text:
    In re Clayton V. BANKSTON, Jr.
    No. 2003-B-1082.
    Supreme Court of Louisiana.
    Oct. 8, 2003.
    See also 791 So.2d 1263.
   ATTORNEY DISCIPLINARY PROCEEDINGS

liPER CURIAM.

This disciplinary matter arises from one count of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Clayton V. Bankston, Jr. Respondent is currently suspended from the practice of law based on unrelated misconduct. In re: Bankston, 01-1352 (La.6/29/01), 791 So.2d 1263 (“Bankston I”).

UNDERLYING FACTS

In 1998, the family of Tonka Haynes paid respondent $6,000 to represent Mr. Haynes in a criminal matter. Specifically, it was agreed that respondent would handle the appeal of Mr. Haynes’ conviction of attempted second-degree murder, and if necessary, file an application for post-conviction relief on his behalf.

Respondent filed the appeal on behalf of Mr. Haynes sometime in 1998. Thereafter, respondent did nothing further in the case, nor did he communicate with Mr. Haynes. The court of appeal affirmed Mr. Haynes’ conviction and sentence on February 28, 1999. State v. Haynes, 98-588 (La.App. 5th Cir.2/23/99), 729 So.2d 104. Respondent did not inform Mr. Haynes of the court of appeal’s decision.

^Subsequently, respondent did not file any post-conviction proceedings on behalf of Mr. Haynes. Additionally, he failed to account for any earned portion of his legal fee and failed to refund the unearned portion of the fee.

During its investigation of the complaint filed by Mr. Haynes, the ODC obtained information from the Louisiana State Bar Association indicating that respondent had been ineligible to practice law since August 1, 1999. The ineligibility was based on his failure to comply with the mandatory continuing legal education requirements.

DISCIPLINARY PROCEEDINGS

Formal Charges

After investigation, the ODC filed one count of formal charges against respondent, alleging that he violated the following provisions of the Louisiana Rules of Professional Conduct: Rules 1.1(b) (failure to comply with the mandatory continuing legal education requirements), 1.3 (failure to act with diligence and promptness in representing a client), 1.4 (failure to communicate with a client), and 1.5(f)(6) (failure to refund an unearned fee).

Respondent was personally served with the formal charges. He filed an answer generally denying any misconduct in connection with his handling of the Haynes matter, but admitting his failure to complete his mandatory continuing legal education requirements for the year 2000.

This matter proceeded to a formal hearing on the merits. Mr. Haynes testified before the hearing committee by telephone, and the ODC called two witnesses, both | ^family members of Mr. Haynes, to testify in person. The ODC also introduced documentary evidence in support of the formal charges. Despite notice, respondent did not appear at the hearing.

Hearing Committee Recommendation

After reviewing the record of this matter, the hearing committee made the following factual findings:

1. Respondent is a Louisiana attorney, having been admitted to practice in 1982.
2. In January 1998, respondent was hired to pursue the appeal of the criminal conviction of Tonka Haynes and, if necessary, post conviction relief.
3. Mr. Haynes’ family paid respondent $6,000.00.
4. It was understood by Mr. Haynes and his family that the $6,000.00 retainer included post conviction relief (although not a part of the written contract), as well as the appeal of this criminal conviction.
5. The appeal was filed but respondent did not respond to his client’s attempts to communicate with him. Even after the appeal was denied, respondent did not notify Mr. Haynes who independently received notice of it (apparently from the Court).
6. After Mr. Haynes received notice that his appeal was denied, respondent failed to respond to inquiries and relocated his office without telling Mr. Haynes or his family how to reach him.
7. Despite not following through with the post conviction relief, respondent failed to return any of the unearned legal fees or provide an accounting. In his answer to the formal charges, respondent claims he earned the fees but did not describe how the funds were expended.
8. Respondent admitted in his answer that he failed to comply with Continuing Legal Education requirements for 2000.

|4Based on these factual findings, the committee determined respondent violated the Rules of Professional Conduct as charged in the formal charges. The baseline sanction for respondent’s misconduct is a suspension from the practice of law. The only aggravating factor recognized by the committee was respondent’s prior disciplinary record in Bankston I; the committee did not recognize any mitigating factors. For these reasons, the committee recommended respondent be suspended for two years and one day, with one year deferred, followed by a period of probation with conditions.

Neither respondent nor the ODC objected to the hearing committee’s recommendation.

Disciplinary Board Recommendation

After reviewing the record of this matter, the disciplinary board generally concurred in the hearing committee’s factual findings and its application of the Rules of Professional Conduct. The board found that respondent knowingly violated duties owed to his client and to the profession. Mr. Haynes was harmed by respondent’s knowing neglect of his legal matter, his failure to reasonably communicate with him, and his failure to promptly refund any unearned portion of the legal fee he was paid. Respondent’s misconduct jeopardized Mr. Haynes’ post-conviction efforts and delayed resolution of his case. Respondent’s failure to promptly provide an accounting to Mr. Haynes or to promptly refund any unearned portion of the fees received from him potentially deprived Mr. Haynes of funds rightfully owed him. The board agreed that the baseline sanction for respondent’s misconduct is a suspension from the practice of law.

IrAs aggravating factors, the board recognized the vulnerability of the victim and respondent’s substantial experience in the practice of law (admitted 1982). The board agreed no mitigating factors are present.

The board pointed out that the misconduct in the instant case occurred within the same time frame as the 1999 misconduct at issue in Bankston I. Citing In re: Vaughan, 01-1948 (La.10/26/01), 801 So.2d 1058, and Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), the board concluded that because the misconduct occurred during the same time as the misconduct in Bankston I, the discipline to be imposed should be determined as if both cases had been charged together. After reviewing the prior jurisprudence of this court, the board determined that had the misconduct in Bankston I been considered together with the instant misconduct, the appropriate discipline would have been a two-year suspension..

Based on this reasoning, the board recommended that respondent be suspended from the practice of law for two years, to run concurrently with the suspension imposed in Bankston I. The board also recommended that respondent provide an accounting to Mr. Haynes, and if appropriate, return the unearned fees. Finally, the board recommended that all costs and expenses of these proceedings be assessed against respondent, with legal interest to commence thirty days from the date of finality of the court’s judgment until paid.

Neither respondent nor the ODC objected to the disciplinary board’s recommendation.

DISCUSSION

The record supports a finding that respondent neglected his client’s legal matter, failed to communicate with his client, and failed to promptly account for and refund | ¿¡unearned legal fees. Therefore, the sole issue presented for our consideration is the appropriate sanction for respondent’s misconduct.

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

As the disciplinary board observed, the misconduct in the instant matter occurred within the same general time frame as the misconduct in Bankston I. In Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470, 471 n. 2 (La.1991), we explained that “[wjhen a second disciplinary proceeding against an attorney involves misconduct which occurred during the same time period as the first proceeding, the overall discipline to be imposed should be determined as if both proceedings were before the court simultaneously.” Therefore, it is appropriate to analyze the instant misconduct together with the misconduct in Bankston I and determine an overall sanction as if both proceedings had been before the court simultaneously.

The misconduct in Bankston I primarily involved failure to communicate with a client and failure to return client funds. The instant matter involves the same type of misconduct. In cases involving multiple instances of neglect, failure to communicate, and failure to refund unearned fees, this court has imposed lengthy suspensions. See, e.g., In re: Szuba, 01-1877 (La.10/5/01), 797 So.2d 41 (two-year suspension imposed on an attorney with a prior disciplinary record who neglected multiple legal matters, failed to communicate with his clients, and failed to return client property).

17Thus, considering the instant charges together with Bankston I, we believe the appropriate overall discipline is a two-year suspension from the practice of law. Accordingly, we will accept the disciplinary board’s recommendation and impose a two-year suspension, to run concurrently with the suspension we previously imposed in Bankston I.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that Clayton V. Bankston, Louisiana Bar Roll number 2737, be suspended from the practice of law for a period of two years. The suspension shall run concurrently with the suspension imposed in In re: Bankston, 01-1352 (La.6/29/01), 791 So.2d 1263. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Respondent’s retainer agreement does not specifically mention post-conviction relief. Rather, the agreement provides that respondent will render legal services on Mr. Haynes’ behalf "in the defense of criminal charges filed by District Attorney Parish of Jefferson and charging Client with Attempted Murder, Multiple Offender Sentence Enhancement for purposes of Application for New Trial if possible, Appeal from both to 5th Circuit Court of Appeal.” Nevertheless, it was clear from testimony at the formal hearing that Mr. Haynes and his family understood the post-conviction process was part of the representation. Furthermore, in an October 5, 1998 letter to Mr. Haynes, respondent confirmed that "PCR [post-conviction relief] is how we will handle the issue of inadequate representation.”

      . The ODC also alleged that respondent failed to cooperate in the investigation of the complaint filed by Mr. Haynes, in violation of Rules 8.1(c) and 8.4(g), because he did not respond to the complaint. In fact, although the ODC attempted to send respondent notice of the complaint at four different addresses, none of these addresses was current, and hence none of the mail actually reached respondent. This error was the fault of neither respondent nor the ODC. Accordingly, the disciplinary board found (and we agree) there is no failure to cooperate on respondent’s part.

