text:
    In re Dwayne V. WILLIAMS.
    No. 2004-B-1364.
    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, Dwayne V. Williams, an attorney licensed to practice law in Louisiana. For the reasons assigned, we now disbar respondent.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The ODC filed four counts of formal charges against respondent. Prior to a hearing on the formal charges, respondent and the ODC stipulated to the facts and rule violations alleged in three of the counts. These facts may be summarized as follows:

Stipulated Facts

The Child Support Matter

Respondent stipulated that he is in arrears in the court-ordered child support obligation he owes to two different women. On at least two occasions, respondent failed to appear in court when ordered to do so, resulting in the issuance of bench warrants by the court. Respondent also failed to reply to the complaint filed in 1 ^connection with this matter, necessitating the issuance of a subpoena compelling him to appear and answer the complaint under oath.

Respondent stipulated that his conduct violated Rules 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(g) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct.

The Unauthorized Practice of Law Matters

Between July 26, 2001 and September 5, 2002, respondent was certified ineligible to practice law for failing to comply with the mandatory continuing legal education (“CLE”) requirement. Nevertheless, during this period of time, respondent represented a client in a personal injury matter, settled the claim, and disbursed the funds. Moreover, respondent failed to obtain a written contingent fee agreement in the matter. Respondent also handled several criminal cases during the period of his ineligibility. He collected legal fees, enrolled as counsel, and made appearances in court on the record, including representing clients at sentencing hearings. Finally, respondent failed to reply to the complaints filed in connection with these matters.

Respondent stipulated that his conduct violated Rules 1.5(c) (contingent fee matters), 5.5(a) (engaging in the unauthorized practice of law), 8.1(c), and 8.4(g) of the Rules of Professional Conduct.

| aNorir-Stipulated Facts

The Hilliard Matter

Gwendolyn Hilliard, a former employee of respondent, filed a complaint against respondent with the ODC, alleging that respondent provided her name as a witness to an automobile accident, when in fact she had not witnessed the accident. The ODC obtained a copy of the accident report from the Baton Rouge Police Department, which listed no witnesses. The ODC then obtained a copy of the accident report that respondent submitted to the insurance company involved in the matter. This report listed Ms. Hilliard’s name and phone numbers in the “witnesses” section of the report.

Respondent failed to reply to the complaint filed by Ms. Hilliard, necessitating the issuance of a subpoena compelling him to appear and answer the complaint under oath.

The ODC alleged that respondent’s conduct violated Rules 8.1(c), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(g) of the Rules of Professional Conduct.

FORMAL HEARING

As a result of the stipulations by respondent, the only contested matter is the count of the formal charges stemming from the complaint filed against respondent by Ms. Hilliard. Respondent testified before the hearing committee as to this matter.

During his testimony at the hearing, as well as during his sworn statement prior to the hearing, respondent admitted writing Ms. Hilliard’s name and telephone numbers on the accident report but adamantly declared that it had been a mistake. He contended that he had been trying to hide his contact with Ms. Hilliard from his wife, |4and the accident report was the only piece of paper available to him when Ms. Hilliard provided him with her phone number. Respondent went on to state that the copy he had written on had been inadvertently sent to the insurance adjuster during settlement negotiations.

Hearing Committee Recommendation

After considering the stipulated facts and the documentary evidence presented at the hearing, the hearing committee determined that respondent disobeyed court orders regarding his child support obligations, engaged in the unauthorized practice of law, failed to negotiate a written contingency fee agreement, and failed to cooperate with the ODC in its investigations. After considering respondent’s testimony and the documentary evidence regarding the Hilliard matter, the committee found that respondent’s testimony was not credible and that he engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation when he placed Ms. Hilli-ard’s name and phone numbers on the accident report.

Respondent acted knowingly and intentionally, which caused harm to the legal profession and the legal system. The baseline sanction for respondent’s misconduct, especially considering the multiple offenses of engaging in the unauthorized practice of law, is disbarment.

The committee found the following aggravating factors are present: prior disciplinary offenses, a pattern of misconduct, and bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency. The committee identified no mitigating factors.

| sUnder these circumstances, the committee recommended that respondent be disbarred. Neither respondent nor the ODC objected to the hearing committee’s recommendation.

Disciplinary Board Recommendation

The disciplinary board adopted the hearing committee’s factual findings and determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges. Specifically, it agreed respondent violated Rule 3.4(c) when he ignored court orders regarding his child support obligation, Rule 8.4(c) when he placed Ms. Hilliard’s name and phone numbers on an accident report, Rule 1.5(c) when he failed to obtain a written contingent fee agreement in a personal injury matter, and Rule 5.5(a) when he engaged in the unauthorized practice of law on multiple occasions. Furthermore, respondent violated Rules 8.1(c) and 8.4(g) by failing to cooperate with the ODC in its four investigations.

The board found respondent knowingly and intentionally violated duties owed to his clients, the public, the legal system, and the profession. It determined respondent knew, or should have known, that he had been ordered to appear in court relative to his delinquent child support obligations, and found his actions required the issuance of bench warrants which resulted in delays of the justice system with attendant costs. Likewise, the board found respondent knew that he was ineligible to practice law due to his failure to satisfy his CLE requirements, yet he continued practicing law with utter disregard of the Rules of Professional Conduct and the rights of his clients to be represented by counsel eligible to practice law. The board determined respondent knew he was obliged to respond to the four disciplinary complaints served upon him yet he repeatedly refused to cooperate with the ODC. |fiMoreover, it noted respondent exhibited contempt for the disciplinary process, and the disciplinary system expended additional resources to subpoena him to obtain his response to the complaints. Finally, the board concluded respondent intentionally wrote down his former employee’s name and telephone number in the exact space reserved for witnesses on an accident report, strongly indicating he intended to perpetrate a fraud on the insurance company.

As aggravating factors, the board found respondent had a prior disciplinary record, engaged in a pattern of misconduct and multiple offenses, committed bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, and had substantial experience in the practice of law, having been admitted to the bar in 1987. The board found no mitigating factors.

Considering the ABA’s Standards for Imposing Lawyer Sanctions, and the prior jurisprudence of this court, the board recommended that respondent be 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 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).7 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 factual findings of the hearing committee are supported by the record and clearly demonstrate that respondent violated the Rules of Professional Conduct as charged in the formal charges. Among other misconduct, respondent disobeyed court orders relating to his child support obligations, engaged in dishonest conduct, and practiced law when he was ineligible to do so. No less serious is respondent’s failure to cooperate with the ODC in its investigation of the complaints filed in these matters.

Having 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).

A review of the record indicates that respondent knowingly and intentionally violated duties owed to his clients, the public, the legal system, and the profession. Respondent ignored his obligation to appear at hearings before the trial court in connection with child support matters. He has flouted the authority of this court and disregarded the welfare of his clients by practicing law while ineligible to do so. His lRchronic failure to cooperate with the ODC has caused undue delays and burdened an already taxed disciplinary system. Clearly, the baseline sanction for such egregious and persistent misconduct is disbarment.

Several aggravating factors are present, the most serious of which is respondent’s prior disciplinary history involving the same type of misconduct at issue here. We are unable to discern any mitigating factors from the record.

Accordingly, we will accept the disciplinary board’s recommendation and 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 Dwayne V. Williams, Louisiana Bar Roll number 18044, be and he hereby is disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. 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.

      . According to the court records that were attached to the complaint, respondent's child support arrearage totaled $20,650 to Lillian Williams and $8,980 to Sharon Wilson.

      . Respondent was also ineligible between September 4, 2001 and August 12, 2002 for failing to pay his bar dues and the disciplinary assessment.

      . In June 2001, respondent was publicly reprimanded by the disciplinary board for failing to cooperate with the ODC in a disciplinary investigation and failing to properly supervise a non-lawyer employee (00-DB-128). In July 2001, respondent was admonished by the disciplinary board for failing to cooperate with the ODC in a disciplinary investigation (01-ADB-034).


source: Caselaw Access Project

author: |,PER CURIAM.

license: Public Domain

text:
    In re Leroy J. LAICHE, Jr.
    No. 2004-B-1363.
    Supreme Court of Louisiana.
    Oct. 15, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

|,PER CURIAM.

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

UNDERLYING FACTS

The underlying facts of this matter are essentially undisputed. Respondent represented Jerri Dubois in a personal injury matter arising out of an automobile accident. The police report prepared following the accident indicated the accident occurred on February 1, 1996. In June 1996, respondent forwarded a copy of the accident report to Louisiana Farm Bureau Casualty Insurance Company (“Farm Bureau”), the insurer of the alleged tortfea-sor, and initiated settlement negotiations on behalf of Ms. Dubois, These negotiations were not successful, however, and on February 6, 1997, respondent filed suit in the matter entitled Jerri Page Dubois v. Kevin W. Brown, et al., No. 435-981 on the docket of the 19th Judicial District Court for the Parish of East Baton Rouge. In the petition for damages, respondent alleged that the accident in question occurred on February 7,1996.

After the suit was filed, Farm Bureau’s adjuster informed respondent that Ms. Dubois’ claim was prescribed and requested that he voluntarily dismiss the suit. Respondent refused to do so, claiming the accident report in his file indicated the | ¡¡accident occurred February 7, 1996. Farm Bureau then retained counsel, Edward 0. Taulbee, IV, to defend its interest. In August 1998, Mr. Taulbee submitted a request for admissions, in which he requested respondent to admit that the accident occurred on February 1, 1996. Respondent denied the request for admission.

