author: ORFINGER, J.

text:
    Cedric ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2573.
    District Court of Appeal of Florida, Fifth District.
    July 30, 2004.

      James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Cedric Anderson appeals his convictions for kidnaping and felony battery of his wife, Tangie Anderson, and simple battery and battery on a person over sixty-five of her father, Joe Lee Green. Anderson was sentenced as a prison releasee reoffender to life in prison for kidnaping, concurrent terms of five years in prison for the felony battery and battery on a person over sixty-five years of age, and time served on the simple battery.

We find no abuse of discretion in the trial court’s decision to deny a mistrial following an isolated, unsolicited remark by a witness concerning Anderson’s earlier prison sentence. The curative instruction given to the jury was sufficient to dissipate any prejudice. See, e.g., Perez v. State, 856 So.2d 1074, 1079 (Fla. 5th DCA 2003) (citing Joseph v. State, 704 So.2d 1149, 1149 (Fla. 3d DCA 1998)).

More problematic is Anderson’s contention that his convictions of battery and battery on a person over the age of sixty-five violate double jeopardy because the offenses arose from the same criminal episode involving the same victim at the same time and place. The double jeopardy clause in both the state and federal constitutions protects criminal defendants from multiple convictions for the same offense. “The proper analysis to determine whether offenses arise from the same criminal episode requires consideration of the following factors: 1) whether separate victims are involved; 2) whether the crimes occurred in separate locations; and 3) whether there has been a temporal break between the incidents.” Vasquez v. State, 778 So.2d 1068, 1070 (Fla. 5th DCA 2001). The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature “intended, to authorize separate punishments for the two crimes.” Gordon v. State, 780 So.2d 17, 19 (Fla.2001).

Absent a clear statement of legislative intent to authorize separate punishments for two crimes arising from the same criminal episode, courts employ the test established in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine whether separate offenses exist. See Gaber v. State, 684 So.2d 189, 192 (Fla.1996). The Florida Legislature has codified the Blockburger analysis in section 775.021(4), Florida Statutes (2002), which provides:

(4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity ... to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3.Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

§ 775.021(4), Fla. Stat. (2002).

Under the facts of this case, we conclude that Anderson’s convictions for battery and battery on a person over the age of sixty-five are improper as they are not separate offenses for double jeopardy purposes. Section 775.021(4)(b)3. provides an exemption to the general rule authorizing multiple convictions for a single criminal episode for “[ojffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.” Battery is a category one lesser included offense of battery on a person sixty-five years of age or older. See Fla. Std. Jury Instr. (Crim.) 376.

As a result, we vacate Anderson’s conviction for simple battery (count 3). See State v. Barton, 523 So.2d 152 (Fla.1988).

AFFIRMED IN PART AND REVERSED IN PART.

PETERSON and GRIFFIN, JJ., concur.

      . Article I, section 9, of the Florida Constitution provides: “No person shall ... be twice put in jeopardy for the same offense.” Art. I, § 9, Fla. Const. The Fifth Amendment of the United States Constitution provides that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V.

      . Given the disposition of this matter, resen-tencing is unnecessary.


source: Caselaw Access Project

author: SHARP, W., J.

license: Public Domain

text:
    Nelson ENCARNACION, Appellant, v. Lillian I. ENCARNACION, Appellee.
    No. 5D03-2539.
    District Court of Appeal of Florida, Fifth District.
    July 30, 2004.

      Julie F. Weinberger, Kissimmee, for Appellant.
    Eunice M. Caussade-Garcia, Kissimmee, for Appellee.
   SHARP, W., J.

The former husband, Nelson Encarna-ción, appeals from a final judgment rendered after a final judgment of dissolution had become final, which changed the equitable distribution of marital property in favor of the former wife, Lillian Encarna-ción. We reverse.

The parties in this case were married on December 22, 1985 and Nelson filed a petition for dissolution on December 5, 2001. The parties attended a mediation hearing and reached a partial settlement regarding their respective rights to marital real property. Regarding the marital residence, the agreement provided:

3. DISPOSITION OF MARITAL HOME:
The parties agree to sell the marital home. The parties agree that until the home is sold the wife will have exclusive use, and possession of the home.
The wife agrees to be solely responsible for the mortgage, insurance, and taxes. At the time of the dosing the wife will have 60% of the proceeds, and the husband k0%. Any repairs necessary for the sale will be used from the following monies taxes, canceled life insurance, rental money, total $1,900.00 plus the 2001 tax refund if necessary. Any monies that are not used will be split 50-50. (emphasis added)

Regarding a condominium the parties owned in Daytona Beach, Florida, the agreement provided:

8. REAL PROPERTY
The parties agree to sell the condo in Daytona Beach, and split the proceeds. The parties agree to sell the property located in Interlachen, Florida, and split the proceeds 50-50.
In the event that the marital home sells first, and the condo has not sold, [sic] The parties agree that the wife can purchase the condo for $15,000.00, if she chooses, (emphasis added)

The trial court rendered a final judgment in the dissolution case on July 18, 2002, which ratified and incorporated the agreement. Paragraph 15 of the final judgment reserved jurisdiction to enforce the agreement and the final judgment, but not to alter it.

Nelson filed two motions to enforce the agreement; one on November 3, 2002, and one on December 12, 2002. He alleged Lillian failed to comply with the terms of the agreement regarding the placement of the marital residence on the market for sale, making a good faith effort to sell it, and making it available to be shown. Apparently no progress towards selling the ■marital home, pursuant to the settlement, was made.

On January 13, 2003, Lillian filed a “Supplemental Petition” to modify the final judgment of dissolution. In her petition, she alleged a substantial change in circumstances requiring that the marital residence not be sold but rather awarded solely to her because she and the children have “established significant ties with the community and school district where the property is located,” and that the condominium property should be awarded to Nelson. She also requested that the court deal with the parties’ obligations growing out of a joint Visa credit card debt (evidently post-judgment), because the prior judgment reserved jurisdiction to deal with “debt allocation” of the parties. .

Nelson, appearing pro se, filed a response, in which he stated:

I agree that the home should be awarded to my former wife. If the court will give a reasonable time for my release of liability under the Mortgage/Note, I agree with this and will Quit Claim the property over to Lillian, (emphasis added)

With regard to the condominium in Dayto-na Beach, Nelson’s response stated:

I would like to accept this change and have my former wife Quit Claim the condominium to me. I am willing to accept the responsibility for the associated obligations, (emphasis added)

The trial court conducted an evidentiary hearing on Lillian’s petition. Nelson rep- . resented himself pro se. There was no court reporter and thus no transcript. The trial court ruled that both the marital residence and the condominium should be transferred to Lillian.

The parties owned a home as tenants in common and the agreed equity payment from wife to husband is $15,000. Attached is a copy of the deed for the property and the legal description contained within is incorporated herein. This final judgment shall act as a deed to transfer all of the rights, title and interest in the former homestead from Nelson Encarnación to Lillian I. Encar-nación and deed attached hereto.... Also, attached is a deed for a condominium located in Volusia County, Florida. Likewise, all of the rights, title and interest in the condominium of Nelson En-carnación is transferred to Lillian I. En-carnación.

It made no findings of fact to support these changes. It did make findings that after awarding Lillian the marital residence, the parties stipulated she owed Nelson $15,000 for his equity in the marital home and that he owed her various lesser sums for unpaid past medical bills, joint obligations on their joint credit card and a cash advance. It also set Nelson’s child support obligations at $158.31 per month, but ruled that they would be credited against the amount Lillian owed him ($15,-000 less his obligations owed her) until he no longer owed child support, at which time the full obligation she owed him would be payable immediately, whatever that might be. Or, if the amount she owed him was exhausted before his child support obligations ended, he would then be required to pay child support.

Without a transcript, in an appeal from an evidentiary hearing, this court is unable to provide an appellate remedy because it has nothing to review and the presumption is there was competent evidence to support the trial court’s rulings. See Paul v. Charles, 816 So.2d 837 (Fla. 5th DCA 2002); Prymus v. Prymus, 753 So.2d 742 (Fla. 3d DCA 2000); Autustin v. Dade County School Board, 766 So.2d 406 (Fla. 3d DCA 2000). However, if the trial court lacks jurisdiction to act, based on the record before this court, relief may be provided. See Fortune v. Pantin, 851 So.2d 274 (Fla. 5th DCA 2003); Casella v. Casella, 569 So.2d 848, 849 (Fla. 4th DCA 1990).

At the time a judgment of dissolution of marriage becomes final, the parties’ property rights, if determined by the judgment are fixed as a matter of law. Brandt v. Brandt, 525 So.2d 1017 (Fla. 4th DCA 1988). A court may clarify what is implicit in a final judgment, and enforce the judgment. But after a final judgment is rendered, a trial court lacks jurisdiction under chapter 61 to determine property rights, unless the final judgment reserves jurisdiction for a specific purpose regarding identified property. See Semko v. Semko, 537 So.2d 588 (Fla. 3d DCA 1988); Flanders v. Flanders, 516 So.2d 1090, 1091 (Fla. 5th DCA 1987) (absent facts supporting a reformation in equity, courts have no authority to modify a property settlement agreement). No reservation to redetermine property rights exists in the dissolution judgment under review in this case, and the trial judge specifically dealt with the parties’ rights with regard to the two marital properties in question.

With regard to the marital residence, it appears that Nelson may have agreed to change his property rights provided in the settlement agreement, somewhat, by filing his response. Thus any claim of error in this regard could have been waived, under the invited error doctrine. See Gupton v. Village Key & Saw Shop, Inc., 656 So.2d 475, 478 (Fla.1995); Fuller v. Palm Auto Plaza, Inc., 683 So.2d 654 (Fla. 4th DCA 1996); Held v. Held, 617 So.2d 858 (Fla. 4th DCA 1993).

However, Nelson’s agreement to give up his previously established 40% interest in the marital residence, as established by his response, indicates it was conditioned on his being released from liability from the mortgage and note pertaining to that property, and upon Lillian transferring to him her interest in the condominium property. Nothing in his response empowered the trial court to modify the dissolution judgment in the manner it did, by giving both properties to Lillian.