      . Although respondent has served his suspension in Bankston I, he has not yet applied for reinstatement. The effect of our judgment is that he will not be eligible to seek reinstatement until one year has passed from the finality of the instant judgment.


source: Caselaw Access Project

author: I,PER CURIAM.

license: Public Domain

text:
    In re Keith A. LEWIS.
    No. 2003-B-1245.
    Supreme Court of Louisiana.
    Oct. 3, 2003.
    See also 728 So.2d 846.
   ATTORNEY DISCIPLINARY PROCEEDINGS

I,PER CURIAM.

This disciplinary matter arises from two sets of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Keith A. Lewis. Respondent has been disbarred since January 1999, based on charges unrelated to the instant matter. In re: Lewis, 98-2825 (La.1/29/99), 728 So.2d 846 (“Lewis I”).

UNDERLYING FACTS

01-DB-027

The Blue Matter

In October 1998, Alice Blue retained respondent to handle a personal injury claim arising out of an automobile accident. On January 12, 1999, respondent filed suit on his client’s behalf. Ms. Blue then filed for protection under Chapter 7 of the Bankruptcy Code. On January 19,1999, all of Ms. Blue’s assets, including her pending personal injury claim, were transferred to a bankruptcy trustee by operation of law. The trustee assigned to Ms. Blue’s case, Cynthia Traina, attempted to communicate with respondent on numerous occasions, to no avail. As a result, Ms. Traina retained attorney Sean Alfortish to handle the matter. Mr. Alfortish subsequently learned that in April 1999, respondent had settled Ms. Blue’s personal |2injury case for the sum of $12,000. Respondent did not have the authority of the bankruptcy trustee to settle the case, nor had he obtained the approval of the bankruptcy court to do so. Furthermore, respondent had continued to represent Ms. Blue after his disbarment in Lewis I became final on February 12, 1999.

01-DB-081

The Benjamin Matter

In April 1998, Thomas Benjamin, Jr. retained respondent to handle a criminal appeal on behalf of his brother, Robert Benjamin. Mr. Thomas Benjamin paid respondent $3,000 and provided him with a copy of the transcript of his brother’s trial. Respondent performed no work on the case and failed to communicate with Mr. Thomas Benjamin and Mr. Robert Benjamin. Mr. Thomas Benjamin subsequently sought the representation of another attorney and requested that respondent return the trial transcript. Respondent did not return the transcript until Mr. Thomas Benjamin filed a complaint with the ODC in June 2000.

On July 24, 2000, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to reply to the complaint. On September 28, 2000, the ODC forwarded a second copy of the complaint to respondent by certified and regular United States mail. Respondent again failed to reply to the complaint. The ODC thereafter served respondent with a subpoena compelling him to appear on January 25, 2001 and answer the complaint under oath. Respondent failed to appear.

I ¡¡DISCIPLINARY PROCEEDINGS

On March 8, 2001, the ODC filed one count of formal charges against respondent in 01-DB-027, alleging that his conduct in the Blue matter violated the following provisions of the Louisiana Rules of Professional Conduct; Rules 1.15 (safekeeping property of a client or third person), 4.1(b) (failure to disclose a material fact to a third person), 5.5(a) (engaging in the unauthorized practice of law), 8.1(a) (knowingly making a false statement of material fact), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

On July 26, 2001, the ODC filed two counts of formal charges against respondent in 01-DB-081, alleging that his conduct in the Benjamin matter violated the following provisions of the Louisiana Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5 (fee arrangements), 1.15, 8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a), 8.4(c), 8.4(d), and 8.4(g) (failure to cooperate with the ODC in its investigation).

The two sets of formal charges were consolidated by order of the hearing committee chairman on April 9, 2002. Respondent answered the formal charges and denied any misconduct. Accordingly, the matter proceeded to a formal hearing on the merits, which was conducted on September 6, 2002. Despite notice, respondent did not appear at the hearing.

| AHearing Committee Recommendation

At the hearing, the ODC called six witnesses to testify in person and introduced 24 exhibits. The hearing committee heard the testimony of Alice Blue, Cynthia Traí-na, Sean Alfortish, and David Knight (the attorney for GEICO) in connection with the Blue matter, and Thomas Benjamin, Jr. and Jacquelyn Boyd (Mr. Benjamin’s sister) in connection with the Benjamin matter. Based upon the record, the hearing committee made the following detailed factual findings:

The Blue matter: Respondent was disbarred effective February 12, 1999. Prior to his disbarment, he was hired by Ms. Alice Blue to represent her in connection with injuries she sustained in an automobile accident in 1998. Respondent filed suit on Ms. Blue’s behalf on January 12, 1999. He did not communicate to Ms. Blue that he had been disbarred, and in fact, continued to represent her after his disbarment became final. Ms. Blue subsequently filed a Chapter 7 bankruptcy. Ms. Cynthia Traína, the bankruptcy trustee assigned to Ms. Blue’s case, testified that she attempted on numerous occasions to discuss Ms. Blue’s bankruptcy proceedings with respondent, but other than one communication, her efforts failed. Ms. Traína subsequently hired attorney Sean Alfortish to handle Ms. Blue’s bankruptcy interests. Mr. Alfortish testified that he searched the records of the Civil District Court for the Parish of Orleans and learned that Ms. Blue’s case had been settled in April of 1999, without authority from the bankruptcy trustee and without approval from the bankruptcy court. Two checks were issued, one in the amount of $10,990, dated April 19, 1999, and payable to Ms. Blue and to respondent. Ms. Blue testified that respondent met her at her home in April and thereafter drove her to his bank (Bank One), where he had her endorse the settlement check and sign the release documents. Evidence produced at the hearing showed that the entire amount was deposited into respondent’s personal |Rbank account. Ms. Blue testified that she knew she was not entitled to any of the settlement funds because of her bankruptcy, and respondent told her he was going to remit the funds to the bankruptcy court. However, the bankruptcy court did not receive any of the settlement funds.

The Benjamin matter: Respondent was hired in 1998 to prosecute an appeal on behalf of Robert Benjamin, who had been convicted of multiple felonies. Jacquelyn Boyd, Mr. Benjamin’s sister, testified that she met with respondent on two occasions, each time giving him a $500 check from another of her brothers, Thomas Benjamin, Jr. However, she testified that she had recently suffered a stroke and could not remember all of the details of the transactions with respondent. Thomas Benjamin, Jr. testified that he obtained four cashier’s checks (two for $1,000 each and two for $500 each) payable to respondent. He personally gave a $1,000 cashier’s check to respondent, and the other three checks were given to respondent by his sister (Ms. Boyd). Copies of only two checks were produced at the hearing, each payable to respondent in the amount of $500, and each signed by Thomas Benjamin, Jr. Both Mr. Benjamin and Ms. Boyd testified that respondent obtained a copy of the trial transcript but thereafter did no work to prosecute the appeal. Ms. Boyd was able, after several attempts, to obtain the transcript from respondent, and she hired another attorney to prosecute the appeal.

Based on these factual findings, the committee determined that respondent engaged in the practice of law after being disbarred; appropriated his clients’ funds and/or the bankruptcy creditors’ funds for his own use and benefit and has never made restitution; accepted a legal fee, following which he did not perform any legal services on his behalf of his client; failed to refund the legal fee or any portion of it; |fiand exhibited an utter disregard for the disciplinary system by failing to respond to formal charges, failing to obey a subpoena, and failing to appear at his own hearing. For this misconduct, the committee recommended that respondent be permanently disbarred. The committee also recommended that respondent be ordered to make restitution to the bankruptcy estate of Alice Blue and to Thomas Benjamin, Jr.

Neither respondent nor the ODC objected to the hearing committee’s recommendation.

Disciplinary Board Recommendation

The disciplinary board concurred in the hearing committee’s factual findings and determined that respondent violated the Rules of Professional Conduct as charged. Respondent intentionally violated duties owed to his clients, the public, and to the profession. Respondent deprived Ms. Blue’s creditors of the proceeds of her personal injury settlement ($10,990) and deprived Mr. Benjamin of the legal fee he paid ($8,000). The public was harmed by respondent’s unauthorized practice of law. Finally, the ODC spent many fruitless hours trying to locate and serve respondent. The board determined the baseline sanction for respondent’s misconduct is disbarment.

In aggravation, the board recognized respondent’s prior disciplinary offenses, dishonest or selfish motive, pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding, refusal to acknowledge the wrongful nature of the conduct, -vulnerability of the victims, and substantial experience in the practice of law (admitted 1984). The board found the record does not support the presence of any mitigating factors.

|7In light of these considerations, the ABA’s Standards for Imposing Lawyer Sanctions, and the prior jurisprudence, the board found that disbarment is an appropriate sanction. However, recognizing that respondent engaged in the unauthorized practice of law after being disbarred, the board agreed that the sanction of permanent disbarment is warranted. The board also recommended respondent be ordered to make restitution to the bankruptcy estate of Alice Blue and to Thomas Benjamin, Jr., and that he be assessed with all costs and expenses of these proceedings, with legal interest to commence running thirty days from the date of finality of the court’s judgment until paid.

Neither respondent nor the ODC objected to the disciplinary board’s recommendation.

DISCUSSION

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

The record supports the detailed findings of the hearing committee. Respondent fraudulently settled a personal injury claim on behalf of a client in bankruptcy and then converted the settlement to his own use. He failed to |scommunicate with his clients, neglected a legal matter, failed to account for and refund an unearned legal fee, and failed to cooperate with the ODC. Most significantly, some of this misconduct occurred after respondent’s disbarment in Lewis I, as respondent continued to practice law in defiance of this court’s judgment.

