004-OB-1041.
    Supreme Court of Louisiana.
    Sept. 21, 2004.
   hORDER

Respondent is the subject of five counts of formal charges filed in 2001. The charges involve numerous violations of the Rules of Professional Conduct and generally allege that respondent neglected legal matters, failed to communicate with clients, failed to account for or refund unearned legal fees, knowingly made false statements to a tribunal and to third persons, falsified evidence, and engaged in criminal conduct. Respondent failed to answer or otherwise reply to the formal charges, and accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence. The disciplinary board has recommended to this court that respondent be permanently disbarred. Respondent now seeks to permanently resign from the practice of law in lieu of discipline.

Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Gerald A. Bos-worth, Louisiana Bar Roll number 3283, and the concurrence thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the request of Gerald A. Bosworth for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5(c) of the Rules of Professional Conduct, as amended March 24, 2004.

IT IS FURTHER ORDERED that Gerald A. Bosworth shall be permanently, prohibited from practicing law in Louisiana or in any other jurisdiction in which he is |2admitted 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.


author: JjPER CURIAM.

text:
    STATE of Louisiana v. Heather SMITH.
    No. 2004-KK-1123.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   JjPER CURIAM.

The state’s application is granted, the ruling of the court of appeal is reversed, and the judgment of the trial court denying defendant’s motion to quash the prosecution against her for second degree murder in violation • of La.R.S. 14:30.1(A)(3)(distribution of a controlled substance which directly causes of the death of the recipient), and for possession of MDMA (ecstasy) with intent to distribute in violation of La.R.S. 40:966(A)(1), is reinstated.

The state maintains, in part on the basis of custodial statements made by the defendant and her co-defendant following their arrests, that the defendant embarked on a joint venture with three other persons, including the victim, to purchase MDMA for their own use; that the defendant took cash provided by another member of the joint venture and made the purchase of the drug from a source at a separate location; that the defendant then returned to the victim’s residence where the drug was divided among the various participants in the venture; and that the victim then died after ingesting some of the drug.

18Given these circumstances, the court of appeal concluded that the four participants in the venture “jointly purchased and jointly used the ecstasy tablets” and that defendant had been “a mere purchaser and user.” State v. Smith, 03-1556 (La.App. 1st Cir.4/2/04). Applying the rule in Louisiana that a buyer of a controlled substance in Louisiana is not a principal in the act of delivery and may not be charged with distribution of the drug, State v. Celestine, 95-1393 (La.1/26/96), 671 So.2d 896, the court of appeal ordered the prosecution quashed and the defendant discharged from custody because the state’s allegations showed that she did not “distribute” the ecstasy which ultimately caused the victim’s demise and did not, as a mere possessor and user of the drug, have the intent to distribute the drug to the other persons in the venture.

Some authority exists for the proposition endorsed by the court of appeal that “where two individuals simultaneously and jointly acquire possession of a drug for their own use, intending only to share it together, their only crime is personal drug abuse — simple joint possession, without any intent to distribute the drug further.” United States v. Swiderski, 548 F.2d 445, 450 (2nd Cir.1977); see also People v. Edwards, 39 Cal.3d 107, 216 Cal.Rptr. 397, 702 P.2d 555, 559, n. 5 (1985) (“[Ojne who acts as a go-between or agent of either the buyer or seller clearly may be found guilty of furnishing as an aider and abettor to the seller.... However, because one who merely purchases drugs is not guilty of furnishing as an aider and abettor of the seller ... an equal partner in a copurchase cannot be found guilty of furnishing to his copurchaser on a theory that he aided and abetted the actual seller.”). The rationale underlying this rule is that “[sjince both acquire possession from the outset and neither intends to 13distribute the drug to a third person, neither serves as a link in the chain of distribution.” Swiderski, 548 F.2d at 450.