We appreciate the lower court’s efforts in this case to work a global settlement of other issues between the parties, such as their debts owed one another, and child support payable in the future, by offsetting them against the $15,000 owed Nelson after redetermining the parties’ marital property rights. Had this been a review of the initial dissolution judgment, we would have affirmed, absent a transcript. However, we find, based on this record, the trial court lacked jurisdiction to redetermine and restructure the settlement agreement with regard to the marital properties. Nor is there a basis in this record to conclude that Nelson consented or agreed to this restructuring of his rights previously established by the initial dissolution judgment. Accordingly, we reverse this final judgment and remand for further proceedings.

REVERSED and REMANDED.

THOMPSON, J., concurs.

MONACO, J., concurs in result only.

      .One may wonder why, based on the limited subjects raised in Lillian's supplemental petition, the court dealt with matters outside the scope of her allegations, such as a cash advance to Nelson of $2,000 and child support. However, parties to a hearing can be bound by issues tried without their objection. See Byers v. Callahan, 848 So.2d 1180 (Fla. 2d DCA 2003); LEX, Inc. v. Horizon Associates Joint Venture, 842 So.2d 881 (Fla. 4th DCA 2003); Book v. City of Winter Park, 718 So.2d 945 (Fla. 5th DCA 1998). This is just one of the hazards of appearing pro se at an eviden-tiary hearing.

      . Tinsley v. Tinsley, 490 So.2d 205 (Fla. 3d DCA 1986); Semko v. Semko, 537 So.2d 588 (Fla. 3d DCA 1988). See also Dickinson v. Dickinson, 746 So.2d 1253 (Fla. 5th DCA 1999).

      . Smilack v. Smilack, 858 So.2d 1072 (Fla. 5th DCA 2003); Woolley v. Woolley, 637 So.2d 74 (Fla. 5th DCA 1994).


author: THOMPSON, J.

text:
    McFARLAND & SON, INC., and Jonathan Queen, Appellants, v. Royal Mende BASEL and Steven Kane, etc., Appellees.
    No. 5D03-274.
    District Court of Appeal of Florida, Fifth District.
    July 30, 2004.

      Michael V. Elsberry and W. Drew Sor-rell of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appellants.
    Edna L. Caruso and Dirán Y. Seropian of Caruso & Burlington, P.A., West Palm Beach, for Appellees.
   THOMPSON, J.

McFarland & Sons, Inc., and Jonathan Queen (collectively, “McFarland”), appeal an order taxing costs. We affirm.

Royal Basel and Steven Kane, as co-plenary guardians for Mark Basel (collectively “Basel”), filed suit against Jonathan Queen and McFarland & Sons for damages arising out of a traffic accident. In February 2001, a final judgment in favor of Basel was entered. Basel appealed, arguing that the trial court applied the wrong version of section 768.81, Florida Statutes, which addresses joint and several liability. Basel v. McFarland & Sons, Inc., 815 So.2d 687, 690 (Fla. 5th DCA 2002). We agreed and reversed for entry of a corrected judgment. Id. After our mandate was issued, Basel filed a motion to tax costs in the trial court. Thereafter, in September 2002, the trial court entered a corrected final judgment. Basel filed a renewed motion for taxation of costs, and over McFarland’s objection that the request for costs was untimely, the trial court awarded costs to Basel. We conclude that the motion was not untimely.

On appeal, McFarland argues that Basel’s motion was untimely because it was not served within 30 days after the original judgment was filed, and Basel argues that the motion was timely because it was served within 30 days after the corrected judgment was filed. Rule 1.525, Florida Rules of Civil Procedure, provides that a motion to tax costs “shall” be served within 30 days after the judgment is filed. The rule was designed to establish a “bright-line” to resolve any uncertainty concerning the timing of post-trial motions, and to bring them to a timely conclusion. See Wentworth v. Johnson, 845 So.2d 296 (Fla. 5th DCA 2003).

As the trial court pointed out, the rule does not directly address a situation where a judgment in favor of a party is reversed for entry of a judgment in favor of the same party. We think that, since a favorable judgment is what entitles a party to costs, “the judgment” referred to in the rule, must be the judgment under which the party claims the right to costs. In this case, the judgment under which Basel claims costs is the corrected judgment. Since Basel served his motion within 30 days of that judgment, his motion was not untimely.

AFFIRMED.

PLEUS and PALMER, JJ., concur.

      . Rule 1.525, Florida Rules of Civil Procedure, provides:
      Any party seeking a judgment taxing costs, attorney's fees, or both shall serve a motion within 30 days after filing of the judgment including a judgment of dismissal, or the service of a notice of voluntary dismissal.

      . We note that if Basel had lost the previous appeal, the original judgment would have remained in effect, and he would not have been able to collect costs because he did not move for fees within 30 days of the original judgment.


author: STRINGER, Judge.

text:
    Steven HANDLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-121.
    District Court of Appeal of Florida, Second District.
    July 30, 2004.
   STRINGER, Judge.

Steven Handley appeals the summary denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the order of the trial court denying Handley’s claim. Our affirmance is without prejudice for Handley to file a timely, facially sufficient rule 3.850 motion to withdraw plea based on a manifest injustice. See Bradford v. State, 869 So.2d 28 (Fla. 2d DCA 2004). Any such motion will not be considered successive.

Affirmed.

SALCINES and KELLY, JJ., Concur.


author: PER CURIAM,

text:
    In re John D. COLLINSWORTH.
    No, 2004-B-0167.
    Supreme 'Court of Louisiana.
    June 25, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM,

This disciplinary matter arises from two counts of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, John D. Collinsworth, a disbarred attorney.

PRIOR DISCIPLINARY HISTORY

.Prior to addressing the instant misconduct, we find it helpful to review respondent’s disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1977. In 1991, respondent was admonished by the disciplinary board for failing to cooperate with- the ODC in a. disciplinary investigation. Beginning in July 1998, and continuing through at least April 1999, respondent converted funds from his law firm’s operating and client trust accounts. The law firm filed a complaint against respondent in July 1999, but respondent failed to cooperate with the ODC in its investigation of the matter. We disbarred respondent for his conduct on September 21, 2001. In re: Collinsworth, 01-1628 (La.9/21/01), 795 So.2d 312.

UNDERLYING FACTS

On May 20, 2000, Terry Greer paid respondent $500 to represent him in a divorce proceeding. Respondent did some work on the case, but failed to complete 1 j>the representation and failed to communicate with his client concerning the matter. He also failed to promptly refund the unearned portion of the legal fee Mr. Greer paid.

In May 2001, Mr. Greer filed a complaint against respondent with the ODC. On June 19, 2001, and again on July 11, 2001, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to reply to the complaint. The ODC thereafter served respondent with a subpoena compelling him to appear on September 4, 2001 and answer the complaint under oath. Respondent failed to appear.

DISCIPLINARY PROCEEDINGS

On February 13, 2002, the ODC filed two counts of formal charges against respondent, alleging that his conduct in the Greer matter violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(f)(6) (failure to refund an unearned fee), 1.16(d) (termination of the representation), 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), 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(g) (failure to cooperate with the ODC in its investigation). The ODC further alleged that respondent’s knowing-failure to respond to a lawful demand for information from a disciplinary authority constituted a violation of Supreme Court Rule XIX, § 9(c).

Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 1311(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions.

Hearing Committee Recommendation

After consideration of the ODC’s submission in response to the deemed admitted order, the committee found respondent was retained by Mr. Greer and that he failed to communicate with him, failed to plead his case, and failed to return the unearned fee, in violation of Rules 1.3, 1.4, 1.5(f)(6), 1.16(d), and 8.4(c) of the Rules of Professional Conduct. The committee also noted respondent’s failure to cooperate with the ODC and failure to respond to the formal charges. The committee determined that respondent violated duties owed to his client and as a professional, and that Mr. Greer suffered actual injury. The committee found no mitigating factors are present but noted in aggravation that respondent has a prior history of similar disciplinary violations. Under these circumstances, the committee recommended that respondent be disbarred, to run consecutively with his prior disbarment.

Disciplinary Board Recommendation

Noting the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3), the disciplinary board agreed that respondent violated the Rules of Professional Conduct as charged. The board determined that respondent knowingly violated duties owed to his client and as a professional. Respondent caused damage to his client by failing to complete the divorce and by failing to return the advanced fee |4that he did not earn. His failure to cooperate in the disciplinary investigation resulted in the issuance of a subpoena and caused unnecessary delay and expense as well as damage to the profession. Based on the ABA’s Standards for Imposing Lawyer Sanctions and the prior jurisprudence, the baseline sanction for this misconduct is a suspension from the practice of law.

The board found prior disciplinary offenses and a pattern of misconduct are aggravating factors. The board made no finding concerning mitigating factors.

Concluding respondent’s present and prior misconduct constitute “serious attorney misconduct,” as that term is defined by Guideline 9 of this court’s permanent disbarment guidelines, the board recommended that respondent be permanently disbarred.

Neither respondent nor the ODC objected to the disciplinary board’s recommendation, but on our own motion, we ordered the parties to submit briefs addressing the issue of an appropriate sanction. Both respondent and the ODC filed briefs in response to the order.

DISCUSSION

The deemed admitted facts in this case support a finding that respondent neglected a legal matter, failed to communicate with his client, failed to promptly 1 ¿refund an unearned legal fee, and failed to cooperate with the ODC in its investigation. We note, however, that this misconduct occurred during the same general time frame as the misconduct forming the basis of respondent’s disbarment in Col-linsworth I. In Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), we observed that it is generally inappropriate to disbar a previously disbarred attorney when the misconduct at issue occurred before or concurrently with the violations that resulted in the initial disbarment. Rather, when a second disciplinary proceeding involves misconduct that occurred during the same time frame as the first proceeding, the overall discipline to be imposed should be determined as if both proceedings were before the court simultaneously. Applying this procedure in the Chatelain case, we adjudged the respondent guilty of additional violations warranting disbarment which were added to his record for consideration in the event he applied for readmission after becoming eligible to do so. See also In re: Patrick, 01-1419 (La.3/15/02), 815 So.2d 804; In re: Gros, 98-0772 (La.3/15/02), 815 So.2d 799; In re: Parker, 00-3532 (La.3/15/02), 815 So.2d 794.

