author: h TRAYLOR, J.

text:
    PARISH NATIONAL BANK v. Norman D. OTT, III, M.D. and Beverly C. Ott.
    No. 2002-C-1562.
    Supreme Court of Louisiana.
    Feb. 25, 2003.
    Rehearing Denied May 2, 2003.

      Roy Edward Blossman, John Anthony Dunlap, New Orleans, Carver, Darden, Koretzky, Tessier & Finn, for Applicant.
    Charlton DeWitt Hunley, Mark S. Stein, New Orleans, Lowe, Stein, Hoffman All-weiss & Hauver, for Respondent.
    David Joseph Boneno, Metairie, for Louisiana Bankers Association (Amicus Curiae).
   h TRAYLOR, J.

Parish National Bank (“PNB”) seeks review of the decisions of the lower courts, finding Norman D. Ott, III, M.D. (“Dr. Ott”) not hable to PNB on a master note executed by Dr. Ott and his wife, Beverly Gallavan (“Ms.Gallavan”), and dismissing PNB’s action. In addition, the trial court dismissed Dr. Ott’s reconventional demand against PNB for damage to his credit and, because there were no damages rendered against Dr. Ott, the trial court dismissed his cross-claim against Ms. Gallavan. The court of appeal, in a 2-1 decision, affirmed the trial court judgment. After reviewing the record and the applicable law, the judgments of the lower courts are reversed in part as to Dr. Ott’s liability and affirmed in all other aspects.

FACTS AND PROCEDURAL HISTORY

On May 27, 1994, Dr. Ott and his wife, now Ms. Gallavan, signed a promissory note in favor of PNB, which allowed Dr. Ott and Ms. Gallavan to borrow up to $100,000 for a real estate business, which was run out of their home. After the | ?,$1,000 initial draw required to open the line of credit account, any future draw requests required signatures of both Dr. Ott and Ms. Gallavan.

Between June 6, 1994 and August 24, 1994, five draw requests totaling $98,000 were submitted by facsimile to PNB and were purportedly signed by both Dr. Ott and Ms. Gallavan. The draws, by direction of the draw requests, were wired to a Hibernia National Bank account in the name of Beverly Ott d/b/a Contracting Resources, Inc. The line of credit was periodically paid down. However, on January 9, 1995, and January 18, 1995, two additional draw requests, purportedly signed by both Dr. Ott and Ms. Gallavan, were submitted to PNB, one for $40,000 and one for $18,000.

Dr. Ott testified he did not sign any of the draw requests, never authorized Ms. Gallavan to sign his name to the draw requests and was unaware the line of credit was being accessed by Ms. Gallavan until August or September of 1994 and as late as October of 1994. Dr. Ott testified while at the home office he came across an interest statement indicating the line of credit had been accessed. He further testified that he merely told Ms. Gallavan, “Don’t sign my name again.” Evidencing his knowledge |sof the draw requests, on November 29, 1994, Dr. Ott surreptitiously recorded a telephone conversation between he and Ms. Gallavan, wherein Ms. Gallavan admitted to making the draw requests by signing his name; however, she never conceded she was not authorized to do so. In December of 1994, Dr. Ott executed a duplicate original of the loan documents and submitted the original life insurance policy as collateral per PNB’s second request. He testified he signed the documents because “[f]rom the inception, as a matter of course, I, of course, made that right, since it was my original intention to contract the loan.” Further, the facts indicate Dr. Ott finally called PNB in late January, 1995 instructing PNB not to authorize any more draw requests without his verbal authorization; however, he never mentioned any unauthorized activity on the account. In fact, Dr. Ott’s testimony revealed he never mentioned anything to PNB regarding unauthorized draw requests until some time after he personally made an interest payment on the line of credit on April 27, 1995.

Upon maturity of the loan in May of 1995, Dr. Ott finally advised PNB of the forgeries and refused to pay the debt. The line of credit went into default and PNB reported the delinquency to credit reporting agencies.

On April 22, 1996, PNB filed a petition against Dr. Ott and Ms. Gallavan, alleging they were solidarity liable for the total principal amount of $100,000 plus interest, costs and attorneys’ fees. On May 31, 1996, a default judgment was entered against Ms. Gallavan in the amount of $99,105.00 plus interest and attorneys’ fees. PNB based its claims against Dr. Ott on theories of ratification or confirmation of the debt, estoppel and breach of a duty to supervise Ms. Gallavan, the comaker of the loan, and failure to timely notify PNB of any unauthorized activities.

After a trial on the merits, the trial court held the controlling factor in the action 14was PNB’s failure to exercise commercially reasonable banking standards. The trial court concluded that PNB’s actions and its lack of sound banking procedures created the situation and Dr. Ott’s actions were not the controlling factor in the outcome. The trial court also found Dr. Ott’s actions did not ratify Ms. Galla-van’s unauthorized activities and that Dr. Ott’s actions with respect to notifying PNB were reasonable under the circumstances.

On April 17, 2002, the court of appeal, in a 2-1 decision, affirmed the trial court’s judgment. However, in a dissent, Judge Byrnes concluded the trial court’s finding that Dr. Ott’s conduct was reasonable under the circumstances is manifestly erroneous.

On appeal to this court, Dr. Ott for the first time raises an exception of prescription, contending PNB’s causes of action are prescribed. PNB opposed the exception. This court finds Dr. Ott’s argument regarding prescription to be without merit.

For the reasons set forth below, we reverse the trial court’s judgment in part, finding that Dr. Ott is liable for the draw requests made in January 1995, after he knew that unauthorized draw requests had been made on the account and had an opportunity to prevent any future unauthorized draw requests. In all other respects, the trial court judgment is affirmed.

LAW AND DISCUSSION

Exception of Prescription

On appeal to this court, Dr. Ott for the first time raises an exception of prescription, contending PNB’s claims had prescribed. According to La.Code Civ. IsP. art. 2163, an appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record. Further, plaintiff may demand the case be remanded to the trial court for trial of the exception. See La. Code Civ. P. art. 2163.

In considering the exception of prescription, this court notes Dr. Ott argues PNB’s causes of action, based on his alleged failure to notify PNB of the forged signatures and on the theory of agency by estoppel, are prescribed. Dr. Ott argues any such claim related to a “duty” to disclose arises ex delicto, which has a liberative prescription of one year. Dr. Ott asserts that PNB had one year from the date of the last unauthorized draw request, which was January 18, 1995, to file suit. Thus, Dr. Ott concludes that since PNB did not file suit until April 1996, its petition is prescribed on its face. In opposition, PNB contends the nature of its action arises ex contractu in that Dr. Ott’s duty to disclose arose from the terms of the loan itself and from the obligation to perform contracts in good faith, which is imposed by law. Under this theory of liability, PNB asserts a liberative prescription of five years is applicable according to La. Civ.Code art. 3498. It further asserts the applicable fivefyears prescriptive period commenced to run when the loan matured on May 26, 1995.

Regarding prescription under the facts of this case, La. Civ.Code. art. 3498 provides in pertinent part that “[ajctions on instruments, whether negotiable or not, and on promissory notes, whether negotiable or not, are subject to a liberative prescription of five years.” This case arises from a promissory note executed by Dr. Ott and Ms. Gallavan in May 1994, which PNB alleged was past due, delinquent and in default. The “causes of action” alleged to have prescribed by Dr. Ott are not causes of action, rather they are arguments made in response to Dr. Ott’s defense of forgery and unauthorized draw requests. In sum, considering the note was executed in May 1994 and suit for collection was filed in April 1996, the note had not prescribed.

Based on the applicable law and facts, this court finds this matter clearly arises under contractual obligations regarding the promissory note executed by Dr. Ott and Ms. Gallavan. Therefore, Dr. Ott’s exception of prescription is denied.

On the Merits

This court does not take issue with the trial court’s findings regarding Dr. Ott’s knowledge or alleged authorization of Ms. Gallavan’s signing of his name to draw requests made between June 6, 1994 and August 24, 1994, or whether Dr. Ott’s actions ratified or confirmed the obligations undertaken in the draw requests between the above dates. Dr. Ott testified that he did not give Ms. Gallavan permission to sign his name and that he knew nothing of the draw requests until as late as October 1994. On the other hand, Ms. Gallavan testified that Dr. Ott played a substantial role in the real estate business and he knew that she would access the line of credit by signing his 17name to the draw requests to purchase or renovate property in their business. She further testified that he never objected to her signing his name because he was usually at work and not available to sign. In this case, the trial court weighed the credibility of both parties and gave more weight to Dr. Ott’s testimony, finding Dr. Ott did not know the line of credit was accessed between June and August of 1994 and did not authorize or ratify Ms. Gallavan’s actions.

In addition, the court does not take issue with the trial court’s factual finding that Dr. Ott’s conduct, under the circumstances, did not ratify or confirm Ms. Gallavan’s actions regarding the line of credit during the period between June and August of 1994. Nor does this court take issue with the trial court’s factual finding that PNB did not exercise commercially reasonable banking standards as applied to the facts of this case. These are factual issues which this court will defer to the findings of the trial court. Where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court is convinced that had it been the trier of fact, it would have weighed the evidence differently. Lirette v. State Farm Ins. Co., 563 So.2d 850 (La.1990). The trier of fact is in a better position to evaluate the credibility of witnesses and make factual determinations than is a reviewing court. Stobart v. State Through DOTD, 617 So.2d 880 (La.1993). We cannot say the trial court’s credibility calls and factual determinations were clearly wrong. The trial court determined that the actions of Dr. Ott were not the controlling factors in this case, but rather the controlling factor was PNB’s failure to exercise reasonable banking standards. In Stobart, we stated:

A court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” This court has announced a two-part test for the reversal of the factfinder’s determinations: (1) the appellate court must find from the record that a reasonable |/actual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). The issue to be resolved by the reviewing court is not whether the trier of fact is right or wrong but whether the factfinder’s conclusion was a reasonable one.... The reviewing court must always keep in mind that if the trial court’s findings are reasonable in light of the record reviewed its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as trier of fact, it would have weighed the evidence differently.

