text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Georgia A. DURHAM, and Darrell J. Durham, her husband, Appellees.
    No. 5D02-2329.
    District Court of Appeal of Florida, Fifth District.
    March 14, 2003.

      David B. Shelton of Rumberger, Kirk & Caldwell, Orlando, for Appellant.
    Elizabeth Siano Harris of Stadler & Harris, P.A., Titusville, and Stephen G. Charpentier of Childress & Charpentier, P.A., Melbourne, for Appellees.
   MONACO, J.

Allstate Insurance Company (“Allstate”), appeals the granting of a final summary judgment in favor of the appel-lees, Georgia Durham and Darrell J. Durham (the “Durhams”), determining that the appellees were entitled to uninsured motorist coverage. Under the peculiar facts of this case, we hold that the Durhams had rejected such coverage and that the judgment should, therefore, be reversed.

According to a “Joint Stipulation of Facts” filed by the parties, Allstate first issued a policy of automobile insurance to the Durhams in 1988. The original policy period was for six months, and the policy had been continuously renewed every six months since. The policy initially contained provisions for uninsured motorist coverage. In 1991, however, the Durhams expressly rejected this coverage in writing. Twice each year thereafter Allstate provided the notice required by section 627.727(1), Florida Statutes.

By 1997, the Durhams owned four vehicles that were insured through their Allstate policy. In September of 1997, the Durhams acquired a fifth vehicle and sought to insure it with Allstate. Allstate required that this fifth vehicle be placed on a separate policy bearing a separate policy number and declaration page. Allstate refers to this as a “multiple record policy.” Neither the declaration page for the four-vehicle policy, nor that for the fifth vehicle’s policy show that uninsured motorist coverage was elected. It is undisputed that the Durhams were not charged for such coverage under either policy. It is likewise undisputed that the Durhams never rejected uninsured motorist coverage in writing in accordance with section 627.727(1), Florida Statutes (1999), with respect to the policy covering the fifth vehicle.

Although it is rather difficult to fathom in this technologically sophisticated age, Allstate’s internal computer software apparently only allowed four vehicles per declaration page or policy. The second policy, however, reflected that the Durhams were given the benefit of a multiple car discount, and that there were identical policy limits on all five vehicles. The renewal date on the second policy was changed early on so that both policies would renew at the same time and they were both billed simultaneously on the same statement. The parties stipulated, in fact, that the Durhams had been frequently notified by Allstate that the insurer considered all five vehicles to be covered by a single policy. A letter was sent by Allstate to the Durhams specifically advising that because they owned more than four vehicles,

[Y]ou have two sets of policy declarations with two policy numbers. In effect, you have one policy with two policy numbers.

Historically when the Durhams sold a covered vehicle, the vehicle insured by the separate policy would be moved to the four-car policy if a replacement vehicle was not insured by the Durhams within a short specified time. These changes were made by endorsement and no new applications were required or taken by Allstate.

In 1999, Mrs. Durham was involved in an automobile accident with an uninsured motorist while she was driving one of the vehicles named in the four-vehicle policy. Allstate denied UM coverage because of the 1991 rejection of such coverage under the original policy. The Durhams brought suit against Allstate, positing that since there was no written rejection of UM coverage for the policy covering the fifth vehicle, they were entitled to such coverage by virtue of the mandatory language of section 627.727(1), Florida Statutes.

Based on the stipulated facts the trial court granted summary judgment in favor of the Durhams. The court held that the second policy was a separate policy requiring a second specific written rejection of UM coverage by the appellees. We find that we cannot agree with this conclusion.

The uninsured and underinsured vehicle coverage statute, section 627.727, Florida Statutes, provides that no motor vehicle liability insurance policy providing bodily injury liability coverage with respect to a vehicle registered or principally garaged in Florida shall be issued unless it provides uninsured motor vehicle coverage. UM coverage may, however, be rejected by the insured. The statute states in pertinent part that:

[T]he coverage required under this section is not applicable when, or to the extent that, an insured named in the policy makes a written rejection of the coverage on behalf of all Durhams under the policy.

The statute requires the carrier to notify the named insured at least annually by a form attached to the premium notice of the option to have UM coverage. Simple receipt of the notice is not an affirmative rejection of UM coverage.

Importantly for the present case, the statute also states that:

Unless an insured, or lessee having the privilege of rejecting uninsured motorist coverage requests such coverage or requests higher uninsured motorist limits in writing, the coverage or such higher uninsured motorist limits need not be provided in or supplemental to any other policy which renews, extends, changes, supersedes, or replaces an existing policy with the same bodily injury limits when an insured or lessee had rejected the coverage.

§ 627.727, Fla. Stat. (1999) (emphasis added).

The issue for our determination, therefore, is whether the policy insuring the fifth vehicle was a separate policy requiring a separate written rejection of UM coverage, or whether it was simply part of the four-vehicle policy under which UM coverage had previously been rejected.

In Government Employees Ins. Co. v. Stafstrom, 668 So.2d 631 (Fla. 5th DCA 1996), this court held that because of the statutory language cited above, the addition of a new vehicle to an existing policy was an extension or change in the policy, which did not require the carrier to again obtain an express rejection of UM coverage. See also Sentry Ins. v. McGowan, 425 So.2d 98 (Fla. 5th DCA 1982), rev. denied, 434 So.2d 888 (Fla.1983). Other Florida courts considering similar issues have come to the same conclusion. See Nationwide Mut. Fire Ins. Co. v. Hild, 818 So.2d 714 (Fla. 2d DCA 2002); Gasch v. Harris, 808 So.2d 1260 (Fla. 4th DCA 2002).

Logically, the second policy covering the fifth vehicle could only have been either part of the four-vehicle policy, or an “other policy which ... extends [or] changes an existing policy.” In either instance, the result is the same. Allstate regularly notified the Durhams that the two policies were actually one policy and the Durhams received numerous statutory notifications with their premium notices that UM coverage was not being provided. A multi-car discount was given with respect to the second policy that would not have been available if there were two separate policies. Both policies were billed on a single invoice and a premium for uninsured motorist coverage was never billed or collected. Both policies had the same liability limits and vehicles would be moved from the second policy to the first if a vehicle named in the first policy was sold.

The only other case located which has considered Allstate’s peculiar four-vehicle policy limit likewise viewed the second declaration sheet to be part of a single policy covering five vehicles. See Allstate Ins. Co. v. Ashley, 833 F.Supp. 583, 586 (S.D.W.Va.1993). The court, there, pointed out that because the insureds had taken advantage of a multi-car discount by taking out one policy, rather than two, they should not receive more than they bargained for “because of the vagaries of Allstate’s computer software program-.” Id.

Under the facts of this case we conclude that there was only one policy of insurance and a second UM rejection was not required.

REVERSED and REMANDED.

SAWAYA and PLEUS, JJ., concur.


source: Caselaw Access Project

author: MONACO, J.

license: Public Domain

text:
    Ronald McKEEHAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1823.
    District Court of Appeal of Florida, Fifth District.
    March 14, 2003.

      James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, J.

The defendant, Ronald McKeehan, was found guilty after jury trial of robbery with a firearm, grand theft, aggravated assault with a firearm, and kidnapping with intent to commit a felony. All of these crimes were purportedly committed at a Sleep Inn Motel in Orlando. McKee-han asserts that the trial court committed error by allowing the State to prove the contents of a videotape with oral testimony, rather than with the tape itself.

During the course of the trial, the State introduced collateral crime evidence of a robbery of an Extended Stay America Hotel that was close to the site of the Sleep Inn that occurred a few days before the crimes related to the present case. A clerk who worked at the Extended Stay Hotel testified and identified McKeehan as the perpetrator of the robbery there. The State then called an investigator with the sheriffs office who investigated both robberies. He testified that he had seen a surveillance videotape of the Extended Stay robbery. When the prosecutor asked him if he saw the defendant on the tape, the defense objected, citing the best evidence rule, and pointed out that the State should be required to introduce the tape. The objection, however, was overruled, and the investigator was permitted to testify that the defendant was shown on the videotape.

During jury deliberations, the jury asked the court by written inquiry two questions concerning the evidence. First, the jury asked why the videotape had not been introduced into evidence. The jury also asked if it was permitted to consider the investigator’s testimony concerning his observation of the defendant on the tape “as evidence.” The trial judge explained to the jury that he could not answer why the videotape had not been introduced, but that the jury was permitted to consider the testimony of the investigator with regard to the tape.

The best evidence rule is set forth in section 90.952, Florida Statutes (2002), as follows:

Except as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording, or photograph.

Section 90.954, Florida Statutes, amplifies the preceding statute by providing that:

The original of a writing, recording, or photograph is not required, except as provided in s. 90.953 [concerning duplicates], and other evidence of its contents is admissible when:
(1) All originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith.
(2) An original cannot be obtained in this state by any judicial process or procedure.
(8) An original was under the control of the party against whom offered at a time when that party was put on notice by the pleadings or by written notice from the adverse party that the contents of such original would be subject to proof at the hearing, and such original is not produced at the hearing.
(4) The writing, recording, or photograph is not related to a controlling issue.

The best evidence rule, as codified by statute, requires that if the original evidence or a statutorily authorized alternative is available, no evidence should be received which is merely “substitutionary in nature.” Liddon v. Bd. of Pub. Instruction for Jackson County, 128 Fla. 838, 175 So. 806, 808 (1937); Sun Bank of St. Lucie County v. Oliver, 403 So.2d 583, 584 (Fla. 4th DCA 1981). Thus, evidence which indicates that a more original source of information is available should be excluded. Id. In short, unless otherwise excused by the evidence code, the original must be produced unless it is shown to be unavailable for a reason other than the serious fault of the proponent. See Williams v. State, 386 So.2d 538, 540 (Fla.1980); Firestone Serv. Stores, Inc. of Gainesville v. Wynn, 131 Fla. 94, 179 So. 175 (1938).