In light of respondent’s continued refusal to acknowledge the correct date of the accident, Mr. Taulbee obtained a certified copy of the accident report from the Department of Public Safety, conducted a deposition of the state trooper who investigated the accident, and secured the station and desk logs maintained by the Louisiana State Police. All of this information indicated that Ms. Dubois’ accident occurred on February 1, 1996. In September 1999, after discovery was completed, Mr. Taulbee filed an exception of prescription on behalf of Farm Bureau. Respondent opposed the exception and amended the petition for damages to allege that Farm Bureau had previously acknowledged its liability to Ms. Dubois, thereby interrupting prescription. The trial court rejected this argument, and in November 1999, granted Farm Bureau’s exception of prescription and dismissed Ms. Dubois’ suit with prejudice.

Mr. Taulbee then filed a motion for sanctions against respondent, seeking to recover the attorney’s fees incurred by Farm Bureau in the defense of the litigation. Following a hearing on the motion in January 2001, the trial court found that the accident date alleged in respondent’s petition for damages was erroneous and that respondent wrongfully denied Farm Bureau’s request for admission that the correct accident date was February 1, 1996. The trial court also found that the accident report had been altered by someone in respondent’s office to show the date of the |3accident as February 7, 1996 for the specific purpose of covering up the fact that Ms. Dubois’ case had prescribed. The trial court awarded Farm Bureau $8,000 in sanctions against respondent under La. Code Civ. P. art. 863, and ordered respondent to pay costs.

On appeal, Farm Bureau sought an increase in the award of sanctions as well as interest on the judgment. The court of appeal declined to award additional attorney’s fees but amended the trial court’s judgment to include legal interest from the date of demand.

DISCIPLINARY PROCEEDINGS

After investigation, the ODC filed one count of formal charges against respondent, alleging that his conduct in the Du-bois matter violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.7(b) (a lawyer shall not represent a client if the representation may be materially limited by the lawyer’s own interests), 5.3 (responsibilities regarding nonlawyer assistants), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

Respondent filed an answer to the formal charges in which he admitted that he allowed Ms. Dubois’ case to prescribe. However, respondent denied that he altered the accident report in question or allowed someone in his office to alter the report. He also denied that he failed to make a reasonable inquiry to verify the date of the accident, or that he continued to pursue the matter after being placed on notice of the altered accident report. Respondent admitted that his conduct violated Rules 1.3, 5.3, and 8.4(a) of the Rules of Professional Conduct. With respect to the ODC’s Rallegation that he violated Rules 8.4(c) and 8.4(d), respondent admitted that a misrepresentation resulted from his conduct, but denied that his conduct was motivated by dishonesty, fraud, deceit or specific intent to misrepresent the facts of Ms. Dubois’ case or to prejudice the administration of justice.

Recommendation of the Hearing Committee

This matter proceeded to a formal hearing on the merits. Based on the evidence presented at the hearing, the hearing committee made the following factual findings, in addition to the facts which were admitted by respondent in his answer to the formal charges:

1. Respondent negligently allowed someone in his office to alter the date of the accident report. The committee determined there was no clear and convincing evidence that respondent personally altered the accident report or that he instructed anyone to alter it. Nonetheless, someone in respondent’s office did so, and this occurred under respondent’s supervision as respondent was the supervisory attorney in the office.

2. When advised of the discrepancy, respondent failed to make a reasonable inquiry to verify the true date of the accident. The committee did not accept respondent’s claim that he was unsure when the accident happened because his file contained conflicting accident dates. The committee opined that respondent could easily have secured a certified accident report from the State Police in order to verify the date instead of forcing Farm Bureau to expend considerable time and money to prove the accident date. Moreover, the date of the accident appears in at least four separate places on the report; however, only two of the dates were changed from February 1 to February 7. The ^committee found that these discrepancies should have alerted respondent to the fact that the accident date was not February 7, 1996.

3. Respondent’s dilatory tactics caused Farm Bureau to incur considerable expenses that were not fully satisfied by the sanction of $8,000. Respondent continued to pursue the matter after he was placed on notice of the altered accident date, and therefore caused Farm Bureau to spend unnecessary resources to conclude what should have been an “open and shut situation.”

As respondent admitted in his answer to the formal charges, this conduct violated Rules 1.3, 5.3 and 8.4(a). The committee found that respondent did not violate Rules 1.4 and 1.7(b). The committee made no finding as to the remainder of the rule violations alleged in the formal charges.

Considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that respondent engaged in a pattern of neglect which caused injury to Farm Bureau and potential injury to his client, the baseline sanction for which is a suspension from the practice of law. In mitigation, the committee recognized the absence of a prior disciplinary record, respondent’s full cooperation with the ODC, and his good faith effort to make restitution to his client, Ms. Dubois. The aggravating factors present include vulnerability of the victim and substantial experience in the practice of law (admitted 1989).

Considering these factors, the committee recommended that respondent be suspended from the practice of law for ninety days. Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

| Disciplinary Board Recommendation

The disciplinary board adopted the hearing committee’s factual findings and determined that respondent violated Rules 1.3, 5.3, 8.4(a), and 8.4(d) of the Rules of Professional Conduct. Respondent failed to use reasonable diligence in pursuing Ms. Dubois’ case and failed to verify the actual date of the accident; failed to adequately supervise his staff with regard to the alteration of the accident report; and engaged in conduct prejudicial to the administration of justice when he failed to timely cease the litigation which caused Farm Bureau substantial expense. However, the board determined that respondent did not violate Rules 1.4 or 1.7(b), given Ms. Dubois’ testimony that she believed respondent kept her informed of the progress of the case, including the prescription issue, and that respondent advised her of her right to seek other counsel regarding the case, his prescription error, and any restitution due her for the value of her case. The board also found that respondent did not violate Rule 8.4(c) because he did not alter the accident report or instruct another to do so, or otherwise misrepresent the date of the accident to the court or to Farm Bureau.

The board found respondent violated duties owed to his client, the legal system, and as a professional. It determined respondent’s conduct was negligent insofar as he failed to adequately supervise his staff and failed to use reasonable diligence in pursuing Ms. Dubois’ case. However, it found respondent’s conduct was knowing insofar as he failed to timely confirm the date of the accident and failed to timely dismiss the suit against Farm Bureau.

In determining the harm caused by respondent’s conduct, the board pointed out Farm Bureau was required to spend $20,000 to establish the correct accident date, prove there was no acknowledgment of the claim, and obtain the dismissal of the case, although it was later awarded all recoverable legal fees and expenses in the amount of $8,000. The board observed that Ms. Dubois was in the position to suffer 17the most harm, but found she testified that she was satisfied with respondent’s actions and that she has been made whole, as respondent fully satisfied her malpractice claim. Thus, the board concluded that while the potential for injury to Ms. Dubois was great, she appears to have suffered no financial harm.

Applying the ABA’s Standards for Imposing Lawyer Sanctions, the board concluded that the baseline sanction for respondent’s misconduct is a suspension. The board found the record supports the aggravating factor of substantial experience in the practice of law. In mitigation, the board recognized the absence of a prior disciplinary record, timely restitution to respondent’s client, cooperation with the disciplinary investigation, and the imposition of other penalties and sanctions.

Under these circumstances, and relying on the prior jurisprudence of this court dealing with similar misconduct, the board recommended that respondent be suspended from the practice of law for ninety days. The board further 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; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992).

Respondent’s factual admissions, together with the findings made by the hearing committee and the disciplinary board, support the conclusion that respondent failed to adequately supervise his office staff and failed to diligently pursue his Isdient’s case. Respondent’s misconduct caused his client’s case to prescribe. In addition, respondent’s failure to concede the correct accident date after being alerted of the discrepancy forced Farm Bureau to expend money and resources to establish the actual date of the accident. This conduct violated Rules 1.3, 5.3, 8.4(a), and 8.4(d) of the Rules of Professional Conduct.

Having found professional misconduct, we now turn to a discussion of an appropriate sanction. In considering that issue, we are mindful that the purpose of disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain the appropriate standards of professional conduct, to preserve the integrity of the legal profession, and to deter other lawyers from engaging in violations of the standards of the profession. In re: Vaughan, 00-1892 (La.10/27/00), 772 So.2d 87; In re: Lain, 00-0148 (La.5/26/00), 760 So.2d 1152; Louisiana State Bar Ass’n v. Levy, 400 So.2d 1355 (La.1981).

A review of our prior jurisprudence indicates there is no case directly on point with the facts presented in the instant case. However, in cases involving similar acts of unintentional fraud on the part of a lawyer, we have generally imposed relatively short periods of suspension. See, e.g., In re: Cline, 99-2779 (La.2/29/00), 756 So.2d 284 (lawyer suspended for six months, with three months deferred, for allowing a client to take settlement checks to her prior attorney for endorsement, without taking precautions to ensure the client would not obtain fraudulent endorsements on the checks); In re: Wahlder, 98-2742 (La.1/15/99), 728 So.2d 837 (lawyer suspended for six months, fully deferred, for permitting his client to place his wife’s signature on documents); In re: Broome, 615 So.2d 1333 (La.1993) (lawyer suspended for ninety days for allowing a member of his staff to falsely represent that a suit had been filed when it in fact had not been filed).

| flIn the instant case, the hearing committee made a factual finding, which we accept, that respondent did not personally alter the accident report. However, respondent’s failure to supervise his staff to ensure such actions did not occur and his failure to make even minimal efforts to ascertain the true date of the accident warrant a baseline sanction of a suspension from the practice of law.