We do, however, take issue with the trial court’s finding that Dr. Ott’s actions after November 1994, when there was no doubt he knew Ms. Gallavan had forged his name on previous draw requests and failed to inform PNB of the unauthorized draw requests at that time, were reasonable.

Although there are no special rules applicable to unauthorized draw requests such as those found in the Louisiana version of the UCC regarding negotiable instruments and bank deposits and collections, there are specific rules governing the promissory note signed by Dr. Ott, which is a negotiable instrument governed by Title 10, La. R.S. 10:1-203, which provides “[e]very contract or duty within this Title imposes an obligation of good faith in its performance or enforcement.” Additionally, it provides that “the standard of good faith performance required under this Title shall be based on Civil Code Articles 1983, 1996 and 1997.” La. Civ. Code art.1983 provides that “contracts must be performed in good faith.” La. Civ. Code art.1996 provides that “an obli-gor in good faith is hable only for the damages that were foreseeable at the time the contract was made.” Finally, La. Civ. Code art.1997 |gprovides that “[a]n obligor in bad faith is liable for all the damages, foreseeable or not, that are a direct consequence of his failure to perform.”

The record clearly reveals Dr. Ott discovered the forgeries as early as August 1994, and as late as October 1994, when he found an interest statement on the desk in the home office. He testified:

Q. When was the first time you learned of the fact that Beverly Ott accessed that line of credit in addition to the original one thousand dollar draw that you made individually?
A. I can’t pin it down to an exact date, but it had to be sometime in late August or September, I think, of '94. Could have some leeway, but, that seems to be about right.
Q. How did you come to find out that she had accessed the line of credit?
A. Well, I was in the office and there was some sort of interest sheet or something — or something of that nature from Parish National Bank there, and I saw that and it struck me that I — that I hadn’t — that X — that I hadn’t signed any draws and I don’t know the time span in which I talked to her about it, but I asked her about it and [s]he told me that she had signed my name on that line of credit.
Q. And what time frame are we speaking of? When approximately did that happen?
A. August, September, October, '94.

Further, the record is clear Dr. Ott knew Ms. Gallavan was purchasing and renovating property, some of which he had a personal interest in and others in the name of CRI, in which he was a thirty percent shareholder. Later, his testimony revealed he was concerned enough regarding Ms. Gallavan’s dealings with the line of credit that he tried to take precautions in his real estate dealings:

Q. The money that came from Parish National Bank, are you aware that it was deposited into a Hibernia account?
A. I really don’t know where it was deposited.
|inQ. You don’t know where it went? Did you know that Beverly had drawn the money on the Parish National Bank loan?
A. Well, not ’til I had found the interest payments, sometime [in] September or October, in '94.
Q. Okay. Now, you were aware that she was purchasing properties in the name of Contracting Resources, Inc.?
A. That she was purchasing properties? Yes.
Q. You didn’t know whose name the properties were going in?
A. I know there were some in her name and my name, individually. Through the whole time span, some were in Contracting Resources solely, and two properties, Contracting Resources and Terrence Tyler, and then I think the last two were Contracting Resources and Norman Ott.
Q. Was there any reason why you acquired an interest in the last two, in joint ownership with Contracting Resources, Inc.?
A. Yes.
Q. And what would that be.?
A. Well, by this time I knew that the loan was not as it should have been, the draws, and I felt that I could do — that I could control the funds and protect myself, but Mr. Motter was at the closing of these two things and failed to put the funds into escrow, so those fund[s] were lost.

Thereafter, in November 1994, he surreptitiously recorded Ms. Gallavan stating she did in fact sign his name to draw requests. Thus, as noted by Judge Byrnes in dissent, by Dr. Ott’s own testimony, he admitted that while he became aware of the problem on the line of credit account when he came across the interest statement in September or early October, he waited until late November 1994 to even question Ms. Galla-van about the matter and made no mention of it whatsoever to PNB. Dr. Ott admitted it was not until March or April at the earliest that he finally notified his accountant that his signatures on the draw requests were forged. Dr. Ott’s actions were egregious and unreasonable in that he waited a few months after discovering the forgeries before In even taking minimal action and it was not for several months after that when he finally told PNB that his signatures had been forged on the draw requests. The record establishes that had he notified PNB of the unauthorized activity on the account as early as November 1994, when he knew for certain that Ms. Gallavan was signing his name to the draw requests, PNB could have taken precautions to protect both of their interests. However, the facts reveal that Ms. Gallavan proceeded to make two additional draw requests in January 1995. The finding of the trial court that Dr. Ott’s actions in failing to inform PNB at some point after November 1994 and prior to Ms. Gallavan’s draw requests in January 1995 were reasonable under the circumstances is clearly erroneous in light of the record in its entirety. This court believes that the obligation of good faith and fair dealing imposed by La. R.S. 10:1-203 applies to the issues presented by this appeal. This court believes this obligation applied to the actions, or lack of action, of Dr. Ott in failing to notify PNB of the forgeries.

DECREE

The judgments of the lower courts are reversed in part, as Dr. Ott is liable for the draw requests made in January 1995, after he was well aware of the previous unauthorized draw requests and faded to inform PNB. The matter is remanded to the trial court for entry of judgment in accordance with this opinion. In other respects, the trial court judgment is affirmed.

      .The facts indicate Dr. Ott and Ms. Gallavan represented the line of credit was for a real estate business, Contracting Resources, Inc. ("CRI”), of which Dr. Ott owned thirty percent of the shares and Ms. Gallavan and her daughter owned the remaining shares and primarily handled the business. CRI purchased, renovated and re-sold houses. Initially, Ms. Gallavan attempted to secure the line of credit in the name of CRI; however, because of insufficient financial data on the company, a separate application was submitted for a line of credit based on Dr. Ott’s and Ms. Gallavan’s credit; thus, the line of credit was ultimately issued in the names of Dr. Ott and Ms. Gallavan, individually.

      . Notably, between May 1994 and August 1994, CRI purchased numerous properties, including 1221 Hudson Street in Kenner, Louisiana; Rt. 1, Box 510 in Yscloskey, Louisiana; and 5225 Rye Street in New Orleans, Louisiana. These purchases were made jointly with Dr. Ott. In fact, the Yscloskey property Dr. Ott now owns by donation from CRI for consideration of $20,000 paid by Dr. Ott.

      . Testimony by a PNB representative revealed that draw requests by facsimile were not customary, however, PNB allowed the draw requests to be submitted by facsimile to comply with Dr. Ott’s and Ms. Gallavan's request.

      . During that time, CRI purchased several more properties, namely, 7037 Magazine Street in New Orleans, Louisiana; 208 Car-rollton Street in Metairie, Louisiana; and 320 Waldo Street in Metairie, Louisiana.

      . Facts further revealed Dr. Ott and Ms. Gal-lavan physically separated in early January 1995. Thereafter, however, several properties were purchased by Dr. Ott jointly with CRI.

      . La.Code Civ. P. art. 2163 provides:
      The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record. If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial of the exception.

      . In the instant case, PNB has not made any demands that the case be remanded to the trial court for trial of the exception of prescription and argues the exception should be denied.

      .La. Civ.Code art. 3498 provides:
      Actions on instruments, whether negotiable or not, and on promissory notes, whether negotiable or not, are subject to a liberative prescription of five years. This prescription commences to run from the day payment is exigible.

      . The written draw requests in this matter are not "instruments” as defined under Louisiana's version of the UCC, La. R.S. 10:3-104(b), and thus not governed by the Negotiable Instrument provisions of UCC Chapter 3. Further, the draw requests are not "items” and accordingly not governed by the Bank Deposit and Collections provisions of UCC Chapter 4. Specifically, the rules and standards of conduct for banks and depositors are not directly applicable, such as the time limit for when a deposit account owner must notify the drawer bank of an unauthorized check. La. R.S. 10:4-406.


source: Caselaw Access Project

author: It CALOGERO, Chief Justice,

license: Public Domain

text:
    Tiffany PICHON, et al. v. Betty C. REYNOLDS, et al.
    No. 2002-C-2856.
    Supreme Court of Louisiana.
    Feb. 25, 2003.
   In re: Antoine, Ernest Jr. — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. K, Nos. 97-03605, 96-15810; to the Court of Appeal, Fourth Circuit, No(s). 2002-CA-0044, 2002-CA-0045.

Denied.

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

It CALOGERO, Chief Justice,

dissents from the denial of the writ application and assigns reasons.

Recently, in Dorsey v. Consolidated Freightways, a near-unanimous court granted relief to the plaintiffs on the basis that the defendant’s filing of a motion to dismiss three of the five plaintiffs from the suit constituted a step in the defense of the action sufficient to interrupt abandonment as to the remaining plaintiffs. 00-0772 (La.5/26/00), 762 So.2d 628. We are confronted today with a case similar to Dorsey, albeit not identical in that Dorsey involved multiple plaintiffs in a single action, while the instant case involves several actions consolidated upon motion by the defendant with the prospect of a common trial. Nonetheless, in each of the cases, the defendant settled with less than all of the plaintiffs and then later sought to dismiss the action or actions as to the non-settling plaintiff or plaintiffs on the ground of abandonment.

La.Code Civ. Proc. art. 561 provides that “[a]n action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years.... ” (Emphasis supplied.) When any party to a lawsuit takes formal | ^action in the trial court, it is effective as to all parties. Delta Development Co., Inc. v. Jurgens, 456 So.2d 145 (La.1984). Thus, in Dorsey, this court implicitly recognized that, under a liberal interpretation of Art. 561, see Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 8 (La.5/15/01), 785 So.2d 779, 785, the filing by the defendant of a motion to dismiss three of the five plaintiffs constituted a step in the overall defense of the case, because it substantially changed the position of the parties by tending to reduce the defendant’s exposure to damages.