However, Louisiana law also holds that “an intermediary who arranges or facilitates the transfer of narcotics from the seller to the buyer may ... be charged and punished as a principal in the act of distribution.” Celestine, 95-1393 at 3, 671 So.2d at 897 (citations omitted). In the present case, the state alleges that defendant took delivery of the drug from her “source” and then made a second delivery to the other members in the joint venture when she brought the drugs back to the victim’s residence. See La.R.S. 40:961(10) (defining distribution of controlled substances in terms of delivery, or “the transfer of a controlled dangerous substance, whether or not there exists an agency relationship.”). If the state proves these circumstances at trial, a jury may rationally conclude that defendant made herself an intermediary in the transaction by serving as a link in the distribution of the drug from its source to its ultimate users, which included herself but also included other persons not present at the initial delivery, and rendered herself a principal in the act of distribution. See United States v. Washington, 41 F.3d 917, 920 (4th Cir. 1994)(“We agree ... that a defendant who purchases a drug and shares it with a friend has ‘distributed’ the drug even though the purchase was part of a joint venture to use drugs.”); United States v. Speer, 30 F.3d 605, 608-09 (5th Cir.1994)(distinguishing Swiderski because “[i]t is undisputed that at least some of the cocaine was intended by the trio to be subsequently distributed to [another member of the joint venture] who was not at or near the scene of the transaction.”); Long v. United States, 623 A.2d 1144, 1151 (D.C.App.1993)(because the defendant “brought heroin home to his friends and ... was |4about to pass several packets on to them when his plans were interrupted by a police battering ram.... Long had already begun to serve, and was intending to continue to serve, ‘as a link in the chain of distribution.’ ” (quoting Swiderski); United States v. Wright, 593 F.2d 105, 108 (9th Cir.1979)(“This is not a case in which two individuals proceed together to a place where they simultaneously purchased a controlled substance for their personal use.... Wright operated as the link between the person with whom he intend to share the heroin and the drug itself.”)); State v. Moore, 529 N.W.2d 264, 266 (Iowa 1995)(“[0]ne who shares drugs with others has transferred the drugs within the meaning of statutes prohibiting the distribution, furnishing or delivery of controlled substances. A transfer occurs when the drugs are shared even though joint funds were used to purchase the drugs.”); cf. State v. Carithers, 490 N.W.2d 620 (Minn.1992) (when married couple jointly acquire a controlled substance and one spouse dies after ingesting the drug, surviving spouse not guilty of felony murder on a theory that victim died as the result of delivery of controlled substances by one spouse to the other). If accepted by a factfinder, that same evidence could lead the factfinder to conclude that defendant possessed the intent to distribute the drug obtained from her source to the other persons involved in the joint enterprise.

The trial court therefore properly denied defendant’s motion to quash. Cf. State v. Legendre, 362 So.2d 570, 571 (pretrial motion to quash on grounds of a defense going to the merits appropriate remedy only if charges based “upon an allegation of fact which cannot conceivably satisfy an essential element of the crime”). This case is accordingly remanded to the district court for further proceedings consistent with the views expressed herein.


author: | JOHNSON, J.,

text:
    STATE of Louisiana v. Stanley STIRGUS.
    No. 2004-K-654.
    Supreme Court of Louisiana.
    Oct. 1, 2004.
   In re Stirgus, Stanley; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court, Div. L, No. 01-4930; to the Court of Appeal, Fifth Circuit, No. 04-KH-141.

Writ denied.

JOHNSON, J., would grant and assigns reasons.

| JOHNSON, J.,

would grant the writ for the following reasons.

In the instant matter, defendant was convicted of the crime of second-degree murder for his participation in a drug-related robbery. During trial, the State introduced a copy of defendant’s arrest warrant to the jury along with a copy of defendant’s juvenile adjudication record for an armed robbery. The introduction of defendant’s juvenile record was contrary to the procedural protections afforded by La. C.E. art. 404(B)(1) and he was not given a hearing as required by State v. Prieur, 277 So.2d 126 (La.1973). Defendant contends that the introduction of his juvenile offense record led to his subsequent conviction, and that such error was not harmless.

This Court has stated unequivocally that a juvenile who has been adjudicated delinquent has not been convicted of a crime. In re C.B., 97-2783, (La.3/4/98) 708 So.2d 391, 400. The juvenile system is distinguishable from the adult criminal system in that juvenile delinquency proceedings are considered “civil” in nature, and juveniles are therefore not automatically entitled to the constitutional safeguards afforded to adults. In re C.B., 708 So.2d at 397. Juvenile offenders and adult offenders with juvenile records have become 1 ¡¡ensnared in a jurisprudential quagmire that limits the procedural safeguards available during juvenile proceedings, then allows the introduction of truncated juvenile adjudication records in subsequent criminal proceedings.