Considering the aggravating and mitigating factors present in this case (with particular emphasis on the imposition of other sanctions in the context of the civil case), we conclude that the appropriate sanction for respondent’s misconduct is a suspension from practice of law for a period of ninety days.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that Leroy J. Laiche, Jr., Louisiana Bar Roll number 19664, be suspended from the practice of law in Louisiana for a period of ninety days. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Respondent later asserted that when the request for admission was propounded, he "had no firm idea whatsoever of what was precisely the date of the accident," given that the documents in his file contained conflicting information on that point.

      . Ms. Dubois testified at the hearing that respondent notified her of the prescription problem and advised her that she had the right to secure the services of another attorney to pursue a malpractice claim, which she declined to do. Ms. Dubois also testified that respondent satisfied any malpractice claim, informally, to her satisfaction. In light of this testimony, the committee concluded there was no misconduct by respondent towards his client.

      . Had respondent personally participated in the alteration, much more severe discipline would be warranted.


author: LPER CURIAM: [ iWEIMER, J.,

text:
    STATE of Louisiana v. Clive PEYREFITTE.
    No. 20004-KK-0742.
    Supreme Court of Louisiana.
    Oct. 15, 2004.
   LPER CURIAM:

Granted. The rulings below are reversed and the defendant’s guilty pleas and sentences are reinstated.

In Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987), the Supreme Court held that the Double Jeopardy Clause offers a defendant no protection from a second prosecution for the same offense, after sentencing and finality of his conviction by way of a guilty plea, as a consequence of voluntarily and unilaterally breaching the terms of a plea bargain with the state. However, the agreement in Adamson explicitly informed the defendant that in the event he did not testify against his former associates, the deal would be considered “ ‘null and void and the original charge will be automatically reinstated.’ ” Adamson, 483 U.S. at 9, 107 S.Ct. at 2685. The Supreme Court thus found that “[t]he terms of the agreement could not be clearer: in the event of respondent’s breach occasioned by a refusal to testify, the parties would be returned to the status quo ante, in which case respondent would have no double jeopardy defense to waive.” Id., 483 U.S. at 10, 107 S.Ct. at 2685. Because the defendant “clearly appreciated and understood the consequences were he found to be in breach of the agreement,” Adamson, 483 U.S. at 12, 107 S.Ct at 2687, his decision to renege on the agreement with the state represented a knowing and deliberate choice to upset the interests in finality of his conviction that the Double Jeopardy Clause would otherwise have protected. United States v. Scott, 437 U.S. 82, 92, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65 (1978) (Primary purpose of the Double Jeopardy Clause is “to protect the integrity of a final judgment....”).

On the other hand, in the present case, the record establishes only that during the plea colloquy which immediately preceded sentencing, see La.C.Cr.P. art. 592 (“When a defendant pleads guilty, jeopardy begins when a valid sentence is imposed.”), the trial court informed the defendant that he had obligations under the plea bargain and that failure to abide by the terms of his agreement with the state might expose him to a charge of perjury. The record does not disclose affirmatively that the defendant was also advised that he faced a second prosecution for the same criminal acts in the event he breached the plea bargain. Unlike the circumstances in Adamson, the present record thus fails to reveal that the defendant appreciated and understood the full consequences of breaching the plea bargain and thereby deliberately chose to upset the finality of his convictions and sentences when he decided not to abide by the terms of the agreement. Adamson therefore provides no authority for vacating the defendant’s guilty pleas and sentences and exposing him to a second prosecution for the crimes originally charged by the state. See Dyer v. State, 34 P.3d 652 653-54 (Okla.Crim.App.2001) (distinguishing Adamson because “[t]he state merely stated that [defendant] could then be charged with perjury” if he breached his plea bargain, and “[n]o | oother possible results of a breach were discussed.”); cf. State v. Nall, 379 So.2d 731 (La.1980)(a defendant’s unilateral breach of a plea bargain may constitute “cause” for setting aside his agreement with the state and returning the parties to their pre-plea positions in cases in which he or she has not yet been sentenced on his guilty plea and jeopardy has therefore not yet attached); State v. Kelly, 96-0903 (La.App. 5th Cir.11/12/97), 704 So.2d 800, writ denied, 97-3104 (La.4/9/98), 717 So.2d 1142 (same).

WEIMER, J., concurs and assigns additional reasons.

KIMBALL, VICTORY and TRAYLOR, JJ., would deny the writ.

[ iWEIMER, J.,

concurring.

I concur and write only to elaborate on what transpired when the defendant entered the plea agreement.

The plea agreement in Ricketts v. Adamson, 483 U.S. 1, 4, 107 S.Ct. 2680, 2683, 97 L.Ed.2d 1 (1987), specifically stated that if the defendant refused to testify “this entire agreement is null and void and the original charge will be automatically reinstated,” and that “in the event this agreement becomes null and void, then the parties shall be returned to the positions they were in before this agreement.” That is not the situation in the present case. Here, there was no stipulation, written or oral, that the agreement would become null and void and that the parties would be returned to their original positions in the event defendant failed to honor his end of the plea bargain. Rather, the entire exchange at the Boykin colloquy was as follows:

laMs. Wall [for the State]: Your Honor, one thing I wanted to add on Mr. Peyrefitte, the State has made the reductions in the charges, and as discussed in chambers, Mr. Peyrefitte agrees to cooperate with the State fully and provide truthful testimony if called upon.
The Court: Mr. Peyrefitte, do you understand you’re under obligation under the agreement?
Mr. Peyrefitte: Yes, sir.
The Court: And do you understand that in the event of untruthful testimony, you could face perjury charges if you do not testify truthfully?
Mr. Peyrefitte: Yes, sir.

The State said nothing to contradict that which was stated by the trial court and, thus, acquiesced. This is vastly different from the plea agreement in Ricketts. In that case, in upholding the State’s right to set aside the plea agreement, the United States Supreme Court noted:

The agreement specifies in two separate paragraphs the consequences that would flow from respondent’s breach of his promises. Paragraph 5 provides that if respondent refused to testify, “this entire agreement is null and void and the original charge will be automatically reinstated.” Similarly, Paragraph 15 of the agreement states that “[i]n the event this agreement becomes null and void, then the parties shall be returned to the positions they were in before this agreement.” Respondent unquestionably understood the meaning of these provisions. At the plea hearing, the trial judge read the plea agreement to respondent, line by line, and pointedly asked respondent whether he understood the provisions in Paragraphs 5 and 15. Respondent replied “Yes, sir,” to each question. On this score, we do not find it significant, as did the Court of Appeals, that “double jeopardy” was not specifically waived by name in the plea agreement. Nor are we persuaded by the court’s assertion that “[ajgreeing that charges may be reinstituted ... is not equivalent to agreeing that if they are reinstituted a double jeopardy defense is waived.” The terms of the agreement could not be clearer: in the event of respondent’s breach occasioned by a refusal to testify, the parties would be returned to the status quo ante, in which case respondent would have no double jeopardy defense to waive. And, an agreement specifying that charges may be reinstated given certain circumstances is, at least under the provisions of this plea agreement, precisely equivalent to an agreement waiving a double jeopardy defense.

| ^Ricketts, 483 U.S. at 9-10, 107 S.Ct. at 2685-86 (citations omitted). Obviously, the decision in Ricketts was premised on the specific terms of the plea agreement, which are very different from those in this case. Here, the only understanding that can be implied from the plea agreement is Mr. Peyrefitte’s understanding that if he failed to testify truthfully, he could be charged with perjury. There is absolutely no evidence that defendant waived his right to raise double jeopardy as a defense in the event the State attempted to vacate his guilty plea and sentence. Also, there is absolutely no evidence that defendant understood that his plea bargain could be rescinded and that he could be tried on the original charges if he breached his plea agreement.

The question posed in this case is whether defendant, in conjunction with his guilty plea pursuant to the plea bargain, waived his right to raise double jeopardy as a defense should the plea be vacated and the State attempt to re-institute the original charges. The trial court applied the law of obligations to find that the plea bargain agreement was vitiated by defendant’s fraud. While this would ordinarily be the correct approach, and one sanctioned by this court in State v. Nall, 379 So.2d 731 (La.1980), the fact that defendant had begun serving his sentence and that jeopardy had attached takes this case out of the realm of obligations law. As this court noted in State v. Louis, 645 So.2d 1144 (La.1994):

The values that underlie commercial contract law, and that govern the relations between economic actors, are not coextensive with those that underlie the [D]ue Process Clause, and that govern relations between criminal defendants and the State. Unlike some commercial contracts, plea agreements must be construed in light of the rights and obligations created by the Constitution.

Louis, 645 So.2d at 1148 (quoting Ricketts, 483 U.S. at 16, 107 S.Ct. at 2689).

In this case, the trial court erred in failing to address the double jeopardy implications of the vacated plea. The court of appeal, on the other hand, correctly | ¿recognized that the central issue in this case is whether defendant waived his right to raise double jeopardy as a defense. However, the court of appeal went on to find that such a waiver occurred.