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

Respondent’s conduct clearly violated duties owed to the public, the legal system, and the profession. Unquestionably, the baseline sanction for such misconduct is disbarment. Numerous aggravating factors are present, including prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, and substantial experience in the practice of law. We are unable to determine any mitigating factors from the record.

| (¡Having found disbarment is the appropriate sanction, the sole remaining issue presented for our consideration is whether respondent’s conduct is so egregious that respondent should be permanently prohibited from seeking readmission to the practice of law.

In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might warrant permanent disbarment. While these guidelines are not intended to bind this court in its decision-making process, they present useful information concerning the types of conduct we might consider worthy of permanent disbarment.

For purposes of the instant case, Guidelines 8 and 9 are relevant. Those guidelines detail the following conduct:

GUIDELINE 8. Following notice, engaging in the unauthorized practice of law subsequent to resigning from the Bar Association, or during the period of time in which the lawyer is suspended from the practice of law or disbarred.
GUIDELINE 9. Instances of serious attorney misconduct or conviction of a serious crime, when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime. Serious crime is defined in Rule XIX, Section 19. Serious attorney misconduct is defined for purposes of these guidelines as any misconduct which results in a suspension of more than one year.

Guideline 8 is clearly applicable to this case, as the undisputed evidence shows respondent continued to represent clients after his license to practice law was revoked by this court in Lewis I. Likewise, Guideline 9 is implicated, as the instant misconduct, which is unquestionably serious attorney misconduct, was preceded by respondent’s disbarment for prior instances of serious attorney misconduct.

ImWe do not lightly impose the sanction of permanent disbarment. In re: Morphis, 01-2803 (La.12/4/02), 831 So.2d 934. Nonetheless, we are firmly convinced that we would be remiss in our constitutional duty to regulate the practice of law if we did not impose that sanction here. Respondent engaged in conduct that was actively intended to frustrate the administration of justice. This court cannot and will not tolerate such conduct by an attorney. Respondent’s actions convincingly demonstrate he does not possess the requisite moral fitness to practice law in this state. He must be permanently disbarred.

Accordingly, we will accept the disciplinary board’s recommendation and impose permanent disbarment.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Keith A. Lewis be permanently disbarred. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. Respondent is ordered to pay restitution of $10,990 to the bankruptcy estate of Alice Blue and $3,000 to Thomas Benjamin, Jr. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . The charges in Lewis I involved respondent’s failure to communicate with his clients, failure to account for settlement funds, commingling and converting client funds, failure to pay third-party medical providers, forging his clients’ endorsements on settlement checks, and failure to cooperate with the ODC.

      . On April 19, 1999, the defendant insurer, GEICO, issued two separate checks in connection with the settlement of Ms. Blue’s claim. One check was issued in the amount of $10,990 and payable to Ms. Blue and respondent, "her attorney of record”; the second was issued in the amount of $1,010 and payable to Ms. Blue and a third-party medical provider. Both Ms. Blue and respondent endorsed the $10,990 check, and respondent deposited it into his personal checking account at Bank One on April 30, 1999. GEI-CO was apparently able to stop payment on the second check.

      . Respondent did write Ms. Blue a personal check for $400 to cover “personal expenses.”

      . At first glance, it might appear the approach of Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), is appropriate, as some of the instant misconduct occurred prior to this court's 1999 opinion in Lewis I. However, a close examination of Lewis I reveals the misconduct in that case occurred in the 1993-1994 time period, far removed from the misconduct in the instant case, which occurred in 1998-2000.


author: liPER CURIAM.

text:
    In re Richard E. HOLLEY.
    No. 2003-B-1366.
    Supreme Court of Louisiana.
    Oct. 3, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

liPER CURIAM.

This attorney disciplinary proceeding involves one count of misconduct filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Richard E. Holley, an attorney licensed to practice law in Louisiana. Respondent was suspended in 2001 for a period of six months, with all but sixty days deferred, based on conduct unrelated to the instant proceedings. In re: Holley, 01-1876 (La.10/5/01), 797 So.2d 46 (“Holley I ”). Although respondent is eligible for reinstatement, he has not complied with the requirements for reinstatement set forth Supreme Court Rule XIX, § 23; accordingly, he remains suspended from the practice of law.

UNDERLYING FACTS

In 1998, P.M. “Mike” Panepinto retained respondent to institute civil proceedings against his former employer relative to a conti-act dispute. Mr. Panepinto signed a contingency fee agreement and paid respondent approximately $200 in filing fees. Subsequently, respondent failed to take any action on behalf of Mr. Panepinto. Respondent rarely communicated with Mr. Panepinto over the course of the three-year representation. On the occasions when he did so, he falsely represented that suit had been filed, the court rendered judgment in favor of Mr. Panepinto and the defendants had appealed the adverse ruling to this court.

| ¡¡.Ultimately, Mr. Panepinto learned respondent had never filed suit or communicated with his employer in any respect. In May 2001, Mr. Panepinto forwarded correspondence to respondent terminating the representation and seeking a return of his original documents. Respondent did not return Mr. Panepinto’s property.

Thereafter, Mr. Panepinto filed a complaint with the ODC. The ODC requested information from respondent regarding the complaint. Respondent failed to answer the ODC’s request. The ODC then issued a subpoena to respondent ordering him to appear for deposition. Respondent failed to appear.

DISCIPLINARY PROCEEDINGS

Formal Charges

After investigation, the ODC filed formal charges against respondent asserting violations of Rules 1.3 (lack of diligence), 1.4(a) (failure to communicate), 1.16(d) (failure to return client property at the termination of representation), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(c) (engaging in conduct involving dishonesty, deceit or misrepresentation) and 8.4(g) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct.

Respondent failed to file an answer. Accordingly, the charges were admitted pursuant to Supreme Court Rule XIX, § 11(E)(3) and the matter was submitted to the hearing committee on documentary evidence. ODC submitted the complaint, Mr. Panepinto’s statement and correspondence directed to respondent. Respondent failed to submit any evidence for the committee’s consideration.

13Recommendation of the Hearing Committee

The committee determined there was clear and convincing evidence respondent neglected his client’s matter, failed to communicate with his client and failed to cooperate with the ODC in violation of Rules 1.3, 1.4, 8.1(c) and 8.4(g), respectively. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the committee found the baseline sanction for this misconduct is suspension. As aggravating factors, it recognized respondent’s pattern of misconduct, multiple offenses, prior disciplinary record and substantial experience in the practice of law. It found no mitigating factors. Based on these factors, as well as jurisprudence from this court, the committee recommended that respondent be suspended from the practice of law for a minimum of one year and one day followed by a one year period of probation.

Neither respondent nor the ODC objected to the hearing committee’s recommendation.

Recommendation of the Disciplinary Board

The disciplinary board concurred with the hearing committee’s factual and legal findings in all respects, except insofar as the board concluded the committee erred in failing to find a violation of Rule 1.16(d) stemming from a failure to return his Ghent’s file and filing fee. It also determined the committee mistakenly failed to find a violation of Rule 8.4(c), recognizing respondent’s misconduct was deceitful and dishonest when he misled his client into thinking suit had been filed and settlement negotiations were ongoing.

I/The disciplinary board found respondent knowingly, if not intentionally, violated duties to his client, the public and the legal profession. While the board noted that it was unclear from the record as to whether Mr. Panepinto experienced actual injury, it determined it was clear that the potential for injury was obvious, citing the fact the prescription period on his claim was still running during the time the case was neglected. Further, the board pointed out that respondent’s failure to cooperate with the ODC caused unjust delays and imposed an additional burden upon the disciplinary system.

In determining an appropriate sanction, the board observed that the instant misconduct occurred in 1998, during the same period of time as respondent’s misconduct subject of Holley I, which occurred between 1994 through 1999. The board determined that if the instant misconduct had been considered together with the misconduct at issue in Holley I, an eighteen-month suspension, with some period deferred, would likely have been imposed. Noting respondent has already served his first suspension in Holley I, which consisted of an actual two-month suspension, the board recommended an additional one year and one day suspension be imposed. It further proposed imposition of a one-year period of probation, to run consecutive to the probation imposed in Holley I. Finally, it recommended respondent be ordered to make payment of restitution.

Neither respondent nor the ODC filed an objection in this court to the recommendation of the disciplinary board.

DISCUSSION

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

The record supports the committee’s finding that the ODC proved by clear and convincing evidence that respondent neglected his client’s legal matter, misrepresented the status of the matter so as to conceal his misconduct, failed to return his client’s property and failed to comply with a subpoena compelling his attendance at a scheduled deposition.

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

The misconduct at issue in this proceeding occurred in 1998, in the same time frame as the misconduct for which respondent was suspended in Holley I. In Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), we observed that when a second attorney disciplinary proceeding involves conduct which occurred |fiduring the same time period as the first proceeding, the overall discipline to be imposed should be determined as if both proceedings were before the court simultaneously.