In determining an appropriate sanction in the instant case, we find the approach of Chatelain is instructive. Accordingly, our determination of a sanction will be based upon the appropriate sanction we would have imposed if these charges had been before the court at the same time as the charges in Collinsworth I.

Respondent suggests in brief that the misconduct at issue in the prior proceeding was far more serious than the single matter at issue here, and hence his punishment would not have been any different if these formal charges had been part of Collinsworth I. We agree. While we do not minimize the seriousness of respondent’s mishandling of Mr. Greer’s divorce case, that misconduct pales in comparison to respondent’s intentional conversion of funds from his law firm’s lfioperating and client trust accounts. There is nothing in the record before us to suggest that a sanction greater than disbarment would have been imposed if the two counts of formal charges arising out of the Greer matter had been added to the formal charges in the earlier proceeding. Therefore, as in Chatelain, we will adjudge respondent guilty of additional violations which warrant disbarment and which will be added to his record for consideration in the event he applies for readmission after becoming eligible to do so.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record and the briefs filed by the parties, it is ordered that John D. Collinsworth be adjudged guilty of additional violations which warrant disbarment and which may be considered in the event he applies for readmission from his disbarment in In re: Collinsivorth, 01-1628 (La.9/21/01), 795 So.2d 312, after becoming eligible to do so. 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 filed nothing for the hearing committee's consideration.

      . Supreme Court Rule XIX, Appendix E provides:
      The following guidelines illustrate the types of conduct which might warrant permanent disbarment....
      GUIDELINE 9. Instances of serious attorney misconduct or conviction of a serious crime, when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime. Serious crime is defined in Rule XIX, Section 19. Serious attorney misconduct is defined for purposes of these guidelines as any misconduct which results in a Suspension of more than one year.


author: WEIMER, Justice.

text:
    Raleigh LANDRY and Clailee Aucoin Landry v. AVONDALE INDUSTRIES, INC., et al.
    Nos. 2003-CC-3432, 2003-CC-3434, 2003-CC-3435.
    Supreme Court of Louisiana.
    July 2, 2004.

      Stephen N. Elliott, Robert A. Knight, Francine M. Giugno, Bernard, Cassisa, Elliott & Davis, Metairie, Counsel for Applicant.
    Dana D. Anderson-Carson, Gary M. Zwain, Geoffrey P. Clement, Duplass, ■Zwain, Bourgeois & Morton, Metairie;’ Gary A. Lee, Johanna G. King, Richard M. Perles, Lee, Futrell & Perles, New Orleans; Andrew L. Plauche, Jr., Wendy K. Lappenga, Kenan S. Rand, Jr., Plauche, Maselli, Landry & Parkerson, New Orleans; Troy N. Bell, Maria C. Pardo, Jeanette Seraile-Riggins, Glenn L. M. Swet-man, John E. Unsworth, III, Aultman, Tyner, Ruffin & Yarborough, Hattiesburg, MS; Charles V. Giordano, Miranda, Warwick, Milazzo, Giordano & Hebbler, Me-tairie; Gerolyn P. Roussel, Roussel & Roussel, LaPlace; David S. Bland, King, LeBlanc & Bland, New Orleans; Lynn M. Luker; Arthur W. Stout, III, Deutsch, Kerrigan & Stiles, New Orleans; Susan B. Kohn, Simon, Peragine, Smith & Redfearn, New Orleans; Brian C. Bossier, Blue Williams, Mandeville; Christopher K. Lightfoot, Valerie T. Schexnayder, Hailey, Mcnamara, Hall, Larmann & Papale, Me-tairie; Samuel M. Rosamond, III, Crawford & Lewis, Baton Rouge; Lawrence G. Pugh, III, Montgomery, Barnett, Brown, Read, Hammond & Mintz, New Orleans; Larry G. Canada, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans; Gregory E. Bodin, Taylor, Porter, Brooks & Phillips, Baton Rouge; E. Scott Hacken-berg, Henchy, Verbos, Futrell & Foil; Gordon P. Wilson, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans; Walton S. Brown, Taggart, Morton, Ogden, Staub, Rougelot & O’Brien; James F. d’Entre-mont, Phelps Dunbar,- New Orleans; Laurie J. Hutchings, Rebecca K. Jude, Jude & Associates, Hattiesburg; John B. Edwards, II, Dogan & Wilkinson; John D. Cosmich, Dawn -Fulce, Forman, Perry, Watkins & Tardy; Scott P. Yount, Preston & Cowan; Counsel for Respondent.
   WEIMER, Justice.

We granted certiorari to resolve the narrow issue of whether the provisions of the Louisiana Comparative Fault Law, enacted by Act 431 of 1979 and effective August 1, 1980, apply to a wrongful death action commenced after the decedent’s demise in November 2002, from mesothelioma allegedly contracted as a result of exposure to asbestos at various time periods from 1959 to 1974. Answering that inquiry in the affirmative, we hold that Act 431 of 1979 operates prospectively, applying to claims arising from events occurring after its August 1, 1980 effective date, and that the key relevant event giving rise to a claim for wrongful death for purposes of applying the comparative fault law is the victim’s death. Since the decedent in this case died in 2002, long after the effective date of Act 431, we conclude that Louisiana’s Comparative Fault Law applies to the plaintiffs’ wrongful death claim. The judgment of the court of appeal holding to the contrary is reversed. The district court’s judgment is reinstated.

I «FACTS AND PROCEDURAL HISTORY

Raleigh Landry worked for Avondale Industries from 1965 to 1967 and for McDermott, Inc., from 1959 to 1961, 1964 to 1965, and 1973 to 1974. During the course of these employments, he was allegedly exposed to asbestos which resulted in his contraction of mesothelioma. On March 28, 2002, Mr. Landry and his wife, Clailee Landry, filed suit against Avondale and its executive officers, McDermott and its executive officers, and several manufacturers and/or distributors of asbestos products for damages arising from his contraction of mesothelioma, first diagnosed in January 2002.

Despite receiving an expedited jury trial setting, Mr. Landry died on November 21, 2002, before his claims could be tried. Thereafter, in a supplemental and amending petition, Jamie Landry and Glen Landry, children of Raleigh Landry, were substituted for Mr. Landry’s survival damages, and, along with their mother, asserted survival and wrongful death actions which arose due to the injury and death of Raleigh Landry.

Following the appointment of a special master to hear all preliminary motions, defendant Reilly-Benton Company, Inc. and its insurer, Liberty Mutual Insurance Company, filed a motion for summary judgment asserting that the Louisiana Comparative Fault Law applies to the plaintiffs’ wrongful death claims. Plaintiffs opposed the motion.

lain a report to the district court dated April 30, 2003, the special master recommended that Reilly-Benton’s motion for summary judgment be granted, assigning the following reasons:'

Reilly-Benton moves for summary judgment ordering the case be subject to the comparative fault regime adopted in 1996, including the requirement that each person’s fault be quantified. Cole v. Celotex Corp., 599 So.2d 1058 (La.1992), had held that tortious exposure in diseases of long latency is subject to the law at the time of exposure, but Cole was not a wrongful death case. Plaintiff relies on the denial of writs by a panel of the 4th Circuit Court of Appeal in the Steve Dufrene case, a copy thereof is attached for ready reference. The writ was denied in June 2001. However, in September 2002 the Supreme Court authored Austin v. Abney Mills, 824 So.2d 1137 (La.2002). That case pointed out that the act adopting comparative fault in Louisiana specifically provided that the act does not apply to claims arising from “events” that occurred before the effective date of the act. In Austin the Supreme Court pointed out that the wrongful death act is designed to compensate the claimants’ individual damages they suffered from the death of their relative. In Louisiana a tort involves not only substandard conduct, but also damages caused thereby. Though Austin applied to the immunity granted co-employees in the 1975-76 revision of the workers compensation law and the instant motion involves the applicability of the 1996 comparative fault regime, the principles enunciated in Austin are indistinguishable from the issue raised by Reilly-Benton’s motion. Since the damages occurred at the time of death, the comparative fault provisions applicable at that time are controlling. I recommend the motion be granted.

Plaintiffs filed objections to the special master’s report. An objection was also filed on behalf of Peter Territo, Albert Bossier, Jr., Edward Blanchard, and J. Melton Garrett, executive officers of Avon-dale named as defendants in plaintiffs’ petition (hereinafter referred to as “the Avondale executive officers”).

Following a contradictory hearing, the district court overruled the objections and adopted the special master’s recommendation, granting Reilly-Benton’s motion for summary judgment.

Both plaintiffs and the Avondale executive officers applied for supervisory writs from the district court’s ruling. The applications were consolidated in the court of 14appeal. On September 17, 2003, the court of appeal granted the consolidated writ applications, reversed the district court’s ruling and remanded the case for further proceedings. In rendering its decision in this matter, the court of appeal opined:

The Comparative Fault Act, La. Acts 1979, No. 431, § 4, eff. Aug. 1, 1980, provides in pertinent part: “The provisions of this act shall not apply to claims arising from events that occurred prior to the time this act becomes effective” [emphasis added]. The Supreme Court, in Cole v. Celotex Corp., 599 So.2d 1058 (La.1992), interpreted the term “events” to mean the incidents of exposure. As found in Cole, the expression of legislative intent evidenced by § 4 as a whole indicates that Act 431 does not apply to long-term occupational disease cases where the events ultimately causing the death of the decedent occurred prior to Act 431’s effective date.
Defendant, Reilly-Benton, Inc., relies on Walls v. American Optical Corp., 98-0455 (La.9/8/99), 740 So.2d 1262, to support the proposition that in a wrongful death action the “event” is the death. However, in the case of a wrongful death action arising upon death from a long-latency occupational disease, the “events” referred to in the expression of legislative intent in Act 431, § 4 can only mean the incidents of exposure. The Supreme Court’s decision in Walls is not applicable to the instant case because it involves La. R.S. 23:1032, the Louisiana Workers’ Compensation Act. La. R.S. 23:1082 does not contain the clear expression of legislative intent found in Act 431.
The overall thrust of the statement of legislative intent in Act 431, § 4, clearly demonstrates that the legislature did not intend that Act 431 adversely affect the rights of survivors in a case, such as the instant one, where the decedent dies as a direct result of pre-Act events, i.e., significant exposure to asbestos-containing products manufactured and/or distributed by the alleged tortfeasor.
The trial court committed an error of law in finding that Comparative fault was applicable to plaintiffs’ wrongful death claim.