As to the waiver issue, both the State and the defendant rely on the same case, Ricketts, supra, which is procedurally on point with the facts of this case. However, even a cursory reading of the opinion reveals that it hinged on the precise language of the plea agreement which clearly and explicitly set forth the consequences of a failure to abide by the terms of the plea agreement. The agreement specifically stated that if the defendant failed to uphold his end of the agreement, “this entire agreement is null and void and the original charge will be automatically reinstated,” and that “in the event this agreement becomes null and void, then the parties shall be returned to the positions they were in before this agreement.” Given this explicit language, the Supreme Court had no difficulty in finding a waiver, even in the absence of a direct reference to the double jeopardy protection.

Compare that to the language in the instant agreement. In this case, after accepting the defendant’s guilty plea and rendering sentence, the State informed the court that it wished to add to the record the fact that defendant agreed to cooperate with the State and provide truthful testimony in exchange for the reduced sentence. The court, with the State present, then asked defendant two questions: “Do you understand you’re under obligation under the agreement?” and “Do you understand that in the event of untruthful testimony, you could face perjury charges if you do not testify truthfully?” The defendant’s affirmative response to these questions, without more, simply does not evince a knowing and voluntary waiver of the right to double jeopardy protection. There is no indication that the defendant understood that the | inconsequences of his failure to abide by the terms of the plea agreement would consist of anything more than a perjury charge.

The defendant entered into a plea agreement. We cannot modify the terms of the plea agreement. The defendant was specifically told that a perjury charge could be the consequence of untruthful testimony. New and different consequences cannot be imposed when there exists no waiver of the constitutionally and statutorily protected right against double jeopardy.

      . Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987), remains the leading case on the double jeopardy implications of setting aside a final conviction by way of a guilty plea on the basis of a defendant's unilateral breach of a plea bargain. The decision has virtually no progeny. The scant jurisprudence in this area almost certainly reflects a general wariness by prosecutors of losing leverage over a witness as the result of a plea bargain in which the witness is sentenced before, as opposed to after, he or she testifies against a former criminal associate.
      The Supreme Court assumed in Ricketts that double jeopardy attached at the time the defendant was actually sentenced. Ricketts, 483 U.S. at 8, 107 S.Ct. at 2685. Louisiana law, apparently reflecting the majority view, expressly provides that "[w]hen a defendant pleads guilty, jeopardy begins when a valid sentence is imposed.” La.C.Cr.P. art. 592.
      Louisiana Constitution article I, § 15 provides, in part, "no person shall be twice placed in jeopardy for the same offense.”


text:
    STATE of Louisiana v. Jason HOTARD.
    No. 2004-KP-1092.
    Supreme Court of Louisiana.
    Oct. 15, 2004.
   |,PER CURIAM.

Writ granted in part; otherwise denied; case remanded for resentencing. Because none of the statutes under which relator was convicted contains a provision prohibiting parole for the entire term, the district court pronounced illegal sentences when it ordered all of relator’s terms of imprisonment to run in their entirety without benefit of parole, probation, or suspension of sentence. See St. Amant v. 19th J.D.C., 94-0567 (La.9/3/96), 678 So.2d 536; see also State v. Tate, 99-1483 (La.11/24/99), 747 So.2d 519. In addition, because the district court has no role in determining eligibility for diminution of sentence pursuant to R.S. 15:571.3 (“good time”) for the crime involved, the district court erred in pronouncing relator’s habitual offender sentence without benefit of good time. State ex rel. Simmons v. Stalder, 93-1852 (La.1/26/96), 666 So.2d 661. Also, the decision on whether a sentence arising from a probation revocation should run concurrently or consecutively with a sentence arising from a later offense lies with judge revoking probation. La.C.Cr.P. art. 901(C)(2); State ex rel. Holmes v. Maggio, 431 So.2d 1050, 1051 (La.1982). The district court is accordingly ordered to resentence relator to terms authorized under the statutes, and to issue corrected minute entries and commitment documents. In all other respects the application is denied.


author: JOHNSON, J.,

text:
    In re Michael L. BERNOUDY, Jr.
    No. 2004-OB-2145.
    Supreme Court of Louisiana.
    Oct. 15, 2004.
   In re Bernoudy, Michael L., Jr.; — Plaintiff; Applying for Application for Admission to Louisiana State Bar.

Admission to Bar denied. Applicant may not reapply in less than two years.

JOHNSON, J., would grant the application and assigns reasons.

JOHNSON, J.,

would grant the application of Michael L. Bernoudy, Jr. for the following reasons.

Mr. Bernoudy should be admitted to the Louisiana State Bar, particularly, in light of our recent decision to admit applicants who have had more serious indiscretions than Mr. Bernoudy’s. See In re: Lala, 04-OB-1769, (La.10/07/04), 883 So.2d 965. Like applicant Lala, Mr. Bernoudy was a young man of college age at the time of his 1998 offenses and at a different stage of his life. Mr. Bernoudy has matured over the years. He has earned a law degree and has become a responsible parent to his daughter. In short, he is at a stage in his life where the types of offenses that led to his past legal troubles are unlikely to reoccur, which is evidenced by his clean record for the past six years.


author: |! KIMBALL, Justice.

text:
    Laura E. TRUNK v. MEDICAL CENTER OF LOUISIANA AT NEW ORLEANS, State of Louisiana, Louisiana Health Care Authority, John Doe and ABC Insurance Company.
    No. 2004-C-0181.
    Supreme Court of Louisiana.
    Oct. 19, 2004.

      Charles C. Foti, Jr., Attorney General, David P. Bains, Assistant Attorney General, Counsel for Applicant.
    Patrick G. Kehoe, Ignatz G. Keifer, Jr., Counsel for Respondent.
   |! KIMBALL, Justice.

We granted certiorari in this slip and fall case to address the judgment of the district court that granted plaintiffs motion for JNOV on the issue of damages, set aside the jury’s verdict awarding damages in the amount of $52,901.79, and awarded damages in the amount of $790,000.00. A review of the record in this case indicates that conflicting evidence was presented on the issue of damages and that the jury’s verdict was not unreasonable. Therefore, we conclude that the district court erred in granting plaintiffs motion for JNOV on the issue of damages.

1 gFacts and Procedural History

On January 31, 1996, Laura Trunk (“plaintiff’) was a third year medical student who was completing a required rotation in the psychiatric ward at the Medical Center of Louisiana at New Orleans (“Medical Center”). On that date, the 26-year-old plaintiff slipped and fell on a foreign substance as she exited a conference room in the psychiatric unit on the third floor of the Medical Center. Subsequently, plaintiff filed suit under La. C.C. art. 2315 against several defendants, including the Medical Center and the State, for damages she allegedly suffered as a result of the fall. Plaintiff claimed that she suffered severe injury to her left wrist when she fell. Specifically, plaintiff contended that she suffered ligament injuries to her left wrist that required arthroscopic surgery, that she requires additional surgery, that she suffers from carpal tunnel syndrome, that she continues to experience pain in her wrist, and that she could not specialize in Gastroenterology as she had planned prior to the accident.

A jury trial was held on April 3, 4 and 8-12, 2002, during which time both plaintiff and defendants moved for a directed verdict on liability. The district court denied defendants’ motion, but granted plaintiffs motion for directed verdict on the issue of liability. In its judgment on directed verdict signed June 4, 2002, the district court rendered judgment in favor of plaintiff and found that defendants were 100 percent at fault or negligent. The district court also decreed that the only issue to be decided by the jury was the amount of damages to be awarded to plaintiff. Subsequently, the jury awarded plaintiff damages in the total amount of $52,901.79. The award included $35,000.00 for physical pain and suffering, and $17,901.79 for past medical expenses. The jury made no award for mental pain and anguish, | ^permanent disability, future medical expenses, or future loss of earning capacity. The district court signed a judgment in accordance with the jury’s verdict on June 4, 2002.

On June 12, 2002, plaintiff filed a motion for judgment notwithstanding the verdict (“JNOV”), additur and/or a new trial. After a hearing, the district court granted plaintiffs motion for JNOV, stating:

It is obvious that the jury fullfy] an[d] unequivocally accepted the fact that plaintiffs injury, treatment and the need for surgery was causally related to the accident. However, the jury in this case clearly disregarded the overwhelming w[e]ight of the evidence, in that it failed to appreciate the severity of plaintiffs wrist injury, it failed to see the undeniable need for future medical expenses, and the jury totally disregarded the catastrophic impact Ms. Trunk’s injury had on her future earnings potential.

The district court set aside the jury’s verdict and awarded damages in the following amounts: $250,000.00 in general damages, $40,000.00 in past and future medical expenses, and $500,000.00 in future loss of earning capacity. Thus, the total amount awarded by the district court upon its granting of the JNOV in favor of plaintiff was $790,000.00.