The instant charges are similar to the misconduct in Holley I, which involved the neglect of three client matters. In our opinion in Holley I, we observed respondent’s misconduct was more negligent than intentional and recognized the presence of mitigating factors:

A review of the record indicates respondent’s misconduct was more negligent than intentional. Nonetheless, his actions delayed resolution of his clients’ cases.
Aggravating factors are present, including respondent’s substantial experience in the practice of law and his prior disciplinary record. However, we recognize the presence of several significant mitigating factors, such as respondent’s lack of a dishonest and selfish motive, and his payment of restitution.

By contrast, the instant misconduct contains elements of intentional dishonesty. Had we considered the instant misconduct together with the misconduct in Holley I, it is likely we would have imposed a more severe sanction, probably in the range of eighteen months, with some period of deferral and probation. See, e.g., In re: Baum, 02-1658 (La.8/30/02), 825 So.2d 1093 (eighteen-month suspension, with all but one year and one day deferred, followed by probation, imposed on an attorney whose primary misconduct consisted of neglect of two client matters).

Recognizing that respondent has served a two-month actual suspension, we conclude the appropriate sanction for respondent’s misconduct in the instant matter is an additional suspension from the practice of law for a period of one year and one day, which will necessitate a formal application for reinstatement by respondent. Further, if and when respondent is reinstated to practice, he shall be subject to a one 17year period of probation, to run consecutively with the one year period of probation imposed in Holley I.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered Richard E. Holley, Louisiana Bar Roll number 1422, is suspended from the practice of law for a period of one year and one day. It is further ordered that if and when respondent is reinstated to the practice of law, he shall be subject to a one year period of probation to run consecutive to the one year period of probation imposed by this court in In re: Holley, 01-1876 (La.10/5/01), 797 So.2d 46. Respondent is ordered to make full restitution to his client. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Respondent was charged with a violation of Rule 8.1(c) stemming from his failure to cooperate with the ODC. However, the committee mistakenly reported a violation of Rule 1.8(c), relative to conflicts of interest. This appears to be simply a typographical error.

      . Respondent was admitted to the practice of law in Louisiana in 1982, approximately sixteen years at the time of the misconduct.

      . This court has generally been hesitant to impose probation in cases where the attorney must seek reinstatement, believing such issues are more properly addressed at the time of reinstatement. However, in a Chatelain context, where the attorney is already subject to probation from an earlier suspension, we have sometimes imposed additional probation in calculating a sanction appropriate for the overall misconduct. See In re: Dunn, 02-2165 (La.11/8/02), 831 So.2d 889.


text:
    In re Alfred Foster SANDERS, III.
    Nos. 2003-B-2413, 2003-OB-2641.
    Supreme Court of Louisiana.
    Oct. 8, 2003.
   ORDER

Considering the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Alfred Foster Sanders, III, Louisiana Bar Roll number 11693, and the concurrence thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the request of Alfred Foster Sanders, III for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1.

IT IS FURTHER ORDERED that Alfred Foster Sanders, III shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

IT IS FURTHER ORDERED that the proceedings in 03-B-2413 be dismissed as moot.

/s/ Catherine D. Kimball

Justice, Supreme Court of Louisiana


text:
    In re Kevin Harold JOHNSON.
    No. 2002-OB-1846.
    Supreme Court of Louisiana.
    Oct. 8, 2003.
   ORDER

Considering the September 29, 2003 correspondence from the Director of Character and Fitness of the Committee on Bar Admissions, indicating that the Committee no longer objects to the certification of petitioner for admission to the practice of law,

IT IS ORDERED that petitioner be and he hereby is granted admission to the practice of law in Louisiana.


author: PER CURIAM.

text:
    In re Christopher S. SUBA.
    No. 2003-OB-2795.
    Supreme Court of Louisiana.
    Oct. 9, 2003.
   PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, Christopher S. Suba, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of two years. The probationary period may be extended upon recommendation of the Executive Director of the Lawyers Assistance Program. During the probationary period, petitioner shall comply with all of the terms and conditions of the contract executed by him with the Lawyers Assistance Program, and such other conditions as may be imposed upon him by the Executive Director of the Lawyers Assistance Program. Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

JOHNSON, VICTORY and TRAYLOR, JJ., would order the appointment of a commissioner.


text:
    In re Chalyn David PEREZ.
    No. 2003-OB-2793.
    Supreme Court of Louisiana.
    Oct. 9, 2003.
   ORDER

Petitioner, Chalyn David Perez, seeks review of the decision of the Committee on Bar Admissions refusing to certify him for admission in light of a pending felony charge. Because the criminal charge has not yet been resolved, we decline at this time to consider petitioner’s application for admission to the bar. However, petitioner may reurge his application for admission to the bar after the criminal charge has been concluded.

/s/ Catherine D. Kimball

Justice, Supreme Court of Louisiana


author: hPER CURIAM.

text:
    GOOTEE CONSTRUCTION, INC. v. AMWEST SURETY INSURANCE COMPANY and Premier Glass Plus, Inc.
    No. 2003-CC-0144.
    Supreme Court of Louisiana.
    Oct. 10, 2003.

      Harry T. Lemmon, William John Perry, Lloyd Noble Shields, Daniel Lund, III, Shields, Mott, Lund, New Orleans, Counsel for Applicant.
    Thomas F. Gardner, Douglas Alfred Kewley, Roger C. Linds, Mary Ann Darr Wegmann, Gardner & Kewley, Metairie, Counsel for Respondent.
   hPER CURIAM.

This litigation arises out of a construction project at the New Orleans International Airport. Gootee Construction, Inc. (“Gootee”) entered into a subcontract with Premier Glass Plus, Inc. (“PGP”). Amwest Surety Insurance Company (“Amwest”) issued a performance bond guaranteeing PGP’s performance of the subcontract.

Subsequently, PGP allegedly defaulted on the subcontract with Gootee, which in turn contends it completed PGP’s work on the subcontract.

In 1998, Gootee filed suit against PGP and Amwest for breach of the subcontract. In 2000, the district court granted summary judgment in favor of Gootee and awarded it $701,827.22.

Apparently, once the suspensive appeal delays ran, Gootee threatened to execute on the judgment. As a result, Amwest paid Gootee $710,814.17 in satisfaction of the judgment. Amwest then filed a devol-utive appeal.

The summary judgment in favor of Goo-tee was reversed on appeal, based on the court’s finding that “summary judgment in favor of Gootee is not appropriate on the record before us because there are material issues of fact which remain unresolved Land, because of the nature of this case and the third-party demands, it is not one which is best and efficiently decided in a piecemeal fashion.” Gootee Construction, Inc. v. Amwest Surety Insurance Company, 00-1639 (La.App. 5 Cir. 2/28/01), 781 So.2d 792, writ denied, 01-0866 (La.5/11/01), 792 So.2d 739.

After the judgment of the court of appeal became final, Amwest made several demands on Gootee to return the monies Amwest paid in satisfaction of the now-reversed judgment. Gootee refused to do so.

Pursuant to an indemnity agreement, Amwest assigned its rights to C. Reese Owen. Mr. Owen, as contractual subrogee of Amwest, then intervened in the suit and filed a motion for summary judgment, seeking to have the court order Gootee to repay the monies. In support, Mr. Owen argued that while there may be issues of material fact on the main demand between Gootee and PGP, there were no issues of fact concerning the intervention.

Gootee opposed Mr. Owen’s motion for summary judgment. It argued that any rights possessed by Mr. Owen, as subro-gee of Amwest, were inextricably interwoven with PGP’s obligation to Gootee. Therefore, until a final determination of PGP’s obligation to Gootee was made, Goo-tee argued Mr. Owen’s claim was not ripe for decision.

After a hearing, the district court denied Mr. Owen’s motion for summary judgment without assigning written reasons. Mr. Owen applied for supervisory writs from this ruling. The Court of Appeal, Fifth Circuit, denied the "writ.

Upon Mr. Owen’s application, we granted certiorari to consider the correctness of that decision. Gootee Construction, Inc. v. Amwest Surety Insurance Company, 03-0144 (La.3/28/03), 842 So.2d 1082. The sole issue presented for our consideration is whether Mr. Owen is entitled to summary judgment on his reimbursement claim.

DISCUSSION

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966(B); Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226. The summary judgment procedure is designed to secure the “just, speedy, and inexpensive determination of every action.” LSA-C.C.P. art. 966(A)(2); Racine v. Moon’s Towing, 01-2837 (La.5/14/02), 817 So.2d 21.

Based on our review of the record, we conclude there are no genuine issues of material fact with regard to Mr. Owen’s motion for summary judgment. All the parties agree that the funds at issue were paid to Gootee by Mr. Owen’s subrogee, Amwest, pursuant to a judgment which was later reversed on appeal. Thus, if Mr. Owen is entitled to a refund of this money as a matter of law, summary judgment in his favor must be granted.

The sources of law are legislation and custom. LSA-C.C. art 1. In Louisiana, as in all codified systems, legislation is the superior source of law which cannot be abrogated by custom. LSA-C.C. art. 1, comments (a) and (c); LSA-C.C. art. 3. Accordingly, the starting point of our analysis begins with the codal articles. Louisiana Civil Code, article 2299, provides:

A person who has received a payment or a thing not owed to him is bound to restore it to the person from whom he received it.