This rule is predicated on the principle that if the original evidence is available, that evidence should be presented to ensure accurate transmittal of the critical facts contained within it. See Williams; State v. Eubanks, 609 So.2d 107 (Fla. 4th DCA 1992). Thus, in Williams it was found to be error for the trial court to permit introduction of oral evidence of what the victim of an attempted murder wrote (which implicated the defendant in the crime), while at a hospital awaiting treatment. The supreme court noted that no effort had been made by the state to explain the absence of the original writing.

The same is true in the instant case concerning the videotape of the Extended Stay Hotel robbery. The State sought to prove the contents of the videotape not by introduction of the tape, but by oral testimony of its contents without ever establishing the videotape’s unavailability. Accordingly, the admission of the testimony violated the best evidence rule.

A violation of the best evidence rule may, however, constitute harmless error. In Williams, the supreme court affirmed despite the error, explaining:

Rather than contesting the accuracy of the terms contained in Ms. Marshall’s note, appellant’s objection was directed to the reliability of the out-of-court identification, an issue not addressed by the best evidence rule. Moreover, counsel had ample opportunity to discredit the identification by cross-examining Ms. Marshall about the events at the hospital. Given this posture, we do not believe that the trial court’s technical error injuriously affected the substantial rights of appellant. § 59.041, Fla. Stat. (1975).

386 So.2d at 540 (footnote omitted).

Under a harmless error analysis, the state must show beyond a reasonable doubt that the error complained of did not contribute to the verdict, or, stated alternatively, that there is no reasonable possibility that the error contributed to the conviction. State v. DiGuilio, 491 So.2d 1129, 1136 (Fla.1986); Stires v. State, 824 So.2d 943 (Fla. 5th DCA 2002). Application of the rule “requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied and, in addition, an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.” DiGuilio, 491 So.2d at 1135. As our supreme court has noted, “the harmless error analysis focuses on the effect of the error on the trier of fact.” Goodwin v. State, 751 So.2d 537, 542 (Fla.1999) (quoting State v. Lee, 531 So.2d 133,137 (Fla.1988)).

The question, therefore, is not whether the evidence against the defendant was overwhelming. Lee, 531 So.2d at 136-37; Jones v. State, 754 So.2d 792 (Fla. 1st DCA 2000). A reviewing court “must resist the temptation to make its own determination of whether a guilty verdict could be sustained by excluding the impermissible evidence and examining only the permissible evidence.” Goodwin, 751 So.2d at 542.

In the instant case, the pivotal issue at trial concerned identification of the perpetrator of the Sleep Inn robbery. The sole evidence directly tying the defendant to the Sleep Inn robbery was the desk clerk’s eyewitness testimony. The State attempted to bolster the desk clerk’s identification with Williams rule evidence linking the defendant to another recent and very similar hotel robbery in the same vicinity. The victim of the second robbery identified McKeehan as the perpetrator of that crime.

The State then presented an investigator’s identification of the defendant from the videotape. As this identification confirmed the identification of the defendant made by the victim, it might appear to amount to the erroneous admission of cumulative evidence that would constitute harmless error. See, e.g., Torres-Arboledo v. State, 524 So.2d 403 (Fla.), cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988) (same); Ivory v. State, 821 So.2d 1258 (Fla. 4th DCA 2002) (same); Rosado v. State, 785 So.2d 751 (Fla. 5th DCA 2001) (same) (each holding that where erroneously admitted evidence tracks evidence which was properly admitted, the error is harmless).

In the present case, however, the jury’s inquiry of the court relating, first, to the absence of the videotape, and then to the investigator’s identification testimony based on his examination of the tape, makes it quite evident that the jury seriously considered that particular testimony in reaching its verdict. Moreover, the use by the State in this case of evidence less than the original, when there was no demonstration that the original was unavailable, authorizes an inference that the proponent’s position would have been defeated if the best evidence had been furnished. Liddon, 175 So. at 808. Under the circumstances, therefore, we cannot say that there is no reasonable possibility that the inadmissible testimony contributed to the conviction. DiGuilio, 491 So.2d at 1135. Given the questions from the jury, in fact, it is far more likely that the erroneously admitted testimony had an influence on the jury verdict. Accordingly, we reverse the convictions and order a new trial.

In view of this ruling, other issues raised by McKeehan are moot.

REVERSED and REMANDED.

THOMPSON, C.J., and SAWAYA, J., concur.

      . See §§ 90.953, .955, .956, .957, Fla. Stat. (2002).

      . § 90.404(2)(a), Fla. Stat. (2002); Williams v. State, 110 So.2d 654 (Fla.), cert, denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).

      . The defendant asserts on appeal that the videotape did not produce a clear image of what occurred during the Extended Stay robbery and urges this court to review the videotape, which is part of the record in an appeal arising out of prosecution of the defendant for that crime. Review of the clarity of the videotape is, however, unnecessary to disposition of this appeal.


author: NORTHCUTT, Judge.

text:
    Chanpheng THANONGLIT, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3924.
    District Court of Appeal of Florida, Second District.
    March 14, 2003.

      Celene Humphries, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Chanpheng Thanonglit was convicted of attempted murder in the first degree. § 782.04(1), Fla. Stat. (2000). When imposing sentence, the trial court applied a law enforcement protection multiplier pursuant to section 921.0024(l)(b), Florida Statutes (2000), which provides: “Law enforcement protection: If the primary offense is a violation of the Law Enforcement Protection Act under s. 775.0823(2), the subtotal sentence points are multiplied by 2.5.” Thanonglit contends the use of the multiplier was improper under our decision in Matthews v. State, 774 So.2d 1 (Fla. 2d DCA 2000). We agree. We reverse his sentence and remand for resen-tencing.

The information charged that Thanonglit “unlawfully and from a premeditated design to effect the death of Officer Chris Cooper, a human being, did attempt to kill and murder and inflict upon him mortal wounds shooting with a firearm; contrary to Chapter 782.04(l)(a)/777.04/775.087, Florida Statutes.... ” Officer Cooper was not described as a law enforcement officer. Nor did the information reference section 775.0823(2), Florida Statutes (2000). The jurors were not instructed that Officer Cooper was in law enforcement, and the verdict form did not ask them to determine whether the crime was committed against a law enforcement officer.

In Matthews, we receded from our decision in Watson v. State, 749 So.2d 556 (Fla. 2d DCA 2000), to the extent that Watson required an information to recite a violation of section 775.0823 in order for a court to apply the law enforcement multiplier at sentencing. In both Matthews and Watson, the offenses were charged under statutes that specifically addressed crimes against a law enforcement officer. Matthews was charged with aggravated assault on a law enforcement officer; Watson, among other crimes, was charged with aggravated assault on a law enforcement officer and battery on a law enforcement officer. Matthews, 774 So.2d at 2; Watson, 749 So.2d at 557. In Matthews, we reasoned that when the charged crime specifically requires that the victim be a law enforcement officer, and the verdict of guilt entails a jury finding that the victim was, in fact, such an officer, the defendant is on notice that the multiplier may be used. In that situation, we held that the circuit court could apply the multiplier even though the information did not expressly mention a violation of section 775.0823. Matthews, 774 So.2d at 2-3.

In so holding, however, we noted that there would be due process concerns if the information did not allege a specific crime against a law enforcement officer and if the verdict did not include a finding that the victim was in law enforcement. Id. at 3^1. That is the case here. Section 782.04(1) makes the “unlawful killing of a human being” a crime. Unlike section 784.07, there is no prerequisite in section 782.04 that the victim be a law enforcement officer. In such a situation, an information must recite the law enforcement enhancement statute, section 775.0823, to put the defendant on notice that the State is seeking an increased punishment based on the victim’s status. We can envision a case where section 775.0823 is not mentioned in the information, but, after the evidence is presented, the parties agree that the jurors will be asked to determine whether the victim was a law enforcement officer. We need not decide today whether the law enforcement multiplier may be used to sentence a defendant under that hypothetical scenario because, in this case, the issue was not presented to the jury.

We reverse and remand with directions to resentence Thanonglit using a score-sheet that does not contain a multiplier for a crime committed against a law enforcement officer.

DAVIS, J„ and THREADGILL, EDWARD F., Senior Judge, concur.

      . Thanonglit also was convicted of aggravated assault with a firearm, armed burglary, possession of burglary tools, and resisting arrest without violence. His primary offense was attempted murder, so we address that charge. However, our reasoning applies equally to his conviction for aggravated assault.

      . We note that count VI of the information, which charged resisting arrest without violence, specifically described Officer Albert Malone and Officer Daniel Bocea as "law enforcement officers of the St. Petersburg Police Department.” That crime is not included in section 775.0823.

      .The information did, however, refer to section 775.087, the statute that enhances the punishment for a crime when a defendant uses a firearm.


author: PALMER, J.

text:
    Kyle SHIVER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-125.
    District Court of Appeal of Florida, Fifth District.
    March 14, 2003.
    Kyle Shiver, Lake Butler, pro se.
    No Appearance for Appellee.
   PALMER, J.

We affirm the trial court’s summary denial of appellant’s motion to correct illegal sentence. We certify, however, as we did in Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002), the question of whether the enactment of Chapter 02-210, Laws of Florida, retroactively cured the single subject violation of Chapter 99-188, Laws of Florida. We further acknowledge that the Second District has certified conflict with our decision in Hersey. See Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003)(holding that Chapter 02-212 cannot be applied retroactively, for to do so would violate the ex post facto clauses of the United States and Florida constitutions).

AFFIRMED.

SHARP, W., and PETERSON, JJ., concur.


author: SHARP, W., J.

text:
    Desmond BROWN, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 5D02-165.
    District Court of Appeal of Florida, Fifth District.
    March 14, 2003.
    Monique Haughton, Orlando, for Appellant.
    Nicholas P. Evangelo of Thompson & Associates, P.A., Maitland, for Appellee.
   SHARP, W., J.