This Court recently held in State v. Quincy Brown that a juvenile adjudication record could not be considered a “prior conviction” for sentence enhancement purposes. State v. Brown, 03-2788, (La.7/6/04), 879 So.2d 1276, 1283-84. Further, this Court found that

“it would be incongruous and illogical to allow the non-criminal adjudication of a juvenile delinquent to serve as a criminal sentencing enhancer. To equate this adjudication with a conviction as a predicate offense for purposes of the Habitual Offender Law would subvert the civil trappings of the juvenile adjudication to an extent to make it fundamentally unfair and thus, violative of due process.” Brown, at 1289.

To find that the introduction of a defendant’s juvenile adjudication record before the jury during the guilt phase, as this Court does now, is to turn the holding of Broum on its head. It is both “illogical” and “incongruous” to find the introduction of juvenile adjudication records during the penalty phase to enhance a properly rendered guilty verdict “fundamentally unfair”, while finding that the introduction of the self-same records during the guilt phase, without benefit of a Prieur hearing, do not violate the defendant’s right to a fair trial. The integral purpose of a Pri-eur hearing is to grant the defendant the opportunity to test the relevancy, admissibility and probative value of other crimes evidence prior to its introduction at trial, since evidence of previous criminal activity may have a prejudicial effect on the trier. State v. Prieur, 277 So.2d 126, 128 (La.1973).

lain my mind, this is not harmless error. Therefore, I would reverse the defendant’s conviction and sentence and remand this case to the district court for a new trial.


text:
    STATE of Louisiana v. Clemone W. LANIEU.
    No. 2003-KP-2640.
    Supreme Court of Louisiana.
    Oct. 1, 2004.
   PER CURIAM.

Writ granted in part; otherwise denied; case remanded to the district court. Relator filed an application for post-conviction relief containing a claim predicated on facts not known to him or his attorney at trial, and accordingly satisfied the criteria of La.C.Cr.P. art. 930.8(A)(1) for an exception to the prescriptive period. The fact that relator discovered the new facts before the prescriptive period had run but did not file until after it had run does not make his application untimely. Instead, if delays caused by matters outside the control of the state have prejudiced the state, it may invoke La.C.Cr.P. art. 930.8(B) and demand a hearing on that issue. If the state demonstrates prejudice under that article, the district court shall dismiss the application. If it does not, the district court shall consider the claim on the merits. See generally Carlin v. Cain, 97-2390 (La.3/13/98), 706 So.2d 968.

TRAYLOR and KNOLL, JJ., would deny the writ application.


text:
    STATE of Louisiana ex rel. Arthur L. SMITH v. STATE of Louisiana.
    No. 2003-KP-3464.
    Supreme Court of Louisiana.
    Oct. 7, 2004.
   PER CURIAM.

Writ granted; revocation of probation reversed. Proof of an arrest alone, without any evidence of the conduct that led to arrest, does not suffice to revoke probation. State v. Harris, 368 So.2d 1066, 1072 (La.1979); see also State v. Pleasant, 508 So.2d 113, 114 (La.App. 4th Cir.1987). In addition, while a court may consider documentary evidence or prior judicial proceedings in determining whether a probationer has violated the terms of his state supervision, State v. Harris, 368 So.2d 1066, 1070 n. 9, the state did not allege in its rule to revoke probation or introduce any evidence at the hearing, and the court did not find as an independent basis for revocation, that relator had failed to pay his fine. See Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972) (due process requires notice of the claimed violations and an opportunity for the probationer to rebut the allegations); La.C.Cr.P. art. 899(D)(confining reasons for revocation to “the allegations made by the probation officer concerning a violation or threatened violation of the conditions of probation, the findings of the court concerning those allegations [and] the factual basis or bases for those findings”).


text:
    STATE of Louisiana v. Melvin SMITH.
    No. 2004-KP-0382.
    Supreme Court of Louisiana.
    Oct. 8, 2004.
    Rehearing Denied Dec. 8, 2004.
   PER CURIAM.