That identical contention is being made in the instant case by the non-settling plaintiff in one of the consolidated cases. In my view, the reasoning of Dorsey would logically apply in the instant case, where the defendants moved to consolidate the plaintiffs’ cases for trial, and later moved to dismiss one of the plaintiffs’ cases that had been compromised. The defendants’ action, therefore, was a step in the defense of the case because it substantially changed the position of the parties by narrowing the issues for trial and by reducing the defendants’ exposure to damages at trial. Consequently, I believe the district court erred in relator’s case by granting the defendants’ motion to dismiss the ease as abandoned. Yet, this court in a six-to-one decision today is blessing the dismissal of the relator’s action for abandonment, and I fail to see any real distinction between the two cases that would mandate a contrary result.

Admittedly, consolidation for trial does not “merge” the cases, unless the records reflect an intention to do so, and each case retains its procedural status and attributes. See Maraist and Lemmon, 1 Louisiana Civil Law Treatise: Civil Procedure, § 10.8, p. 252 (West 1999) (citing Voth v. American Home Assurance Co., 219 So.2d 236 (La.App. 1st Cir.1969)). However, Louisiana courts have found that taking a particular formal step in one suit can be sufficient to interrupt the ^abandonment period in another, related suit. See Plot-kin, 1 Louisiana Civil Procedure, pp. 381-82 (West 2002) (gathering cases). More pertinently, this court has at least once before considered the issue of whether the abandonment period is interrupted in one action by steps taken during the •interval by a party in another, consolidated action, and has concluded that it was so interrupted. See Reed v. Pittman, 257 La. 389, 242 So.2d 554 (1970).

The Reed court specifically held that, “when ... separate suits are consolidated for trial, steps in the prosecution or defense of the consolidated proceedings may be regarded as taken not only in the principal suit but also in others consolidated for trial with it.” 242 So.2d at 558. The Reed court found inter alia that the defendant’s actions taken in the consolidated proceedings were actions in the prosecution or defense not only of the principal suit but also of all other suits consolidated with it. The Reed court acknowledged Louisiana jurisprudence, including the Voth case cited by Maraist and Lemmon, supra, holding that suits consolidated for trial retain their separate identities for procedural purposes, such as requiring separate judgments. However, the Reed court reasoned that this concept, that consolidated actions retain their separate identities, is “not relevant” to the issue of whether, when such separate suits are consolidated for trial, steps in the prosecution or defense of the consolidated proceedings may be regarded as taken not only in the principal suit but also in others consolidated for trial with it. 242 So.2d at 558. The court then reversed the lower courts’ judgments dismissing the plaintiffs suit as abandoned.

|4In the instant case, the defendants moved to consolidate the three actions for trial and thereafter settled with two of the three plaintiffs. In my view, applying the holdings and reasoning of this court in Reed and Dorsey, the defendants’ motion to dismiss the action of a settling plaintiff was a formal step in the defense of the consolidated proceedings sufficient to interrupt abandonment as to the non-settling plaintiff, relator in this case.

As Louisiana courts have consistently observed, the concept of abandonment is not intended to be punitive in nature, but to discourage vexatious, harassing, or frivolous lawsuits by preventing plaintiffs from allowing such suits to linger. E.g., Shulver v. Slocum, 566 So.2d 1089, 1091 (La.App. 2nd Cir.), writ denied, 569 So.2d 984 (La.1990). “Dismissal of the lawsuit is the harshest of remedies. The law favors and justice requires that an action be maintained whenever possible so that the aggrieved party has had his day in court to which he is entitled.” Id. In Louisiana, “courts have declined to allow form to prevail over substance in determining whether an action has been abandoned.” Clark, 00-3010, p. 9, 785 So.2d at 786.

For these reasons, I dissent from the denial of the writ application.

      . The Dorsey court relied in part on McCandless v. Poston, 540 So.2d 1310 (La.App. 2nd Cir.1989). In McCandless, after a joint motion to dismiss the settling defendants, the non-settling defendants moved to dismiss the plaintiffs action on the ground of abandonment. The court held that entry of order of the partial dismissal as to less than all of the defendants was a step in the prosecution or defense of the action within the meaning of La.Code Civ. Proc. art. 561 and was effective as to all of the defendants.

      . See also Pan American Import Co., Inc. v. Buck, 440 So.2d 182, 186 (La.App. 4th Cir. 1983), reversed in part on other grounds, 452 So.2d 1167 (La.1984) (when separate suits are consolidated for trial, steps in the prosecution or defense of the consolidated proceedings may be regarded as taken not only in the principal suit but also in others consolidated for trial with it).

      . See also James v. Formosa Plastics Corp. of Louisiana, 01-2056 (La.4/3/02), 813 So.2d 335. In James, wherein multiple actions were cumulated by the plaintiff, this court in a unanimous opinion found that the abandonment period as to one defendant was not interrupted while the plaintiff was pursuing on appeal the dismissal of another defendant. However, the James court expressly acknowledged that, "when all the parties were litigating this suit in the trial court prior to that court's ruling granting [one defendant’s] exception of prescription, the abandonment period was interrupted as to all parties when any party took formal action in the trial court.” Id., pp. 5-6, 813 So.2d at 339.


author: | JOHNSON, J.,

text:
    STATE of Louisiana, v. Anthony STOKES.
    No. 2003-KK-0556.
    Supreme Court of Louisiana.
    Feb. 28, 2003.
   In re: State of Louisiana — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. F, Nos. 97-F1881-1; to the Court of Appeal, Second Circuit, No. 37403.

Writ granted in part; denied in part. The court of appeal’s decision, insofar as it found that the statements against penal interest allegedly made to Glen Nelson by Tony Hunter are admissible, is hereby reversed. The district court judge totally discredited the testimony of Nelson. In the absence of corroborating evidence to demonstrate the trustworthiness and reliability of Nelson’s testimony regarding the alleged statements made to him by Hunter, such hearsay statements are inadmissible. La. Code Evid. art. 804(B)(3); State v. Hammons, 597 So.2d 990 (La.1992). In all other respects, the writ application is denied.

KIMBALL, J., concurs in part and dissents in part, being of the opinion that the State’s writ application should be denied in full.

JOHNSON, J., concurs in part and dissents in part and assigns reasons.

VICTORY, TRAYLOR, and KNOLL, JJ., concur in part and dissent in part, being of the opinion that the State’s writ application should be granted in full.

| JOHNSON, J.,

concurs in part and dissents in part.

It is my opinion that the State’s writ application should be denied in full.

I agree with the majority’s conclusion that the court of appeal correctly found the statement made by Tony Hunter to the defendant is admissible, as this statement constitutes an “excited utterance” under La. C.E. art. 803(2).

However, I disagree with the majority’s conclusion that the court of appeal erred in finding the statements made by Tony Hunter to Glen Nelson are admissible. In my view, the court of appeal correctly found that the alleged statements “interlock” with each other, such that there is a sufficient showing of trustworthiness to allow admission of these statements. Further, there is sufficient independent evidence in the record to corroborate these statements. See Chambers v. Mississippi 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), wherein the United States Supreme Court recognized that a defendant’s fundamental constitutional right to present witnesses in his own defense requires the Court to allow hearsay evidence if the surrounding circumstances provide considerable assurance of the statement’s reliability.

The surrounding circumstances in the instant case which tend to provide reliability of the statements include (1) the testimony of Glen Nelson that Tony Hunter bragged to Glen Nelson not only that he committed the crime in question, but that he committed other crimes as well, (2) the testimony of the defendant that Tony Hunter attacked him while they were in jail together and threatened that he | ¡¿would kill defendant’s sister and her children if defendant did not take the charge for the crime in question, (3) the testimony shows that Tony Hunter knew the defendant’s sister and frequently visited her home.


author: 11 VICTORY, J.

text:
    State of Louisiana, In the Interest of K.G. and T.G.
    Nos. 2002-CJ-2886, 2002-CJ-2892.
    Supreme Court of Louisiana.
    March 18, 2003.
    Rehearing Denied May 2, 2003.

      Bernadette R. Lee, New Orleans, Suzanne E. Ecuyer, Edith H. Morris, New Orleans, Counsel for Applicant.
    Shelia C. Myers, Linda A. Mitchell, New Orleans, Counsel for Respondent.
   11 VICTORY, J.

This case involves a trial court’s termination of a father’s parental rights based on his failure to notice that his children’s mother had physically abused his infant daughter. We granted this writ to determine if the court of appeal erred in reversing the judgment by the Juvenile Court for the Parish of Orleans terminating the father’s parental rights. After an extensive view of the record, we find that the state, through the Department of Social Services, Office of Community Services (“OCS”), failed to prove by clear and convincing evidence any of the statutory grounds for terminating parental rights under La. Child. Code art. 1015, and we therefore affirm the judgment of the court of appeal.

FACTS AND PROCEDURAL HISTORY

In 1997, Phillip Humphries (“Hum-phries”), then 28 years old, became involved with Raven Green (“Raven”), a 16-year-old female, who was in a step marching group coached by Humphries’ wife and also a member of the Humphries’ church. Humphries and his wife divorced, and on February 12, 1998, as a result of her relationship with Humphries, Raven gave birth to a baby girl, K.G. Humphries was convicted of “attempted carnal knowledge of a juvenile” because of his involvement with Raven. Raven and Humphries began living together in September of 1999. In | ¡.order to support Raven and his child, Humphries worked two jobs, a 40-hour per week job at Kwik Kopy as a pressman, and a part-time job most weekends and two-three nights per week as a printer for Dennis “Sonny” Bergeron in Slidell. His work schedule resulted in him being home only two or three nights per week. On January 18, 2000, Raven, then 19, gave birth to a second girl, T.G. Raven believed that T.G. was fathered by “Emile” with whom she had two sexual encounters. When Humphries learned that Raven was pregnant and that the child may not be his, he assured Raven that he would raise the child as his own. When he was home, Humphries played with K.G. and T.G. and occasionally fed and changed T.G.’s diaper once a week, but Raven was responsible for the primary care of the children.