Brown appeals from the trial court’s dismissal of his lawsuit with prejudice against Allstate Insurance Company because Brown made intentional misrepresentations as to material facts during his deposition. We affirm.

Brown sued Allstate, his insurer, for uninsured motorist benefits and personal injury protection benefits after having been injured in an automobile accident which occurred on March 3, 1998 in Orlando, Florida. A major part of his claim against Allstate was for lost wages. Allstate paid Brown $3,000 for lost wages under PIP coverage. According to Allstate he was claiming an additional $10,000 to $13,000 for having lost his job due to the accident and being unable to return to work because of the accident.

During his deposition, Brown testified he was working for PSD Vans as a truck driver at the time of the accident. However, at the hearing on Allstate’s motion to dismiss, Allstate produced records showing Brown’s employment had been terminated the day before the accident.

The court concluded that Brown knowingly and intentionally concealed his lack of employment at the time of the accident. It also found the misrepresentation was central to the issue of lost wages and that issue was an integral part of his claim against Allstate.

The record supports the trial court’s findings and its dismissal of the case with prejudice. See Morgan v. Campbell, 816 So.2d 251 (Fla. 2d DCA 2002) (power to dismiss an action as the sanction for fraud exists because no litigant has the right to trifle with the court); Long v. Swofford, 805 So.2d 882 (Fla. 3d DCA 2001) (court has a duty and obligation to dismiss a cause of action based on fraud); Cabrerizo v. Fortune International Realty, 760 So.2d 228 (Fla. 3d DCA 2000) (parties who are guilty of fraud or misconduct should not be permitted to employ the very institution they have subverted to achieve their end); Cox v. Burke, 706 So.2d 43 (Fla. 5th DCA 1998) (where party lies about matter pertinent to his own claim or a portion of it, and perpetrates a fraud that permeates the entire proceeding, dismissal of the whole case is proper). Review of the trial court’s action is under an abuse of discretion standard. Morgan; Baker v. Myers Tractor Services, Inc., 765 So.2d 149 (Fla. 1st DCA 2000).

AFFIRMED.

SAWAYA and ORFINGER, JJ„ concur.


author: PER CURIAM.

text:
    James Edward RIVERS, Appellant, v. STATE of Florida, et al., Appellee.
    No. 5D02-3647.
    District Court of Appeal of Florida, Fifth District.
    March 14, 2003.
    James Edward Rivers, Clermont, pro se.
    Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Appellee, Florida Parole Commission.
    No appearance for Appellee, State of Florida.
   PER CURIAM.

The Appellant, James Edward Rivers, appeals the denial of his Petition for Writ of Habeas Corpus. The trial court denied the petition after finding that it was successive to an earlier filed petition. The State concedes that the petition before the trial court was not successive. Accordingly, we reverse the denial of the petition and remand this matter to the trial court for a consideration of the merits.

REVERSED and REMANDED.

THOMPSON, C.J., ORFINGER and MONACO, JJ., concur.


author: SALCINES, Judge.

text:
    Kevin J. CAREY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5027.
    District Court of Appeal of Florida, Second District.
    March 14, 2003.
   SALCINES, Judge.

Kevin Carey appeals the denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse because his scoresheet contains an incorrect calculation on its face that may affect his sentence.

The record in this case is very abbreviated, but it appears that Mr. Carey committed an aggravated battery in August 1996. He apparently received an initial sentence that included a period of probation. The original sentencing occurred prior to the decision in Heggs v. State, 759 So.2d 620 (Fla.2000), and his initial score-sheet was prepared using the 1995 guidelines.

In October 2001, Mr. Carey was sentenced on a violation of probation. The trial court properly prepared a new score-sheet using the 1994 guidelines. Aggravated battery is a level 7 offense. Whoever prepared the scoresheet entered 56 points on the scoresheet for aggravated battery as the primary offense. This is the correct award of points for a level 7 offense on a 1995 scoresheet, but it is incorrect on a 1994 scoresheet. The correct award should have been 42 points.

With the erroneous award of points, the minimum guidelines sentence was 51 months. The trial court sentenced Mr. Carey to this minimum sentence. With a correct calculation, it appears that the minimum sentence will be 40.5 months. Because the scoresheet contains this facial error, we reverse and remand for further proceedings.

Reversed and remanded for further proceedings.

ALTENBERND, C.J., and STRINGER, J., Concur.


author: STRINGER, Judge.

text:
    Edward Joseph BREITENBACH, Appellant, v. Janet H. BREITENBACH, Appellee.
    No. 2D01-5743.
    District Court of Appeal of Florida, Second District.
    March 14, 2003.

      Warren A. Wilson, III, and Dennis R. Long of Wilson, Wilson & Long, P.A., Palm Harbor, for Appellant.
    No appearance for Appellee, Janet H. Breitenbach.
   STRINGER, Judge.

Edward Breitenbach (the Husband) challenges a nonfinal order awarding Janet Breitenbach (the Wife) $2000 in monthly temporary alimony. Because the record does not support the trial court’s findings as to the Wife’s need for alimony and the Husband’s ability to pay, we reverse.

Temporary awards of support and alimony are discretionary. Calhoun v. Calhoun, 627 So.2d 611 (Fla. 2d DCA 1993). Nevertheless, such awards must be supported by evidence which demonstrates the need for support and the paying spouse’s ability to pay. Fields v. Fields, 533 So.2d 922 (Fla. 2d DCA 1988); Novack v. Novack, 196 So.2d 499 (Fla. 3d DCA 1967).

The Wife, age fifty-three at the time of the temporary hearing, produced evidence to establish that she is medically disabled and unable to work. However, the evidence adduced at the hearing also established that she enjoys very generous financial support from family and friends and has lived with an aunt since the parties’ separation. The Wife has no living expenses of her own and, in fact, receives a government stipend of $210 per month. Moreover, her medical expenses are covered by a government insurance program.

The Wife’s financial affidavit reflects monthly expenses which total $4196. However, she testified that at the time of the hearing she was not paying any of those expenses. She admitted that her attorney completed the affidavit and estimated the monthly expenses. She further admitted having no personal knowledge as to what a dwelling of her own might cost. The Wife has absolutely no monthly expenses that are documented in the record. Her testimony does not even disclose that she is obligated to or has been paying her aunt a monthly contribution toward household expenses.

As for the Husband, his financial affidavit shows a gross monthly retirement income of approximately $800. The affidavit also indicates that his monthly expenses exceed his income by more than $100. In spite of the obvious shortfall in the Husband’s monthly budget and the absence of evidence to establish a basis for imputing additional income to the Husband, the court ordered him to pay the Wife $2000 in temporary alimony. While doing so, the court acknowledged the hardship that this obligation would create for the Husband, but in its order the court suggested that he mortgage nonmarital property in order to pay the temporary alimony award. This was also error. See Perez v. Perez, 599 So.2d 682 (Fla. 3d DCA 1992) (finding general master’s finding of present ability to pay based on spouse’s ability to obtain a loan “outrageous”).

Because there is no evidence in the record to support the circuit court’s temporary alimony award of $2000, we reverse and remand for further proceedings.

Reversed.

CASANUEVA and KELLY, JJ„ Concur.


author: |/VICTORY, J.

text:
    F. MILLER & SONS, INC. and Lake Charles Harbor & Terminal District v. CALCASIEU PARISH SCHOOL BOARD, Rufus Fruge, Jr., as Director of Calcasieu Parish Sales & Use Tax Department, etc.
    No. 2002-C-1680.
    Supreme Court of Louisiana.
    Feb. 25, 2003.
    William T. Fontenot, Russell J. States, Jr., John M. Veron, Scofield, Gerard, Ver-on, Singletary & Pohorelsky, for Appellant.
    Christopher J. Dicharry, Phyllis D. Sims, Kean, Miller, Hawthorne, D’Armond, McCowan & Jarma; Michael H. Schwartz-berg, Lake Charles, Robert “Rick” Bryant, District Attorney, Terry J. Manuel, Asst. District Attorney, Michael K. Dees, Lake Charles, for Respondent.
    Wayne J. McDougall, John F. Rowley, Chalmette, for Bernard Harbor & Terminal District (Amicus Curiae).
    Joel T. Chaisson, Hahnville, Sarah C. Leary, Westwego, for Port of South Louisiana (Amicus Curiae).
    Charles G. Tutt, Shreveport, for Caddo-Bosiser Parishes Port Commission (Ami-cus Curiae).
    Robert F. Mulhearn, Jr., Robert R. Ra-nier, for Livingston Parish School Board, St. Mary Parish Council, Parish of West Baton Rouge (Amicus Curiae).
    Dorrell J. Brister, Bradley L. Drell, Alexandria, Gregory B. Upton, Alexandria, for Rapides Parish Sales & Use Tax Dept. (Amicus Curiae).
   |/VICTORY, J.

We granted a writ in this case to determine whether the Lake Charles Harbor & Terminal District, a/k/a the Port of Lake Charles (the “Port”), entered into a valid agency agreement with F. Miller & Sons, Inc. (“Miller”), whereby Miller was the Port’s agent for the purpose of purchasing materials for use on a public contract and therefore no sales and use taxes were due on these purchases pursuant to La. R.S. 47:301(8)(c). After reviewing the record and the applicable law, we affirm the judgment of the court of appeal and hold that Miller was acting as agent for the Port, a tax-exempt governmental entity under La. R.S. 47:301(8)(c), when it made the purchases at issue in this case and therefore is not liable to the Calcasieu Parish School Board for sales and use taxes.