This court has not previously interpreted Article 2299 in light of the question of whether funds paid in satisfaction of a judgment which is subsequently reversed | ¿must be refunded. However, we agree with the decisions in Orgeron v. Security Industrial Funeral Homes, Inc., 96-2127 (La.App. 4 Cir. 2/26/97), 690 So.2d 243, and Lisi Realty, Inc. v. Plaisance, 306 So.2d 920 (La.App. 1st Cir.1974), writ denied, 310 So.2d 640 (1975), which applied the principle recited in Article 2299, although neither case cited codal authority.

In Orgeron, a funeral home filed suit against Elmo Orgeron, Jr., seeking to recover the costs of a funeral. The trial court granted summary judgment in favor of the funeral home and Mr. Orgeron de-volutively appealed this judgment. During the pendency of the appeal, Mr. Orgeron paid the judgment. Subsequently, the judgment was reversed on appeal. Mr. Orgeron then filed suit against the funeral home to recover the amount of the judgment he paid. The trial court rendered judgment in favor of Mr. Orgeron. The court of appeal affirmed, stating:

Implicit in the rules that authorize the execution of judgments appealed devolu-tively is the obligation of the judgment creditor to return voluntary payments made by a judgment debtor to avoid execution of the judgment during the pendency of a devolutive appeal if the judgment is reversed.

Orgeron, 96-2127 at p. 5, 690 So.2d at 246.

In Lisi Realty, Inc., supra, a default judgment was rendered against Lisi Realty, Inc. During the pendency of the devolu-tive appeal, the creditor executed on the judgment. Subsequently, the default judgment was reversed, and Lisi Realty, Inc. filed suit against the creditor. The court of appeal held that even though the creditor was allowed to execute on the judgment after the suspensive appeal delays had run, ‘such creditor is subject to an action for the return of the funds received through such execution if the judgment is reversed.” Lisi Realty, Inc., 306 So.2d at 921.

Gootee attempts to distinguish these cases by asserting they involved suits filed after the underlying judgments had been reversed, while the instant matter involves ongoing litigation. We find this to be a distinction without a difference. In this matter, Gootee simply does not have a judgment authorizing it to retain the funds. Quite to the contrary, the summary judgment in Gootee’s favor has been reversed, demonstrating there is a legal dispute as to what, if anything, Amwest owes Gootee. Thus, we find no basis to distinguish Orgeron and Lisi Realty, Inc. from the instant case.

Consequently, the holdings of Orgeron and Lisi Realty, Inc. are consistent with the principle set forth in LSA-C.C. art. 2299. See also LSA-C.C.P. art. 2252, official comment (d); Bomarito v. Max Barnett Furniture Co., 177 La. 1010, 150 So. 2 (1933) (when property sold is under a writ of fieri facias and the judgment is subsequently reversed on appeal, the party’s remedy is to sue the original judgment creditor for return of the purchase price).

In the instant case, it is clear that at the time Amwest paid Gootee, the payment was made pursuant to a valid judgment. However, once that judgment was reversed on appeal, the basis for the payment ceased to exist. Therefore, Gootee has no legal right to retain the funds and must refund them to Amwest’s subrogee, Mr. Owen.

While Gootee concedes it no longer has a basis to retain the funds based on the now-reversed judgment, it asserts Amwest owes it a contractual obligation under the bond to compensate it for expenses it incurred as a result of PGP’s default. Goo-tee | fisuggests that when Amwest paid the funds (for whatever reason) it was simply complying with its obligations under the bond. Thus, Gootee suggests it should be allowed to retain these funds pending a determination of liability.

We find no merit to this argument. It is undisputed that prior to the entry of summary judgment, there was no legal determination whether Amwest was liable to Gootee under the terms of the bond. Once that summary judgment was reversed, the parties were returned to their original positions. Gootee, as plaintiff, has the burden of proving that PGP defaulted on its subcontract and all other facts necessary to trigger Amwest’s obligations under the bond. Thus, prior to a determination of liability, Gootee has no right to payment under the bond.

Gootee also points out Amwest has been placed in liquidation. Gootee suggests that if the money is returned, it is unlikely Gootee will be able to recover these funds in the event Gootee prevails at trial. The mere fact that Gootee may have difficulty collecting on a future judgment does not provide any legal authority for it to retain funds to which it is not now entitled.

In sum, we find the record demonstrates there is no genuine issue as to material fact, and that Mr. Owen is entitled to judgment as a matter of law. Accordingly, we reverse the judgment of the district court and render summary judgment in favor of Mr. Owen.

DECREE

For the reasons assigned, the judgment of the district court denying summary judgment is reversed. Summary judgment is hereby rendered in favor of C. Reese Owen and against Gootee Construction, Inc., in the principal sum of $710,814.17, plus costs and appropriate legal interest.

      . Mr. Owen was the principal of PGP. He paid Amwest $650,123.99 in reimbursement and partial satisfaction for monies Amwest paid to Gootee in satisfaction of the judgment.

      . In State Department of Highways v. Busch, 254 La. 541, 225 So.2d 208, 210 (1969) this court recognized that "[a] sum paid in response to a money judgment by one cast at the trial court level while a devolutive appeal is pending is owed to the party who on appeal secures reduction or reversal of the judgment.” In that expropriation case the court was not required to address the specific issue of whether the funds were to be refunded. The issue before the court was whether interest was due on the excess funds which were to be repaid to the plaintiff.

      . This article echos a principle of ancient Roman law known as condictio sine causa or condictio causa data causa no secuta. As explained by Planiol, this principle allows for recovery of a debt which exists at the moment payment is made, but which is later rescinded or annulled. 2 M. Planiol, Traité Élémentaire de Droit Civil, No. 842 (La.St.Law.Inst.Trans. 1959).


author: | JOHNSON, J.,

text:
    Stacy M. BAILEY, Individually and on behalf of her minor child, Tyrell Jevon Manuel v. William Mark HAYNES, M.D.
    No. 2003-C-1209.
    Supreme Court of Louisiana.
    Oct. 10, 2003.
   | JOHNSON, J.,

would grant the writ for the following reasons.

The Louisiana legislature passed the Medical Malpractice Act of 1975, and other relevant legislation, in response to increasing costs of medical malpractice insurance. LSA-R.S. 9:5628 establishes a prescriptive period pertaining to medical malpractice. Part A of the statute requires that suit against a healthcare provider be brought within one year of the alleged tortious act or within one year of the date of discovery of the cause of action so long as the action is filed within three years from the date of the alleged tortious act. Part B says that the prescription also applies to minors and interdicts.

While the legislation manifests a clear intent to limit the vulnerability of healthcare providers to malpractice lawsuits, the Louisiana Supreme Court has created some balance by stating that the law does not impose upon a layman the obligation to self-diagnose. Campo v. Correa, 01-2707 (La.2002), 828 So.2d 502; Cordova v. Hartford Accident & Indemnity Co., (La.1980), 387 So.2d 574.

Louisiana courts have used two main approaches to determine when a plaintiff has acquired constructive knowledge in medical malpractice prescription cases where lathe plaintiffs child was injured during delivery and was later diagnosed with cerebral palsy, pursuant to LSA-R.S. 9:5628.

The first line of cases, which are analogous to the case at hand, ruled that medical malpractice suits were filed timely where the plaintiff was aware that the child was injured at delivery but was ignorant of the cause of action at such time and only acquired constructive knowledge upon obtaining subsequent information from a healthcare provider, which suggested the possibility that the child’s condition was related to malpractice and plaintiff filed her suit within one year of such discovery and within three years from the date of the alleged act. Adams v. Louisiana Medical Mutual Insurance, (La.App. 2 Cir.2000), 756 So.2d 708; LeCompte v. State of Louisiana—Department of Health and Human Resources—South Louisiana, (La.App. 1 Cir.1998), 723 So.2d 474; Welch v. St. Francis Medical Center, Inc., (La.App. 2 Cir.1988), 521 So.2d 758; Poole v. Physicians & Surgeons Hospital, et al., 516 So.2d 1185 (La.App. 2 Cir.1987).

The court in Adams v. Louisiana Medical Mutual Insurance reversed the lower court’s ruling sustaining the defendant’s exception of prescription because the court ruled that prescription began to run with the diagnosis and information from a doctor, not at the time of the child’s birth, despite the child being born premature and having many serious medical problems which included treatment for seizures. The court’s findings included medical records from the delivery that referred to “unknown causes” for the child’s seizures. Social security benefits were sought by the mother on behalf of the child where the mother referred to the child’s health problems being caused by prematurity, not by medical negligence. Further, a doctor who saw the child at eleven months stated in his report that the parents did not know the cause of the child’s seizures. An affidavit by the delivering physician also indicated that the |,.¡parents were justified in failing to suspect malpractice since the doctor told the parents that the emergency procedures were necessary because the baby was premature. Id. at 718.

Similar to the plaintiffs in Adams, Stacey Bailey was never told the specific cause of her child’s difficult birth nor did she have any reason to believe that the difficulty arose from medical negligence. She relied on and trusted her doctor’s competence so much so that Stacey Bailey continued to bring her son, Tyrell, to Dr. Haynes after Tyrell’s birth. This sixteen year old mother’s belief in her doctor’s competence was reasonable, given the absence of an event during the delivery that would have sparked an awareness of a cause of action. To the contrary, it would be unreasonable if she continued to bring her child to Dr. Haynes if she felt he was negligent in the delivery of her child and the cause of her child’s severe developmental problems.