Writ granted in part; denied in part; sentence reinstated. The court of appeal lacked jurisdiction to grant the state’s writ. La. Const. art. V, § 5(E). Its judgment is therefore void. However, the district court erred in granting relief on a claim, raised by a motion properly considered an application for post-conviction relief no matter how captioned, that is: (1) time-barred, see La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State ex rel. Stepter v. Whitley, 93-2346 (La.10/13/95), 661 So.2d 480; and (2) not cognizable on collateral review, see La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


author: hPER CURIAM.

text:
    STATE of Louisiana v. Darin P. DURKE.
    No. 2003-KP-3174.
    Supreme Court of Louisiana.
    Oct. 14, 2004.
   hPER CURIAM.

Granted. The court of appeal’s decision is reversed and the defendant’s conviction and sentence are reinstated.

From the testimony at trial, it appears that the on-duty university officer acted in accord with La.C.Cr.P. art. 213(1) when he immediately pulled over the defendant after observing him weaving between the lanes and repeatedly crossing the fog line on a well-traveled roadway approximately one mile from the officer’s post. See also R.S. 17:1805 (authority of university or college police officer to arrest in areas within or adjacent to the perimeter of the campus); La.C.Cr.P. art. 215.1. Moreover, even assuming that the officer acted outside of the territorial limits of his authority, his conduct did not flagrantly disregard those limits and did not provide constitutional grounds for suppressing evidence of the defendant’s intoxication. See State v. Matthieu, 506 So.2d 1209 (La.1987). The officer otherwise lawfully observed the traffic violations which preceded the stop, and the circumstances under which the officer seized the defendant, whether legal or | ¡illegal, did not preclude prosecution of the traffic infractions based on those independent observations. United States v. Crews, 445 U.S. 463, 474, 100 S.Ct. 1244, 1251, 63 L.Ed.2d 537 (1980) (“An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction.”).


text:
    In re Martin E. REGAN, Jr.
    No. 2004-B-1365.
    Supreme Court of Louisiana.
    Oct. 15, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

JjPER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Martin E. Regan, Jr., an attorney licensed to practice law in Louisiana.

STIPULATED FACTS

The following facts are not in dispute, having been stipulated to by respondent and the ODC:

On January 21, 1995, Leonard Chase, II retained respondent’s law firm to represent him in a personal injury claim against the New Orleans Police Department and the City of New Orleans. On October 2, 1995, a petition for damages was prepared and filed on behalf of Mr. Chase by respondent or a member of his firm. Leonard Chase v. New Orleans Police Dept., et al., No. 95-14810 on the docket of the Orleans Parish Civil District Court. The petition specified that service of citation be withheld. By letter to the clerk of court dated December 30, 1996, respondent requested that service of citation be effected. However, respondent took no steps to determine whether service was, in fact, made in accordance with this request. By letter dated February 28, 2000, respondent again requested service of the petition and enclosed a check in the amount of $30 to cover the cost thereof. Service was ^ultimately made on both defendants on March 27, 2000. On April 2, 2001, Mr. Chase’s lawsuit was dismissed as abandoned on an ex parte motion of the City of New Orleans. Respondent did not challenge the dismissal of the suit, nor has he made any attempt to have the suit reinstated.

DISCIPLINARY PROCEEDINGS

In March 2000, Mr. Chase filed a complaint against respondent with the ODC. On September 10, 2002, the ODC filed one count of formal charges against respondent, alleging that he violated Rule 1.3 of the Rules of Professional Conduct by failing to act with reasonable diligence and promptness in the Chase matter. Respondent answered the formal charges and admitted the factual allegations therein, but given the circumstances of the particular case, denied that his conduct violated the Rules of Professional Conduct.

This matter proceeded to a formal hearing on the merits, which was conducted by the hearing committee on October 17, 2003. In his testimony, respondent explained, that he did not pursue Mr. Chase’s lawsuit because he concluded that it was “fraudulent” and without merit. Respondent could not reach Mr. Chase to advise him of his decision, but rather than withdrawing from the case, he simply took no action to prosecute the suit filed in October 1995. Respondent had no further contact with his client until Mr. Chase appeared in respondent’s office on February 19, 2000. After ^respondent informed Mr. Chase that his suit was “dead,” Mr. Chase requested his file and discharged respondent. Respondent testified that in his view, Mr. Chase suffered no injury by the dismissal of his suit; rather, respondent asserted that it was he who was injured, given that his firm expended a considerable amount of time and money ($803 in costs, as well as the salaries of his legal staff) on the “bogus” case.