FACTS AND PROCEDURAL HISTORY

Pursuant to the Public Bid Law and La. R.S. 34:308, the Port advertised and put out for bid a construction project for the renovation and repair of the dock at its deepwater port in Calcasieu Parish (the “Project”). The Port’s standard bid specifications and contract documents on the Project provided for an express appointment of the contractor as the agent of the Port for purchasing materials and | ^directed that all bidders not include any sales tax in their bid. Miller was awarded the contract with a bid of $3,457,746.00, inclusive of labor and materials.

The pertinent contractual provisions appear at the following sections:

1.39 Supplementary Conditions-The part of the Contract Documents which amends or supplements these General Conditions
SC 6.15-Taxes
Contractor shall not pay any state or local sales or state or local use taxes on materials and equipment which are affixed and made a part of the real estate of the project or work or which is permanently incorporated into the project or work (hereinafter referred to as “applicable materials and equipment”). All purchases of applicable materials or equipment shall be made by the contractor on behalf of and as the agent of the Lake Charles Harbor & Terminal District (Owner), a political subdivision of the State of Louisiana. No state and local sales and use taxes are owed on applicable materials and equipment under the provisions of Act 1029 of the 1991 Regular Session-Louisiana Revised Statute 47:308(8)(e). Owner will furnish contractor a certificate on a form supplied by the Louisiana Department of Revenue and Taxation and/or local taxing authorities which certified that Owner is not required to pay such state or local sales and use taxes and contractor shall furnish a copy of such certificates to all vendors or suppliers of the applicable materials and equipment. The Owner agrees to indemnify contractor against the payment of any state or local sales taxes which are required to be paid regarding the work or the project or any materials or equipment supplied or purchased by the contractor for the work under the contract. The contractor is referred to Exhibit F-“Addendum to Mutual Settlement Agreement and Release of All Claims” for further information.”

The supplemental and amending 6.15 provision (“SC 6.15”) was added by the Port’s counsel once he determined that the Port could appoint a contractor as agent pursuant to Louisiana law and not pay state or local sales taxes on materials incorporated into the Project, as this would result in a lower overall cost for completion of the Project, to the benefit of the Port and local taxpayers.

Also attached to the contract was an addendum signed by representatives of the Port and the Louisiana Department of Revenue and Taxation on April 29, 1993, which provided in pertinent part:

1 /WHEREAS, the parties hereto desire to enter into an agreement to allow the District (the Port) to convey to its potential contractors and vendors its tax exempt status as to transactions arising from contracts for the construction of District owned facilities as reviewed by the Department.
NOW, THEREFORE, for and in consideration of the mutual releases, settlements, dismissals, covenants and agreements between the District, and the Department and the mutual benefits accruing to the parties from the execution of this addendum to the Mutual Settlement Agreement and Release of all claims, the parties heretofore mentioned, agree as follows:
1. The District may disclose to its contractors and vendors that based on a review by the Department of its contract specification and documents used by the District for all construction of District owned facilities, all transactions in which the District is vendee or all transactions arising from its contracts for the purpose of constructing facilities of the District wherein the District’s contractors, subcontractors or suppliers or other tangibles for incorporation into the District owned facilities are not subject to the imposition of sales tax, pursuant to the provisions of R.S. 47:301(8)(a-c) due to the status of the District as a political subdivision of the State of Louisiana.

Thus, according to the terms of the contract, Miller procured supplies and building materials from various vendors (approximately 12 vendors for major purchases) and used these materials for incorporation into the Project. Miller chose the vendors among those whose materials satisfied the specifications of the contract. However, the Port played a role in the selection of suppliers and subcontractors, as the Port had the right to reject any supplier identified by Miller in its bid, and the Port’s consent was required before Miller switched to a different major supplier. When Miller purchased materials or equipment which were to be affixed and made part of the real estate of the Project or which were to be permanently incorporated into the Project, Miller did not pay any taxes on these purchases, providing the vendors with the above documentation and informing them that the purchases were tax exempt as they were being made on behalf of the Port. The Port made monthly payments to Miller based on the work completed in the prior 30-day period, and then made a final payment after the job was completed. Under the terms of the contract, the Port agreed |4to pay a “unit price” for certain major types of materials. If that material was incorporated into the Project 30 days after purchase by Miller, the “unit price” for that material would be included in Miller’s monthly payment. When the material was not incorporated into the Project within 30 days, Miller would request payment of the “unit price” of that material in that month’s payment, even though the material was not yet incorporated into the Project. Any of the material for which “unit price” which was left over after completion of the Project was left for the Port to use in the future.

Based on the authorization contained in Art. VI, Sec. 29 of the Louisiana Constitution and La. R.S. 33:2737 for the collection of local sales and use taxes, the Calcasieu Parish School Board (the “School Board”) conducted a sales tax audit and on November 16, 1998, assessed Miller $9,146.95 in sales tax, interest, and penalties for its purchases made on behalf of the Port, and on December 7, 1998, assessed Miller another $90,987.91. Under the terms of the Port’s indemnity agreement, the Port’s in-house counsel then assumed legal representation of both the Port and Miller and the Port paid the taxes under protest and filed suit seeking a refund. Both sides filed cross-motions for summary judgment, with the Port contending that Miller purchased the building materials as its agent, that the Port was the true purchaser, and that the Port was exempt from paying sales tax under La. R.S. 47:301(8)(a-c). The School Board contended that Miller purchased the materials on its own account and was not entitled to the Port’s public body tax exemption. The trial court found in favor of the Port and Miller, ruling that although the main contract did not give the contractor any legal authority to bind the Port to any agreements with the vendors, the supplementary conditions to the contract, SC 6.15, created an agency relationship, and therefore, Miller, as agent for the Port, was exempt from paying sales tax. The Third Circuit affirmed. F. Miller & Sons, Inc. v. Calcasieu Parish School Board, et al., c/w Gravity Drainage District # k, et al. v. Calcasieu Parish School Board, et al., c/w Gravity

1 ¿Drainage District # k, et al. v. Calcasieu Parish School Board, et al, Nos. 02-00016, c/w 02-00017 & 02-00018, 817 So.2d 1261 (La.App. 3 Cir. 5/15/02). We granted a writ to determine if the Port and Miller entered into a valid agency agreement under Louisiana law such that Miller, as the Port’s agent, would be exempt from the payment of local sales tax under La. R.S. 47:301. Miller v. Calcasieu Parish School Board, 02-1680 (La.10/14/02).

J^DISCUSSION

La. R.S. 47:302 imposes a sales and use tax upon the sale at retail, the use, the consumption, the distribution, and the storage for use or consumption in this state of each item of tangible personal property. La. R.S. 47:301(8)(c) provides an exemption from these taxes as follows:

For purposes of the payment of the state sales and use tax and the sales and use tax levied by any political subdivision, “person” shall not include this state, any parish, city and parish, municipality, district, or other political subdivision thereof, or any agency, board, commission, or instrumentality of this state or its political subdivisions.

This statute was enacted in 1991 and it was not until 1991 that political subdivisions such as the Port were exempt from paying both state and local sales and use taxes. It is undisputed in this case that the Port, as purchaser of tangible personal property, |7would be exempt from paying sales and use tax to the School Board. The issue in this case is whether the Port can, and did, validly appoint Miller as its agent for purchasing materials for use on this Project, such that Miller would also be exempt.

In 1989, this Court decided the case of Bill Roberts, Inc. v. McNamara, 539 So.2d 1226 (La.1989), which dealt the liability of a government contractor for the payment of state sales and use taxes. In Bill Roberts, a construction company, which had purchased equipment for use in construction contracts with various government entities, was assessed with state sales taxes for the purchase of these supplies and equipment. The construction company would receive bid forms and purchase orders from the governmental agencies which specifically stated that sales tax was not to be included in the bids or that the agencies were exempt from paying sales tax. When these forms were presented to the wholesalers from whom the supplies were purchased for the projects, the wholesalers did not charge sales tax. The equipment and supplies were usually shipped directly to the project sites. Pursuant to the contracts, the construction company was responsible for installing the materials. The construction company claimed that it was not liable for sales tax because either: the governmental agencies, which where exempt from the payment of state sales tax pursuant to La. R.S. 47:305.29, were the final consumers of the supplies and the equipment; or, the purchases were made by the construction company as an agent for the tax-exempt governmental agencies. This Court disagreed.

First, relying on earlier cases, we held “the contractor or builder of an immovable has been found to be the ultimate consumer of the building materials that go into constructing the immovable,” and, therefore, “the contractor as the purchaser and consumer of the building materials used in construction of the immovable owes a sales tax on the purchase.” 539 So.2d at 1229 (citing Claiborne Sales Co. v. Collector of Revenue, 233 La. 1061, 99 So.2d 345 (1957); State v. J. Watts Kearny & Sons, 181 La. 554,160 So. 77 (1934)).

Next, however, we held that “[a]s agent for the owners, the corporation would be exempt from paying sales tax,” and that, therefore, “if the corporation could establish an agency relationship on behalf of the governmental entities, then the corporation would be exempt from taxation.” Id. However, the construction company relied solely upon the bid forms and the purchase orders to establish the agency relationship, and this Court held that was insufficient proof. Id.

Thus, applying the law as stated in Bill Roberts to the facts of this- case, if Miller can prove that it was the Port’s agent for purchasing supplies and equipment used on this public works Project, then it will be exempt from local sales taxes under La. R.S. 47:301(8).

As found by both the trial court and the court of appeal, by virtue of SC 6.15, “the Port and Miller entered into a written contract that expressly states that they were creating an agency relationship.” Miller, supra 817 So.2d at 1264. The finding of an agency relationship is a finding of fact which will not be overturned unless clearly wrong. Boulos v. Morrison, 503 So.2d 1, 3 (La.1987).