LeCompte v. State of Louisiana — Department of Health and Human Resources — South Louisiana, involved plaintiffs whose child was diagnosed with cerebral palsy at seven months old, in May 1986, but who argued that they did not become aware of a medical malpractice claim until the mother saw a commercial that indicated that doctors are sometimes responsible for cerebral palsy, more than one year later. The court sustained the lower court’s judgment to grant defendant’s exception of prescription because the court reasoned that the afterbirth complications of the child “coupled with the general statement by a physician as to the cause of cerebral palsy provided the LeComptes with constructive knowledge to start the running of prescription in May 1986,” the date of the diagnosis. Similarly, Stacey Bailey’s prescription date should begin to run on July 18, 1996, the time that her child was diagnosed with cerebral palsy.

| /Poole v. Physicians and Surgeons Hospital is the most factually similar case to the case at hand, with the exception that the plaintiff mother in Poole was a 82 year-old college graduate, rather than a sixteen year old high school student like Stacey Bailey. In Poole, the claimant mother was found by the court not to have had either actual or constructive knowledge of her cause of action prior to one year before the institution of her suit. Like Stacey Bailey, the claimant mother in Poole had a difficult labor and delivery, her child experienced seizures immediately following birth and was subsequently transferred for thirteen days to a special unit at the Schumpert Hospital in Shreveport, the same facility to which Ms. Bailey’s child was transferred. Unlike Stacey Bailey, however, Mrs. Poole was thirty-two years old, a college graduate, had a relative advise her to have the baby tested three months after delivery, and had a nurse friend advise her on fetal monitoring.

The court in Poole declined to dismiss the claimant’s action based on prescription, despite the mother’s education, available resources, and the severity of the child’s symptoms at birth because the court found that plaintiffs failure to file suit within one year of her delivery was not the result of either willful ignorance or neglect but for the following three reasons:

(1) plaintiff believed that her difficult labor could have resulted from her “v” shaped pelvis; (2) plaintiff had confidence in her treating physician; and (8) no physician or health care worker suggested to plaintiff that negligence might have been involved in her child’s birth. Poole at 1189. These three factors are applicable to the case at hand.

First, Stacey Bailey entered the hospital at 42 weeks pregnant and was treated for latent pregnancy to which she could have reasonably attributed her difficult delivery, rather than medical malpractice. Second, she trusted her physician so much 15so that she continued to bring her child to the same doctor after the delivery. Third, no healthcare worker ever told Ms. Bailey that her child’s problems could be the result of negligence, although the record painstakingly describes the doctor’s notes explaining to Ms. Bailey “potential” problems her child may develop. There is no indication that Ms. Bailey’s failure to file suit earlier was the result of any willful ignorance or neglect but rather she lacked sufficient information to excite her curiosity regarding a cause of action. Ms. Bailey acquired sufficient information to excite her curiosity regarding a cause of action on July 18, 1996 when Vicki Leach, the physical therapist, diagnosed Tyrell with cerebral palsy. Ms. Bailey filed suit within one year of this report on July 15, 1997 and within three years of the date of action, therefore, her suit is timely and not prescribed.

The second line of cases, which are distinguishable from the case at hand, point to a specific event or events that occurred on the delivery day that gave or should have given the plaintiff notice that both the child was injured and that the injury resulted from possible medical malpractice. Bailey v. Haynes, (La.App. 2 Cir.2003), 843 So.2d 584; Tucker v. Lain, (La.App. 4 Cir.2001), 798 So.2d 1041; Richardson v. Moffett, (La.App. 3 Cir.1993), 608 So.2d 275; Maung-U, et al. v. Dr. James S. May, et al., (La.App. 2 Cir.1990), 556 So.2d 221; Percy v. State of Louisiana, Through E.A. Conway Memorial Hospital, (La.App. 2 Cir.1985), 478 So.2d 570.

In Tucker v. Lain, the court reviewed the trial transcript to conclude that plaintiffs learned of the alleged malpractice and their son’s injuries on the day of his birth. The transcript read, “Q. When did you first believe that Dr. Lain did anything wrong to cause your baby’s injury? A. During the time of birth and during the time that J.T., when I was in the delivery room and after J.T. was born because if |fisomething was wrong with J.T., I should have know way ahead of time.” Id. at 1048. There is no evidence in the present record that Stacey Bailey made any such acknowledgment, or that she could have even if she was given the opportunity to respond to such a question, since she contends that she learned of the causal connection between the injury and possible malpractice much later than her delivery date.

The plaintiffs in Richardson v. Moffett, a case relied on by the defendant in the present case, alleged that the delivering physician was negligent in his administration of a Ritodrine IV drip that was used to inhibit premature labor. The court reasoned that the plaintiffs were aware of these facts on the night of delivery and therefore plaintiffs had enough information to make a further inquiry. In the present matter, there is no indication that Stacey Bailey was able to point to a particular procedure during the delivery that put her on notice of possible medical malpractice. Ms. Bailey was certainly aware that the delivery was difficult and that her child was somewhat developmentally delayed, but this understanding only satisfies part of the requirement for constructive knowledge. As this court held in Campo v. Correa, “even if a malpractice victim is aware that an undesirable condition has developed after the medical treatment, prescription will not run as long as it was reasonable for the plaintiff not to recognize that the condition might be treatment related.” Id. at 511.

In Maung-U, et al., v. Dr. James S. May, et al, the court focused on plaintiff’s testimony where plaintiff testified that he felt “that something was wrong from the night of delivery. He did not think that Dr. May should have been arriving so late,” despite knowing that labor and delivery were proceeding abnormally. Id. at 225. Further, plaintiffs sister was a neo-natologist, who plaintiff was in regular communication with, and upon receiving information from plaintiff regarding the 17child’s delivery his sister stated that she was “mad because of delays in delivery.” Id. at 225. Plaintiff also stated that friends advised him to seek legal counsel over a year before his deposition was taken. The court ruled that plaintiffs failure to make further inquiry or consult medical or legal professionals for more than two years was unreasonable. Stacey Bailey’s case is distinguishable because there is no evidence in the record that there was an event, such as a doctor arriving late to an abnormal delivery, that would spark her awareness of a cause of action, nor is there any evidence that this sixteen year old mother had any close relatives or friends who were medical or legal specialists and who saw her baby and counseled her regarding her child’s injuries.

Plaintiff, Stacey Bailey, filed this action less than one year after she acquired sufficient information regarding the causal link between her child’s injuries at birth and possible medical negligence during the delivery. Thus, she acquired constructive knowledge of potential medical malpractice on July 18, 1996, the date of the physical therapist’s report that diagnosed the child with cerebral palsy, and she filed her complaint with the Patient’s Compensation Fund on July 15, 1997, less than one year after she had constructive knowledge of her cause of action and within three years of the September 9, 1995 delivery date. Her claim was filed timely because up until the physical therapist’s report, there was no event or information that sparked her awareness of a cause of action regarding medical malpractice. She knew that her delivery was difficult and that her child was injured but she was ignorant of the facts that would have led her to further inquiry regarding her doctor’s competence. To assume that it was unreasonable for Stacey Bailey to file suit after she acquired sufficient information from the therapist regarding Tyrell’s injuries and possible medical negligence, rather than her filing a speculative suit within a year of Tyrell’s Isbirth, without any healthcare worker informing her of possible medical malpractice, despite the numerous documented conversations between the doctors and Ms. Bailey, is to impose upon Ms. Bailey the undue burden to self-diagnose. Such a burden would be unreasonable and contrary to the intent of LSA-R.S. 9:5628.

      . Hackenberg, E. Scott, Puttering About In A Small Land: Louisiana Revised Statutes 9:5628 and Judicial Responses To The Plight Of The Medical Malpractice Victim, 50 La. L.Rev. 815 (1990).


author: 11 JOHNSON, J.

text:
    LITTLE ZION BAPTIST CHURCH v. Rev. James H. DAWSON, Jr., Ralph Dawson, Mrs. Inez Dawson Mellion, Mrs. Ethel Dawson Walker, Mrs. Mary Gaskins Thomas and The Heirs of Rev. Fred Dawson.
    No. 2003-C-0543.
    Supreme Court of Louisiana.
    Oct. 10, 2003.
   11 JOHNSON, J.

would grant the writ application for the following reasons.

This Court has previously addressed the issue of which descriptive features commonly used in land grants demand primacy over others when applied to settle a boundary dispute. The boundary description contained in Little Zion’s deed is ambiguous, however, settled case law determines that this Court must look to natural monuments rather than distances to settle boundary disputes when confronted with a property description that results in a discrepancy.

In a boundary dispute, it is the duty of the Court to “ascertain and give effect to the intention of the parties,” Administrators of the Tulane Educational Fund v. Stair, 148 La. 11, 86 So. 595, 597 (La.5/31/20). In the instant case, this Court must therefore attempt to grant full force and effect to an ambiguous grant of land made in 1890. In order to devise the objective of Ms. Pauline Jackson, the dona-tor of the land now in dispute, this Court must look to “documents, maps, and symbols [which ] are but representations of that purpose.” Id.