In August of 2000, it was discovered that T.G. had suffered a recent bilateral skull fracture and hip dislocation, and older and untreated fractures of the right arm and left leg, as a result of physical abuse by Raven. T.G. was taken into state care, referred to Children’s Hospital for treatment, and then placed with Raven’s sister, Amanda Harvey (“Harvey”). K.G., who was examined by Children’s Hospital and was found to have suffered no injuries or abuse, was placed with her maternal grandmother. OCS filed a petition for Child in Need of Care under La. Child. Code art. 606 as to both T.G. and K.G. and formulated a case plan for “reunification/adoption.”

Numerous disposition hearings were conducted relative to the Petition for Child in Need of Care, with a Judgment authorizing an 18-month informal adjustment agreement signed on August 30, 2000. Under the terms of this agreement, Hum-phries was required to report to the LSU Infant Team for evaluations and one-on-one parenting instruction. In January, 2001, it was discovered through DNA testing that Humphries was indeed the father of T.G. From August, 2000, through February, L2001, Humphries was not allowed any visitation with K.G. or T.G., although he was allowed one supervised play session with T.G. on December 14, 2000, and one supervised play session with K.G. on January 10, 2001.

In May of 2001, OCS decided to abandon the goal of reunification and it subsequently filed a Petition to Terminate the Parental Rights of Raven G. and Phillip Hum-phries in July of 2001. OCS proceeded to trial against Humphries based on paragraphs IX and X of the Petition, which read:

IX.
As to any biological father, Phillip Humphries, the Department of Social Services, Office of Community Services represents that his parent’s rights be terminated under L.R.S.-Children’s Code Article 1015, Section (3) and/or (4) and in support thereof alleges:
X.
The father’s neglect of T.G. was chronic, life threatening and/or resulted in gravely disabling physical or psychological injury or disfigurement, to wit:
1. The father resided in the same household with the mother Raven G. and children K. and T.
2. The father failed to notice any of the mistreatment of T. by Raven G., including but not limited to the physical injuries inflicted on the baby, or to T’s emotional reaction to her mother, particularly T’s reactions to being fed by her mother.
3. The father failed to acknowledge the danger posed by Raven to T. by insisting that T. be returned to their home after Raven had given T. to Amanda Harvey with the knowledge that Raven had expressed an inability to care to T.

The trial court granted OCS’s petition for termination of Humphries’ paternal rights, based on the following finding:

... try as I may I cannot come to grips with how he did not know, how he could not see, how he could not hear the pain of T. as she lay with |4swoIIen skull because her mother had hit her head into the wall, as he[sic] lay with broken arms, legs and he said, he changed the diaper. He said he played with her when he came home from work. I believe that the child would have been in so much pain he would have had to know. He should have known. And as much as I would like to do something different, I cannot believe that he did not no[sic], or he should have known.

The court of appeal reversed the judgment terminating Humphries’ parental rights, concluding that “there was an absence of clear and convincing evidence in the record of any wrongdoing on the part of Mr. Humphries” and that therefore, “it was manifestly erroneous for the trial court to follow O.C.S.’s recommendation without the requisite evidence to justify permanent termination of the paternal rights of Mr. Humphries.” State ex rel. K.G., 02-0820 (La.App. 4 Cir. 11/13/02), 832 So.2d 1035. We granted writ applications filed by OCS and on behalf of T.G. and K.G. to determine whether the court of appeal was correct in finding that trial court’s judgment terminating Humphries’ paternal rights was manifestly erroneous. State in the interest of K.G. and T.G., 02-2886 c/w 02-2892 (La. 12/17/02).

DISCUSSION

An appellate court reviews a trial court’s findings as to whether parental rights should be terminated according to the manifest error standard. State ex rel. J.W., 01-500 (La.App. 4 Cir. 11/14/01), 801 So.2d 1182. In two recent cases, we discussed the concerns regarding the involuntary termination of parental rights by the state, as follows:

In any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child. The parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children warranting great deference and vigilant protection under the law, and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship. However, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit ^establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care. In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent.
The State’s parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the State seeks the permanent severance of that relationship in an involuntary termination proceeding. The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. As such, the primary concern of the courts and the State remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven.
Title X of the Children’s Code governs the involuntary termination of parental rights. La. Child. Code art. 1015 provides the statutory grounds by which a court may involuntarily terminate the rights and privileges of parents. The State need establish only one ground, La. Child. Code art. 1015, but the judge must also find that the termination is in the best interest of the child. La. Child. Code. art. 1039. Additionally, the State must prove the elements of one of the enumerated grounds by clear and convincing evidence to sever the parental bond. La. Child. Code art. 1035(A). (Cites omitted.)

State in the Interest of J.A., 99-2905 (La.1/12/00), 752 So.2d 806, 810-811; see also State ex rel. C.J.K., 00-2375 (La.11/28/00), 774 So.2d 107.

In this case, the trial court based its termination on one of the grounds alleged in the state’s amended petition, La. Ch.Code art. 1015(3)(i) which provides as cause for termination:

(3) Misconduct of the parent toward this child ... which constitutes extreme abuse, cruel and inhuman treatment, or grossly negligent behavior below a reasonable standard of human decency, including but not limited to the conviction, commission, aiding or abetting, attempting, conspiring or soliciting to commit any of the following:
|fi(l) Abuse or neglect which is chronic, life threatening, or results in gravely disabling physical or psychological injury or disfigurement.

In State ex rel. C.J.K., supra, the state sought involuntary termination of a mother’s parental rights because the mother had allowed herself to be physically abused repeatedly in the presence of their young children and she had continued to return to the husband after filing protective orders and failed to pursue contempt of court proceedings for his violation of the protective orders, and even continued to live with the husband after the termination proceedings had been filed. The trial court terminated her parental rights, but the court of appeal reversed. This court concluded, pursuant to La. Ch.Code art. 1015(3)(i), that “the lower court erred in fading to recognize that passive abuse or neglect by a parent can inflict just as, if not more so, ‘gravely disabling’ injury as physical abuse” and that the mother’s parental rights should be terminated. 774 So.2d at 114. We found that there was clear and convincing evidence that the mother “participated in passive abuse, namely that she allowed or tolerated the infliction of mental injury on her children” and that “[wjhether termed abuse or neglect, the evidence overwhelmingly indicates that the children suffered severe trauma from their repeated exposure to violence perpetrated by [the father] on [the mother].” Id. at 115.

Thus, it is clear that passive abuse, the father’s alleged allowance or tolerance of the infliction of physical and mental injury upon the children, can satisfy the requirement of “abuse or neglect” under La. Child. Code art. 1015(3)(i). However, the issue in this case is whether the state proved by clear and convincing evidence that Humphries knew of the abuse inflicted by Raven upon T.G. and yet allowed or tolerated the abuse by his inaction. The trial court first terminated the mother’s rights under La. Child. Code art. 1015(3)(i) for her admitted physical abuse of T.G. The trial |7court then terminated Hum-phries’ parental rights stating that “failing to take steps to know what was going on with the children is tantamount to aiding and abetting in the behavior engaged in by the mother. And so it’s based on 1015(3)(i) as well.” Based on the following evidence in the record, we agree with the court of appeal that the trial court’s finding was manifestly erroneous as the state failed to prove by clear and convincing evidence that Humphries knew of the abuse but failed to take any action to prevent it.

At trial, the following evidence was presented. T.G.’s health care was provided by the Mary Buck Clinic. The record indicates that the Mary Buck Clinic saw and examined T.G. on February 4, April 18, and May 4, 2000, and the reports from these examinations indicated that the baby was doing well with no concerns noted. On June 29, 2000, the record from T.G.’s examination indicated that, at 10 lbs. 5 oz., the baby “appeared small for her age,” had diarrhea for two weeks and was mildly dehydrated. Her next visit was scheduled for July 13, 2000, but the record indicates Raven failed to take her. Sometime in late July, Raven contacted T.G.’s aunt, Amanda Harvey (“Harvey”) to come get T.G. and care for her for a while. Raven testified that she told Harvey that she was losing control and needed a break from caring for the baby. However, both Raven and Humphries testified that Raven told Humphries that she wanted Harvey to care for T.G. because Raven wanted to look for a job and go back to work. The baby was not seen by the clinic until August 4, 2000, when Harvey brought her in and T.G. was diagnosed with “failure to thrive” syndrome and Harvey was given instructions on feeding, including a different kind and amount of formula, in order to get her weight up. Her physical examination indicated that all parts of her body, including skeletal, extremities, cranial, and skin were all normal.

Raven testified that sometime after this visit, Harvey told her that Mary Buck Clinic had concerns about T.G.’s weight and recommended that T.G. stay with Harvey | sin order to improve her weight. When Raven told Humphries that the clinic wanted T.G. to stay with Harvey because of concerns about her low weight, Humphries told Raven that he wanted T.G. back in their home, so the baby was returned to them. T.G. had stayed with Harvey for approximately one and one-half weeks before she was returned to Raven and Humphries’ home.