“A mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal.” La. C.C. art. 2989. SC 6.15 states in pertinent part: “all purchases of applicable materials or equipment [which are affixed and made a part of the real estate of the project or work or which is permanently incorporated into the project or work] shall be made by the contractor on behalf of an as the agent of the [Port] ...” Thus, this contractual provision authorizes Miller to purchase materials and supplies which will be affixed, permanently incorporated into, or made part of the Project as agent for the Port.

|sThe School Board argues that the facts surrounding the purchases and the other terms of the contract negate any finding of agency in this case. Specifically, the School Board argues that Miller was not acting as agent for the Port because Miller selected the vendors, executed contracts with the vendors in its own name, was the sole party to contract with the vendors, revised and paid invoices from the vendors, bore the risk of loss for the materials after they were delivered to the work site, knew how much the materials costs, and bore the risk of any increased cost of the materials. However, we find that none of these factors negates an agency relationship in this case.

First, the Civil Code provides that “the mandatary may perform all acts that are incidental to or necessary for the performance of the mandate.” La. C.C. art. 2995. Further, “the authority granted to a mandatary to perform an act that is an ordinary part of his profession or calling, or an act that follows from the nature of his profession or calling, need not be specified.” La. C.C. art. 2995. In this case, selecting the vendors, receiving and paying the invoices, and knowing how much the materials cost are all acts that are necessary to the performance of the mandate and are part of Miller’s profession and expertise.

Second, the fact that Miller executed the contracts in its own name and was the sole party to the contract, is consistent with the laws of mandate which provide that a mandate can enter into contracts as either a disclosed mandate or an undisclosed mandate. La. C.C. arts. 3016, 3017. However, in this case, while Miller may have signed the contracts in its own name, Miller informed the vendors that it was acting as agent for the Port and that therefore no sales taxes were owed on the purchases.

Third, Miller bore the risk of loss for the materials after they were delivered to the work site by virtue of contractual provisions, Sec. 6.4 and 100-16. However, linnothing in the law of agency prohibits a mandatary from undertaking that kind of risk as a negotiated term of a contract.

Finally, the School Board’s argument that Miller bore the risk of any increased costs in materials and therefore had to be acting for itself when it purchased the materials is without merit. Because Miller was acting as the Port’s mandatary in purchasing the applicable materials and supplies, the vendors could look to the Port for payment in case Miller failed to pay. La. C.C. art. 3020 (“The principal is bound to perform the contract that the mandatory, acting within the limits of his authority, makes with a person.”) Of course, if a vendor did so, the Port would look to Miller for repayment under the terms of the contract. Miller’s payment bond on the project provided that Miller and the surety “bind themselves, ... to the Owner to pay for labor, materials and equipment furnished for use in the performance of the construction contract ...” William Miller testified that the purpose of the payment bond was to insure that Miller, or its surety, pay the vendors and to protect the Port from having to pay the vendors. The fact that Miller’s profit margin would be less if material prices increased the estimated bid costs has no bearing on the issue of whether Miller was acting on behalf of the Port in making the purchases.

The School Board argues that SC 6.15, appointing Miller as the Port’s agent for the purchase of certain materials, conflicts with a provision of the contract, Sec. 6.9.1, which states that “[njothing in the contract documents shall create ... any contractual relationship between [the Port] ... and any subcontractor, supplier or other person or organization.... ” Therefore, the School Board argues, the agency provision must not be given effect. However, when the provision is read in its entirety, it ends with “except as may otherwise be required by Laws and Regulations.” Here, the laws of mandate require that, because Miller is purchasing the materials from the vendors as agent for the Port, the Port and the vendors do have a contractual relationship.

| t Accordingly, we find that the lower courts’ finding that Miller was the Port’s agent for purchasing certain materials and supplies for use on the Project was not clearly wrong.

The School Board and amici argue that if the lower courts’ decision is allowed to stand, it will effectively create a new tax loophole not intended by the legislature which will deprive local governmental entities of much needed tax revenues. This argument is erroneous for two reasons.

First, that the legislature did not intend this tax “loophole” is pure speculation. In fact, the Louisiana Department of Revenue, the state agency in charge of the collection and payment of taxes pursuant to Louisiana tax laws, including La. R.S. 47:301(8), clearly intended that governmental entities could appoint government contractors as their agent for the purchase of materials and supplies in order to avoid the payment of sales tax on public construction projects. That department recently adopted regulations recognizing the right of the state and political subdivisions to designate construction contractors as agents for purposes of acquiring construction materials in non-taxable transactions. Amendments to Louisiana Administrative Code 61:1. Taxes Collected and Administered by the Secretary of Revenue, Section Jp301.definitions were promulgated by the Department of Revenue and published in the February 20, 2002 Louisiana Register. The stated purpose of these amendments is:

to provide guidance concerning the exclusion from the definition of person for all or some of the purchases made by the entities listed in R.S. 47:301(8).... In some instances, the entities specified in R.S. 47:301(8) making the types of purchases that qualify them for the exclusion from the definition of person may act through an agent or employee in making the purchase. Two common situations when this occurs are purchases made by government contractors and the renting of hotel rooms to government employees. The amendments to this rule list the circumstances under which purchases by immovable property contractors 11?.... are equivalent to direct acquisitions by the entity excluded from the definition of person.

LAC 61:1.4301. The amendment to the rule thus provides:

c. R.S. 47:301(8) provides exclusions from the definition of person for purchases made by certain entities....
i. The two entities granted exclusions from paying state and local sales and use tax on all of their purchases are:
(a) the state of Louisiana, its parishes, its municipalities, its special districts, its political subdivisions, and any other agencies, boards, commissions, or instru-mentalities of the state or its political subdivisions;
d. The exclusion from the definition of person is granted only for purchases made by these entities on their own behalf. Representatives of these entities making purchases for the entity may also be excluded from the definition of person when their purchases are deemed the equivalent of an acquisition by the entity itself. The most common examples of representatives purchasing on behalf of these entities are:
i. Mandataries (agents) purchasing materials or leasing or renting equipment for immovable property construction contracts; and ...
e. The following elements establish an immovable property contractor’s purchases as the legal equivalent of a R.S. 47:301(8) entity’s purchases so as to exclude the transactions from sales and use tax.... The following criteria assume that the R.S. 47:301(8) entity is an immovable property contractor with an agency agreement with a government department or agency.
i. The government department or agency must acquire title to the property at the time of purchase. Except as otherwise provided in the contract between the parties, the risk of loss must be with the governmental entity.
ii. There must be a signed agreement authorizing the contractor to act as purchasing agent for the entity. The department’s form, Designation of Construction Contractor as Agent of a Governmental Entity, may be used for this purpose, or a custom agreement may be substituted if it includes all terms and conditions listed in the form prepared by the department. The form is available at any department office and through the department’s web site at: www.rev. state.la.us. Copies of the signed agreement must be made available to tax authorities and vendors upon request. Purchases by the designated agent will be
|13recognized as those of the government entity if all parties to the contract strictly follow the terms of the agreement.

LAC 61:1.4301.

The agency agreement in this case meets the above requirements, in that the “custom agreement” between the parties includes all the terms and conditions listed in the form prepared by the department. See State of Louisiana, Department of Revenue, R-1020 (9/00), Designation of Construction Contractor as Agent of a Governmental Entity. Further, although the risk of loss of the property remains with Miller under the express terms of the contract, this is allowed by the amended rule. LAC 61:I.4301(e) (“Except as otherwise provided in the contract between the parties, the risk of loss must be with the governmental entity”).

Second, the argument that this tax “loophole” is depriving local governmental entities of much needed tax revenues is misleading, as while one local entity, the School Board, is losing revenue in this case, another local entity, the Port and with it local taxpayers, is gaining revenue as the contract is costing less because sales taxes on certain materials are not owed. No private party is gaining revenue at the expense of a local governmental entity; Miller is not gaining revenue because its bid on the Project did not include the payment of any state or local sales tax on the applicable supplies and materials. Thus, we reject the argument that this is an unintended tax “loophole” at the expense of the local governmental entity.

CONCLUSION

The Port, as a political subdivision of the State of Louisiana, is exempt from the payment of state and local sales and use taxes when it purchases tangible personal property. In this case, the Port entered into a construction contract with Miller for renovation and repair of its deepwater port in Calcasieu Parish, pursuant to which contract Miller provided labor and materials for a fixed contract price, and pursuant luto which contract the Port appointed Miller as its agent for the purchase of certain types of materials. As the Port’s agent, Miller did not pay sales tax on these materials. We find that the appointment of Miller as the Port’s agent was done in accordance with the laws of mandate, and does not create a new, unintended tax loophole. Therefore, we find that Miller, as agent for a tax-exempt governmental agency, is not liable to the School Board for the payment of local sales and use taxes.

DECREE

For the reasons stated herein, the judgment of the court of appeal is affirmed.

AFFIRMED.

KIMBALL, J., concurs in the result.