The court of appeal affirmed the judgment of the trial court. Trunk v. Medical Ctr. of Louisiana at New Orleans, 03-0275 (La.App. 4 Cir. 12/17/03), 863 So.2d 675. The court of appeal found that the district court did not abuse its discretion in granting the motion for directed verdict on the issue of liability. Additionally, the court of appeal rejected defendants’ argument that plaintiffs exclusive remedy was in workers’ compensation, reasoning that the record contains no evidence that there existed an employer-employee relationship between plaintiff, a student, and the Medical Center. Regarding the JNOV, the court of appeal agreed with plaintiffs argument that |4the jury failed to appreciate the severity of her injury and failed to properly apply the facts and law to her case. The court of appeal concluded that the district court properly granted plaintiffs motion for JNOV and, after reviewing the evidence presented at trial regarding damages, found that the district court did not abuse its vast discretion in its de novo award of damages.

Upon the application of the Medical Center, we granted certiorari specifically to consider the issue of damages, ie., whether the district court erred in granting plaintiffs motion for JNOV. Trunk v. Medical Ctr. of Louisiana at New Orleans, 04-0181 (La.3/26/04), 871 So.2d 332.

Discussion

The use of JNOV is provided for by La. C.C.P. art. 1811. A JNOV may be granted on the issue of liability or on the issue of damages or on both issues. La. C.C.P. art. 1811(F). Article 1811 does not specify the grounds upon which the district court may grant a JNOV; however this court has set forth the criteria to be used in determining when a JNOV is proper as follows:

[A] JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.

Joseph v. Broussard Rice Mill, Inc., 00-0628, pp. 4-5 (La.10/30/00), 772 So.2d 94, 99 (internal citations omitted). See also VaSalle v. Wal-Mart Stores, Inc., 01-0462, p. 11 (La.11/28/01), 801 So.2d 331, 338-39. The rigorous standard of JNOV is based upon the principle that “when there is a jury, the jury is the trier of fact.” Joseph, 00-0628 at p. 5, 772 So.2d at 99 (quoting Scott v. Hospital Serv. Dist. No. 1, 496 So.2d 270, 273 (La.1986)).

In reviewing a JNOV, an appellate court must first determine whether the district judge erred in granting the JNOV by using the above-mentioned criteria in the same way as the district judge in deciding whether to grant the motion. VaSalle, 01-0462 at pp. 11-12, 801 So.2d at 339. Thus, the appellate court must determine whether the “facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict.” Id. at p. 12, 801 So.2d at 339 (quoting Joseph, 00-0628 at p. 5, 772 So.2d at 99). If the appellate court determines that reasonable persons might reach a different conclusion, then the district judge erred in granting the motion and the jury verdict should be reinstated. Id.

In the instant case, the district court granted a JNOV on the issue of damages because it found that the jury “clearly disregarded the overwhelming w[e]ight of the evidence,” “failed to appreciate the severity of plaintiffs wrist injury,” “failed to see the undeniable need for future medical expenses,” and “totally disregarded the catastrophic impact Ms. Trunk’s injury had on her future earning potential.” While plaintiff agrees with the district court’s assessment, defendants contend the jury’s verdict was reasonable in light of the evidence presented. After reviewing the record in this case, we find that reasonable minds could differ on the entitlement to and | ^calculation of damages. We therefore conclude the district court erred in granting plaintiffs motion for JNOV on the issue of damages.

Regarding plaintiffs damages, the record reveals that plaintiff was taken to the emergency room soon after she fell. An x-ray of plaintiffs wrist was taken and her wrist was placed in a splint. The emergency room physicians referred plaintiff to an orthopedic clinic, which she visited the next week. At the clinic, plaintiff was treated by Dr. D.J. Phillips, who placed a thumb spica cast on the plaintiffs left wrist to provide more immobilization of the wrist. She saw Dr. Bradley Edwards two weeks later, and a new cast was placed on plaintiff’s wrist because of her continuing complaints of pain. Dr. Phillips and Dr. Edwards reviewed the x-rays of plaintiffs wrist and were of the opinion that she had a possible scaphoid fracture.

On February 26, 1996, the plaintiff saw Dr. Robert Chuinard, an orthopedic surgeon at the Medical Center. His diagnosis was probable DeQuervain’s syndrome of the left extremity, which indicated an inflammation of tendons in the thumb. Dr. Chuinard did not believe that plaintiff had a fractured scaphoid, did not find any swelling or bruising, and did not find any indication of ligamentous disruption. He gave plaintiff steroid injections in her wrist.

Plaintiff sought a second opinion from Dr. Harold Stokes, an orthopedic surgeon who specialized in wrist surgery. Dr. Stokes initially examined plaintiff on May 30, 1996. Plaintiff was again treated by Dr. Stokes in 1997 and then again in 2000. Dr. Stokes testified that upon his examination of plaintiffs wrist, he found she had steroid atrophy of the first dorsal compartment, ie., loss of muscle tone and skin discoloration. He testified that plaintiff reported continued pain in her wrist. Dr. |7Stokes found that plaintiff had tendon and ligament injuries. Dr. Stokes’ initial diagnosis was a disruption of the ligaments between the scaphoid and the lunate. Tests revealed that plaintiff was also suffering from carpal tunnel syndrome.

Because her symptoms did not resolve, Dr. Stokes performed diagnostic arthroscopic surgery in December 2000. During the surgery, Dr. Stokes performed a left carpal tunnel release to alleviate the pressure on the median nerve that was causing inflammation and swelling of the wrist joint. During the arthroscopic surgery, Dr. Stokes found that the radioscapholu-nate ligament was torn, and the joint surface was severely disrupted. Dr. Stokes noted improvement in plaintiffs condition after surgery, but because plaintiff continued to complain of pain and limited motion in her wrist, Dr. Stokes recommended that plaintiff undergo another diagnostic arthroscopic surgery, perhaps in conjunction with a fusion, in the future.

At the time of trial, plaintiff ran her own practice in internal medicine. Plaintiff testified she continues to have pain in her wrist, cannot perform routine daily tasks without pain, and is limited in the medical procedures she can perform on patients. She also testified that her dream was to become a gastroenterologist, but that she could not be a gastroenterologist after the accident because she could not perform many of the delicate procedures required of gastroenterologists due to the problems she had with her wrist.

Dr. Persich, a gastroenterologist who supervised plaintiff during her residency gastroenterology rotation, testified that plaintiff performed well during the rotation. He also testified that she never mentioned that she suffered from pain or disability in her | Shands or wrists and that he had never noticed that plaintiff suffered any pain or discomfort during her training.

Testimony at trial revealed that although plaintiff applied for fellowships in gastroenterology following her accident, she was not selected to a gastroenterology program. The evidence showed that plaintiff did not inform the programs of her injury and was not selected for a gastroen-terology fellowship during the competitive process because other applicants were more qualified than she.

The evidence at trial also included testimony regarding various vocational evaluation tests performed by plaintiff at different times by different evaluators. While some testimony and evidence indicated that plaintiff suffered impairment in her left wrist and that plaintiff participated fully and to the extent of her capacity in those tests, other testimony revealed that test results showed plaintiff put forth sub-maximal effort during some tests.

Finally, economic evidence was presented that revealed that gastroenterologists typically earn more money than internists. Thus, had plaintiff become a gastroenterol-ogist instead of an internist, she would have earned more money during her lifetime. Some testimony indicated that plaintiff would lose money as an internist due to her inability to perform some procedures; however, other testimony revealed that plaintiff was not limited in her ability to perform procedures typically performed by internists and that plaintiff could fill her schedule with procedures she was able to perform so that she would not actually lose money in her practice. Dr. Long testified that since plaintiff was not offered a gastroenterology fellowship, she would not suffer |flany monetary loss as an internist because of her injury. Consequently, he testified, plaintiff had not incurred any future loss of earning capacity.

At the close of the evidence, the jury awarded plaintiff damages in the amount of $52,901.79. This award included $35,000.00 in physical pain and suffering and $17,901.79 in past medical expenses. The jury did not award damages for mental pain and anguish, permanent disability, future medical expenses, or future loss of earning capacity. The assessment of “quantum,” or the appropriate amount of damages, by a jury is a determination of fact that is entitled to great deference on review. Wainwright v. Fontenot, 00-0492, p. 6 (La.10/17/00), 774 So.2d 70, 74. A thorough review of the record in this case indicates the jury’s awards were reasonable in light of the evidence presented. The jury obviously believed plaintiff sustained some damages as a result of the fall as it awarded her a significant amount of damages for physical pain and suffering and for her past medical expenses. The jury’s failure to assess damages for mental pain and anguish, permanent disability, future medical expenses, and future loss of earning capacity indicates they might not have believed plaintiffs injury was as severe or as persistent as she contended. It is probable the jury did not believe that her injury was the reason she was not chosen for a gastroenterology fellowship. Additionally, the fact that the jury did not award damages for future medical expenses leads us- to believe that the jury determined plaintiff was not in need of future medical care for symptoms related to the injuries she sustained in the fall. The record contained conflicting evidence related to the extent of plaintiffs injury, pain, and physical limitations. Plaintiffs credibility was challenged by defense witnesses. In light of the conflicting nature of the evidence presented at trial, we Imcannot say that the jury’s verdict was unreasonable. Stated differently, we find that based on the evidence presented in this case, reasonable minds could differ on the assessment of damages. The amounts awarded by the jury were well within its vast discretion. Therefore, we find the district court erred in granting a JNOV.