It is well established law that the use of natural monuments to survey the dimensions of property for the purpose of establishing title is considered more reliable than the use of distances. In Meyer v. Comegys, 147 La. 851, 86 So. 307 (6/30/20) the Court affirmed the finding of the Court of Appeal and named the plaintiff the rightful owner of a disputed tract of land. In Meyer, an inaccurately platted map placed a dirt broad in a different position from where it was actually laid out, which placed a sixteen acre plot of land in dispute. The Court found that “the legal guides for determining a question of boundary, or the location of a land line, in the order of their importance and value, are: (1) natural monuments; (2) artificial monuments; (3) distances; (4) courses; and (5) quantity.” Meyer, 147 La. 851, 86 So. 307, 309. The use of natural monuments in the delineation of property is given precedence over other guides because natural monuments are considered “more permanent and possess less of the possibilities of error incident to courses, distances, and area (emphasis added).” Id. This Court reiterated such an application of the rule in Dufrene v. Bernstein, 190 La. 66, 181 So. 859 (5/2/38).

A similar application of this rule is required in the instant case. The original grant sets the dimension of the Little Zion property as both “measuring fifty feet front on said Bayou by Sixty feet in depth” and “extends from Bayou Jacob to Bayou Plaquemine.” Since the terms of the deed conveying the grant sets out both natural monuments (Bayous Jacob and Plaque-mine) and distances (fifty feet ... by Sixty feet), and therefore, the proper measure of delineation for the boundary is Bayous Jacob and Plaquemine, which bound the land on either side.

Despite the ambiguous terms provided in the deed for the land donated to Little Zion Baptist Church, settled case-law provides that natural monuments should prevail. In my view, Ms. Jackson intended for the church’s land to extend from Bayou Jacob to Bayou Plaquemine.

For the aforementioned reasons, I would grant this writ application.

      . The rule has also been uniformly followed in the Courts of Appeal. See Levraea v. Smith, 424 So.2d 277 (La.App. 1 Cir.,11/16/82); Carlisle v. Graves, 64 So.2d 456 (La.App. 2 Cir., 3/19/53); Sagrera v. Mouton, 180 So.2d 775 (La.App. 3 Cir., 11/16/82); Broussard v. Union Pac. Resources Co., 778 So.2d 1199 (La.App. 3 Cir., 1/31/01).


author: | .PER CURIAM.

text:
    In re Judge Carl VAN SHARP.
    No. 2003-O-2256.
    Supreme Court of Louisiana.
    Oct. 29, 2003.
    Steven Scheckman, Special Counsel, Mary F. Whitney, Asst. Special counsel, Office of Special Counsel, Nancy E. Rix, Commission Legal Counsel, Hugh M. Collins, PhD, Chief Executive Officer, Judiciary Commission of Louisiana, Counsel for Applicant.
    Carl Van Sharp, Counsel for Respondent.
   | .PER CURIAM.

This matter comes before the court on the recommendation of the Judiciary Commission of Louisiana (“Commission”), pursuant to La. Const, art. V, § 25(C), that Carl Van Sharp, Judge of the Fourth Judicial District, Parish of Ouachita, be suspended from office for sixty days and ordered to pay the cost of the prosecution of these proceedings. For the reasons that follow, we adopt the Commission’s recommendation.

FACTS AND PROCEDURAL HISTORY

Judge Sharp assumed his office on January 1, 1993 and has served continuously since that time. On June 15, 1998, the Commission filed a formal charge (Charge No. 0093) against Judge Sharp, alleging that he failed to render, issue, and sign judgments in a timely manner in five separate cases and failed to accurately report those cases to the Office of the Judicial Administrator as under advisement. In response to that charge, Judge Sharp and the Commission entered into a Deferred Recommendation of Discipline Agreement (“DRDA”) in April 1999. Pursuant to the DRDA, Judge Sharp was placed on probation for a period of three years, commencing on April 15, 1999 and ending on April 15, 2002. During the probationary period, Judge Sharp obligated himself, among other things, to implement procedures to avoid having any future cases languish undecided, and he promised to notify the Office of the Judicial | ^Administrator within seventy-two hours of taking any case under advisement, in addition to filing accurate monthly reports of cases taken under advisement. Furthermore, Judge Sharp agreed that he would not maintain any case under advisement for more than ninety days without the prior approval of the Judicial Administrator. If Judge Sharp failed to comply with his obligations under the DRDA, the default provisions of the agreement provided that Charge No. 0093 would be immediately reinstated by the Commission; the allegations of the Formal Charges would be deemed admitted; and Judge Sharp would agree to be publicly censured by this court. Alternatively, if the term of the DRDA expired without there having been a violation by Judge Sharp thereof, the Commission agreed that it would dispense with making any recommendation of discipline to this court in connection with Charge No. 0093.

On August 28, 2001, during Judge Sharp’s probationary period, a complaint was filed against him by William Heard, the plaintiff in a community property partition case pending in Judge Sharp’s court. William Mallard Heard, Jr. v. Ann Bennett Heard, No. 97-0772-G on the docket of the Fourth Judicial District Court for the Parish of Ouachita. In his complaint, Mr. Heard stated that Judge Sharp tried the partition on May 25, 1999, but thereafter he did not render any ruling. Over the next two years, Mr. Heard made periodic inquiries to his attorney about the matter, but still no ruling was forthcoming. In May 2001, Mr. Heard’s attorney spoke personally with Judge Sharp, who asked that the case be reargued to “refresh” his “memory about the facts.” That hearing was held on Wednesday, June 20, 2001, during which Judge Sharp apparently indicated that he would issue a ruling within the following week. However, he failed to do so. When Judge Sharp still had not rendered a ruling by the end of August 2001, Mr. Heard reluctantly submitted his complaint, suggesting he simply wanted “to finalize this chapter in my life and believe I deserve a fair and final answer.”

On September 6, 2001, the Office of Special Counsel forwarded a copy of Mr. Heard’s complaint to Judge Sharp for a response. Judge Sharp failed to reply. On January 24, 2002, the Commission notified Judge Sharp that an investigation had been authorized into Mr. Heard’s complaint. On August 20, 2002, the Commission filed a formal charge (Charge No. 0185) against Judge Sharp, alleging that he failed to render, issue, and sign a judgment in the Heard case in a timely manner and failed to accurately report to the Office of the Judicial Administrator that the Heard case was taken under advisement, in violation of Supreme Court General Administrative Rules Part G, § 2 and La. R.S. 13:4207. The Commission alleged Judge Sharp’s conduct violated the Code of Judicial Conduct and the Louisiana Constitution.

Judge Sharp was duly served with the formal charge, but he did not respond. In light of Judge Sharp’s failure to participate in the proceedings, the Commission issued orders deeming the allegations of the formal charge admitted and limiting any presentation to be made by Judge Sharp at the hearing on the merits.

On June 20, 2003, the Commission convened a hearing in this matter. Judge Sharp appeared at the hearing and admitted the factual allegations set forth in Mr. Heard’s complaint. He personally apologized to Mr. Heard, who was present to testify, but nevertheless admitted that he still had not handed down any decision in the Heard case.

|4At the conclusion of its hearing, the Commission issued its findings of fact and conclusions of law. The Commission noted that this court has previously censured judges for failing to render judgments timely. However, the Commission concluded more severe discipline than public censure was warranted in the instant case, because (1) until June 20, 2003, the date of the hearing, Judge Sharp completely ignored the Commission and its efforts to address Mr. Heard’s complaint, (2) Judge Sharp was the subject of previous complaints about delays in deciding cases, and he admitted to these complaints after the filing of formal charges, and (3) Judge Sharp repeatedly filed reports with the Office of the Judicial Administrator stating that he had no cases under advisement, when he well knew that the Heard case was undecided, reflecting dishonesty. Based on these considerations, the Commission recommended that Judge Sharp be suspended from judicial office without pay for sixty days, as well as ordered to reimburse and pay to the Commission costs in the amount of $210.00 incurred in the investigation and prosecution of this case.

Shortly after the Commission’s filing in this court, Judge Sharp filed a stipulation in which he accepted the Commission’s recommendation of discipline. He also waived oral argument before this court and requested that we consider the matter based on the record developed before the Commission. The Office of Special Counsel concurred in Judge Sharp’s motion.

I,.DISCUSSION

Because Judge Sharp and the Office of Special Counsel have stipulated to the facts, the sole issue presented is the appropriate measure of discipline in this case. In re: Shea, 02-0643 (La.4/26/02), 815 So.2d 813. In determining an appropriate sanction, we are mindful that the primary purpose of the Code of Judicial Conduct is to protect the public rather than to discipline judges. In re: Harris, 98-0570 (La.7/8/98), 713 So.2d 1138; In re: Marullo, 96-2222 (La.4/8/97), 692 So.2d 1019.

In In re: Tuck, 96-1444 (La.11/25/96), 683 So.2d 1214, we explained that the sanctions in cases involving failure to render decisions timely were decided on a case-by-case basis. We set forth the following factors to be considered:

(1) the amount of delay from the date the case was ripe for decision; (2) the complexity of the case; (3) the administrative and judicial workload of the judge; (4) the number of special assignments given to the judge; (5) the amount of vacation time taken; and (6) other complaints involving delayed decisions made against the judge.

Applying these factors to the instant case, we find the delay from the date the Heard matter was ripe for decision until judgment was over four years, clearly an unreasonable length of time. There is no evidence that this case involved a particularly complex legal issue, or that Judge Sharp carried an unusually heavy administrative or judicial workload. The record is silent as to any special assignments given to or vacation time taken by Judge Sharp; however, it does not appear either of these factors resulted in the delay of his decision in Heard. Finally, regarding other complaints of delayed decisions, Judge Sharp has admitted that he failed to timely render judgments in the five cases encompassed by the 1999 DRDA.