      . Prior to the hearing on the cross-motions for summary judgment, two other cases pending in the Fourteenth Judicial District Court for the Parish of Calcasieu, State of Louisiana, involving similar facts and law filed on behalf of Gravity Drainage District No. 4, Ward 3, of Calcasieu Parish Louisiana ("Gravity Drainage District") and Miller were consolidated with 14th JDC No. 98-6599, i.e., this case. Those cases are captioned:

        Gravity Drainage District Number 4, Ward 3, of Calcasieu Parish, Louisiana and F. Miller & Sons, Inc. Versus Calcasieu Parish School Board, Rufus R. Fruge, Jr., in his capacity as Director of the Calcasieu Parish Sales & Use Tax Department, and the Calcasieu Parish Sales and Use Tax Department Docket Number 99-8359 on the Docket of the Fourteenth Judicial District Court for the Parish of Calcasieu, State of Louisiana ("14th JDC No. 99-8359”), and Gravity Drainage District Number 4, Ward 3, of Calcasieu Parish, Louisiana and F. Miller & Sons, Inc. Versus Calcasieu Parish School Board, Rufus R. Fruge, Jr., in his capacity as Director of the Calcasieu Parish Sales & Use Tax Department and the Calcasieu Parish Sates & Use Tax Department, Docket Number 2000-000268 on the Docket of the Fourteenth Judicial District Court for the Parish of Calcasieu ("14th JDC No.2000-000268”).
      The cross-motions for summary judgment in the case sub judice, 14th JDC No. 98-6599, were heard on October 15, 2001 and the District Court entered a written judgment granting the motion for summary judgment filed on behalf of Miller and caption of the written judgment identified all three of the consolidated cases; however, the document shows a handwritten entry at the top showing the judge's intention to enter the judgment only in 14th JDC No. 98-6599. Additionally, in her written reasons for judgment, the district court showed only the caption for 14th JDC No. 98-6599.
      In response to the judgment, the School Board appealed, and the motion for suspen-sive appeal contained the consolidated caption and the appeal was treated as three separate appeals, one for each of the three consolidated cases. The cases were docketed as consolidated appeals under Court of Appeal, Third Circuit docket numbers 02 00016-CA, 02 00017-CA, and 01 00018-CA. However, no motions for summary judgment were filed and no judgments were entered in the consolidated cases brought by Miller and Gravity Drainage District in 14th JDC Nos. 99-8355 and 2000-000268, but the caption of the court of appeal's decision contains the consolidated caption of all three cases. The School Board filed the writ application regarding the opinion we are rendering today, which application referred to all three consolidated Third Circuit docket numbers (02 00016-CA; 02 00017-CA; 02 00018-CA). However, the only judgment before us today concerns the lower courts' rulings in the case involving Miller and the Port, i.e., 14th JDC No. 6599 and 02 00016-CA.

      . Under the 1950 version of La. R.S. 47:301(8), the state and political subdivisions could all tax each other, as the definition of "person” in the Revised Statutes of 1950, La. R.S. 47:301(8), provided:
      "Person” includes any individual, firm, co-partnership, joint adventure, association, corporation, estate, trust, business trust, receiver, syndicate, this state, any parish, city and parish, municipality, district or other political subdivision thereof or any board, agency, instrumentality or other group or combination acting as a unit, and the plural as well as the singular number.
      This definition of "person” remained effective until September 1, 1991. However, over the years the legislature restricted the power of the state and political subdivisions to collect sales taxes from each other. The first step that the legislature took in that regard was the enactment of La. R.S. 47:305:29, effective October 1, 1980. That statute took away the power of the state to tax itself and certain specific political subdivisions. In its final version, effective July 16, 1985, the statute read as follows:
      The sales and use tax imposed by the state of Louisiana under R.S. 47:302 and R.S. 47:321 shall not apply to purchases by the state or any of its agencies, boards, or commissions, school boards, parish and municipal governing authorities, law enforcement districts, parish hospital service districts, and parish and municipal libraries. [Emphasis added].
      Under this statute, all political subdivisions could still collect taxes from each other and from the state, but the state could not tax itself or certain political subdivisions. Beginning in 1986, however, the legislature began to suspend many of the sales tax exceptions, including the exception found in La. R.S. 47:305:29.
      In 1991, in order to overcome issues associated with the state imposing sales tax on itself and its political subdivisions, the legislature withdrew altogether the power of the state and all political subdivisions to tax each other and their respective "agencies” and "instru-mentalities.” La. Acts 1991, No. 1029. It did this by amending the La. R.S. 47:301(8) definition of the term "person” to add paragraph (c).

      . In arguments not presented to the lower courts, or even to this Court by the parties to the case, the Rapides Parish School Board, as amicus, argues that the appointment of Miller as agent for the Port in purchasing materials and supplies for use on this Project violates the Public Bid Law and public policy considerations and is therefore null and void. We decline to address these arguments as they were not raised in the lower courts.


author: _JjPER CURIAM. h CALOGERO, Chief Justice,

text:
    In re Randal L. GAINES.
    No. 2002-B-2454.
    Supreme Court of Louisiana.
    Feb. 25, 2003.
    Randal L. Gaines, Pro se, Patrick W. Pendley, Plaquemine, Ernest L. Jones, Lolis E. Elie, New Orleans, for Applicant.

      Charles B. Plattsmier, Baton Rouge, James T. Daly, Plaquemine, for Respondent.
   _JjPER CURIAM.

This disciplinary proceeding arises from four counts of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Randal L. Gaines, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Prior to January 1, 2003, Supreme Court Rule XXX, Regulation 3.1 required members of the Louisiana State Bar Association (“LSBA”) to complete a minimum of fifteen hours of mandatory continuing legal education (“MCLE”). If a member earned in excess of fifteen hours, he or she could carry no more than ten hours forward for the next year. Rule XXX, Regulation 5.5.

In 1995, respondent earned thirty hours of MCLE. He mistakenly believed fifteen of these hours could be carried over into 1996, thus satisfying his requirements for that year. However, because he could not carry over the full fifteen hours, respondent was not in compliance with his MCLE obligation for 1996.

In April, 1997, respondent received a non-compliance notice from the LSBA which indicated he had not fulfilled his MCLE requirements for the 1996 reporting Lyear. Respondent believed this letter, which was mistakenly dated April 15, 1996, was sent in error and, therefore, he disregarded it.

In July, 1997, this court issued a notice certifying that respondent was ineligible to practice law due to his failure to comply with his 1996 MCLE requirements, and providing that the certification of ineligibility would become effective thirty days from the date of the notice unless respondent established his compliance within that time. While the LSBA sent a copy of this notice to respondent, respondent denies ever receiving such. Because respondent did not comply with his obligations within the thirty day period, he became ineligible to practice on August 8,1997.

From November, 1997 to June, 1998, while he was ineligible to practice law, respondent represented Felechia Jones and her minor son. Subsequently, Ms. Jones filed a complaint against respondent, alleging he had failed to return her case file. Ultimately, the ODC found no merit to the complaint and wrote respondent advising that it would not pursue the complaint. However, in the course of investigating the matter, the ODC determined respondent may have been ineligible to practice during the representation and sought additional information from respondent regarding his MCLE status. Believing the request was relative to the Jones matter and that the ODC’s investigation was no longer pending, respondent did not respond. In November, 1998, the ODC issued a subpoena to respondent ordering respondent to appear for a deposition. At that time, respondent allegedly learned for the first time that he was ineligible to practice based on his failure to complete his MCLE requirements.

In an effort to satisfy his outstanding MCLE obligations, respondent attended a medical malpractice continuing legal education seminar in December, 1998. Following the one-day seminar, respondent attested on his attendance card that he was present for the full 7.2 hours of the program. However, the registration records from [¡¡the seminar indicate respondent arrived late and was only present for 5.2 hours of the seminar.

Subsequently, Kitty Hymel, in her capacity as MCLE Administrator for the LSBA, sent a letter to respondent informing him that he had not properly recorded his hours and noting this was the second time he had done so. The letter stated that following the first incident he was verbally cautioned not to repeat such misconduct. Upon concluding respondent’s misrepresentations were subject to discipline, she forwarded to the ODC a copy of her letter directed to respondent.

DISCIPLINARY PROCEEDINGS

Formal Charges

After investigation, the ODC filed formal charges against respondent alleging respondent engaged in the unauthorized practice of law by representing three clients while ineligible in violation of Rule 5.5(a), as well as violated Rules 8.1(c) and 8.4(g) through his failure to cooperate in the disciplinary investigation in the Jones matter. Finally, the ODC alleged respondent violated Rule 1.1(b) by failing to comply with his MCLE requirements, and violated Rule 8.4(c) by engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation in connection with his reporting of his MCLE hours.

LRespondent filed an answer to the formal charges admitting that he engaged in the unauthorized practice of law when he handled the three client matters. However, he alleged he was unaware of his ineligibility since he had never received notice from this court or the LSBA of his noncompliance. Respondent conceded that he received notice in April, 1997 of his failure to satisfy his obligations, but the letter was dated April, 1996, one year earlier. Respondent claimed, since he had earned thirty hours of continuing legal education in 1995, he presumed the letter dated 1996 was sent out in error and took no action to respond. As to his alleged failure to cooperate in the investigation of the Jones matter, respondent stated the ODC advised him it had closed its investigatory file following his return of Ms. Jones’ file. He maintained he neglected to respond to the ODC’s request for information after that time because he believed the request was sent in error. Finally, as to his misrepresentations on his MCLE attendance cards, respondent admitted he had arrived at the two seminars late and reported that he attended the total hours offered. However, he alleged that he expected the seminar sponsors to recalculate the hours.

Formal Hearing

A formal hearing was conducted and several persons testified. Specifically, Ms. Hymel testified regarding the LSBA’s procedure relative to notifying its members of their MCLE noncompliance. Specifically, she alleged that her office sends out three notices to attorneys between December and July regarding the MCLE hours earned. Specifically, in April, transcripts are mailed via certified mail to all attorneys who are noncompliant. She testified, while her office sends the letters out via certified mail, return receipts are not requested due to the excessive expense and because the notices are forwarded to the addresses provided annually by the attorneys on their Rule XIX attorney registration statement. Ms. Hymel stated that, if the attorneys do not comply |Ras a result of the April notice, sixty days later her office provides a list of noncompliant members to this court to send notices of administrative ineligibility. Finally, Ms. Hymel testified, following the first occasion respondent misrepresented the facts on his continuing legal education seminar attendance card, she contacted his office by telephone and advised him not to misreport his MCLE hours again. When he disregarded her advice and misrepresented information a second time, she filed a complaint with the ODC.

Respondent’s testimony paralleled his response to the formal charges. Additionally, he offered evidence in mitigation of his misconduct. Particularly, respondent noted his twenty year service in the Army National Guard. He also expressed remorse for his misconduct relative to his failure to monitor and comply with his MCLE.