La. C.C.P. art. 1811 clearly states that a motion for JNOV may be joined with a motion for new trial or that a new trial may be moved for in the alternative. The article states that if the motion for JNOV is granted, the court shall also rule on the motion for a new trial by determining whether it should be granted if the JNOV is thereafter vacated or reversed. La. C.C.P. art. 1811(C)(1). Article 1972 of the Code of Civil Procedure provides that a new trial shall be granted, upon contradictory motion, in the following cases:

(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
(3) When the jury was bribed or has behaved improperly so that impartial justice has not been done.

Additionally, La. C.C.P. art. 1973 provides that a new trial may be granted “in any case if there is good ground therefor, except as otherwise provided by law.”

In the instant case, plaintiff moved for a new trial as an alternative to her motion for JNOV. The district court, however, did not address plaintiffs alternative request for a new trial as required by La. C.C.P. art. 1811. Nevertheless, we decline to remand this particular matter to the district court for it to rule on the motion for new trial because such an action would be contrary to the concept of judicial economy and the |ninterest of the parties in háving this lawsuit concluded. Because we have previously concluded that the jury’s verdict was reasonable in light of the evidence presented, we find that plaintiff is not entitled to a new trial. See VaSalle, 01-0462 at p. 18, 801 So.2d at 342.

Because we granted this writ to address the issue of damages, we pretermit discussion of the Medical Center’s other claims and do not pass on the correctness of the court of appeal’s opinion as to the remaining issues.

Conclusion

For the reasons expressed herein, we find the jury’s verdict was reasonably supported by the evidence presented in this case. Consequently, the district court erred in granting plaintiffs motion for JNOV on the issue of damages and the court of appeal subsequently erred in affirming the district court’s judgment granting the JNOV. Plaintiff is not entitled to a JNOV or a new trial. In light of these findings, we hereby reinstate the jury’s verdict.

REVERSED IN PART. JURY VERDICT REINSTATED.


author: h KIMBALL, Justice. h CALOGERO, Chief Justice

text:
    Everett KING v. PARISH NATIONAL BANK, James Venezia, Wendell Fornea, James A. Morse, Scoggin & Associates, Steve W. Scoggin and A.R. Blossman, III, ABC Insurance Company and XYZ Insurance Company.
    No. 2004-C-0337.
    Supreme Court of Louisiana.
    Oct. 19, 2004.
    Rehearing Denied Nov. 24, 2004.

      Carver, Darden, Koretzky, Tessier, Finn, Blossman & Areaux, L.L.C., John Anthony Dunlap, New Orleans, August J. Hand Law Firm, LLC, August J. Hand, Counsel for Applicant.
    Ezkovich & Co., Alan David Ezkovich, New Orleans, Bonin Law Firm, Paul Alex-andre Bonin, New Orleans, Counsel for Respondent.
   h KIMBALL, Justice.

The issue presented by this case is whether the prohibition against enforcement of actions on oral credit agreements, found in La. R.S. 6:1121 et seq., applies to causes of action for bad faith when such actions are based on oral assurances and previous dealings relating to a loan consolidation and subsequent renegotiation. For the reasons that follow, we conclude that the Louisiana credit agreement statute precludes all claims, including bad faith breach and bad faith acts, when predicated on the existence and enforceability of oral credit ^agreements and implied agreements based on the creditor’s and debtor’s previous relationship. Furthermore, we find that the provisions of La. R.S. 6:1121 et seq., extend to bar claims based on oral credit agreements against a creditor’s employees when the employees are acting within the course and scope of employment. However, we find La. R.S. 6:1122 is inapplicable to the bad faith claims against the appraisers and appraisal company since these claims are outside the parameters of the statute. Therefore, we reverse the court of appeal’s judgment in regards to PNB and its employees, and reinstate the district court’s grant of summary judgment, but we affirm the court of appeal’s judgment denying summary judgment to the appraisers and appraisal company and remand the case to the district court for further proceedings.

Facts and Procedural History

In March 1990, Everett King consolidated his individual loans, each secured with mortgages over various immovable properties, with Parish National Bank (hereinafter “PNB”) into a single promissory note in the full principle amount of $711,641.65 with interest fixed at the rate of 12.25%. This promissory note was payable on demand; however, it provided for 35 monthly payments with a final balloon payment of the full balance on March 23, 1993, if no prior demand was made. PNB required this consolidation and cross-collateralization of King’s loans before it would provide additional financing for his business expansion. At the time of this loan consolidation, King had established a good relationship with the bank, borrowing funds over the years for the construction and development of his business facilities and fast food restaurants. King alleges that PNB officer Wendell Fornea assured him that the loan consolidation and restructuring would not impair or jeopardize King’s [¡¡financial and personal welfare as long as he remained current in all his obligations with the bank.

In January or February 1993, PNB contacted King regarding the approaching maturity date of the 1990 Note. PNB informed him that it would require acceptable appraisals on the collateral property, as well as his income and financial information, before the note’s maturity date or it would require the entire balance to be paid in full. However, PNB did not request appraisals of the immovable properties securing the loans at the time of the 1990 loan consolidation. Seoggin & Associates performed appraisáls on various immovable properties and land parcels owned by him in February and March 1993. Two of the appraisals were performed by A.R. Blossman III, an uncertified appraiser who was the son and nephew of the president and chairman of PNB, in conjunction with a certified appraiser, Steve Seoggin. These appraisals indicated that King’s property afforded insufficient collateral for the-consolidated loan; therefore, PNB refused to renew.the loan on its current terms and security. ■ After several months of negotiation and in order to avoid foreclosure or bankruptcy, on December 18, 1993, King and PNB perfected a workout in which King gave PNB certain properties as dations en paiment and a note for $204,653.27 secured by a collateral mortgage.

|4On November 30, 1994, King filed suit against PNB, PNB employees James Venezia, James A. Morse, and Wendell Fornea, Seoggin & Associates, Steve Seoggin, A.R. Blossman, III, XYZ Insurance Company (fictitious name for PNB’s insurer), and ABC Insurance Company (fictitious name for Seoggin & Associates’ insurer). King alleged several causes of action in tort, breach of quasi-contractual obligations, error, fraud, and duress based on defendants’ actions and roles surrounding the 1990 loan consolidation and 1993 workout. Specifically, King’s petition asserted that:

19.
The defendant bank acted in bad faith with your petitioner (1) by unnecessarily and without just cause requiring him to obtain and pay for so-called “current” appraisals, (2) by failing to afford him the opportunity to select and/or utilize an appraisal service, and/or appraiser who was knowledgeable, experienced, competent and qualified in appraising the types of specialty commercial properties owned and operated by your petitioner, and (3) by failing to adequately prevent and/or prohibit the utilization of an employee of the appraisal firm who had a direct, indirect and/or beneficial interest in the earnings and assets of the defendant bank....
25.'
As a result of the overreaching and bad faith dealings of the defendants with your petitioner he was caused to lose a fast-food chicken outlet business in Mandeville and a building supply business in Bogalusa.

Defendants filed an initial motion for summary judgment on August 7, 1995, which the. district court later denied. King then filed a First Amending and Supplemental Petition substituting St. Paul Insurance Company for XYZ Insurance Company and Bankers Multiple Line Insurance Company for ABC Insurance Company; however, Bankers is no longer a party to this matter as the district court granted its motion for summary | ¿judgment- based on the insured’s failure to timely notify them in writing of the claim.

On April 6, 2002, defendants filed a second motion for summary judgment and rule to show cause contending that all causes of action regarding the 1990 loan and renewal negotiations related to oral assurances by PNB are precluded as a matter of law under La. R.S. 6:1122, which provides that oral credit agreements are not enforceable. Furthermore, they claimed that King’s causes of action for fraud, duress, and error were precluded because of his knowledge of the alleged fraudulent acts and lack of reliance. King did not file memorandum, evidence, or affidavits, and did not appear at the hearing, and thus, failed to respond to the motion in any way. Following the hearing, the district court granted defendants’ motion for summary judgment finding Louisiana law precluded King’s claims as a matter of law.

King filed a devolutive appeal. The court of appeal affirmed the district court’s judgment granting defendants’ motion for summary judgment in part, but reversed that portion of the trial court’s judgment granting summary judgment on the issue of bad faith conduct in relation to the loan renegotiation in 1993. King v. Parish Nat’l Bank, 03-0023 (La.App. 1 Cir. 9/26/03), 855 So.2d 436. The court of appeal agreed with the trial court’s determination that any issues, theories or causes of action arising prior to the loan renewal negotiations that cumulated in the 1993 workout between King and PNB were precluded-as a matter of law under Louisiana’s credit agreement statutes. La. R.S. 6:1121 et seq. Relying in part upon this court’s decision in Jesco Constr. Corp. v. Nationsbank Corp., 02-0057 (La.10/25/02), 830 So.2d 989, which applied a statute of frauds-like requirement to “all actions” to lend money between a borrower and creditor, the court of appeal held that none of King’s allegations regarding PNB’s | ¡¡representations or conduct in connection to the negotiation of the 1990 consolidated loan or PNB’s decision to require payment could be the basis for legal action because there was no writing. Thus, the court of appeal concluded that King’s claims regarding PNB’s abuse of rights, breach of quasi-contract, fraud, error, and duress in relation to the aforementioned 1990 loan were precluded as a matter of law. Additionally, the court of appeal affirmed the trial court’s grant of summary judgment in favor of defendants as to King’s assertions of fraud, error, and duress in connection with the 1993 workout. The court agreed that King’s knowledge of the deficient appraisals defeated his claims of fraud and error. Finding that the threat of doing a lawful act or enforcing a legal right does not constitute duress, the court of appeal concluded that King’s claims of duress relating to the calling of the demand note were precluded. However, the court found King’s allegations that PNB “acted unreasonably and breached its duty of good faith in requiring an appraisal, causing him harm” were causes of action not precluded by law. Citing La. C.C. arts. 1759 and 1983, which impose an obligation of good faith with regards to all conduct pertaining to every contract, the court of appeal determined that the evidence regarding the requirement of an appraisal, the requirement that King use a particular appraiser without options, the use of an uncertified appraiser who had an intimate relationship to the PNB, and the fact that the appraisal was significantly lower than expectations all provided enough support to allow a fact finder to find the defendants liable for acts of bad faith in these dealings. Furthermore, the court of appeal concluded that liability 17under this theory requires determinations of credibility and the intent of the parties, determinations that are not allowed in summary judgment. Therefore, the court of appeal concluded that the district court erred in granting summary judgment as to King’s cause of action for bad faith acts regarding the 1993 workout and reversed the district court’s judgment on this issue.

