text:
    In re Joshua G. FRANK, Jr.
    No. 2004-B-0238.
    Supreme Court of Louisiana.
    June 25, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

hPER CURIAM.

This disciplinary matter arises from six sets of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Joshua G. Frank, Jr., an attorney licensed to practice law in Louisiana, but currently on interim suspension. For the reasons assigned, we now disbar respondent.

UNDERLYING FACTS

The Richard Matter (00-DB-092)

Raymond Richard retained respondent to represent him in a personal injury matter. In May 1997, respondent negotiated a settlement with Audubon Ins. Co. (“Audubon”), through its adjuster, Charles Roy. By the terms of the settlement, respondent agreed to dismiss his client’s suit against Audubon with prejudice. Respondent further agreed that his client would be responsible for all court costs. Pursuant to this agreement, Mr. Roy sent respondent a settlement check and release, requesting that the release be returned with the judgment of dismissal confirming that respondent’s client paid all court costs.

Respondent returned the signed release to Mr. Roy together with a copy of a judgment of dismissal. However, contrary to the settlement agreement, the judgment | ¡incorrectly stipulated that Audubon, rather than respondent’s client, would pay the court costs. Respondent did not withhold court costs from his client’s portion of the settlement, nor did he submit payment for the costs.

Thereafter, Mr. Roy made numerous attempts to contact respondent to amend the judgment to conform with their agreement. Finally, in October 1997, respondent submitted a corrected judgment to the court, which the court signed. However, the clerk’s certificate again indicated that costs had not been paid.

Mr. Roy continued to attempt to resolve the court cost issue with respondent in order to obtain final dismissal, but was unsuccessful. Ultimately, Audubon paid the outstanding court costs, totaling $284.50.

Mr. Roy thereafter filed a complaint with the ODC citing respondent’s refusal to adhere to the terms of the settlement agreement. Respondent filed an answer stating only that after he was contacted by counsel for complainant, he readily agreed to sign a judgment stating that defendant would pay all court costs.

The Domingeaux Matter (00-DB-120)

Peter Domingeaux retained respondent to represent him in a personal injury matter. In May 1999, respondent negotiated a settlement on behalf of Mr. Domingeaux in the amount of $9,203.00. The settlement statement provided by respondent to Mr. Domingeaux revealed that respondent withheld $4,703.00 of the settlement to pay Mr. Domingeaux’s outstanding medical bills, including a $340.50 bill from Opelou-sas General Hospital (“Opelousas General”). However, respondent failed to send the disbursement check to Opelousas General for approximately one year after the settlement, because the check allegedly had been misplaced in respondent’s office. |3When Opelousas General attempted to negotiate the check in May 2000, it was not honored due to insufficient funds in respondent’s trust account.

Opelousas General filed a complaint with the ODC. The ODC sent a copy of the complaint to respondent, asking him to provide information about the matter. Respondent failed to answer the ODC’s request, nor did he appear pursuant to a subpoena served upon him by the ODC. However, approximately one month after the complaint was filed, respondent provided restitution to Opelousas General.

The Vallare Matter (01-DB-057)

Respondent represented Webster Val-lare, a plaintiff in a suit pending in the United States District Court for the Western District of Louisiana. In January 2000, Magistrate Judge Mildred Methvin issued a scheduling order setting February 18, 2000 as the deadline for the parties to submit a joint status report. The counsel for defendant faxed certain inserts to respondent for inclusion in the report and requested a meeting with respondent in order to prepare the joint report. Respondent failed to prepare his portion of the report.

As a result, counsel for the defendant filed a motion for continuance. On February 22, 2000, Judge Methvin ordered respondent to contact defense counsel and to submit the joint report by March 8, 2000. When respondent failed to comply with the order, the court set a rule ordering respondent to appear and show cause on March 30, 2000 why he failed to comply with the February 15 and March 8 deadlines. The court further ordered that if the joint status report was submitted by March 23, 2000, the show cause hearing would be canceled. Respondent received copies of the notice of hearing by regular and certified mail.

| ¿Respondent did not comply with the March 23, 2000 deadline. On the morning of the scheduled show cause hearing, March 30, 2000, Judge Methvin’s law clerk received a telephone call from respondent’s secretary who stated that respondent was in state court and would not be attending the hearing. However, respondent’s secretary advised that she would fax the joint status report to the court.

Judge Methvin concluded the faxed report was deficient because it inadequately described plaintiffs contentions, did not include defendant’s contentions, did not address the status of discovery, and did not contain respondent’s signature. Moreover, because the report was submitted after the March 23, 2000 deadline, it had no bearing on the court’s order that respondent appear for the March 30, 2000 show cause hearing. Accordingly, Judge Methvin found that respondent failed to show cause why he disregarded the court’s prior orders and that his failure to appear at the hearing constituted contempt.