Recommendation of the Hearing Committee

The hearing committee determined the ODC proved by clear and convincing evidence violations of Rule 1.1(b) (failure to comply with MCLE requirements) and, Rule 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation). Notwithstanding, it concluded there was insufficient evidence that respondent violated Rule 5.5(a) (engaging in the unauthorized practice of law) since it was not established he received the notices of his ineligibility. As to the Jones complaint, the committee found there was no evidence to show respondent violated Rules 8.1(c) (failure to cooperate in a disciplinary investigation) and 8.4(g) (failure to cooperate with the ODC). In support, it relied on the fact the ODC had advised respondent its investigation into the Jones complaint had been closed and, subsequently, it was reopened without notice to respondent.

| (Addressing the issue of sanctions, the committee recognized the existence of pri- or discipline as an aggravating factor. Further, in light of the two incidents of misrepresentation relative to his MCLE attendance, the committee questioned respondent’s veracity, and considered dishonest or selfish motive as an aggravating factor. In mitigation, the committee noted timely good faith effort to rectify consequences of misconduct, full and free disclosure to disciplinary board, character and reputation, and remorse. Finding the mitigating factors outweigh the aggravating factors, the committee recommended imposition of a public reprimand and additional continuing legal education.

Recommendation of the Disciplinary Board

The disciplinary board adopted the factual findings of the hearing committee in most respects. However, it found the committee erred in finding respondent did not engage in the unauthorized practice of law in violation of Rule 5.5(a). In support, it noted that respondent admitted, in April, 1997, he received the noncompliance notice for the 1996 reporting year. In addition, it relied on the testimony of Ms. Hymel that preliminary transcripts of continuing legal education hours are mailed to members of the Bar every December. The board pointed out that “[i]t is incumbent upon members of the legal profession to be aware of the requirements for eligibility in the Louisiana State Bar Association, to comply with those requirements, and to be aware of the consequences of failure to comply.” Thus, it concluded respondent engaged in the ^unauthorized practice of law in handling the three client matters at issue in this litigation.

In addressing the issue of sanctions, the board found respondent violated duties owed to his clients, the public and as a professional. It agreed with the committee that respondent knew or should have known that his conduct was in violation of the Rules of Professional Conduct. While it determined the injury to not be great, the board found “the conduct of respondent to be disturbing.” The board adopted the aggravating and mitigating factors cited by the committee. Upon consideration of these factors, the board recommended respondent be suspended from the practice of law for a period of three months, fully deferred, subject to seven hours of continuing legal education in addition to his regular MCLE requirement.

Respondent filed an objection in this court to the recommendation of the disciplinary board. As a result, the matter was docketed for briefing and argument in accordance with Supreme Court Rule XIX, § 11(G).

DISCUSSION

The record clearly establishes that respondent violated Rule 1.1(b) by failing to fulfill his MCLE requirements and violated Rule 8.4(c) by engaging in conduct involving misrepresentation in connection with the reporting of his MCLE hours. However, respondent has consistently maintained that he has not engaged in the unauthorized practice of law in violation of Rule 5.5(a) because he never received notices of his ineligibility. The hearing committee made a factual finding that respondent was unaware he was ineligible to practice, but the disciplinary board reversed this finding on the ground it was clearly wrong.

As we explained in In re: Bolton, 02-0257 at p. 7 (La.6/21/02), 820 So.2d 548, 553, unlike the disciplinary board and this court, the hearing committee is not | ^disadvantaged by the review of a cold record and is in a superior position to observe the nuances of demeanor evidence not revealed in a record. Although this court is the trier of fact in bar disciplinary eases, we are not prepared to disregard the credibility evaluations made by those committee members who were present during respondent’s testimony and who act as the eyes and ears of this court. Id. Therefore, we cannot say the hearing committee was clearly wrong when it determined that respondent was credible when he testified he did not receive notice of his ineligibility.

In determining an appropriate sanction, we note that Rule 1.1(b) falls within the general rule that an attorney must provide competent representation. This court has enacted the mandatory continuing legal education rules to ensure that members of the profession remain current in the law and able to discharge their professional obligations to their clients. Therefore, a violation of these rules should not be treated lightly.

Respondent’s misrepresentation in connection with the reporting of his MCLE hours is also disturbing. Although respondent’s initial misreporting of his hours may have been a result of a good faith mistake, he was advised of his error by the MCLE administrator and told not to do so again. Respondent chose to disregard this advice and misreport his hours a second time. Such conduct falls far short of the high standards of honesty imposed on attorneys practicing in this state. See, e.g., Louisiana State Bar Ass’n v. Hay bn, 250 La. 651,198 So.2d 391 (1967).

Under these circumstances, we find the baseline sanction for respondent’s misconduct is a suspension. As aggravating factors, we recognize the existence of prior discipline and dishonest or selfish motive. In mitigation, we note respondent made a timely good faith effort to rectify consequences of misconduct, gave full and free disclosure to disciplinary board, and has demonstrated character and reputation, and remorse.

1 aConsidering the case as a whole, we conclude a three-month suspension from the practice of law is the appropriate discipline. In light of the mitigating factors, we will defer this suspension in its entirety, subject to the condition that during the calendar year 2003, respondent complete an extra seven hours of continuing legal education, in addition to his ordinary MCLE requirements for the year.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Randal L. Gaines be suspended from the practice of law in Louisiana for a period of three months. This suspension shall be fully deferred, subject to the condition that respondent complete an extra seven hours of continuing legal education during the calendar year of 2003, in addition to his ordinary mandatory continuing legal education requirements for the year. Respondent is ordered to submit proof of compliance to the Office of Disciplinary Counsel. 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 the finality of this court’s judgment until paid.

VICTORY, J., concurs in the result.

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

h CALOGERO, Chief Justice,

concurs.

I agree that Respondent’s conduct warrants discipline and, yet, while I do not necessarily disagree with the sanction imposed, I would have preferred the court impose the sanction recommended by the hearing committee, that is, a public reprimand and additional continuing legal education.

      . Effective January 1, 2003, the minimum requirement has been changed to 12.5 hours. This change was necessary because the length of an instructional hour was increased from fifty minutes to sixty minutes.

      . In accordance with the LSBA's MCLE policy, at each continuing legal education seminar offered in Louisiana, all attorneys must execute course cards attesting to his attendance for the hours reported. Specifically, the cards provide:
      I attest that I did attend the above CLE activity for the full number of hours reported. I understand that a false statement or a misrepresentation is subject to a disciplinary action pursuant to Rule 9 of the Louisiana Rules of Professional Conduct. Respondent executed such cards attesting to his full attendance at the continuing legal education programs for which he arrived tardy-

      . In addition to his representation of Ms. Jones, the ODC determined that respondent represented Tammy Taylor from October 17, 1997 to July 24, 1998, as well as Maude and Earnest Gethers from August 8, 1997 to February 22, 1999.

      . The committee recognized respondent received a public reprimand and a conditional one year probation stemming from his criminal conviction for unauthorized use of Southern University payroll funds. See, In re: Gaines, 92-DB-038. Moreover, it pointed out respondent had been rendered ineligible on two other occasions for failure to comply with his LSBA requirements: 6/1/92 — 6/29/92— nonpayment of bar dues; 1/1/94 — 9/9/94— failure to file a Rule XIX attorney registration statement and nonpayment of a disciplinary fee.


author: JjPER CURIAM.

text:
    In re Lee C. GREVEMBERG.
    No. 2002-B-2721.
    Supreme Court of Louisiana.
    Feb. 25, 2003.

      Charles B. Plattsmier, G. Fred Ours, Baton Rouge, for Applicant.
   JjPER CURIAM.

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

UNDERLYING FACTS

In August, 1996, Hilda Parham, a widow in her sixties, executed a statutory will which had been prepared and notarized by respondent. With the exception of a small monetary bequest to a friend, Mrs. Par-ham bequeathed the bulk of her estate to Philip and John Parham, nephews of her late husband, who resided in Oklahoma.

In the months following the execution of the will, Mrs. Parham’s health began to decline and she no longer wanted to see or speak to anyone, except for respondent. In April, 1997, at her direction, he became her agent through a power of attorney.

Shortly thereafter, Mrs. Parham requested that respondent draft a new will for her naming himself as the executor and residual legatee. According to respondent, he was unaware of the existence of Rule 1.8(c) of the Rules of Professional Conduct which bars an attorney and his immediate family from receiving a testamentary gift in a will drafted by the attorney. Respondent conducted some research and discussed | ¡.the matter with another attorney to determine whether he was prohibited from accepting a testamentary gift in a will prepared and notarized by him. Upon concluding the transaction was not prohibited, respondent prepared the will in accordance with his client’s instructions.

In June, 1997, Mrs. Parham executed the will prepared by respondent, and respondent notarized it. The new will revoked all prior wills and, in addition to making two modest bequests to friends, named respondent as executor and residual legatee. It also contained a clause indicating that respondent’s wife would become the residual legatee in the event the bequests made to respondent were prohibited, or there was a conflict of interest or legal ethics due to the fact that he was the notary public before whom the will was executed, or should he predecease Mrs. Parham. Respondent’s wife was also named as the successor executrix. Following the execution of the new will, at respondent’s direction, Mrs. Parham scratched a line through her signature on the original will executed in 1996, and respondent then wrote “VOID” across it. Rather than destroying the 1996 will, respondent kept the document in his office.

On July 24, 1997, Mrs. Parham died. Within days, respondent had instituted succession proceedings. According to the sworn detailed descriptive list prepared by respondent, the net value of his interest in the estate was $163,973.

Mrs. Parham’s nephews were not informed of her death until after the funeral had taken place. Days later, they traveled from Oklahoma to Louisiana. Respondent was not present at his office when they arrived to see him. While leaving a message on respondent’s desk and/or retrieving certain items that had belonged to their aunt, the Parhams discovered the original 1996 will. They removed it from respondent’s office and brought it to their attorney. With the assistance of counsel, the Parham Rnephews filed a rule to show cause in the succession proceeding seeking to annul the 1997 will.