We granted certiorari to consider whether the Louisiana credit agreement statutes, La. R.S. 6:1121 et seq., preclude all of King’s causes of action regarding his 1993 workout with PNB against the defendants. King v. Parish Nat’l Bank, 04-0337 (La.4/23/04), 870 So.2d 281.

Law and Discussion

Favored in Louisiana, the summary judgment procedure “is designed to secure the just, speedy, and inexpensive determination of every action” and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Summary judgment shall 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 the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B); Jones v. Estate of Santiago, 03-1424, p. 4 (La.4/14/04), 870 So.2d 1002, 1006.

Appellate courts review grants of summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Gov’t, 04-0066 (La.7/6/04), 880 So.2d 1. The movants, here defendants, bear the burden of proof. La. C.C.P. 966(C)(2). However, because the instant defendants will not bear the burden of proof at trial, it is not necessary that they negate all essential elements of King’s action, but rather that they merely point out to the court that there is an absence of factual support for one or more elements essential to King’s action. Id; Richard v. Hall, 03-1488, p. 4 (La.4/23/04), 874 So.2d 131, 137. If defendants meet this initial burden, the burden then shifts to King to present factual support adequate to establish that he will be able to satisfy the evidentiary burden at trial. Richard at p. 4, 874 So.2d at 137. Thereafter, if King fails to meet this burden, there is no genuine issue of material fact and movants are entitled to summary judgment as a matter of law. Id. This court has recognized that a “genuine issue” is a “triable issue,” an issue in which reasonable persons could disagree. Jones at p. 6, 870 So.2d at 1006 (citing Smith v. Our Lady of the Lake Hosp., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751). Further, this court has defined a “material fact” to be one in which “its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Id.

In the instant case, the sole issue presented for our review is whether King is prohibited by La. R.S. 6:1122 from asserting any cause of action against PNB, its employees, or its designated appraisers regarding their actions and conduct relating to the renegotiation of the 1990 consolidated loan cumulating in the 1993 workout plan when the bases of such claims are: (1)the oral assurances made by a PNB employee on behalf of PNB that the 1990 restructuring of King’s financial obligations to the bank would not in any way impair or otherwise jeopardize his financial and personal welfare |9as long King remained current in his obligations, and (2) the bank’s requirement that King obtain current appraisals on collateral property when such appraisals were not required previously of King in order to procure financing.

Credit agreement statutes embody legislative reaction to the surge of lender liability litigation in the late 1980s and were enacted primarily to limit the most frequent lender liability claims, which included assertions of a breach of oral commitments to lend, to refinance or to forbear from enforcing contractual remedies, by instituting a so-called statute of frauds and requiring such agreements to be in writing to be enforceable. Whitney Nat’l Bank v. Rockwell, 94-3049, p. 7 (La.10/16/95), 661 So.2d 1325, 1329. The primary legislative purpose of these statutes was “to establish certainty as to the contractual liability of financial institutions,” which would in turn limit lender liability lawsuits based on oral agreements. Id.

In 1989, the Louisiana Legislature enacted the credit agreement statutes, La. R.S. 6:1121 et seq., in Chapter 16 of Title 6, which is entitled Credit Agreements— Writing Requirements. La. R.S. 6:1122, entitled “Credit Agreements to be in writing,” expressly prohibits an action against a creditor based on an oral credit agreement, providing that “[a] debtor shall not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor.” La. R.S. 6:1121(1) defines a “credit agreement” as “an agreement to lend or forbear repayment of money or goods or to otherwise extend credit, or make any other financial accommodation.” (emphasis added). Furthermore, the credit agreement statutes define which actions are | t Onot to be construed as new credit agreements between a creditor and a debtor. La. R.S. 6:1123, entitled “Actions not considered agreements,” provides:

A. The following actions shall not give rise to a claim that a new credit agreement is created, unless the agreement satisfies the requirements of R.S. 6:1122:
(1) The rendering of financial or other advice by a creditor to a debtor.
(2) The consultation by a creditor with a debtor.
(3) The agreement of a creditor to take or not to take certain actions, such as entering into a new credit agreement, forbearing from exercising remedies under a prior credit agreement, or extending installments due under a prior credit agreement.
B. A credit agreement shall not be implied from the relationship, fiduciary, or otherwise, of the creditor and the debt- or.

Moreover, these statutes provide that neither a financial institution nor an employee has a fiduciary obligation to its customers unless there is a written agency or trust agreement under which the financial institution specifically agrees to act and perform as a fiduciary. La. R.S. 6:1124.

In Jesco Construction Corp. v. Nationsbank Corp., 02-0057, p. 4 (La.10/25/02), 830 So.2d 989, 992, this court held that the Louisiana Credit Agreement Statute precludes all actions for damages arising from oral credit agreements, regardless of the legal theory of recovery asserted. This court recognized that allowing debtors to bring actions predicated upon oral agreements to lend money, but on theories other than breach of contract, thereby circumventing the writing requirement lnof the credit agreement statute, would “thwart the intent of the legislature and render the entire statute meaningless.” Id. In Jesco, the plaintiffs petition asserted actions for breach of contract, detrimental reliance, negligent misrepresentation, unfair trade practices, breach of the duty of good faith and fair dealing, promissory and equitable estoppel, and breach of fiduciary duty. Id. Since the basis for each cause of action was the failure by the creditor to make a loan based upon an alleged oral credit agreement, this court held that each and every cause of action in the petition was barred by La. R.S. 6:1122. Id.

In the present case, defendants argue that King’s cause of action arising from defendants’ alleged bad faith dealings in the 1993 workout is clearly a lender liability claim based on oral representations and course of dealing that the credit agreement statute was designed to prevent. As such, defendants argue that King’s claim is precluded by La. R.S. 6:1122 and as it was interpreted by this court in Jesco since there exists no writing evidencing the alleged agreement between defendants and King.

Defendants’ entitlement to summary judgment on the bad faith breach claim is dependent upon whether they have shown the facts alleged by King in his petition, taken as true for the purposes of this motion, establish a cause of action based on “an action on a credit agreement” pursuant to La. R.S. 6:1122. If defendants can meet this initial burden then the burden would shift to King to establish by adequate factual support that he will be able to satisfy his burden at trial.

King’s petition essentially asserts that: (1) PNB required him to consolidate and “cross-collaterialize” his current obligations in 1990 in order to secure additional financing from the bank; (2) at the time of the consolidation, PNB employee, Mr. LaFornea, assured him that his financial and personal welfare would not be impaired or jeopardized by this consolidation as long as he was current with his obligations; (3) upon maturity of the consolidated loan, PNB required King to obtain “current” appraisals of the property securing the loan to be performed by an appraiser chosen by the bank in order to determine if the collateral was sufficient for the amount of the indebtedness; and (4) PNB used these appraisals prepared by an uncertified appraiser “as a pretext” to deny him further credit, in contrast to the bank’s promises and previous course of dealings with King.

King asserts that his bad faith claim against PNB regarding its failure to comply with its obligation to not impair or jeopardize King’s financial and personal welfare with respect to the loan consolidation is outside the parameters of the credit agreement statute because it is based on the bad faith conduct of defendants during the loan renegotiation, and not the 1990 promissory note. Under La. R.S. 6:1121(1), a credit agreement includes an agreement to make any financial accommodation. The alleged obligation that the 1990 loan would not impair King’s welfare if he remained current with PNB was in effect an agreement by PNB to make financial accommodations to King regarding the loan if King remained current in his obligations to PNB. Therefore, PNB’s alleged obligation to not impair King’s personal and financial welfare in connection to the loan consolidation was a credit agreement that must be in writing to be enforceable. Since King produced no writing evidencing such an agreement, his claim of bad faith against PNB based on these oral assertions is precluded by the credit agreement statute.