Judge Methvin filed a complaint with the ODC. The ODC forwarded a copy of the complaint to respondent, but he failed to provide any information.

The Henry/Ortego Matter (01-DB-078)

In 1999, respondent assumed responsibility for disbursement of $4,500 in funds resulting from the personal injury settlement of Sandra Faye Henry. Respondent disbursed $4,500.00 as gross recovery on Ms. Henry’s case but failed to withhold any funds to pay expenses. Respondent assured Ms. Henry that her account with Ortego Chiropractic Clinic (“Ortego”) had been paid in full. In fact, she had an outstanding balance of $1,375.00.

| KSubsequent investigation revealed respondent had failed to withhold and/or remit payment to Ortego in several other client matters, in which he had agreed to be responsible for all medical costs upon settlement of cases. In July 1999, Ortego agreed to allow respondent to pay $500.00 per month toward the outstanding balance. Pursuant to this agreement, respondent made payments in July, August, September, November and December 1999 and in February, July and October 2000. However, as of the date of the complaint, respondent still owed Ortego approximately $7,000.00 for approximately twelve different patient accounts.

In connection with its investigation of the Henry/Ortego matter, the ODC served respondent with a subpoena requiring his appearance and requesting documents. Respondent appeared and produced the Sandra Henry file and computer printouts purporting to be bank statements. However, he failed to produce the actual bank statements, failed to produce the actual signed settlement statement in the Henry case and failed to produce copies of the front and back of cancelled checks.

The Guidry Matter (02-DB-021)

On November 20, 2000, Ms. Dorothy Hooper retained respondent to represent her son, Exalton Guidry, Jr., on a second degree murder charge. At the time, Mr. Guidry was being represented by court-appointed counsel. Ms. Hooper paid respondent $1,500.00 as a downpayment and agreed to pay monthly installments of $250.00.

The case went to trial on November 29, 2000. After the jury was selected, respondent appeared in court. He moved to substitute himself as counsel and requested a continuance of the trial. The trial court denied the motion to continue. The court also refused to allow respondent to substitute himself as counsel, but agreed | fito permit respondent to enroll as eo-counsel along with Mr. Guidry’s court-appointed attorney. Respondent elected not to enroll and left the courtroom. Subsequently, the jury found Mr. Guidry guilty and he was sentenced to life in prison at hard labor without benefit of parole, probation or suspension of sentence. Following the conviction, respondent filed a motion for appeal but took no other steps to represent Mr. Guidry.

Ms. Hooper and her daughter made repeated attempts to contact respondent for information on the disposition of Mr. Gui-dry’s case, to request that his file be returned, and for a refund of the $1,500.00 retainer fee. Respondent failed to offer an accounting or explanation to Ms. Hooper regarding the work he performed nor did he return the file to her.

Ms. Hooper filed a complaint with the ODC. The ODC forwarded this complaint to respondent. In response, he stated that he elected not to enroll as counsel because if he did, he would not be able to appeal or apply for post-conviction relief on the basis of ineffective assistance of counsel. He asserted that he informed Mr. Guidry of this strategy. He further stated that he intended to file post-conviction relief for Mr. Guidry.

The ODC served respondent with a subpoena requesting his appearance and the production of the Guidry file. Respondent failed to appear and failed to produce the file.

The Mitchell Matter (02-DB-021)

Billy Jerod Mitchell retained respondent to represent him in a federal drug and firearm case pending in the United States District Court for the Western District of 17Louisiana. On October 2, 2001, respondent failed to participate in a telephone pre-trial conference scheduled with Magistrate Judge Mildred Methvin. According to respondent’s later deposition testimony, his secretary made a calendaring mistake. Two days after missing the pre-trial conference, respondent failed to attend the hearing to show cause why he should not be found in contempt of court, though his office did call to request that the hearing be rescheduled because respondent had a court conflict. Judge Methvin denied the rescheduling request due to its untimeliness. The assistant U.S. attorney and counsel for co-defendant attended the show cause hearing and the court questioned them about respondent’s representation of his client, Mr. Mitchell. During this hearing, Judge Methvin learned the assistant U.S. Attorney had made a plea offer, but respondent had neither contacted his client nor the assistant U.S: attorney to discuss the offer.

Is Judge Methvin filed a complaint with the ODC. Respondent failed to respond to the complaint. However, he later filed an answer denying any wrongdoing and seeking dismissal of the charges as meritless.