Landry v. Avondale Industries, Inc., 03-1112, 03-1174, pp. 2-3 (La.App. 4 Cir. 9/17/03), 857 So.2d 1083, 1084. We granted and consolidated writ applications filed on behalf of Reilly-Benton Company, Inc., Liberty Mutual Insurance Company, Olympic Glove & Safety Equipment, Inc., and Steel Grip, Inc., to consider the correctness of the court of appeal’s ruling with respect to the application of comparative fault principles in this wrongful death action. Landry v. Avondale Industries, Inc., 03-3432 (La.3/19/04), 869 So.2d 837, c/w 03-3434 c/w 03-3435 (La.3/19/04), 869 So.2d 833. Our review of the summary judgment, and the legal issue raised therein, is de novo. Schroeder v. Bd. of Sup’rs of La. State Univ., 591 So.2d 342, 345 (La.1992) (“Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate.”).

LAW AND DISCUSSION

As noted, the sole issue presented for our review is whether the provisions of the Louisiana Comparative Fault Law, which was enacted by Act 431 of 1979 and which became effective on August 1, 1980, apply to the instant wrongful death action commenced after the Act’s effective date. The resolution of this issue is complicated by the factual context in which it arises: the decedent died from mesothelioma allegedly caused by occupational asbestos exposure predating the Act’s effective date. While we have previously acknowledged and documented the difficulties associated with actions for damages caused by long-latency diseases, such as asbestosis and mesothelioma, and the unique problems encountered in attempting to fit such actions within the framework of concepts designed to handle traditional torts, we find that in | fithe instant ease we do not write on a clean slate and that the resolution of the narrow issue presented is presaged by our earlier decisions in Cole v. Celotex Corp., 599 So.2d 1058 (La.1992) and Walls v. American Optical Corp., 98-0455 (La.9/8/99), 740 So.2d 1262.

Act 431 of 1979 amended and reenacted LSA-C.C. arts. 2103, 2323, and 2324 to usher a comparative fault system into Louisiana. This act eliminated the doctrine of contributory negligence and provided the framework for a comprehensive scheme of loss apportionment in multi — party litigation. Keith v. U.S. Fidelity & Guar. Co., 96-2075 (La.5/9/97), 694 So.2d 180, 183. As enacted, Act 431 contains a clear expression of legislative intent regarding its application. Section 4 of the Act states: “The provisions of this act shall not apply to claims arising from events that occurred 17prior to the time this act becomes effective.” Section 7 provides: “The provisions of this Act shall become effective on August 1, 1980.”

In the landmark’case of Cole v. Celotex Corp., supra, we were asked to determine the applicability of Act 431 to a claim for damages caused by long-term exposure to asbestos in the workplace. Cole involved the direct tort claims of three employees suffering from injuries caused by occupational exposure to asbestos. After the exposures, but before the plaintiffs filed suit, the comparative fault law became effective, via Act 431. In determining whether the provisions of that law could be applied to the plaintiffs’ suit, we first noted that LSA-C.C. art. 6 supplies the governing rule of statutory construction with respect to the temporal application of statutes. We explained:

LSA-C.C. Art. 6 requires that we engage in a two-fold inquiry. First, we must ascertain whether in the enactment the legislature expressed its intent regarding -retrospective or prospective application. If the legislature did so, our inquiry is at an end. If the legislature did not, we must classify the enactment as substantive, procedural, or interpretive. See Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167, 182 (5th Cir.), reh’g denied, 920 F.2d 259 (5th Cir.1990), citing Ardoin v. Hartford Accident & Indem., Co., 360 So.2d 1381, 1338-39 (La.1978).

Cole, 599 So.2d at 1063.

Recognizing that Act 431 contains a “clear and unmistakable expression of legislative intent regarding prospective application,” Cole, 599 So.2d at 1064 — Section 4 of the Act providing that “[t]he provisions of this act shall not apply to claims arising from events that occurred prior to the time this act becomes effective,” Land Section 7 directing that “[t]he provisions of this Act shall become effective on August 1, 1980” — we hinged our decision in Cole on the unique language in Act 431 and the legislative intent expressed therein. Our decision turned on an interpretation of what the legislature intended when it directed that the provisions of this act shall not apply to claims arising from “events” that occurred prior to August 1,1980.

In discussing the meaning of “events” as used in Act 431, we noted that in the context of traditional torts, Louisiana courts have equated the term “events” contained in Act 431 with “accident” and “injury,” reasoning that when the accident and injury occurred before the Act’s effective date, pre-Act law applies. Cole, 599 So.2d at 1065 (citing McDermott v. Jester, 466 So.2d 795 (La.App. 4th Cir.), writ denied, 468 So.2d 576 (La.1985)). We did not disapprove of such reasoning with regard to traditional torts; instead we found that such reasoning was problematic when applied to long-latency disease cases, and therefore declined to construe the term “events” as encompassing the requisites for asserting a cause of action for damages caused by long-latency disease. Cole, 599 So.2d at 1065.

Heeding the mandate of LSA-C.C. art. 11 that the words of a statute be accorded their generally prevailing meaning, we instead equated the term “events” as used in Act 431 with “accident” or “injury producing occurrence.” Cole, 599 So.2d at 1066 (citing Carroll v. International Paper Co., 175 La. 315, 143 So. 275 (1932)). We then concluded:

[T]he key relevant events giving rise to a claim in long-latency occupational disease cases are the repeated tortious exposures resulting in continuous, on-going [sic] damages, although the disease may not be considered contracted or manifested until later. We further conclude that when the tortious exposures occurring before Act 431’s effective date are significant and such exposures later result in the manifestation of damages, pre-Act law applies.

Pole, 599 So.2d at 1066. Because we found that substantial injury producing exposures giving rise to plaintiffs’ claims occurred before the August 1, 1980 effective date of Act 431, we ultimately held that the provisions of the Louisiana Comparative Fault Law could not be applied to plaintiffs’ claims and that the case was governed by the pre-Act law of contributory negligence.

Plaintiffs and their co-respondents, the Avondale executive officers, argue that Cole governs the disposition of the instant case. They assert that Cole defines “events” for purposes of applying the Louisiana Comparative Fault Law in long-latency occupational disease cases as “repeated tortious exposures,” and that this definition controls regardless of whether the later manifestation of damage takes the form of disease or death. This is essentially the position adopted by the court of appeal.

Relators counter by conceding that plaintiffs are correct in their analysis insofar as the direct tort and survival actions are concerned, but argue that a different result is compelled when the claim is one for wrongful death. Relators assert that the key relevant “event” for purposes of the wrongful death action is Mr. Landry’s death in 2002. As support' for their position, they point to this court’s decision in Walls v. American Optical Corp., supra.

In Walls, we were asked to determine whether the 1976 amendment to LSA-R.S. 23:1032, which provided for executive officer immunity, applied to a wrongful death claim where the decedent’s death from silicosis, contracted as a result of occupational exposure to silica dust, occurred well after the amendment’s effective date, but his exposure to the hazardous substance occurred prior to the amendment. The plaintiffs in Walls contended that Cole’s exposure theory should apply to their |inwrongful death claim against the executive officers of the decedent’s former employer, arguing that Cole requires all long-latency occupational lung disease cases to be governed by the law in effect on the date the victim was exposed to the disease causing agent.

We expressly rejected this argument, cautioning that “Cole should not be read so expansively.” Walls, 98-0455 at 10, 740 So.2d at 1270. In doing so, we explained that Cole involved a direct tort action, which, like all other actions, accrues upon the existence of both wrongful conduct and an injury. In long-latency disease cases, where the relevant injury is the victim’s disease, determining the exact moment of injury is virtually impossible. This difficulty is the foundation of the exposure theory. Id. However, we recognized that a different situation exists when the cause of action is one for wrongful death. We explained:

While we acknowledge the factual similarities between Cole and the instant case, we find the distinguishing factors dispositive, and reject the plaintiffs’ contention that Cole’s “tortious exposure doctrine” applies to determine the appli- ■ cable law in the instant case.

Walls, 98-1455 at 11, 740 So.2d at 1271. Noting that our decision in Cole turned on unique language in Act 431 not present in the amendment to LSA-R.S. 23:1032, we expressly rejected the plaintiffs’ contention that “because the pivotal ‘events’ giving rise to their wrongful death claims were defendants’ pre-1976 conduct exposing Mr. Walls to silica dust, Cole requires the application of the pre-amendment law.” Walls, 98-0455 at 12, 740 So.2d at 1272.

After distinguishing Cole on the ground that the 1976 amendment to LSA-R.S. 23:1032 was not at issue in that case, which turned on the distinct language of Act 431 and the legislative intent expressed therein, we explained:

|n[T]he instant case does not involve a direct tort action or a survival action, such as gave rise to Cole, but instead presents an action for wrongful death. In Louisiana, it is well established that the survival action and the wrongful death action are two different causes of action that arise at different times.

Walls, 98-0455 at 14, 740 So.2d at 1273. We then reaffirmed our holdings in Taylor v. Giddens, 618 So.2d 834 (La.1993) and Guidry v. Theriot, 377 So.2d 319 (La.1979), cataloging the distinctions between the survival action and the wrongful death action.