11sIn addition, King alleges a cause of action for bad faith against PNB for requiring him to obtain appraisals on the mortgaged property in order to determine if PNB would extend credit on the consolidated loan or if it would require immediate payment since the note had reached maturity. King predicates his claim of bad faith regarding the appraisal requirement on the fact that prior to 1993, and at the time of the loan consolidation, PNB did not require appraisals of the properties then subject to the mortgages. King appears to assert that since PNB previously did not require such appraisals for credit extension, the good standing relationship between PNB and King would preclude PNB from requiring such appraisals for future credit extensions on the properties. However, “[a] credit agreement shall not be implied from the relationship, fiduciary, or otherwise, of the creditor and the debtor.” La. R.S. 6:1123(B). Furthermore, certain actions will not give rise to a new credit agreement unless the agreement satisfies the writing requirements of R.S. 6:1122, including “the agreement of a creditor to take or not to take certain actions.” La. R.S. 6:1123(A)(3). In Whitney, this court concluded that La. R.S. 6:1123(A)(3) “in effect treats certain actions or representations of creditors as if they were credit agreements and requires that they be put in writing to be enforceable.” 94-3049 at p. 11, 661 So.2d at 1331. Essentially, King is asserting an implied agreement between PNB and himself not to require appraisals on mortgaged property in order to secure credit based on the previous relationship and actions of the two parties. Such an agreement, based on PNB and King’s previous commercial relationship, is expressly precluded by La. R.S. 6:1123(B) and is not enforceable without a written agreement.

| ^Consequently, the underlying bases for each and every allegation of bad faith are the 1990 alleged oral assertions of a PNB employee, acting within the course and scope of his employment, and the previous business relationship of King and PNB. King’s bad faith claim is precisely the type of action precluded by La. R.S. 6:1122. We therefore conclude that PNB, a defined creditor under the statute, is entitled to a summary judgment as a matter of law on King’s claim of bad faith regarding the 1993 workout.

Furthermore, we conclude that defendants Venezia, Fornea, and Morse, as employees of PNB, are also entitled to summary judgment as a matter of law under the credit agreement statute. Although plaintiffs petition is not entirely clear on which acts of bad faith were committed by which defendant, it is clear that the alleged actions of the three aforementioned defendants upon which plaintiffs allegations are predicated were done in the course and scope of their employment with PNB. Because they were acting in their employment capacities with PNB, we find the provisions of the credit agreement statute, which preclude King’s claim against PNB, also preclude his claims against PNB’s employees. To allow otherwise would provide a means to circumvent the credit agreement statutes by merely asserting a bad faith or breach of contract claim against the bank employee instead of the institution itself. Such a result would render the statute effectively meaningless and thwart the clear legislative intent expressed by the statutes. Thus, to the extent that plaintiff seeks to assert a cause of action against defendants Venezia, Fornea, and Morse for their actions in relation to |15the alleged oral credit agreement and prior relationship between the parties, we find King’s claims precluded as a matter of law under the credit agreement statutes for the same reasons as those that preclude the claim against PNB.

Turning now to King’s claim against Scoggin & Associates, Mr. Scoggin and Mr. Blossman for acts of bad faith with respect to the loan renegotiation and work, we conclude that the credit agreement statutes does not apply to preclude the claims and it is not appropriate to dispose of them by summary judgment.

As previously noted by this court, the primary purpose of credit agreement statutes is to discourage borrowers from asserting causes of action against lenders based upon oral agreements to lend money, to forbear or other financial accommodations. Jesco, 830 So.2d at 992. La. R.S. 6:1122 prohibits “an action [by a debtor] on a credit agreement unless the agreement is in writing.” A “credit agreement” is an agreement to lend money, to forebear repayment of money, or to make any other financial accommodation. La. R.S. 6:1121(1). In the instant case, King’s claims against the appraisal company and individual appraisers do not implicate any alleged credit agreement. Consequently, the credit agreement statutes are inapplicable to these claims. Although plaintiffs petition does not clearly differentiate among the defendants in its allegations of bad faith acts and bad faith breaches, it appears that his claims against the appraisal company and individual appraisers do not arise from the alleged oral agreement not to impair King’s financial and personal welfare or out of his prior relationship with the bank. Rather, King’s claims result from the actions of these particular defendants in relation to their performance of the commercial property appraisals plaintiff hired these defendants to render. Therefore, h ¿these claims against Scoggin & Associates, Mr. Scoggin and Mr. Blossman do not fall under the protection of the credit agreement statutes since they are not predicated upon any alleged credit agreement with PNB. Further, summary judgment is not appropriate against these defendants because the petition and depositions provide enough factual support for a reasonable fact finder to find acts of bad faith on the part of the appraisers and appraisal company. Thus, the court of appeal was correct in reversing the district court’s grant of summary judgment on this cause of action against Scoggin & Associates, Mr. Scoggin and Mr. Blossman.

Decree

For the foregoing reasons, the judgment of the court of appeal with respect to defendants PNB, Mr. Venezia, Mr. Fornea and Mr. Morse is reversed and the grant of summary judgment by the district court is reinstated. The court of appeal’s judgment regarding defendants Seoggin & Associates, Mr. Seoggin, and Mr. Blossman is affirmed.

REVERSED IN PART: DECISION OF DISTRICT COURT REINSTATED; AFFIRMED IN PART AND REMANDED.

CALOGERO, C.J., dissents in part and assigns reasons.

h CALOGERO, Chief Justice

dissenting in part.

I respectfully dissent from the majority’s conclusion that all of the causes of action asserted by plaintiff against the defendant bank and its employees are barred by the prohibition against enforcement of actions on oral credit agreements set forth in La.Rev.Stat. 6:1121 et seq. As I expressed in my dissent in Jesco Construction Corp. v. Nationsbank Corp., 2002-0057 (La.10/25/02), 830 So.2d 989, the language of that statute does not preclude causes of action based on fraud, misrepresentation, promissory estoppel or other equitable theories that are alleged in this case. See Whitney National Bank v. Rockwell, 94-3049, p. 11 (La.10/16/95), 661 So.2d 1325, 1331. Rather, the statute prohibits only actions “on a credit agreement” that has not been reduced to writing, indicating that it prohibits only breach of contract causes of actions on oral credit agreements. I would reverse the court of appeal’s finding that plaintiffs claims against defendants based on abuse of rights, breach of quasi-contract, fraud, error and duress in relation to the 1993 loan are precluded as a matter of law.

      . Mr. Blossman performed the appraisals on the two Kristy’s Fried Chicken restaurants located in Covington and Mandeville, Louisiana.

      . The record indicates that Mr. Blossman's father and uncle at times traded positions within the bank's management.

      . The bank received 3 properties, 1.435 acres of land in Bogalusa, Louisiana, and a 1.19 acre tract of land and a 1.25 acre tract of land located in Washington Parish, in 2 Acts of Cash Sale through the workout plan. Three properties, a 2.24 acre tract of land located on Louisiana Highway No. 21, a 1.0 acre tract of land referred to as the Kristy’s building in Washington Parish, and the property consisting of Kristy's Mandeville, were transferred as Partial Dations en Paiment as well.

      . Because King did not apply for cert, on the issues pertaining to the 1990 loan consolidation or to King’s assertions of fraud, duress, and error, the court of appeal's judgment on these matters is final. Chaisson v. Cajun Bag & Supply Co., 97-1225, pp. 7-8 n. 1 (La.3/4/98), 708 So.2d 375, 380 n. 1.

      . Jesco involved a certified question to this court by the United States Fifth Circuit Court of Appeal. Jesco Const. Corp. v. NationsBank Corp., 278 F.3d 444, 448 (5th Cir.2001).

      . La. R.S. 6:1121(2) defines “creditor" as “a financial institution or any other type of creditor that extends credit or extends a financial accommodation under a credit agreement with a debtor.”


text:
    In re Bernard J. GRENROOD, Jr.
    No. 2004-OB-1767.
    Supreme Court of Louisiana.
    Oct. 26, 2004.
   BORDER

The Office of Disciplinary Counsel (“ODC”) has filed three separate sets of formal charges against respondent, and three disciplinary investigations are currently pending. The formal charges allege that respondent charged an excessive legal fee, entered into a prohibited business transaction with a client, failed to timely pay a third-party medical provider, converted client and third-party funds, engaged in the unauthorized practice of law, engaged in dishonest and deceitful conduct, and failed to cooperate with the ODC in its investigation. The three matters still under investigation involve allegations of conflicts of interest, prohibited business transactions with clients, conversion of client funds, and dishonest and deceitful conduct.

Respondent now seeks 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 Bernard J. Gren-rood, Jr., Louisiana Bar Roll number 6308, and the concurrence thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the request of Bernard J. Grenrood, Jr. 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.

|JT IS FURTHER ORDERED that Bernard J. Grenrood, Jr. 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


text:
    Vana ANDREWS v. Margaret DUFOUR, The Government Employees Insurance Company and Ford Motor Company. Vana Andrews v. Margaret Dufour, The Government Employees Insurance Company and Ford Motor Company.
    No. 2004-C-1957.
    Supreme Court of Louisiana.
    Oct. 27, 2004.
   ORDER

RECONSIDERATION GRANTED. This Court finds relator’s attorney has violated the page limit requirements set forth in Supreme Court Rule X and accordingly strike relator’s 23-page appendicized Statement of the Case. However, in order to not unduly penalize relator for the conduct of her attorney, we will grant relator 15 days from date of this order to file a reduced version of her Supplemental and Amending writ application in compliance with La. Sup.Ct. Rule X page limits. Timeliness will be determined by the submission of relator’s original application. The opposition is likewise granted an extension to file, 15 days from date petitioner files its application.

JOHNSON, J., recused.