Following a lengthy hearing, the trial court determined Mrs. Parham was mentally competent at the time the 1997 will was executed and that respondent had not exercised any undue influence on her. However, the trial court invalidated all bequests to respondent and his wife and their respective appointments as executor and successor executrix, as well as invalidated the clause revoking the 1996 will. The court also invalidated the 1996 will, with the exception of the bequest of the remainder of Mrs. Parham’s estate to her nephews.

Respondent and his wife appealed the judgment of the trial court. On appeal, respondent argued that although he may have violated Rule 1.8(c) by engaging in a conflict when preparing the will, the disciplinary violation should not defeat his client’s wishes and his property interests in her estate. The court of appeal affirmed the trial court’s ruling. Succession of Parham, 98-1660 (La.App. 1st Cir.9/24/99), 755 So.2d 265. Respondent filed an application for writs in this court, which was denied. Succession of Parham, 99-3016 (La.12/17/99), 755 So.2d 240.

DISCIPLINARY PROCEEDINGS

Formal Charges

Following investigation, the ODC filed one count of formal charges against respondent alleging violations of Rules 1.1 (incompetence), 1.2 (scope of representation infringes on professional responsibilities), 1.8(c) (conflict of interest — preparing an instrument for a client giving the attorney and/or a member of his immediate family a testamentary gift), 3.1 (asserting a non-meritorious claim), 3.4(c) (knowingly disobey rules of a tribunal), 8.4(a) (violating the Rules of Professional |4Conduct) and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

Respondent filed an answer to the formal charges admitting that he engaged in a conflict of interest, but alleged his conduct was unintentional and a “technical violation.” Further, he contended his appellate pursuit of his interest in his client’s estate was in good faith. Respondent reasoned the trial court’s application of Rule 1.8(c), a professional rule, to deny him his property rights in a civil proceeding was improper.

Recommendation of the Hearing Committee

After a formal hearing, the hearing committee concluded the ODC proved by clear and convincing evidence a violation of Rule 1.8(c) relative to his conflict of interest in drafting the will. However, it determined respondent’s conduct was unknowing and unintentional since respondent was merely carrying out his client’s wishes. In mitigation, the committee recognized respondent’s well-respected reputation and good character in the community, cooperative attitude toward the proceedings and unblemished record in the practice of law for over 56 years, as well as the remoteness that another violation would re-occur. Based on its findings, the committee recommended that a private admonition be imposed.

One committee member dissented as to the recommendation, citing respondent’s appeal of the trial court judgment to be inappropriate in light of his admission of engaging in professional misconduct.

1 sRecommendation of the Disciplinary Board

Based on its review of the record, the board determined respondent did not provide incompetent representation in violation of Rules 1.1 and 1.2, noting that respondent was experienced in preparing wills, conducted research prior to preparing the will and provided a substitution clause in the event of a conflict or ethical problem. Additionally, relying on the formal hearing testimony of the trial judge in the succession proceedings, the board found respondent did not violate Rule 3.1 by asserting frivolous or sanctionable legal arguments in the civil proceedings. Likewise, the board found no factual support for a conclusion that respondent knowingly disobeyed the rules of a tribunal in violation of Rule 3.4(c) or engaging in conduct prejudicial to the administration of justice in violation of Rule 8.4(d).

Based on respondent’s own admission, the board concluded respondent engaged in a conflict of interest in violation of Rule 1.8(c) when he drafted the will with a prohibited bequest. In addressing the issue of sanctions, the board found respondent breached his duties owed as a professional, and that his conduct “vacillates between knowing and negligence.” While it recognized respondent claimed he did not know he was participating in a prohibited transaction, the board pointed out he also inserted a contingent substitution clause in the will in the event of a legal conflict or conflict of interest.

The board relied on the ABA’s Standards for Imposing Lawyer Sanctions to conclude the appropriate baseline sanction for respondent’s misconduct ranges from public reprimand to suspension. In aggravation, the board cited respondent’s | ^substantial experience in the practice of law. In addition to the mitigating factors cited by the committee, the board also recognized respondent’s full and free disclosure with the disciplinary process and remorse.

Considering these factors, the board recommended that respondent be suspended from the practice of law for a period of sixty days, fully deferred, subject to a six month probation and completion of Louisiana State Bar Association’s Ethics School.

One board member objected to the leniency of the proposed sanction given the nature of the prohibited transaction and the injury invoked on Mrs. Parham’s heirs.

Both parties filed an objection to the board’s findings and recommendation. Based on such, the matter was docketed for briefing and argument in accordance with Supreme Court Rule XIX, § 11(G).

DISCUSSION

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

|7The record supports the conclusion that respondent violated • Rule 1.8(c) by preparing a will making a testamentary bequest to himself and, alternatively, to his wife. Finding respondent engaged in professional misconduct, we now turn to the discussion of an appropriate sanction.

The purpose of disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain the appropriate standards of professional conduct, to preserve the integrity of the legal profession and to deter other lawyers from engaging in violations of the standards of the profession. In re: Vaughan, 00-1892 (La.10/27/00), 772 So.2d 87; In re: Lain, 00-0148 (La.5/26/00), 760 So.2d 1152. The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. In re: Redd, 95-1472 (La.9/15/95), 660 So.2d 839.

This court has not previously had the occasion to confront a violation of Rule 1.8(c). The comments to ABA Model Rule 1.8(c) indicate the purpose of that rule is to ensure that in cases where a client wishes to give a substantial gift requiring preparation of a legal instrument such as a will or conveyance, the client “should have the detached advice that another lawyer can provide.” The purpose of the rule is prophylactic in nature, as it designed to ensure that the client has the advice of an independent lawyer prior to making a substantial gift. By depriving his client of the opportunity for such independent advice, respondent’s actions creates de facto harm.

Respondent attempts to characterize his actions as negligent, on the grounds that he was unaware of the existence of Rule 1.8(c). Clearly, this defense carries little weight, as it is well-settled that “ignorance of the Disciplinary Rules which set forth the minimum level of conduct below which no lawyer may fall without being subject to disciplinary action is no excuse.” Louisiana State Bar Ass’n v. Marinello, 523 So.2d 838, 842 (La.1988) (citing Louisiana State Bar Ass’n v. Thalheim, 504 So.2d 822 (La.1987)).

Moreover, even assuming that respondent was initially unaware of Rule 1.8(c), he became aware of the rule at some point during this lengthy litigation, yet refused to acknowledge its applicability. Most telling in this regard is respondent’s own testimony during the civil trial. The following exchange occurred when Mrs. Par-ham’s nephews’ attorney questioned respondent about the Rule 1.8(c) violation in the succession litigation:

Q: Mr. Grevemberg, what do you think the reason is for Rule 1.8(c)? Don’t you think the reason is so that lawyers won’t exercise undue influence on their clients and prepare wills in which they are made substantial legatees and not give them an opportunity to go to a separate independent lawyer?
A: To be honest, yes. I think that’s what it probably meant. What is undue influence? You are entitled to a trial to see whether you exercised undue influence. It is not an automatic decree. It is not going to be insinuated or assumed because that happened.... I have rights, property rights. My wife has property rights, and I don’t subscribe that 1.8 makes sense. They can disbar me if I violated the ethics. They can discipline me, if I violated the ethics. But when it comes to property rights, I am entitled to a hearing on property rights. [Emphasis added].

We conclude this testimony reveals a conscious decision by respondent to disregard his ethical obligations under Rule 1.8(c) by continuing litigation at a time when he was clearly aware he was in violation of the rule. Quite simply, respondent placed his hopes of potential recovery under the will ahead of any disciplinary sanctions he might receive for violating the professional rules. In light of respondent’s clear and unambiguous testimony, it is difficult for this court to accept his representation that his actions were merely negligent.

In determining an appropriate baseline sanction, we look to Standard 4.32, which provides that suspension is generally appropriate when a lawyer knows of a | nconflict, fails to disclose it to the client and causes injury. We conclude respondent was aware of the conflict, and his failure to advise his client of such caused harm by preventing his client from obtaining the advice of independent counsel. Therefore, the baseline sanction is suspension.

As aggravating factors, we recognize respondent’s substantial experience in the practice of law and refusal to acknowledge the wrongful nature of his conduct. In mitigation, we note respondent’s reputation and good character and his lack of significant prior discipline.

Considering all these factors, we conclude the appropriate discipline for respondent’s misconduct is a one-year suspension from the practice of law.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Lee C. Grevemberg be suspended from the practice of law in Louisiana for a period of one year. Respondent shall complete the ethics school program offered through the Louisiana State Bar Association. 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 the finality of this court’s judgment until paid.

      . Rule 1.8(c) provides “a lawyer shall not prepare an instrument giving the lawyer or person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee."

      . Respondent's prior disciplinary history involves a formal private reprimand imposed in 1976 by the Committee on Professional Responsibility stemming from allegations that respondent neglected to communicate with a client. See, COPR File No. 3877, 6/18/76.

      . Standard 4.32 provides suspension is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client. Standard 4.33 provides reprimand is generally appropriate when a lawyer is negligent in determining whether the representation of a client may be materially affected by the lawyer's own interest, or whether the representation will adversely affect another client, and causes injury or potential injury to a client. Standard 7.2 provides suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes serious or potentially serious injury to a client, the public, or the legal system. Standard 7.3 provides reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal profession.

      . In In re: Blair, 02-B-2164, 840 So.2d 1191, rendered this day, we imposed a three-month suspension on an attorney who violated Rule 1.7(b) and 1.8(c). We concluded a lesser sanction was appropriate in that case because the attorney’s violation of the rules was negligent, rather than knowing, as in the instant case.