Although both actions arise from a common tort, survival and wrongful death actions are separate and distinct. Each right arises at a different time and addresses itself to the recovery of damages for totally different injuries and losses. The survival action comes into existence simultaneously with the existence of the tort and is transmitted to beneficiaries upon the victim’s death and permits recovery only for the damages suffered by the victim from the time of injury to the moment of death. It is in the nature of a succession right. On the other hand, the wrongful death action does not arise until the victim dies and it compensates the beneficiaries for their own injuries which they suffer from the moment of the victim’s death and thereafter. Wrongful death damages compensate beneficiaries for their own injuries.

Walls, 98-0455 at 14, 740 So.2d at 1273, quoting Taylor v. Giddens, 618 So.2d 834, 840 (La.1993) (internal citations omitted). Because the survival action and the wrongful death action are totally separate and distinct causes of action that arise at different times and allow recovery of completely different damages, we concluded that although “Cole established the ‘exposure theory’ for determining the applicable law within the context of the direct tort action and survival action ... Cole’s rationale cannot apply to the instant case involving a wholly distinct cause of action for wrongful death.” Walls, 98-0455 at 14, 740 So.2d at 1273.

Recognizing the distinction between the direct tort action at issue in Cole and the wrongful death claim asserted in Walls, we ultimately held that the 1976 amendment to LSA-R.S. 23:1032, establishing executive officer immunity, operates | ^prospectively and applies to causes of action arising after its effective date. Since plaintiffs’ cause of action for wrongful death arose after the amendment’s effective date, we held that the immunity conferred by the amendment barred the plaintiffs’ action against the executive officer defendants and their liability insurer.

While relators argue that Walls is directly applicable and confirms that the law at the time of the alleged tortious exposure does not apply to wrongful death claims, plaintiffs and the Avondale executive officers insist that our holding in Walls cannot direct the disposition of the present case because, as we candidly acknowledged in Walls, the statute at issue in that ease-LSA-R.S. 23:1032-does not contain the clear expression of legislative intent contained in Act 431. Because our decision in Walls was dictated by the date on which the plaintiffs’ wrongful death cause of action accrued, and Cole declined to hinge the applicability of the Louisiana Comparative Fault Law on the date that a plaintiffs cause of action accrues, choosing instead to rely on the legislative intent as expressed in Act 431, plaintiffs and the Avondale executive officers argue that Walls does not modify Cole’s holding insofar as the application of comparative fault law is concerned.

Admittedly, neither Cole nor Walls resolves the precise issue presented here. However, together they do provide a framework for determining, within the intent of Act 431, the key relevant “events” giving rise to plaintiffs’ wrongful death claim for purposes of ascertaining whether the law of comparative fault applies in this case.

As we have previously noted, Cole involved a direct tort action wherein we recognized the difficulties inherent in attempting to pinpoint when a cause of action arises in a long-latency occupational disease case where the injury is the contraction of the disease. Because of these acknowledged difficulties, we declined the invitation |13to define the term “events” in Act 431 as synonymous with the accrual of a cause of action, and instead defined “events,” a term we found to be synonymous with “accident” or “injury producing occurrence,” in the context of a long-latency occupational disease as “repeated tortious exposures resulting in continuous, on-going [sic] damages.” Cole, 599 So.2d at 1066. These “exposures” we recognized in our recent decision in Austin v. Abney Mills, Inc., 01-1598 (La.9/4/02), 824 So.2d 1137, are not merely causative, but in fact include a corresponding measure of injury or damage. Austin’ 01-1598 at 25, 824 So.2d at 1154.

Walls admittedly did not address the unique language in Act 431 and concerned itself solely with the date of accrual of a wrongful death cause of action. Nevertheless, Walls expressly limited Cole’s exposure theory to direct tort and survival actions, reiterating and emphasizing the fundamental differences between the survival action and the wrongful death action. Most importantly, although urged to do so, this court in Walls refused to characterize the wrongful death action as a derivative action. Rather, Walls held that the wrongful death action is an independent and distinct action that arises even in the absence of a viable personal injury action by the direct tort victim and compensates the beneficiaries for their own individual injury arising out of the victim’s death. Walls, 98-0455 at 15, 740 So.2d at 1274.

As Walls points out, Louisiana’s wrongful death statute is clear: the relevant injuries do not occur until death, and they are not the primary victim’s injuries. | uBecause the wrongful death action is predicated on a different injury than the direct tort or the survival action, the key relevant “event” triggering that injury— death — is also logically different. Thus, while Cole declined to take the extra step and base its holding on a definition of the term “events” that would embody when a cause of action accrues, it did define “events” for purposes pf Act 431 as “injury producing occurrences,” recognizing that injury and damages are produced when there is significant tortious exposure, although the disease may not be considered contracted or manifested until later. While this reasoning holds true in the context of direct, tort and survival actions, it is not true for wrongful death actions wherein the “injury” on which the cause of action is predicated does not arise until death. Thus, it follows and we hold that the key relevant “event” under Act 431 for purposes of applying the comparative fault law to a wrongful death claim is the death itself.

While some may bemoan the resultant disparities in the laws applying to survival and wrongful death claims, the decision continues our consistent treatment of wrongful death claims in Louisiana as distinct causes of action, and not as a secondary layer of tort liability to the primary victim. Contrary to the court of appeal’s opinion, this distinction does not “adversely affect the rights of survivors in a case, such as the instant one, where the decedent dies as a direct result of pre-Act events,” Landry, 03-1112, 03-1174 at 3, 857 So.2d at 1084, because the cause of action in favor of the survivors, ie., the beneficiaries, does not arise until the victim dies. As a result, prior to the death of the victim, the beneficiaries do not have a right that can be adversely affected. Walls, 98-0455 at 9-10, 740 So.2d at 1270.

| ^CONCLUSION

We therefore hold that Act 431 of 1979, ushering the law of comparative fault into Louisiana’s legal system, applies prospectively to wrongful death claims arising from “events” occurring after its August 1, 1980 effective date. For purposes of Act 431, the key relevant “event” giving rise to a claim for wrongful death arising from a decedent’s occupational exposure to asbestos is the death itself. Since it is not disputed that Mr. Landry died in November 2002, long after the effective date of Act 431, we conclude that the court of appeal erred in reversing the summary judgment granted by the district court and in concluding that plaintiffs’ wrongful death claim is not subject to the law of comparative fault. Therefore, the decision of the court of appeal is reversed, the judgment of the district court granting summary judgment in favor of Reilly-Benton Company, Inc. and Liberty Mutual Insurance Company is reinstated, and this case is remanded to the district court for further proceedings not inconsistent with this opinion.

REVERSED; SUMMARY JUDGMENT REINSTATED; REMANDED TO DISTRICT COURT.

      . Among the claims asserted was a claim for loss of consortium filed on behalf of Mrs. Landry. That claim was the subject of an earlier opinion by this court, which found that because all of Mr. Landry's exposure to asbestos occurred between 1959 and 1974, before the 1982 amendment of LSA-C.C. art. 2315 to provide for loss of consortium claims, allowing the consortium claim would be an impermissible retroactive application of the amendment. Landry v. Avondale Industries, Inc., 03-0719, 03-0993, 03-1002 (La.12/3/03), 864 So.2d 117 ("Landry I").

      . In Cole v. Celotex Corp., 599 So.2d 1058, 1065-1066 (La.1992), we explained:
      The uniqueness of asbestosis cases and the difficulties of trying to fit such cases within the framework of concepts designed to handle traditional torts has been recognized: " 'the factual predicate giving rise to potential liability from asbestos exposure is simply different from those that generated most tort doctrines ... [and thus such cases differ] in legally important aspects from those types of injuries that present tort doctrines were designed to accommodate.’ " Ducre v. Mine Safety Appliances, 573 F.Supp. 388, 391 n. 1 (E.D.La.1983), aff’d in part and rev’d in part, 752 F.2d 976 (5th Cir.), reh'g denied, en banc, 758 F.2d 651 (5th Cir. 1985) (quoting Thompson v. Johns-Manville Sales Corp., 714 F.2d 581, 583-84 (5th Cir.1983), cert. denied, 465 U.S. 1102, 104 S.Ct. 1598, 80 L.Ed.2d 129 (1984) (Goldberg, J. dissenting) and noting that "[ojccnpational diseases of the kind at hand are particularly difficult to classify pragmatically within the structured concepts of traditional tort law”).
      The difficulties in asbestosis cases arise because, unlike in traditional personal injury cases in which the damage results from a single, identifiable act causing traumatic injury, in asbestosis cases the damage results from a continuous process — a slow development of this hidden disease over the years. See R.J. Reynolds Tobacco Co. v. Hudson, 314 F.2d 776 (5th Cir. 1963). Compounding the problem, asbestosis cases are characterized by a lengthy latency period — typically ranging a decade or two— and, consequently, a lengthy temporal separation between the tortious conduct and the appearance of injury. See Comment, Liability Insurance for Insidious Disease: Who Picks Up the Tab?, 48 Fordham L.Rev. 657, 665 n. 46 (1980). This lengthy latency period renders efforts to pinpoint the date on which the disease was contracted virtually impossible, medically and legally. Porter v. American Optical Corp., 641 F.2d 1128, 1133 (5th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981), reh’g denied, 455 U.S. 1009, 102 S.Ct. 1649, 71 L.Ed.2d 878 (1982); Classen, An Investigation into the Statute of Limitations and Product Identification in Asbestos Litigation, 30 How. L.J. 1, 4 (1987). Further, this inability to pinpoint when injuries were sustained in asbestosis cases renders determining the date on which a plaintiff's cause of action accrued a herculean task.

        See also, Powell v. Weaver, 01-2937 (La.2/7/03), 841 So.2d 742, 743, (Weimer, J„ concurring) (noting that “[t]he factual predicates arising from insidious disease cases are simply different from those that traditional tort doctrines were designed to accommodate, and, accordingly, the courts have struggled in their efforts to create a framework that is workable and fair to both plaintiffs and defendants.”).

      . In the instant case, the significance of the comparative fault law insofar as respondents are concerned lies not in its abolition of the doctrine of contributory negligence, but in its . abrogation of virile share liability.

      . LSA-C.C. art. 6 states:
      In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.