Hearing Committee Recommendation

Considering the stipulated facts, as well as the testimony adduced at the hearing, the hearing committee determined that respondent failed to use reasonable diligence in his representation of Mr. Chase. Accordingly, the committee agreed that respondent violated Rule 1.3 of the Rules of Professional Conduct as charged in the formal charges. It found respondent violated duties owed to his client and to the legal profession, and his failure to fulfill his duty to Mr. Chase was knowing and willing, resulting in Mr. Chase’s suit being dismissed on grounds of abandonment. The committee determined the baseline sanction for respondent’s misconduct is a suspension from the practice of law.

As aggravating factors, the committee recognized respondent’s prior disciplinary offenses, dishonest or selfish motive, and substantial experience in the practice of law (admitted 1975). The committee also felt that respondent had not demonstrated sufficient remorse and indicated that it would “draw an inference against Respondent” as to his good character and reputation because there is no evidence of | ¿such in the record. In mitigation, the committee acknowledged respondent’s personal and family problems, as well as his cooperative attitude toward the disciplinary proceeding.

Considering all the facts of this case, the committee recommended that respondent be suspended from the practice of law for a period of one year. The committee further recommended that the suspension be deferred in full on the condition that respondent complete a minimum of eight additional hours of continuing legal education in the area of law practice management.

Neither respondent nor the ODC objected to the sanction recommended by the hearing committee; however, respondent did object to the committee’s application of the aggravating and mitigating factors.

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board concurred in the hearing committee’s factual findings and application of the Rules of Professional Conduct. Like the committee, the board found respondent violated duties owed to his client, Mr. Chase, and to the profession. It recognized his actions were knowing and caused injury to Mr. Chase in that his suit was dismissed on grounds of abandonment before he had an opportunity to have his day in court.

| sAIthough it agreed with the committee’s factual findings, the board largely rejected the hearing committee’s analysis of the aggravating and mitigating factors. The board found the record supports the following aggravating factors: prior disciplinary offenses and substantial experience in the practice of law. In mitigation, the board acknowledged the absence of a dishonest or selfish motive, respondent’s personal problems, and his cooperative attitude toward the disciplinary proceeding.

Turning to the issue of an appropriate sanction for respondent’s misconduct, the board noted the baseline sanction is suspension under the ABA’s Standards for Imposing Lawyer Sanctions. The court’s prior jurisprudence in cases involving the neglect of a legal matter which results in a client’s case being dismissed on grounds of abandonment suggests that the suspension generally ranges from six months to one year and one day, perhaps with all or part of the suspension deferred. The board cited several such cases, specifically noting the similarity of In re: Holmes, 03-1959 (La.9/19/03), 855 So.2d 736, and In re: Dunn, 98-0535 (La.6/5/98), 713 So.2d 461, to the instant case. The board acknowledged that the sanction recommended by the hearing committee is consistent with these authorities. Nonetheless, the board concluded that it is appropriate to deviate downward from the committee’s proposed sanction, “because of the mitigating factors present and because of the frivolous nature of Mr. Chase’s lawsuit.”

| fiBased on this reasoning, the board recommended that respondent be suspended from the practice of law for six months, to be deferred in full on the condition that respondent complete a minimum of eight additional hours of continuing legal education in the area of law practice management. The board also noted that any misconduct occurring during a six-month period following the finality of the court’s order should be grounds for making the deferred period of suspension executory. Finally, the board recommended that respondent be assessed with all costs and expenses of these proceedings.

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

DISCUSSION

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

In the instant case, the stipulated facts support a finding that respondent neglected Mr. Chase’s legal matter, resulting in the dismissal of his suit on grounds of abandonment, in violation of Rule 1.3 of the Rules of Professional Conduct.