On August 10, 2000, Raven brought T.G. back to Mary Buck Clinic where she was again diagnosed as failing to thrive and referred to University Hospital for treatment of this condition. The Mary Buck Clinic report from August 10, 2000, indicates that they found no other problems, other than failure to thrive. Upon admittance to University Hospital, the doctors noticed that T.G.’s head was swollen, and Raven told the doctors that she noticed a bruise and swelling on T.G.’s head at 3:00 a.m. the morning of admittance. Raven confessed to the police that she caused T.G.’s head injury when she swung her into a wall by her feet or legs. However, whether she did this on August 8 or 9 is unclear, as she testified that after she did this in the afternoon, she called Harvey and told her to come get the baby because she had hurt her. She then put the baby to bed. She testified that Humphries went straight from his job at Kwik Kopy to his job in Slidell and did not return home that night until around midnight or one o’clock am. She further testified that the next morning, Humphries did not feed or change the baby before going to work, but that she fed and bathed her and took her to Harvey’s house (or Harvey came and got her) so that Humphries would not see that T.G. had been hurt. She further testified that she and Harvey tried to bring T.G. to Mary Buck clinic that day or the next (she had a regularly scheduled appointment for August 8) because T.G. was throwing up after she ate but that they were late for their appointment, so the clinic told her to come | aback the next day. The baby continued to stay with Harvey, but the clinic records show that Raven alone brought the baby to the clinic on August 10.

At University Hospital, doctors diagnosed a recent bilateral skull fracture and a hip dislocation, and a prior fracture of the right arm near the shoulder and clean break of the lower left leg. T.G. was admitted to the pediatric intensive care unit at University Hospital, where she was treated from August 10-17, 2000. Dr. Benton, of Children’s Hospital where T.G. was referred after her University Hospital stay, testified regarding his August 22, 2000, report that the skull fracture and hip dislocation were new and occurred contemporaneously and that the arm and leg fractures were older and that the exact date they had occurred could not be determined with certainty, other than that they had occurred in the prior three months and had never been treated. He testified that the older arm and leg injuries would cause T.G. irritability, decreased appetite, and that if you were “observant enough,” you would notice that T.G. disused that arm and leg. He testified that the arm fracture would usually cause swelling but not a bruise, and that the leg fracture was possibly swollen and maybe bruised. He testified the skull fracture would maybe cause unconsciousness, increased irritability, and decreased appetite. He described the hip dislocation as the “truly injurious one,” and having occurred recently, either prior to the skull fracture or at the same time, although he did not believe it happened when Raven swung T.G. by the legs against the wall. He described the hip as being completely dislocated and causing incredible pain and that when you changed T.G.’s diaper, “an astute individual would realize this legs not reacting the same way as the other leg.”

Humphries maintained that he did not know that Raven had abused T.G. until she was arrested and he read the police report. He testified that from March-August, 2000, he did not notice that T.G. was in any pain, nor did he notice any bruises, | ^swelling, restriction in movement or sensitivity, nor did he attach any particular significance to the fact that she was small because he had family members who were small. He testified that she was a “cry full” baby, and that sometimes she would not eat when Raven tried to feed her, but that sometimes she would also refuse to eat when he tried to feed her. He further testified, that generally, when he was home, he fed T.G. every morning before he went to work, that he changed her diaper once a week, that he never bathed her, and that he played with her or rocked her occasionally. He testified that he generally played more with K.G. as she was older. He testified that he didn’t know Raven was stressed from caring for the children and that he only saw her become enraged on two occasions, once while talking on the phone to her mother and once while talking on the phone to her brother. This was consistent with Raven’s testimony that she hid the abuse from Humphries and that she never appeared stressed or angry in front of Humphries. Raven further testified that K.G. never witnessed any abuse on T.G., and that K.G. was either outside playing with cousins or in her room when the abuse occurred. After Raven was released from jail, he asked her about the abuse but she refused to talk about it. He and Raven split up in March of 2001, because Raven did not want to work at getting their kids back and he did.

The court of appeal described the evidence presented as to any wrongdoing by Humphries as follows:

There was absolutely no evidence presented at trial that Mr. Humphries ever abused either of his two children and in fact, no allegation of abuse was ever made against him. The trial court specifically affirmed this fact, saying, “I do not believe that Mr. Humphries hit or touched the child’s limbs. I am not say that.”
In addition there is no evidence in the record that Mr. Humphries refused or failed to supply the children with necessary food, clothing, or shelter. Mr. Humphries’ parental rights were terminated because he relied on the mother of his two children to properly care for their youngest child, while he was away from home working two jobs in order to support his family.
_|_yThe trial court acknowledged Mr. Humphries’ efforts to support his children and their mother, commenting:
In our culture we value men who work to provide for their families a home, food, clothing, and shelter. We value that. A concern for me in this case is that seems to have been minimized, because Mr. Humphries worked and wasn’t available somehow that equates to not being a good father. He’s to be applauded, I believe, for that effort. And at a time when he understood I guess that there was a problem, and he needed to do something different, he made a sacrifice and he quit one of the jobs. Again, something that I think is a positive.

State ex rel K.G., Slip Op. at 3.

Indeed, in this case, as also found by the court of appeal, there was absolutely no clear and convincing evidence presented that Humphries knew of the abuse by Raven. Id. No evidence was ever presented at trial to support a finding that Hum-phries ever had the opportunity to observe his daughter’s head between the time Raven swung the baby’s head against the wall and the time University Hospital discovered the injuries. Further, her severe hip dislocation occurred, according to medical testimony, at the same time as the skull fracture, so Humphries would not have had the opportunity to observe that either. As to the older and untreated arm and leg fractures, there was no evidence presented as to when they occurred, with Dr. Benton saying only that if you were “observant enough,” you would have noticed that T.G., an infant, disused that arm and/or leg, and that maybe the arm would have been swollen but not bruised, and that the leg fracture was maybe bruised and possibly swollen.

Significantly, records from the Mary Buck Clinic clearly state they examined T.G. on February 4, April 18, May 4, June 29, August 4 and August 10, 2000, and while they noticed that T.G. was small for her age on June 29, and diagnosed her as failing to thrive because of her lower that average weight on August 4 and August 10, at no time did they notice any of her other injuries. As found by the court of appeal, 112“[i]f trained professionals did not detect such health problems, it strains credulity to suggest a lay person could be expected to do so.” Id. at 4.

Finally, the evidence was uncontrovert-ed that Raven hid the abuse from Hum-phries and never let him see that she was stressed over caring for her children. Further, the evidence was uncontroverted that K.G. was never physically abused and the record does not reveal that Mr. Hum-phries had any reason to believe that T.G. was being treated any differently than K.G. by her mother.

Thus, we agree with the court of appeal’s finding that:

Because of Raven G.’s testimony of concealing her actions from the father of the children, it was legal error to terminate the father’s parental rights. Mr. Humphries cannot be held liable for “aiding and abetting” as defined in 1015(3)(i) when knowledge of the abusive mother’s actions were concealed from him. Moreover, when trained professionals at the Mary Buck Clinic did not detect the abuse, it strains credulity to suggest that the father should be held liable for not discovering the abuse. The father committed no act that justifies the state depriving him of his parental rights.

Id. at 8.

In addition, the evidence was overwhelming that Humphries fully complied with the OCS case plan, in spite of great hardship and frustration at the system. The court of appeal also stressed the intensive efforts Humphries exerted in order to comply with OCS’s case plan:

Mr. Humphries fully complied with his case plan, despite the many adjustments he had to make at his employment. The State chose not to call Betty Cain, Mr. Humphries’ case worker, to testify at trial, but the exhibits of Ms. Cain’s case notes, which were introduced at trial, indicated that, “Mr. Humphries has follow [sic] his case plan and complied with everything asked of him by the agency.”
The effort required for this compliance can only be properly evaluated when one considers exactly what Mr. Humphries actually did. He attended sessions on approximately 20 separate days with the LSU Infant Team between November of 2000 and May 29, 2001. These meeting included lengthy interviews on family history and personal upjbringing;1s “directed” play session (wherein he was told when to give a specific toy to the children and when to take it away) and free play with his children. He completed the eight group classes conducted by Errol Lewis on various childhood and teenage topics. And finally, he underwent a psychiatric exam and a three visit psychological exam and a Saturday meeting with the attorney appointed to represent the children. All of this was accomplished while working a full time job and using time-consuming public transportation since Mr. Humphries does not own a car.

Id. at 7.

In spite of Humphries’ efforts, the LSU Infant Team recommended to OCS that Humphries’ parental rights be terminated because he failed to see the abuse and he denied the impact of the abuse, he showed a pattern of poor judgment based on his relationship with Raven while she was a minor, and had a pattern of passive response to critical situations. However, while we are cognizant of the LSU Infant Team’s opinion and recommendation, it is not a substitute for the requisite legal finding under La. Child Code art. 1015(3)(i), that Humphries’ behavior was “grossly negligent behavior below a reasonable standard of human decency,” including “aiding or abetting” the abuse inflicted upon T.G. by Raven.

CONCLUSION

While “passive abuse or neglect” by a parent may inflict just as much “gravely disabling” injury as physical abuse and can therefore constitute “abuse or neglect” under La. Child. Code art. 1015(3)(i), in this case, OCS failed to prove by clear and convincing evidence that Humphries knew that his child was abused by her mother but yet failed to take any steps to prevent it. For although the abuse inflicted upon T.G. was horrific and inflames the emotions of all who learn about it, the fact is that this abuse was inflicted by the mother, not by the father, and was actively and 1.¿intentionally hidden from the father. For those reasons, and the reasons expressed in this opinion, it was legal error for the trial court to terminate Humphries’ rights finding that he was grossly negligent in “aiding and abetting” the abuse committed by the mother under La. Child. Code art. 1015(3)(i).

Under La. Child. Code art. 1039, when the alleged grounds under La. Child. Code art. 1015 are not proven by clear and convincing evidence, or the court finds that termination is not in the best interest of the child, the court may: (1) dismiss the petition; (2) reinstate the parent to full care and custody of the child; (3) if the child has been previously adjudicated as a child in need of care, reinstate that proceeding pursuant to Title VI; (4) upon a showing of sufficient facts, adjudicate the child in need of care in accordance with Title VI; (5) upon a showing of sufficient fact, adjudicate the family in need of services in accordance with Title VII, or (6) make any other disposition that is in the best interest of the child. In this case, whatever disposition of the case is made by the trial court on remand, we stress that, as Raven was the abuser and her rights have been terminated, and as Hum-phries is now well aware of that abuse, it is Humphries’ responsibility to keep the children away from Raven’s care and to protect the children from any danger posed by her.