      . In Austin, we held that the test for determining when a cause of action accrues in a long-latency occupational disease case is in fact the "significant tortious exposure” theory first articulated in Cole in the context of'determining the legislative intent behind Act 431. Austin, 01-1598 at 25, 824 So.2d at 1154. As a result, although Cole declined to resolve the issue of the applicability of Act 431 on the basis of when the cause of action for damages resulting from contraction of a long-latency occupational disease accrues, in the final analysis, we interpreted the legislative intent behind the statute in a manner consistent with the accrual of a cause of action.

      . Our decision in this case does not result in a retroactive application of Act 431. Applying the two-prong test for retroactive operation formulated by Planiol, it is clear that Act 431, ushering in comparative fault, neither goes back to the past to evaluate the conditions of the legality of an act (comparative fault being an affirmative defense and not a law evaluating the conditions of the legality of the defendant's conduct) nor modifies or suppresses the effects of a right already acquired. (The cause of action for wrongful death does not arise until the victim dies; because Mr. Landry died after the effective date of Act 431, the plaintiffs did not acquire a vested right in their wrongful death cause of action prior to the effective date of Louisiana's Comparative Fault Law.”) See, Walls, 98-0455 at 4-11, 740 So.2d at 1266-1270.


author: PER CURIAM.

text:
    In re Vincent Ross CICARDO.
    No. 2004-B-0828.
    Supreme Court of Louisiana.
    July 2, 2004.
   PER CURIAM.

This disciplinary matter arises from one count of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Vincent Ross Cicardo, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

The underlying facts of this matter are not disputed. On March 26, 2002, respondent, through counsel, reported to the ODC that he had periodically used funds in his client trust account for the operation of his law office. A subsequent audit of the trust account for the period January 1, 1997 through December 31, 2001 confirmed that respondent- withdrew funds from the account at times and in amounts not directly related to the conclusion of his cases. These withdrawals came from funds held in the trust account awaiting final determination of medical liens or sub-rogation claims, funds representing respondent’s attorney’s fees that had not been promptly withdrawn from the account, and from attorney’s fees deposited to the account that were not required to be so deposited. The audit revealed no instance in which a client or third party was underpaid, nor any unreasonable or unexplained delays in payments to clients and third parties.

^During the period of time at issue, respondent was dependent upon and impaired by alcohol, a condition for which he subsequently sought and obtained rehabilitative treatment. On February 26, 2002, respondent entered into a two-year recovery contract with the Lawyers Assistance Program (LAP).

DISCIPLINARY PROCEEDINGS

On March 27, 2003, the ODC filed one count of formal charges against respondent, alleging that his “rolling commingling and conversion” of client and third-party funds violated Rules 1.15(a) and (b) (safekeeping property of clients or third persons) and 8.4(a) (violation of the Rules of Professional Conduct) of the Rules of Professional Conduct. Respondent filed an answer admitting the formal charges and rule violations, and requesting a hearing in mitigation.

At the hearing, the ODC introduced documentary evidence for the hearing committee’s consideration, including the audit report of respondent’s trust account activity and the sworn testimony of the certified public accountant who performed the audit. The witnesses who testified consisted of respondent, members of his family, representatives of the LAP, attorneys and judges who are long-time friends of respondent’s, and the licensed clinical social worker who has seen respondent for weekly after-care counseling sessions since his discharge from Palmetto. All of respondent’s witnesses testified favorably as to his character, competence, and sincere desire to overcome his alcoholism.

| %Hearing Committee Recommendation

The testimony presented at the hearing revealed that respondent’s misuse of his trust account funds began in early 1997, shortly after the death of his father, with whom respondent had been practicing law since his graduation from law school. The elder Mr. Cicardo had handled all the business aspects of the practice, including managing the trust account. Respondent’s misuse of the trust account continued for several years, but the hearing committee found there was no actual injury to any clients or third persons as a result.

The committee noted the personal, emotional, and financial problems that respondent experienced in the wake of his father’s death, including alcohol abuse and dependency, divorce, and bankruptcy. After several years, respondent finally came to realize that he had to change his way of life, and to do the right things for the right reasons, notwithstanding the consequences. Respondent admitted himself to a treatment facility, self-reported his misuse of his trust account to the ODC, fully cooperated with the ODC, including audits of his trust account with continuous monitoring thereafter, entered into a recovery agreement with LAP, attended Alcoholics Anonymous, and obtained counseling. The committee found respondent has satisfied all conditions imposed by those programs and by the ODC, and that he continues to do so, including operating his trust account correctly.

The committee further noted that respondent admitted his misconduct with respect to his trust account, admitted he knew his actions were inappropriate, admitted the potential injury that resulted from his actions, and accepted the blame and responsibility for his actions and the consequences. The committee commended respondent for his courage in doing the right thing for his clients, the public, the legal profession, and the legal system, and observed that respondent exhibited genuine | ¿remorse for his misconduct. The committee concluded that respondent has turned his life around and has once again become a contributing member of the profession.

Based on these factual findings, the committee determined that respondent knowingly violated duties owed to his clients, the public, and to the profession. Although no actual injury resulted from respondent’s misuse of his client trust account, the potential for injury was significant. The committee concluded the appropriate baseline sanction is a suspension from the practice of law.

In aggravation, the committee recognized respondent’s pattern of misconduct over a period of five years and his substantial experience in the practice of law (admitted 1984). As mitigating factors, the committee recognized the absence of a pri- or disciplinary record, absence of a dishonest or selfish motive, personal and emotional problems, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, good character and reputation, alcohol dependency, interim rehabilitation, and remorse.

Under these circumstances, and particularly considering respondent’s self-reporting to and full cooperation with the ODC, as well as his voluntary interim treatment and contract with the LAP, the committee recommended that respondent be suspended from the practice of law for one year, fully deferred, subject to a two-year period of probation with conditions.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

Respondent admitted in his answer to the formal charges that he violated Rules 1.15(a), 1.15(b), and 8.4(a) of the Rules of Professional Conduct. At the hearing, | ¡¿respondent admitted that his conduct was knowing and violated duties owed to his clients. The disciplinary board found that while there is no documented evidence of harm to any particular client or third persons, the potential for significant harm existed during the period of time in which respondent misused his client trust account.

The board generally concurred in the hearing committee’s assessment of the aggravating and mitigating factors. However, the board did not adopt the mitigating factor of alcohol dependency, given respondent’s admission that alcohol was not the cause of his misconduct. Rather, the board determined respondent’s alcohol abuse is more properly considered a personal or emotional problem, along with his divorce and bankruptcy.

Considering the ABA’s Standards for Imposing Lawyer Sanctions and the prior jurisprudence, the board agreed that the baseline sanction for respondent’s “rolling commingling and conversion” of trust account funds is a suspension from the practice of law. In light of the weight of the mitigating factors present, the board found the fully deferred suspension recommended by the hearing committee is appropriate. Accordingly, the board recommended that respondent be suspended from the practice of law for one year, fully deferred, subject to a two-year period of probation governed by the following conditions:

1. Respondent will extend his current LAP contract through February 26, 2007, and he will comply fully with all conditions of the contract.
2. Respondent’s trust account will be audited semi-annually for a period of two years, for a total of four audits. The audits will be conducted by a certified public accountant selected or approved by the ODC, with the cost and expense of the audits to be paid by respondent.
|fi3. During his first year of probation, respondent will attend and successfully complete the Ethics School offered by the Louisiana State Bar Association’s Practice Assistance and Improvement Committee. During the second year of probation, respondent will attend eight additional hours of continuing legal education in the area of law practice management or the maintenance of client trust accounts, including any “trust accounting school” established by the Practice Assistance and Improvement Committee.

The board also recommended that respondent be assessed with all costs and expenses of these proceedings, with legal interest to commence running thirty days from the date of finality of the court’s judgment until paid.

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

DISCUSSION

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

|7Respondent has admitted that he mishandled his client trust account by keeping personal funds in the account, which he then borrowed from time to time to fund his operating account. Respondent’s misconduct was knowing but caused no actual harm to his clients or to third "parties; in fact, the ODC only learned of the misconduct because respondent self-reported it. In similar" cases, this court has imposed fully or partially deferred suspensions, coupled with probation. See In re: Caskey, 04-0168 (La.2/20/04), 866 So.2d 226 (fully deferred six-month suspension, subject to a one-year period of supervised probation with conditions); In f'e: Laurent, 02-2163 (La.1/14/03), 835 So.2d 430 (fully deferred six-month suspension, subject to a two-year period of supervised probation with conditions); In re: Hernandez, 00-1283 (La.10/6/00), 770 So.2d 330 (fully deferred six-month suspension, subject to a one-year period of supervised probation with conditions); In re: Crooks, 00-1359 (La.6/23/00), 762 So.2d 1077 (fully deferred one year and one day suspension, subject to a two-year period of supervised probation with conditions); In re: Estess, OS-2741 (La.1/8/99), 740 So.2d 93 (one-year suspension, with nine months deferred, subject to a two-year period of supervised probation with conditions). See also Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La.1986).

Considering this jurisprudence, the appropriate . sanction for respondent’s misconduct is clearly a short-term suspension from the practice of law. There are very substantial mitigating factors present in this case, including the absence of a prior ^disciplinary record, absence of a dishonest or selfish motive, personal and emotional problems, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, good character and reputation, and remorse. In-light of these factors, we agree that the fully deferred suspension • and probation recommended by the disciplinary board are appropriate.

Accordingly, We will suspend respondent from the practice of law for one year," fully deferred, subject to a two-year period of probation governed by the conditions set forth in the disciplinary board’s recommendation. .We caution respondent that any violation of the conditions of probation, or any other misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that Vincent Ross Cicardo, Louisiana Bar Roll number 14146, be suspended from the practice of law for a period of one year. It is further ordered that said suspension shall be fully deferred, subject to respondent’s successful completion of a two-year period of probation governed by the conditions set forth in the disciplinary board’s recommendation. Any violation of the conditions of probation, or any other misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

WEIMER, J., recused.