The Edwards Matter (02-DB-061)

Respondent represented Calvin Edwards, Jr. in a personal injury action. Mr. Edwards sought treatment for his injuries with Dr. Michael Lee of Creswell Chiropractic Clinic. Respondent agreed in writing that he would be responsible for payment of all medical costs associated with Mr. Edwards’ treatment. In addition, respondent and Mr. Edwards executed an Assignment and Recognition of Lien to the clinic.

After Mr. Edwards was discharged from Dr. Lee’s care, Dr. Lee forwarded respondent the final statement which totaled $1,135.50. In the meantime, respondent had commenced settlement negotiations with the responsible insurer, State Farm Insurance Company. State Farm forwarded respondent a medical payment check in the amount of $1,135.50 to cover the medical expenses incurred by Mr. Edwards. However, respondent failed to remit payment to Dr. Lee.

Later, respondent reached an agreement with State Farm to settle the general damage portion of Mr. Edwards’ claim for $3,000.00. Following the settlement, State Farm forwarded the settlement check and documents to respondent. However, respondent failed to notify Dr. Lee that the claim was settled and failed to remit payment to the clinic.

1^Approximately two years later, respondent contacted Dr. Lee’s office and offered to pay $650.50 and the balance a month later. Dr. Lee refused these payment terms and told respondent he needed to pay the full amount by October 1, 2001. Respondent then indicated that he would pay $650.50 on October 1, 2001 and the balance by October 8, 2001. Thereafter, respondent paid only $600.00 of the $650.50 he promised to pay on October 1, 2001 and he failed to remit the remaining balance of $535.50.

Meanwhile, in August 2001, Dr. Lee filed a complaint with the ODC. The ODC served the complaint on respondent in September 2001 and in November, the ODC took respondent’s deposition. Respondent stated that he settled the Edwards case around the time that he got divorced. In addition, he stated that his drug addiction was active during the time he represented Mr. Edwards. He concedes that he received the medical payment cheek and he “was not handling [his] business like [he] should have been.”

DISCIPLINARY PROCEEDINGS

Formal Charges

In the Richard matter (00-DB-092), the ODC alleged respondent’s failure to pay court costs violated Rule 8.4 of the Rules of Professional Conduct, although the charges did not specify the applicable subsection.

In the Domingeaux matter (00-DB-120), the ODC filed formal charges against respondent, alleging he commingled client funds and failed to protect third party funds, in violation of Rules 1.15(a) (safeguarding elienVthird party property), 1.15(b) (notifying elienVthird party upon receipt of property) 1.15(c) (duty to keep property separate pending accounting), 8.4(a) (violation of the Rules of Professional Conduct) |1f)8.4(b) (commission of criminal act) and 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation). The ODC also alleged that respondent’s failure to cooperate with its investigation and failure to comply with a subpoena violated Louisiana Supreme Court Rule XIX, Section 9(a) and (c) and Rules 3.4(c) (knowingly disobeying the rules of a tribunal), 8.1(c) (failing to cooperate with ODC), 8.4(a) and 8.4(g) (failing to cooperate with the ODC).

In the Vallare matter (01-DB-057), the ODC alleged that respondent failed to provide competent representation to his client, failed to act with diligence, failed to expedite litigation, failed to comply with court orders and failed to cooperate with the ODC, all in violation of Rules 1.1(a) (duty to provide competent representation), 1.3 (duty to act with diligence), 3.2 (duty to expedite litigation), 3.4(c), 8.1(c), 8.4(a), 8.4(d) (conduct prejudicial to the administration of justice) and 8.4(g).

In the Henry/Ortego matter, the ODC alleged respondent’s actions violated Rules 1.3, 1.4 (duty to communicate with client), 1.15(a), 1.15(b), 1.16(d) (duty to protect client’s interest upon termination of representation), 8.4(a), 8.4(c), and 8.4(d). Further, the ODC alleged that respondent failed to cooperate in its investigation, in violation of Rules 3.4(c), 8.1(a) and 8.1(c).

In the Guidry matter (02-DB-021), the ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, 1.5(f)(6) (payment of fees in advance of services), 1.15(c), 1.16(a) (failure to withdraw from the representation of a client upon being discharged), 1.16(d), 8.4(a) and 8.4(c). In addition, because respondent failed to respond to the ODC’s requests for information, he was found to have violated Louisiana Supreme Court Rule XIX, Section 9(c) and Rules 3.2, 8.1(c), 8.4(a) and 8.4(g).

In the Mitchell matter (02-DB-021), the ODC alleged that respondent violated Rules 1.1(a), 1.3, 1.4, 1.16, 3.2, 3.4, 8.4(a) and 8.4(d). Further, because respondent | ^failed to cooperate with the ODC’s investigation, the ODC alleged that he violated Rules 8.1(c), 8.4(a) and 8.4(g).