DECREE

For the reasons expressed herein, we affirm the judgment of the court of appeal.

AFFIRMED.

TRAYLOR, J., dissents.

JOHNSON, J., concurs.

      . The exact time period between Raven’s infliction of the skull fracture and hip dislocation and T.G.’s admittance to University Hospital is unclear.

      . Briefs in this case indicate that the Mary Buck Clinic is being sued by the children for malpractice for not noticing the signs of abuse, and not treating T.G. accordingly.

      . In contrast with the opinions of the LSU Infant Team, the only person who was actually providing Humphries with parenting classes, Mr. Errol Lewis, testified that Hum-phries attended all eight two-hour parenting classes as required, always seemed interested and active in class, and would do a good job parenting and nurturing his children.


author: | .PER CURIAM.

text:
    STATE ex rel Cedric EDWARDS v. Burl CAIN.
    No. 2002-KP-0514.
    Supreme Court of Louisiana.
    March 21, 2003.
   | .PER CURIAM.

Writ granted; case remanded. For the first time in this Court, relator has raised the question of whether he is exempt from capital punishment by reason of mental retardation. See Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Because the issue is a matter for the district court in the first instance, and because “not everyone faced with a death penalty sentence will automatically be entitled to a post-Atkins hearing,” State v. Williams, 01-1650, p. 27 (La.11/1/02), 831 So.2d 835, 857 (implementing Atkins), it is not appropriate for this Court to address the merits at this time or to order an evidentiary hearing on the claim. On remand of this ease, the district court is to consider pleadings from relator and from the state and determine whether relator has “provided objective factors that ... put at issue the fact of mental retardation.” Williams, 01-1650 at 27, 831 So.2d at 857. If relator carries his burden in that regard, and if the court finds reasonable grounds to believe that relator is mentally retarded, it shall hold a hearing at which the court will take testimony and other evidence and [^determine whether relator is mentally retarded and so may not be executed. Id., 01-1650 at 29-32, 831 So.2d at 858-60.

If the court concludes that relator is not mentally retarded, and thus not exempt from capital punishment, it must vacate its previous order summarily denying his pro forma “shell” application and provide counsel with a reasonable opportunity to prepare and litigate expeditiously an application for post-conviction relief on relator’s other claims. State ex rel. Hampton v. State, 00-2523 (La.8/31/01), 795 So.2d 1198.


text:
    In re Gregory J. AVERY.
    No. 2002-OB-2683.
    Supreme Court of Louisiana.
    March 26, 2003.
   ORDER

Considering the Petition for Transfer to Disability Inactive Status filed by Gregory J. Avery, and the findings and recommendation of the hearing committee,

IT IS ORDERED that respondent be and he hereby is transferred to disability inactive status, pursuant to Supreme Court Rule XIX, § 22(C).

IT IS FURTHER ORDERED that all disciplinary proceedings in this matter shall be deferred until such time as respondent is transferred to active status.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

/s/ Catherine D. Kimball Justice, Supreme Court of Louisiana

CALOGERO, VICTORY and TRAYLOR, JJ., dissent from the order and would deny the transfer to Disability Inactive Status.


text:
    In re John J. PACE.
    No. 2003-OB-0534.
    Supreme Court of Louisiana.
    March 26, 2003.
   ORDER

Considering the Joint Petition for Transfer to Active Status filed by respondent and the Office of Disciplinary Counsel,

IT IS ORDERED that John J. Pace be reinstated to the practice of law, subject to the following conditions:

1. Respondent must fully and completely adhere to all terms of his agreement with the Lawyers Assistance Program; and

2. Respondent must fully and completely adhere to the recommendations of his treating professionals.

The Office of Disciplinary Counsel shall monitor respondent’s compliance with these conditions and notify this court of any violation. Any violation of the conditions may be grounds for immediately returning respondent to disability inactive status.

/s/ Catherine D. Kimball Justice, Supreme Court of Louisiana


author: JjPER CURIAM.

text:
    In re J. Gregory CAVER.
    No. 2003-B-0653.
    Supreme Court of Louisiana.
    March 28, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

JjPER CURIAM.

This matter arises from a petition for consent discipline filed by respondent, J. Gregory Caver, a currently disbarred attorney. For his misconduct, which involves engaging in the unauthorized practice of law on two occasions, respondent proposed that he be permanently disbarred. The Office of Disciplinary Counsel (“ODC”) concurred in respondent’s petition, and the disciplinary board recommended the proposed discipline be accepted.

UNDERLYING FACTS

In 1997, respondent was disbarred from the practice of law for conversion of client funds. In re: Caver, 97-0823, 97-0824 (La.5/1/97), 693 So.2d 150. In 1999, respondent was found guilty of further professional misconduct warranting disbarment, and the court extended for an additional five years the minimum period for applying for readmission from the pri- or disbarment. In re: Caver, 99-0708 (La.6/4/99), 733 So.2d 1208. Notwithstanding these disciplinary matters, respondent has continued to engage in the practice of law.

The Lexa Matter

Respondent wrote a letter to Mary Lexa, whose son was charged with a minor drug offense in Ascension Parish, advising her that he would be enrolling as counsel of record in the criminal matter and soliciting $500 in legal fees from her. On July 2, | ¡,2002, respondent appeared in open court in Ascension Parish and, on the record, requested to be enrolled as counsel for the defendant. The assistant district attorney handling the case immediately informed the court that respondent was a disbarred attorney and not licensed to practice law. Respondent was arrested and charged with engaging in the unauthorized practice of law, a violation of La. R.S. 37:213.

The Gremillion Matter

Amy Gremillion paid respondent $2,500 to represent her son in connection with a criminal matter pending in Baton Rouge. Respondent was subsequently arrested and charged with engaging in the unauthorized practice of law, a violation of La. R.S. 37:213, and with theft, a felony, in violation of La. R.S. 14:67.

DISCIPLINARY PROCEEDINGS

Petition for Consent Discipline

The ODC conducted an investigation into the complaints filed against respondent. Prior to the institution of formal charges, respondent filed a petition for consent discipline. In that petition, respondent admitted his conduct violated the following provisions of the Rules of Professional Conduct: Rules 5.5 (engaging in the unauthorized practice of law), 8.4(b) (commission of a criminal act, especially one that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). For his misconduct, respondent proposed that he be permanently disbarred from the practice of law in Louisiana. The ODC concurred in the petition.

| ^Disciplinary Board Recommendation

The disciplinary board found that by violating Rules 5.5 and 8.4(b), (c), and (d) of the Rules of Professional Conduct, respondent intentionally violated duties owed to his clients, the public, the legal system, and the profession. The board concluded respondent’s dishonest and criminal conduct caused damage, and that the baseline sanction is therefore disbarment. Based upon its review of the record, the board determined the aggravating factors present include respondent’s prior disciplinary record, pattern of misconduct, and multiple offenses. In mitigation, the board recognized respondent’s remorse and cooperative attitude toward the disciplinary proceedings. The board noted that respondent’s conduct meets two of the guidelines for permanent disbarment set forth in Supreme Court Rule XIX, Appendix E, and concluded that the “most onerous form of lawyer discipline in Louisiana” is warranted in this case in light of respondent’s lengthy prior disciplinary record. Accordingly, the board recommended the petition for consent discipline be accepted.

DISCUSSION

Although this matter arises from a petition for consent discipline, Supreme Court Rule XIX, § 20(B) provides that the extent of discipline to be imposed is subject to review. In determining an appropriate sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered |4in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

The parties submit respondent’s conduct in this case warrants permanent disbarment. We agree.

The guidelines for permanent disbarment are set forth in Appendix E to Supreme Court Rule XIX. As the preamble to this appendix explains, these guidelines were not intended to bind this court in its decisionmaking, but to provide “useful information to the public and to lawyers concerning the types of conduct the Court might consider to be worthy of permanent disbarment.”

Guideline 8 of Appendix E provides that permanent disbarment may be warranted when a lawyer engages in the unauthorized practice of law while suspended or disbarred. Respondent’s conduct clearly falls within this guideline, as he has engaged in two instances of the unauthorized practice of law, in blatant disregard of the orders of this court which disbarred him. Guideline 9 provides that permanent disbarment may be warranted for instances of serious attorney misconduct which are “preceded by suspension or disbarment for prior instances of serious attorney misconduct.” The term “serious attorney misconduct” is defined as “any misconduct which results in a suspension of more than one year.” Respondent’s actions in the instant proceeding unquestionably constitute serious attorney misconduct, and were preceded by two prior instances of conduct which we deemed worthy of disbarment.

Accordingly, we will accept the petition for consent discipline. Pursuant to that petition, we will permanently disbar respondent from the practice of law in Louisiana.

[.DECREE

Upon review of the petition for consent discipline, the findings and recommendation of the disciplinary board, and considering the record filed herein, it is ordered that James Gregory Caver be permanently disbarred. Pursuant to Supreme Court Rule XIX, § 24(A), he shall be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . According to the petition for consent discipline, all of the criminal charges against respondent are still pending.

      . In addition to the 1997 and 1999 disciplinary matters earlier noted, respondent was admonished or reprimanded on thirteen occasions between 1985 and 1995.

      . Because the petition for consent discipline seeks permanent disbarment, it is somewhat puzzling that respondent did not pursue permanent resignation from the practice of law under Supreme Court Rule XIX, § 20.1, as that procedure would have achieved the same result in a more expedient fashion.


author: hPER CURIAM.

text:
    In re Robert L. BARRIOS.
    No. 2003-B-0525.
    Supreme Court of Louisiana.
    March 28, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

hPER CURIAM.