      . The audit concluded that in several of respondent’s cases, he paid out too much money to a third party, and as a result, the trust account was shorted the funds. Furthermore, $218 in bank fees were erroneously charged to the account, and an overpayment of $100 to a medical provider was not charged to any case. As of December 31, 2001, there was a net shortfall in the trust account of $370.74, which has been repaid.

      . On November 19, 2001, respondent voluntarily entered Palmetto Addiction Recovery Center in Rayville, Louisiana, where he remained until February 8, 2002. Respondent has been sober since the date of his admission to Palmetto.

      . To the extent that any conversion of client funds resulted'from respondent's mishandling of his trust account, Hinrichs instructs that
      A suspension from practice of one year or less will typically result where the negligence in withdrawing or retaining client funds is not gross or of a high degree. No other fraudulent acts are committed in connection with the violation of the disciplinary rule. There is no serious harm or threat of harm to the client. Full restitution is made promptly, usually before any legal proceeding or disciplinary complaint is made. See Louisiana State Bar Association v. Hopkins, 447 So.2d 464 (La.1984); Louisiana State Bar Association v. Adams, 368 So.2d 694 (La.1979).


text:
    Millie WILBORN, et al. v. VERMILLION PARISH POLICE JURY, et al.
    No. 2004-CC-1074.
    Supreme Court of Louisiana.
    July 2, 2004.
   PER CURIAM.

Granted. La. R.S. 13:5107(D) provides that in suits against the state or a political subdivision, service of citation shall be requested within ninety days of the commencement of the action. Nothing in that statute requires that the request be filed with the court. The court of appeal’s reliance on the fax-filing statute, La. R.S. 13:850, is misplaced, as that statute deals with the requirements for filing papers in civil actions. Accordingly, the judgment of the court of appeal is reversed and the judgment of the trial court is reinstated. The case is remanded to the trial court for further proceedings.


text:
    Gwender L. STERLING v. Ian W. TAYLOR, Sr.
    No. 2004-CC-1645.
    Supreme Court of Louisiana.
    July 2, 2004.
   In re Sterling, Gwender L. f/k/a; Taylor, Gwender L.; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. K, No. 2003-03707; to the Court of Appeal, Fourth Circuit, No. 2004-C-0852.

Writ denied. Stay denied.


text:
    Carliss Wayne GORDON, Sr. v. Ethel St. Andre GORDON.
    No. 2004-CC-1600.
    Supreme Court of Louisiana.
    July 6, 2004.
   In re Gordon, Carliss Wayne Sr.;— Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson Davis, 31st Judicial District Court Div. 0, No. C-269-01; to the Court of Appeal, Third Circuit, No. CW 04-00402.

Deny on showing made.


text:
    In re VULCAN LITIGATION APRIL 2001 INCIDENTS.
    No. 2004-CC-1695.
    Supreme Court of Louisiana.
    July 8, 2004.
   In re McMillian, Jeffrey; Moore, Doria; Ourso, Benjamin; Wright, Felita; — Other(s); Applying for Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. A, No. 69388; to the Court of Appeal, First Circuit, No. 2004-CW-1486.

Denied.

WEIMER, J., would grant and reinstate the order of the trial court.


text:
    In re David ROZAS.
    No. 2004-OB-1658.
    Supreme Court of Louisiana.
    July 9, 2004.
   In re Rozas, David; — Plaintiff; Applying for Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination in July 2004. Upon ■ satisfactorily passing the examination, petitioner may apply to this Court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, Section 9, to take evidence and report to this Court as to whether petitioner has the appropriate character and fitness to be admitted to the Bar and allowed to practice law in the State of Louisiana.


text:
    In re Samuel Charles WARD, Jr.
    No. 2004-OB-1662.
    Supreme Court of Louisiana.
    July 9, 2004.
   In re Ward, Samuel Charles Jr.; — Plaintiff; Applying for Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination in July 2004. Upon satisfactorily passing the examination, petitioner may apply to this Court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, Section 9, to take evidence and report to this Court as to whether petitioner has the appropriate character and fitness to be admitted to the Bar and allowed to practice law in the State of Louisiana.


text:
    In re Robert JONES.
    No. 2004-OB-1676.
    Supreme Court of Louisiana.
    July 9, 2004.
   In re Jones, Robert; — Plaintiff; Applying for Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination in July 2004. Within fifteen days of notification that he has satisfactorily passed this examination, petitioner may file a brief with this Court, supported by appropriate documentary evidence, responding in further detail to the objections that have been raised in this matter by the Committee on Bar Admissions.

TRAYLOR, J., would deny application.


text:
    Ar’Mena McVEA, David McVea and John McVea v. Anna Ciaccio McVEA, Executrix of the Succession of Thomas Scott McVea, IV.
    No. 2004-CC-1655.
    Supreme Court of Louisiana.
    July 9, 2004.
   In re McVea, Ar’Mena et al.; McVea, David; McVea, John; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 79,786; to the Court of Appeal, First Circuit, No. 2004 CW 1314.

Denied.


text:
    Jake PALERMO, et al. v. The PORT OF NEW ORLEANS, et al.
    No. 2004-CC-1675.
    Supreme Court of Louisiana.
    July 9, 2004.
   In re Dixie Machine Welding & Metal Works Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, Nos. 08-1064, 03-12321; to the Court of Appeal, Fourth Circuit, No. 2004-C-1062.

Denied.

VICTORY, J.,'would grant the writ.


text:
    In re David Christian BROWN.
    No. 2004-OB-1713.
    Supreme Court of Louisiana.
    July 12, 2004.
   In re Brown, David Christian; — Plaintiff; Applying for Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination in July 2004. Upon satisfactorily passing the examination, Petitioner may apply to this Court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, Section 9, to take evidence and report to this Court as to whether Petitioner has the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana"""

JOHNSON, J., would deny the writ.

TRAYLOR, J., would deny the writ.


text:
    DIXIE CHICKEN, INC. ,. v. Wayne ESTRADE and Floriana M. Estrade d/b/a Diamond Starter and Alternator.
    No. 2004-CC-1714.
    Supreme Court of Louisiana.
    July 12, 2004.
   In re Estrade, Wayne et al.; Estrade, Floriana M. d/b/a; Diamond Starter Alternator; First Financial Insurance Company; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 2002-9872; to the Court of Appeal, Fourth Circuit, No. 2004-C-1147.

Stay denied; writ denied.


author: JOHNSON, J.,

text:
    STATE of Louisiana v. David Ray WAMMACK. In re H. Clay Walker.
    No. 2003-KK-2901.
    Supreme Court of Louisiana.
    July 13, 2004.
   In re Walker, H. Clay; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 229,043; to the Court of Appeal, Second Circuit, No. 38146-KW.

Granted. The trial court is instructed to conduct a hearing to determine whether sufficient funds are available to reimburse appointed counsel for his estimated overhead and out-of-pocket costs as required by State v. Wigley, 624 So.2d 425, 429 (La.1993). The district court shall take into account counsel’s responsibility for his portion of his firm’s overhead directly related to the representation of this defendant.

JOHNSON, J.,

concurs. I agree with the underlying writ grant considerations, however, my preference is to relieve Walker of any responsibility to represent the defendant, Wammack.

TRAYLOR, J., recused.

KNOLL, J., would deny the writ.


text:
    Catherine Eileen Combe PALMER v. Randall Edward PALMER, Sr.
    No. 2004-CD-1719.
    Supreme Court of Louisiana.
    July 13, 2004.
   In re Palmer, Randall Edward Sr.;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 522-540.

Denied.

CALOGERO, C.J., absent, recovering from knee surgery.


text:
    Laura J. TURNER v. NURSES’ REGISTRY HOME HEALTH, INC.
    No. 2004-CC-1728.
    Supreme Court of Louisiana.
    July 14, 2004.
   In re Turner, Laura J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs Office of Workers’ Compensation District 8, Nos. 03-08494, 04-00710,; to the Court of Appeal, Fourth Circuit, No. 2004-C-0719.

Denied.


text:
    Henry SAUVIAC, III, et al. v. James Michael DOBBINS, et al.
    No. 2004-CC-1677.
    Supreme Court of Louisiana.
    July 15, 2004.
   In re Briney & Foret et al.; Frederick, Kevin S.; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 518-009; to the Court of Appeal, Fifth Circuit, No. 04-C-603.

Stay denied. Writ denied.


text:
    DIXIE CHICKEN, INC. v. Wayne ESTRADE, et al.
    No. 2004-CC-1751.
    Supreme Court of Louisiana.
    July 16, 2004.
   ■In re Estrade, Wayne et al.; Diamond Starter & Alternator; Estrade, Floriária; First Financial Ins. Co.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 2002-9872; to the Court of Appeal, Fourth Circuit, No. 2004-C-1194.

Granted. The ruling of the trial court denying a mistrial is reversed and a mistrial is ordered. The case is remanded to the trial court for further proceedings.

KIMBALL, J., would deny the writ.

WEIMER, J., would deny the writ.


text:
    In re Marcus Anthony BRYANT.
    No. 2004-OB-1755.
    Supreme Court of Louisiana.
    July 16, 2004.
   In re Bryant, Marcus Anthony; — Plaintiff; Applying for Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination in July 2004. Upon satisfactorily passing the examination,- petitioner may apply to this Court for.the. appointment .of a commissioner in accordance, with Supreme Court Rule XVII, Section 9, to take evidence and report to this Court as to whether petitioner has the appropriate character and fitness to be admitted to the Bar and allowed to practicé 'Iáw in the'State of Louisiana.

KNOLL, J., would deny the application.


text:
    In re Patrick DePaulvis MAGEE.
    No. 2004-OB-1763.
    Supreme Court of Louisiana.
    July 16, 2004.
   In re Magee, Patrick DePaulvis; — Plaintiff; Applying for Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination in July 2004. Within fifteen days of notification that he has satisfactorily passed this examination, Petitioner may file a brief with this court, supported by appropriate documentary evidence, explaining the details of the delinquent financial matters.


text:
    In re Thomas Lea EASTERLING.
    No. 2004-OB-1768.
    Supreme Court of Louisiana.
    July 16, 2004.
   In re Easterling, Thomas L.; — Plaintiff; Applying for Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination in July 2004. Upon satisfactorily passing the examination, Petitioner may apply to this Court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, Section 9, to take evidence and report to this Court as to whether petitioner has the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana.