17Having found professional misconduct, we now turn to a discussion of an appropriate sanction. In considering that issue, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

The record demonstrates respondent’s actions were knowing and caused injury to Mr. Chase. Respondent owed his client a duty to move his lawsuit forward with reasonable diligence and promptness. He failed to do so, and failed to promptly inform Mr. Chase of his decision that he would not pursue the litigation. As a result of respondent’s inaction, Mr. Chase’s suit was dismissed as abandoned. The baseline sanction for this misconduct is a suspension from the practice of law ranging from six months to one year and one day, which may be fully or partially deferred.

Several mitigating factors are present in this case, including the absence of a dishonest or selfish motive, respondent’s personal problems during the time of the misconduct, and his cooperative attitude toward the disciplinary proceeding. Taken as a whole, the record supports the conclusion that respondent’s mishandling of Mr. Chase’s case was not intentional, but stemmed in large part from poor office management.

Accordingly, we find the appropriate sanction for respondent’s misconduct is a suspension from the practice of law for a period of six months. In light of the mitigating factors, we will defer that suspension in its entirety, and place respondent on unsupervised probation for a period of six months, subject to the condition that |srespondent obtain eight hours of CLE in the area of law practice management, in addition to his ordinary CLE obligations, during the probationary period. Any failure of respondent to comply with this condition, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Martin Edward Regan, Jr., Louisiana Bar Roll number 11153, be suspended from the practice of law for a period of six months. It is further ordered that said suspension shall be fully deferred and respondent shall be placed on unsupervised probation for a period of six months, subject to the condition that during the probationary period, he complete a minimum of eight credit hours of continuing legal education in the area of law practice management, in addition to his regular mandatory continuing legal education requirements. Respondent’s failure to comply with this condition, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. 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.

       Calogero, C.J. recused.

      . According to Mr. Chase, he was injured in a violent, unprovoked attack upon him by the police as he left the Orleans Parish Prison after posting bond on a DWI charge. However, when respondent reviewed Mr. Chase's medical records for the first time in early 1997, he learned that Mr. Chase was in custody when he was transported to Charity Hospital directly from the psychiatric unit of the Orleans Parish Prison. The medical records also reflect that Mr. Chase’s mental status was "altered” upon arrival in the emergency room, and contain no indication that he had any injuries consistent with a recent beating. The inconsistencies in Mr. Chase's story, coupled with the fact that the New Orleans Police Department had no officers on duty in the Orleans Parish Prison, led respondent to conclude that Mr. Chase's claim of injury by the police was not legitimate.

      . In 2002, respondent was publicly reprimanded by the disciplinary board for permitting his paralegal, who is a disbarred lawyer, to attend and actively participate in approximately twenty depositions over a nine-month period (00-DB-075). In 1997, respondent was admonished by the disciplinary board for failing to supervise office personnel who had not returned all of a client's file upon the termination of the representation (97-ADB-033).

      . The disciplinary board later rejected the committee’s "presumption” of bad character. See infra note 5. We agree with the board that the committee's analysis is in error. While good character may be proved as a mitigating factor, there is no negative inference if a respondent fails to produce such evidence.

      . Respondent’s wife died of cancer in January 1996. During her illness, respondent's health insurer canceled his policy and respondent had to pay for all of his wife's medical treatment out of his own pocket. Respondent also has three major children who suffer from muscular dystrophy, one of whom also suffers from mental retardation. The children are cared for around the clock in respondent's home at great financial expense to respondent.

      . The board correctly noted that (1) no presumption of bad character or reputation should be drawn from a respondent’s failure to produce evidence of good character or reputation; (2) respondent did not fail to demonstrate remorse or otherwise refuse to acknowledge the wrongful nature of his conduct, as he admitted at the hearing that he should have handled Mr. Chase’s case differently; and (3) respondent was not prompted to neglect Mr. Chase’s case by any dishonest or selfish motive.

      . Standard 4.42 suggests that suspension is generally appropriate when a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client. Respondent’s knowing inaction in Mr. Chase’s legal matter caused injury to his client, whose case was abandoned. Likewise, Standard 7.2 suggests that suspension is appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system. By failing to properly handle Mr. Chase’s legal matter, respondent also violated his duty as a professional, and caused injury to his client.