Judge Sharp’s failure to decide cases in a timely manner is compounded by his failure to comply with this court’s rule requiring judges to report to the Judicial (Administrator all cases that are maintained under advisement for longer than thirty days. In fact, the monthly reports filed by Judge Sharp with the Office of the Judicial Administrator indicated that he had no cases under advisement, despite the fact that the Heard case remained undecided. The rules of judicial administration, established by this court pursuant to its supervisory authority, were designed to promote the efficient and effective operation of the state’s court system. Supreme Court General Administrative Rules Part G, § 2, which requires judges to report the status of cases pending beyond the established time period, was intended to provide a system of accountability and to promote the orderly and expeditious disposition of all matters submitted to a judge. In re: Wimbish, 98-2882 (La.4/13/99), 733 So.2d 1183.

In both Tuck and Wimbish, we imposed minimal discipline, in the form of a censure, upon judges who unreasonably delayed decisions. However, in those cases, we were impressed that the judges had made sincere efforts to improve their procedures and ensure judgements were rendered timely. By contrast, the record in the instant matter is devoid of any evidence showing Judge Sharp has demonstrated any improvement in his ability to render decisions in a timely fashion. Under these circumstances, we conclude a more severe sanction than the censure imposed in Tuck and Wimbish is warranted in this case.

Accordingly, we will suspend Judge Sharp from judicial office without pay for a period of sixty days.

DECREE

For the reasons assigned, it is ordered that Judge Carl Van Sharp of the Fourth Judicial District, Parish of Ouachita, State of Louisiana, be suspended from judicial 17 office for sixty days without pay. It is further ordered that Judge Carl Van Sharp reimburse and pay to the Judiciary Commission of Louisiana costs in the sum of $210.00 incurred in the investigation and prosecution of his case, pursuant to Supreme Court Rule XXIII, § 22. Any application for rehearing in this matter shall be filed no later than 5:00 p.m. on October 31, 2003.

      . Specifically, the Commission alleged Judge Sharp’s conduct violated Canons 1 (a judge shall uphold the integrity and independence of the judiciary), 2A (a judge shall respect and comply with the law), 3A(7) (a judge shall dispose promptly of the business of the court), and 3B(1) (a judge shall diligently discharge his administrative responsibilities and maintain professional competence in judicial administration) of the Code of Judicial Conduct. The Commission further alleged that Judge Sharp engaged in willful misconduct relating to his official duty, engaged in willful and persistent failure to perform his duty, and engaged in persistent and public conduct prejudicial to the administration of justice that brought the judicial office into disrepute, all in violation of La. Const, art. V, § 25(C).

      . The Commission also recommended "that if on the date of filing of this recommendation [August 8, 2003], if there is no signed judgment in the case Heard v. Heard, the Supreme Court order Judge Sharp to render and deliver a written judgment to all parties and to the clerk of court of the 4th Judicial District Court within five business days.” On September 24, 2003, Judge Sharp signed a judgment in Heard. Accordingly, this portion of the Commission’s recommendation is moot.

      . Indeed, the judgment in Heard was not rendered until six weeks after the Commission’s recommendation was filed in this court.


author: | .TERRI F. LOVE, Judge.

text:
    Denise WALLMAN v. Richard K. AKIN, D.D.S., Richard K. Akin, A Dental Corporation.
    No. 2003-CA-0297.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 10, 2003.
    Clarence F. Favret, III, Brad P. Scott, Favret, Demarest, Russo & Lutkewitte, New Orleans, LA, for Plaintiff/Appellant.
    Grier J. Gregory, Law Offices of Margaret E. Bradley, Metairie, LA, for Defendant/Appellee.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge CHARLES R. JONES, Judge TERRI F. LOVE).
   | .TERRI F. LOVE, Judge.

STATEMENT OF THE CASE AND FACTS

Denise Wallman, the appellant, seeks review of the trial court’s order granting the exception of prematurity filed by Richard K. Akin, D.D.S., the appellee, m tras medical malpractice action.

On June 4, 2001, Dr. Akin performed dental surgery on the appellant at his clinic in Bay St. Louis, Mississippi, and the appellant claims she was injured during the surgery. On June 3, 2002, the appellant’s counsel mailed a letter to the Louisiana Commissioner of Administration and to the Patients’ Compensation Fund (“PCF”) requesting the formation of a medical review panel to review the care rendered by Dr. Akin. On June 4, 2002, the appellant filed her medical malpractice action.

By letter dated June 18, 2002, the PCF acknowledged receipt of the appellant’s complaint, assigned a PCF file number to the matter, and informed the appellant that Dr. Akin was a qualified health care provider enrolled in the PCF on the date of the alleged malpractice.

By letter dated September 4, 2002, the PCF further advised the appellant as follows:

1 gIt has now come to our attention that the acts and/or omissions by Dr. Akin occurred in Mississippi. The Patient’s Compensation Fund (“PCF”) has consistently taken the position that the [Louisiana medical malpractice act] does not apply to acts of medical malpractice occurring outside the borders of Louisiana. The PCF does not view the case of Favaroth v. Appleyard, 2000-0359 (La.App. 4 Cir. 05/02/01), 785 So.2d 262 as controlling authority on this issues as that issue was not placed squarely before the Court. However, in the event that a final judgment would be issued by a court of competent jurisdiction in this case, the PCF would abide by the Court’s order regarding the Medical Review Panel process.

On September 6, 2002, two days after the PCF dismissed the appellant’s claim and denied the request for a medical review panel, Dr. Akin was served with citation and process.

On September 12, 2002, Dr. Akin filed his dilatory exception of prematurity for failure to convene a medical review panel prior to bringing suit. The appellant opposed the exception of prematurity on the grounds that the PCF denied her request for formation of a medical review panel because the alleged acts or omissions occurred outside of Louisiana. Dr. Akin relied on this court’s previous decision in Favaroth v. Appleyard, 2000-0359 (La.App. 4 Cir. 5/2/01), 785 So.2d 262, in which this court held that a patient treated in Mississippi by a Louisiana health care provider must submit his malpractice claim to a pre-suit review panel. The appellant distinguished Favaroth by pointing out that she submitted her malpractice claim for consideration by a pre-suit review panel, but the PCF dismissed the complaint and refused her request. On October 25, 2002, the trial court heard the exception and granted the same. This devolutive appeal follows.

^DISCUSSION

The appellant argues that the trial court erred in granting the appellee’s exception of prematurity in this medical malpractice action. The appellant claims that this court’s previous decision in Favaroth is not controlling. According to the appellant, this court in Favaroth addressed the issue of whether the plaintiff must first submit his malpractice claims against the health care provider to the PCF and request a pre-suit review panel when the allegedly negligent care was rendered outside of Louisiana. This court, stresses the appellant, held that the plaintiff first had to submit his malpractice claims before bringing suit.

The appellant in the instant case argues that, unlike the plaintiff in Favaroth, she submitted her malpractice claim for consideration by a pre-suit review panel. The PCF, however, dismissed the complaint and refused her request because the alleged negligent act or omission occurred outside of Louisiana. The appellee argues that Favaroth is controlling and directly on point with the facts of the instant case.

The requirements for bringing a medical malpractice claim before a medical review board are provided for in La. R.S. 40:1299.47, which reads in pertinent part as follows:

A. (1) All malpractice claims against health care providers covered by this Part, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a medical review panel established as hereinafter provided for in this Section.
B. (l)(a)(i) No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section.

LLa. R.S. 40:1299.47(A)(1) and (B)(l)(a)(i) (emphasis added). The Louisiana medical malpractice act does not specify submission of a claim to the PCF, but rather to a medical review panel. Furthermore, the Louisiana medical malpractice act does not specify a different procedure when the alleged act or omission occurred outside of Louisiana.

The facts of the instant case and those in Favaroth are nearly identical: the alleged negligent act or omission occurred outside of Louisiana, and the appellant brought suit without first submitting the claim to a pre-suit review panel. In Fa-varoth, the plaintiff failed to bring the claim to the PCF. In the instant case, the plaintiff brought the claim to the PCF, but a medical review panel was not convened.

The fact that the appellant in the instant case previously submitted her claim to the PCF, which refused to convene a medical review panel, does not distinguish Favar-oth. Pursuant to the Louisiana medical malpractice act, a claim against a qualified health care provider must be submitted to a pre-suit review panel before the action may be brought in any court. La. R.S. 40:1299.47. This court in Favaroth clearly held that the fact that the alleged act or omission occurred outside of Louisiana did not obviate the need for medical malpractice claims to be submitted to a pre-suit review panel. In the instant case, the PCF initially notified the appellant that that the appellee was a qualified health care provider. The appellant brought her claim to the PCF but the claim has not yet been submitted to a pre-suit review panel. The end result in both the instant case and Favaroth is that neither plaintiff had the medical malpractice claim reviewed by a panel. Therefore, | ¡Favaroth is controlling and applicable, and the trial court did not err in granting the exception of prematurity-

CONCLUSION

The judgment of the trial court granting the exception of prematurity is affirmed.

AFFIRMED.

      . The appellant is a Mississippi resident.