TRAYLOR, J., would deny the application.

KNOLL, J., would deny the application.


text:
    In re Brett S. LALA.
    No. 2004-OB-1769.
    Supreme Court of Louisiana.
    July 16, 2004.
   In re Lala, Brett S.; — Plaintiff; Applying for Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination in July 2004. Within fifteen days of notification that he has satisfactorily passed this examination, petitioner may file a brief with this court, supported by appropriate documentary evidence, responding in further detail to the objections that have been raised in this matter by the Committee on Bar Admissions.


text:
    Robert A. BOURGEOIS, et al. v. A.P. GREEN INDUSTRIES, INC., et al.
    No. 2004-CC-1621.
    Supreme Court of Louisiana.
    July 16, 2004.
   In re Roberts, J.D.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. Y, No. 488-642; to the Court of Appeal, Fifth Circuit, No. 04-C-400.

Denied.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.

WEIMER, J., would grant the writ.


text:
    In re James Michael LEE, Jr.
    No. 2004-OB-1781.
    Supreme Court of Louisiana.
    July 19, 2004.
   In re Lee, James Michael; — Plaintiff; Applying for Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination in July 2004. Upon satisfactorily passing the examination, petitioner may apply to this court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, Section 9, to take evidence and report to this court as to whether petitioner has the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana.

TRAYLOR, J., would deny the application.


text:
    In re Keelus R. MILES.
    No. 2004-OB-1785.
    Supreme Court of Louisiana.
    July 19, 2004.
   In re Miles, Keelus R.; — Plaintiff; Applying for Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination in July 2004. Within fifteen days of notification that he has satisfactorily passed this examination, petitioner may file a brief with this court, supported by appropriate documentary evidence, explaining the details of the delinquent financial matters.


text:
    Bonita IHLI v. Toby IHLI.
    No. 2004-CC-1761.
    Supreme Court of Louisiana.
    July 19, 2004.
   In re Ihli, Toby; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. I, Nos. 95-52, 98-4289; to the Court of Appeal, Third Circuit, No. CW 04-00796.

Denied.

JOHNSON, J., would grant the writ.


text:
    In re Mark W. ROGERS.
    No. 2004-OB-1801.
    Supreme Court of Louisiana.
    July 20, 2004.
   In re Rogers, Mark W.; — Plaintiff; Applying for Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination in July 2004. Upon satisfactorily passing the examination, petitioner may apply to this court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, Sec. 9, to take evidence and report to this court as to whether petitioner has the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana.

TRAYLOR, J., would deny the writ.


text:
    In re Donald A. WEATHERSBY, II.
    No. 2004-OB-1811.
    Supreme Court of Louisiana.
    July 20, 2004.
   In re Weathersby, Donald A. II; — Plaintiff; Applying for Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination in July 2004. Within fifteen days of notification that he has satisfactorily passed this examination, petitioner may file a brief with this court, supported by appropriate documentary evidence, explaining the details of the delinquent financial matters.


text:
    Stella & Reginald WINFIELD v. FULTON COMMUNITY CORPORATION.
    No. 2004-CC-1788.
    Supreme Court of Louisiana.
    July 20, 2004.
   In re Fulton Community Corporation;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. M, No. 2004-8003; to the Court of Appeal, Fourth Circuit, No. 2004-C-1188.

Deny stay; deny writ.


text:
    Diane Breaux, Wife of and Joseph BREAUX v. AVONDALE INDUSTRIES, INC., et al.
    No. 2004-CC-1770.
    Supreme Court of Louisiana.
    July 20, 2004.
   In re Territo, Peter; Northrop Grumman Ship System Inc. f/k/a Avondale Industries, Inc.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. A, No. 2001-5871; to the Court of Appeal, Fourth Circuit, No. 2004-C-1138.

Denied.


text:
    Diane Breaux, Wife of and Joseph BREAUX v. AVONDALE INDUSTRIES, INC.
    No. 2004-CC-1771.
    Supreme Court of Louisiana.
    July 20, 2004.
   In re Territo, Peter; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. A, No. 2001-5871; to the Court of Appeal, Fourth Circuit, No. 2004-C-1196.

Denied.


text:
    In re Richard T. SAHUC.
    No. 2004-OB-1825.
    Supreme Court of Louisiana.
    July 21, 2004.
   In re Sahuc, Richard T.; — Plaintiff; Applying for Permission to Take Bar Examination.

Denied. See Supreme Court Rule XVII, Sec. 4(C).


text:
    In re Amy L. BARBER.
    No. 2004-OB-1839.
    Supreme Court of Louisiana.
    July 23, 2004.
   In re Barber, Amy L.; — Plaintiff; Applying for Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination in July 2004. Within fifteen days of notification that she has satisfactorily passed this examination, Petitioner may file a brief with this Court, supported by appropriate documentary evidence, explaining the details of the delinquent financial matters.


text:
    In re Robert Evan LEONARD.
    No. 2004-OB-1861.
    Supreme Court of Louisiana.
    July 23, 2004.
   In re Leonard, Robert Evan; — Plaintiff; Applying for Permission to Take Bar Examination.

Denied. See Supreme Court Rule XVII, Section 4(C).


text:
    STATE of Louisiana v. Jason BROOKS.
    No. 2004-KK-1786.
    Supreme Court of Louisiana.
    July 23, 2004.
   In re Brooks, Jason; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 443-176; to the Court of Appeal, Fourth Circuit, No. 2004-K-1161.

Stay recalled. Writ denied.


text:
    STATE of Louisiana v. Terry LATHERS.
    No. 2004-KK-1723.
    Supreme Court of Louisiana.
    July 23, 2004.
   In re Lathers, Terry; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Pointe Coupee, 18th Judicial District Court Div. A, Nos. 65,366-F, 65,365-F; to the Court of Appeal, First Circuit, No. 2004 KW 0868.

Denied.

KIMBALL, J., recused.

WEIMER, J,, recused.


text:
    MYERS & SONS ENTERPRISES INC. v. Christopher YOUNG.
    No. 2004-CC-1818.
    Supreme Court of Louisiana.
    July 26, 2004.
   In re Myers & Sons Enterprises Inc.;— Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. A, Nos. 2002-1886, 2002-3825; to the Court of Appeal, Fourth Circuit, No. 2004-C-1017.

Stay denied; writ denied.


text:
    UNITED STATES of America v. David SMALL and Cathy Small.
    No. 2004-CC-1857.
    Supreme Court of Louisiana.
    July 26, 2004.
   In re Small, Gilda R.; — Other; Applying for Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 90-4966; to the Court of Appeal, Third Circuit, No. CW 04-00958.

Writ denied; Stay denied.


text:
    Ron Patrick BACON v. Dawn Migues BACON.
    No. 2004-CC-1944.
    Supreme Court of Louisiana.
    July 30, 2004.
   In re Bacon, Dawn Migues; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. B, No. 102273; to the Court of Appeal, Third Circuit, No. CW 04-00994.

Stay denied. Writ denied.


text:
    STATE of Louisiana . v. Derrick Todd LEE.
    No. 2004-KD-1863.
    Supreme Court of Louisiana.
    July 30, 2004.
   In re Lee, Derrick Todd; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. B, No. 034,925; to the Court of Appeal, First Circuit, No(s). 2004 KW 1658, 2004 KW 1685.

Denied.


text:
    STATE of Louisiana v. Derrick Todd LEE.
    No. 2004-KK-1934.
    Supreme Court of Louisiana.
    July 30, 2004.
   In re Lee, Derrick Todd; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. B, No. 034925; to the Court of Appeal, First Circuit, No. 2004 KW 1475.

Denied.


text:
    STATE of Louisiana v. Derrick Todd LEE.
    No. 2004-KK-1935.
    Supreme Court of Louisiana.
    July 30, 2004.
   In re Lee, Derrick Todd; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. B, No. 034925; to the Court of Appeal, First Circuit, No. 2004 KW 1129.

Denied.


text:
    STATE of Louisiana v. Derrick Todd LEE.
    No. 2004-KK-1936.
    Supreme Court of Louisiana.
    July 30, 2004.
   In re Lee, Derrick Todd; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. B, No. 034925; to the Court of Appeal, First Circuit, No. 2004 KW 1205.

Denied.


text:
    Gloria SCOTT, et al. v. The AMERICAN TOBACCO COMPANY, et al.
    No. 2004-CC-1947.
    Supreme Court of Louisiana.
    July 30, 2004.
   In re Philip Morris USA Inc.; R.J. Reynolds Tobacco Company; Brown & Williamson Tobacco Corporation; Loril-lard Tobacco Company;- Tobacco Institute Inc.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. K, No. 96-8461; to the Court of Appeal, Fourth Circuit, No. 2004-C-1205.

Denied.

TRAYLOR, J., recused.


text:
    STATE of Louisiana v. Jesse James GASTON.
    No. 2004-KK-1953.
    Supreme Court of Louisiana.
    July 30, 2004.
   In re Caston, Jesse James; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of East Carroll, 6th Judicial District Court Div. 0, No. 58,498; to the Court of Appeal, Second Circuit, No. 390059-KW.

Denied.

TRAYLOR, J., recused.


text:
    STATE of Louisiana v. Edward HARRIS.
    No. 2004-KK-1941.
    Supreme Court of Louisiana.
    Aug. 2, 2004.
   In re Harris, Edward; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 03-0411; to the Court of Appeal, Fifth Circuit, No. 04-K-662.

Writ granted for the sole, purpose of correcting an error of law in the composition of the court of appeal panel below. Because defendant’s writ application was denied by order of only two judges of the court of appeal, it -is ordered that the action be vacated and this matter remanded to the court of appeal for consideration of the application by a three-judge panel. La. Const, art. V, Section 8(A) and (B). See also State v. Stogner, 03-2817 (La.10/13/03), 855 So.2d 742; State v. Will, 02-2363 (La.9/13/02), 824 So.2d 1192.