This disciplinary matter arises out of three counts of formal charges filed against respondent by the Office of Disciplinary Counsel (“ODC”). The disciplinary board’s recommendation was lodged in this court on February 19, 2003. Thereafter, the ODC filed a “Motion for Remand to the Discplinary Board for Purpose of Consolidation with Additional Pending Disciplinary Matter.” The motion indicated that a second set of formal charges has been filed against respondent. That matter, which bears the disciplinary board’s docket number 02-DB-090, is currently pending before the board.

As a matter of fairness to the respondent, this court has held that separate disciplinary charges arising during the same general time frame should be considered together for the purpose of imposing consistent overall discipline. See, e.g., Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991) (“When a second disciplinary proceeding against an attorney involves misconduct which occurred during the same time period as the first proceeding, the overall discipline to be imposed should be determined as if both proceedings were before the court simultaneously.”). In furtherance of this policy, this court has often remanded cases to the disciplinary board for consolidation with other pending matters and for the issuance of a single report and recommendation. See, e.g., In re: Carr, 94-2126, 96-OB-2115 (La.4/24/02); In re: Gilbert, 98-3221, 98-3222 (La.2/3/99), 731 So.2d 188; In re: Edwards, 97-0914, 97-0915 (La.9/26/97), 701 So.2d 966, 967.

|?We find consolidation is warranted in the instant case. Accordingly, we will remand the proceedings in this court numbered 03-B-0525 to the disciplinary board for consolidation with the proceedings numbered 02-DB-090. After appropriate consideration of the consolidated matters, the board is directed to issue a single recommendation of discipline to this court encompassing both matters involving respondent.


text:
    Milburn James PARKER v. SLINE COMPANY, INC., et al.
    No. 2003-CC-1058.
    Supreme Court of Louisiana.
    April 14, 2003.
   In re Sline Company Inc. et al.; Liberty Mutual Ins. Co.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. B, No. 58-219; to the Court of Appeal, First Circuit, No. 2003 CW 0680.

Denied.


text:
    Joyce JENKINS v. COUNTRY CORNER AUTO CENTER, L.L.C. et al.
    No. 2003-CC-1063.
    Supreme Court of Louisiana.
    April 15, 2003.
   In re Country Corner Auto Center et al.; Louisiana United Businesses Association Self Insurers Fund; — Defendant(s); Applying for Supervisory and/or Remedial Writs Office of Workers’ Compensation District 6, No. 02-03236; to the Court of Appeal, First Circuit, No. 2002 CW 2688.

Denied.


text:
    Theodore A. BILBO, et al. v. ANCO INSULATIONS, INC., et al. (Including Houston General Insurance Company).
    No. 2003-CC-1033.
    Supreme Court of Louisiana.
    April 16, 2003.
   In re Houston General Ins. Co.;- — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. James, 23rd Judicial District Court Div. E, No. 028022; to the Court of Appeal, Fifth Circuit, No. 03-C-445.

Denied.


text:
    Rosella HEBERT, et al. v. CHATEAU LIVING CENTER, L.L.C., et al.
    No. 2003-C-0303.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Chateau Living Center LLC;— Defendant; Applying for Writ of Certiora-ri and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 570-793; to the Court of Appeal, Fifth Circuit, No. 02-CA-462.

Granted; Remanded to the Court of Appeal for reconsideration in light of Richard v. Extended Care Centers, Inc.


text:
    Anthony R. FERGUSON, D.P. v. COVENTRY HEALTH CARE OF LOUISIANA, INC.
    No. 2003-CC-0374.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Coventry Health Care of LA Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. F, No. 2001-13443; to the Court of Appeal, Fourth Circuit, No. 02-C-2275.

Granted. Relator’s application to the court of appeal was timely filed as to the trial court’s November 8, 2002 ruling. Accordingly, insofar as the application seeks review of this ruling, it is remanded to the court of appeal for consideration on the merits.


text:
    STATE of Louisiana v. Pete ADAMS.
    No. 2003-KH-0938.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Adams, Pete; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 429-661.

Granted for the sole purpose of transferring the instant pleading to the district court for its consideration. The district court is directed to provide this Court with a copy of its ruling.


text:
    Beverly Albin MAURER v. Tommy Joe MAURER.
    No. 2002-CC-2743.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Tommy Joe Maurer; — Defendant; Applying for Rehearing of this Court’s order dated November 27, 2002, Parish of Tangipahoa, 21st Judicial District Court Div. A, No. 9400279; to the Court of Appeal, First Circuit, No. 2002 CW 1720.

Denied.


text:
    STATE of Louisiana v. Monte WHITE.
    No. 2002-KO-121.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Monte White, applying for Reconsideration to this court’s action dated January 31, 2003, from Criminal District Court, No. 391-761; Parish of Orleans; to the Court of Appeal, Fourth Circuit Court of Appeal No. 2000-KA-1740.

Reconsideration denied.


text:
    STATE ex rel. Elliot MONTANA v. STATE of Louisiana.
    No. 2002-KH-0809.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Elliot Montana Plaintiff(s); — Applying for Reconsideration of an Order of this Court dated February 21, 2003; Parish of Orleans, Criminal District Court Div. “G” No. 372-000 Court of Appeal, Fourth Circuit No. 2001-K-2300.

Reconsideration Denied. La. C. Cr. P. art. 930.8; State ex rel Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    Mary RICHMOND, Individually and as Natural Tutrix of Her Minor Daughter, Jennifer David v. CITY OF BATON ROUGE/Parish of East Baton Rouge and Department of Emergency Medical Services of the City of Baton Rouge/Parish of East Baton Rouge.
    No. 2003-CC-0147.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Baton Rouge City of et al.; East Baton Rouge Parish of; Baton Rouge Department of Emergency Medical Services; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 480,491; to the Court of Appeal, First Circuit, No. 2002 CW 1233.

Not considered; not timely filed. See Supreme Court Rule X, Sec. 5.


text:
    Harold WILSON v. KMART CORPORATION, et al.
    No. 2003-C-0334.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re KMart Corporation et al.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 98-13982; to the Court of Appeal, First Circuit, No. 2001-CA-2074.

Not considered. Not timely filed.


text:
    P.S. CHEZ SIDNEY, L.L.C. v. ACADIANA FISHERMAN’S CO-OP.
    No. 2003-C-0348.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Acadiana Fisherman’s Co-op;— Defendant; Applying for Writ of Certiora-ri and/or Review, Parish of Jefferson, 24th Judicial District Court Div. L, No. 578-408; to the Court of Appeal, Fifth Circuit, No. 02-CA-830.

Writ not considered. Not timely filed.


text:
    Tommy MORRISON v. THE CITY OF BATON ROUGE (Baton Rouge Police Department) and Pat Englade, Chief of Police.
    No. 2003-C-0362.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Baton Rouge City of et al.; Baton Rouge Police Dept.; Englade, Pat; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 490,499; to the Court of Appeal, First Circuit, No. 2002 CA 0358.

Writ not considered. Not timely filed.


text:
    STATE of Louisiana v. Ishmel Joel ENNIS.
    No. 2003-K-0381.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Ennis, Ishmel Joel; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson Davis, 31st Judicial District Court Div. 0, No. CR4580-00-01; to the Court of Appeal, Third Circuit, No. 03-00040.

Writ not considered. Not timely filed.


text:
    Larry JONES v. SENTRY MOTEL, A Corporation and Does I and II.
    No. 2003-CP-0387.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Jones, Larry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 531-387; to the Court of Appeal, Fifth Circuit, No. 2002-CA-0636.

Writ not considered. Not timely filed. See Supreme Court Rule X, Section 5.


text:
    MCMANUS CONSTRUCTION, INC. v. FOREST PARK, L.L.C., et al.
    No. 2003-CC-0445.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Forest Park L.L.C. et al.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. F, No. 2002-3008; to the Court of Appeal, Third Circuit, No. CW 02-01453.

Writ not considered. Not timely filed.


text:
    STATE of Louisiana v. Leonard HENDERSON.
    No. 2002-KO-1100.
    Supreme Court of Louisiana.
    April 21, 2003.
    Reconsideration Denied June 6, 2003.
   In re Henderson, Leonard;. — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 410-069; to the Court of Appeal, Fourth Circuit, No. 2000-KA-2285.

Denied.

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

JOHNSON, J., would grant the writ.


text:
    STATE of Louisiana v. Quincy LOYD.
    No. 2002-KO-1159.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Loyd, Quincy; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Union, 3rd Judicial District Court Div. B, No. 37571; to the Court of Appeal, Second Circuit, No. 35,637-KA.

Denied.


text:
    STATE of Louisiana v. Michael DILLON.
    No. 2002-KO-1189.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Dillon, Michael; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. M, No. 01-374; to the Court of Appeal, Fifth Circuit, No. 01-KA-906.

Denied.

. JOHNSON, J., would grant the writ.


text:
    STATE ex rel. Derrick HAYNES v. STATE of Louisiana.
    No. 2002-KH-1196.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Haynes, Derrick; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 366-924; to the Court of Appeal, Fourth Circuit, No. 2002-K-0170.

Denied.


text:
    STATE ex rel. Charles Carlton WALL v. STATE of Louisiana.
    No. 2002-KH-1249.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Wall, Charles Carlton; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. B, No. 78826; to the Court of Appeal, First Circuit, No. 2001 KW 2101.

Denied.


text:
    STATE of Louisiana v. Ricardo Andre CARMOUCHE.
    No. 2002-KO-1250.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Carmouche, Richardo A.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. K, No. 80049; to the Court of Appeal, Third Circuit, No. 01-01261.

Denied.


text:
    STATE ex rel. Gaye HUNTER v. STATE of Louisiana.
    No. 2002-KH-1275.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Hunter, Gaye; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Martin, 16th Judicial District Court Div. H, No. 98-186,605; to the Court of Appeal, Third Circuit, No. KH 01-01410.

Denied.


text:
    STATE ex rel. Francis WINCHESTER v. STATE of Louisiana.
    No. 2002-KH-1284.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Winchester, Francis;' — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. H, No. 98-150349; to the Court of Appeal, First Circuit, No. 2001 KW 2099.

Denied.


text:
    STATE ex rel. Steven C. HILL v. STATE of Louisiana.
    No. 2002-KH-1290.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Hill, Steven, C.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 97-1637; to the Court of Appeal, Fifth Circuit, No. 02-KH-265.

Denied.


text:
    STATE ex rel. Rodney TEMPLE v. STATE of Louisiana.
    No. 2002-KH-1291.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Temple, Rodney; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 370-257; to the Court of Appeal, Fourth Circuit, No. 2001-KA534.

Denied.


text:
    STATE ex rel. Jimmy DAVIS v. STATE of Louisiana.
    No. 2002-KH-1292.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Davis, Jimmy; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 382-243; to the Court of Appeal, Fourth Circuit, No. 2001-K-2391.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. David WILLIAMS v. STATE of Louisiana.
    No. 2002-KH-1293.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Williams, David; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 415-514; to the Court of Appeal, Fourth Circuit, No. 2001-KA-1728.

Denied.


text:
    STATE ex rel. Delmar WILLIAMS v. STATE of Louisiana.
    No. 2002-KH-1295.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Williams, Delmar; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Claiborne, 2nd Judicial District Court Div. A, No. 16,028; to the Court of Appeal, Second Circuit, No. 35808-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Keith HUDSON v. STATE of Louisiana.
    No. 2002-KH-1300.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Hudson, Keith; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District ■Court Div. C, No. 368 745; to the Court of Appeal, Fourth Circuit, No. 02 K 59.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Jessie LEE v. STATE of Louisiana.
    No. 2002-KH-1303.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Lee, Jessie; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 390-999; to the Court of Appeal, Fourth Circuit, No. 2002-K-0237.

Denied.


text:
    STATE ex rel. Norman SANDERS v. STATE of Louisiana.
    No. 2002-KH-1310.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Sanders, Norman; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. C, No. 197,186; to the Court of Appeal, First Circuit, No. 2001 CW 2892.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Archie HARVELL v. STATE of Louisiana.
    No. 2002-KH-1311.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Harvell, Archie; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 80-2304; to the Court of Appeal, Fifth Circuit, No. 01-KH-1044.

Denied. See State v. Gedric, 99-1213 (La.App. 1st Cir.6/3/99), 741 So.2d 849.


text:
    STATE ex rel. Philip SCOTT v. STATE of Louisiana.
    No. 2002-KH-1314.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Scott, Philip; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 227943; to the Court of Appeal, First Circuit, No. 98 KW 1376.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Richard LAY v. STATE of Louisiana.
    No. 2002-KH-1315.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Lay, Richard; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. G, Nos. 130364, 131275, 197086, 215530; to the Court of Appeal, First Circuit, No. 2001-KW-1395.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Emanuel CALVIN v. STATE of Louisiana.
    No. 2002-KH-1318.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Calvin, Emanuel;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 395-795; to the Court of Appeal, Fourth Circuit, No. 2002-K-0167.

Denied.


text:
    STATE ex rel. Michael Shane CAROUTHERS v. STATE of Louisiana.
    No. 2002-KH-1319.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Carouthers, Michael Shane;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. A, Nos. 91-5286, 91-11532; to the Court of Appeal, Third Circuit, No. KH 01-01216.

Denied.


text:
    STATE ex rel. Charles H. LEE, Jr. v. STATE of Louisiana.
    No. 2002-KH-1328.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Lee, Charles H. Jr.;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 397-827; to the Court of Appeal, Fourth Circuit, No. 2002-K-0222.

Denied.


text:
    STATE ex rel. Fred GRIFFIN v. STATE of Louisiana.
    No. 2002-KH-1330.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Griffin, Fred;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Desoto, 11th Judicial District Court Div. A, No. 45,746; to the Court of Appeal, Second Circuit, No. 36187 KH.

Denied.


text:
    STATE ex rel. Melvin BRITTON v. STATE of Louisiana.
    No. 2002-KH-1334.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Britton, Melvin;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 328-061; to the Court of Appeal, Fourth Circuit, No. 2002-K-268.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Tyrone FORTENBERRY v. STATE of Louisiana.
    No. 2002-KH-1353.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Fortenberry, Tyrone;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 384-973; to the Court of Appeal, Fourth Circuit, No. 2002-K-0346.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Jessie J. LYLES, Jr. v. STATE of Louisiana.
    No. 2002-KH-1355.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Lyles, Jessie, J. Jr.;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 301-620; to the Court of Appeal, Fourth Circuit, No. 2002 K 340.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; State v. Tran, 00-2471 (La.6/1/01), 793 So.2d 172.


text:
    STATE ex rel. Warren SCOTT, III v. STATE of Louisiana.
    No. 2002-KH-1357.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Scott, Warren III;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 7-99-977; to the Court of Appeal, First Circuit, No. 2002 KW 0265.

Denied.


text:
    STATE ex rel. Donald Ray WALTON Jr. v. STATE of Louisiana.
    No. 2002-KH-1358.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Walton, Donald Ray Jr.;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 1-95-722; to the Court of Appeal, First Circuit, No. 2001 KW 2304.

Denied.


text:
    STATE ex rel. Billy M. McCOY v. STATE of Louisiana.
    No. 2002-KH-1359.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re McCoy, Billy, M.;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. C, No. 35 583.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Michael ROBINSON v. STATE of Louisiana.
    No. 2002-KH-1362.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Robinson, Michael;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Franklin, 5th Judicial District Court Div. B, No. 94-472; to the Court of Appeal, Second Circuit, No. 36124.

Denied. State ex rel. Bernard, v. Cr.D.C., 94-2247 (La.4/28/95), 653 So.2d 1174, 1175.


text:
    STATE ex rel. Johnny B. WRIGHT v. STATE of Louisiana.
    No. 2002-KH-1364.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Wright, Johnny, B.;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 136-884; to the Court of Appeal, Second Circuit, No. 2002 KH 36284.

Denied.


text:
    STATE ex rel. Leonard DOMINICK v. STATE of Louisiana.
    No. 2002-KH-1365.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Dominick, Leonard;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 362-298; to the Court of Appeal, Fourth Circuit, No, 2002-K-0144.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Kirk FRANKLIN v. STATE of Louisiana.
    No. 2002-KH-1366.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Franklin, Kirk;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No.-360-427; to the Court of Appeal, Fourth Circuit, No. 2002-K-0207.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Michael Shane CAROUTHERS v. STATE of Louisiana.
    No. 2002-KH-1524.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Carouthers, Michael, Shane;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. A, Nos. 91-11532, 91-5286; to the Court of Appeal, Third Circuit, No. KH 01-1216.

Denied.


text:
    STATE of Louisiana v. William PLAISANCE.
    No. 2002-KP-2123.
    Supreme Court of Louisiana.
    April 21, 2003.
    Reconsideration Denied June 6, 2003.
   In re Plaisance, William;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 187,984; to the Court of Appeal, Second Circuit, No. 36407-KH.

Denied.

CALOGERO, C.J., recused.


text:
    STATE of Louisiana v. Jamie LACOMBE.
    No. 2002-KP-2138.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Lacombe, Jamie;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. James, 23rd Judicial District Court Div. C, Nos. 69528, 69529; to the Court of Appeal, Fifth Circuit, No. 02-KH-692.

Denied.


text:
    STATE of Louisiana v. Gerard MCDOUGLE.
    No. 2002-KK-2466.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re State of Louisiana;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, Nos. 429-659, 429-660; to the Court of Appeal, Fourth Circuit, No. 2002-K-1420.

Denied. Moot.


text:
    STATE of Louisiana v. Charles David HOOD.
    No. 2002-KK-2573.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Hood, Charles David;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. D, Nos. 00-CR2-78590, 00-CR2-78594; to the Court of Appeal, First Circuit, No. 2002 KW 0853.

Denied.


text:
    STATE of Louisiana v. Keith GALLOW.
    No. 2002-K-2919.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Gallow, Keith;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. D, Nos. 99-K-4213, 99-K-4212; to the Court of Appeal, Third Circuit, No. 02-0523.

Denied.


text:
    STATE of Louisiana v. Dalton THOMAS, Jr.
    No. 2002-K-2920.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Thomas, Dalton Jr.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 3971-00; to the Court of Appeal, Third Circuit, No. 02-0471.

Denied.

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


text:
    STATE of Louisiana v. Lionel TAPPS.
    No. 2002-K-2921.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Tapps, Lionel;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. O, No. 00-5599; to the Court of Appeal, Fifth Circuit, No. 02-KA-0547.

Denied.


text:
    STATE of Louisiana v. Michael E. SULLIVAN.
    No. 2002-K-2931.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Sullivan, Michael E.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. H, No. 97-601; to the Court of Appeal, Third Circuit, No. 02-0360.

Denied.


text:
    STATE of Louisiana v. Delvric CATO.
    No. 2002-K-2968.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re Cato, Delvric;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 07-98-508; to the Court of Appeal, First Circuit, No. 2002 KA 0528.

Denied.

TRAYLOR, J., recused.


text:
    STATE of Louisiana v. Jeffrey David CUPP.
    No. 2002-K-2971.
    Supreme Court of Louisiana.
    April 21, 2003.
   In re State of Louisiana;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 108,602; to the Court of Appeal, Third Circuit, No. KA02-705.

Denied.

KNOLL, J., recused.