In the Edwards matter (02-DB-061), the ODC alleged that respondent’s conduct violated Rules: 1.3, 1.4, 1.15, 1.16(a), 1.16(d), 8.4(a), 8.4(c) and 8.4(d).

Recommendations of the Hearing Committees

The formal charges against respondent were heard by four separate hearing committees.

00-DB-092 c/w 00-DB-120

The Richard matter (00-DB-092) and Domingeaux matter (00-DB-120) were consolidated for hearing before a single committee. The parties stipulated to the facts of both matters. Based on the stipulations, the hearing committee determined there was clear and convincing evidence that respondent violated the professional rules.

Specifically, in the Richard matter, the committee found respondent’s failure to pay court costs as' he agreed violated Rule 8.4. In addition to the rule violations included in the formal charges, the committee also determined that respondent’s failure to withhold the proper amount from the client’s settlement to cover the court costs violated Rule 1.15 (safekeeping of property). In addition, respondent’s failure to deliver a copy of the signed judgment to Mr. Roy burdened and delayed Mr. Roy’s ability to terminate the lawsuit in violation of Rule 4.4 (rights of third persons).

With regard to the Domingeaux matter, the committee found that respondent’s conduct in tendering a check to the hospital without sufficient funds in his trust account violated Rules 1.15(a), 1.15(b), 4.1(a), 4.1(b), 4.4, 8.4(a), 8.4(c) and 8.4(d). The committee further determined that respondent’s complete failure to respond to the h ¡¡initial complaint, and failure to comply with the ODC’s subpoena requesting financial records and other documents was in violation of Louisiana Supreme Court Rule XIX, Section 9(a) and (c) and Rules 3.4(c), 8.1(c), 8.4(a) and 8.4(g).

The committee found that respondent’s misconduct caused actual injury. In the Richard matter, the committee found Mr. Roy had to wait over a year before obtaining a satisfactory dismissal of the lawsuit against Audubon and its insured. Further, Audubon ultimately paid nearly $300.00 in court costs despite respondent’s agreement that his client would be responsible for these costs. In the Domingeaux matter, the committee found Opelousas General was deprived of its funds for a lengthy period. In addition, respondent’s client was exposed to potential injury because his credit rating may have been affected due to the outstanding hospital bill.

As aggravating factors, the committee found respondent had substantial experience in the practice of law, having been admitted to the bar in 1987, and did not display any remorse for his actions. In mitigation, it recognized no specific intent to harm, lack of selfish motive, and personal problems.

The committee recommended that respondent be suspended from the practice of law for a period of six months with three months deferred. It further recommended that respondent be placed on supervised probation for a period of one year subject to certain conditions.

I ia01-DB-057 c/w 01-DB-073

The Vallare matter (01-DB-057) and the Henry/Ortego matters (01-DB-073) were consolidated for hearing. The charges against respondent were deemed admitted in light of respondent’s failure to answer the formal charges.

In the Vallare matter, the committee determined that respondent failed to comply with court orders and failed to appear for a show cause hearing. Respondent also failed to advise his client that he violated court orders. The committee found respondent’s actions violated Rules 1.1(a),1.3,1.4, 3.4(c) and 8.4(d).

In the Henry/Ortego matter, the committee determined respondent failed to withhold and/or remit personal injury settlement funds to Ortego in numerous cases and owed approximately $7,000.00. The committee found that respondent’s conduct violated Rules 1.15(b), 4.3, 8.4(a) and 8.4(c). In addition, because respondent failed to answer the complaints, the formal charges or otherwise assist in the ODC’s investigation, the committee found that he violated Rules 3.4(c) and 8.1(c). However, the committee rejected the ODC’s contention that respondent’s failure to safeguard funds due to Ortego constituted conversion of funds. The committee found no evidence that respondent converted funds for his own use; rather, it concluded respondent exercised poor judgment by disbursing settlement proceeds to clients without withholding amounts due to the clinic.

As aggravating factors, the committée found respondent had a prior disciplinary record consisting of two prior admonitions. In mitigation, the committee observed respondent made partial restitution by paying a portion of the amount due to Ortego.

| uUnder these circumstances, the committee recommended that respondent be suspended from the practice of law for one year and one day.

02-DB-021

This hearing encompassed the Guidry and Mitchell matters. Respondent filed an answer to the ODC’s formal charges in this matter. Accordingly, the matter proceeded to a formal hearing.

In the Guidry matter, the committee determined respondent failed to act with reasonable diligence- and promptness in representing Mr. Guidry. It found respondent failed to account for his fee and failed to refund the unearned portion. Additionally, it found respondent failed to cooperate with the ODC. Based on these findings, the committee found that respondent’s conduct violated Rules 1.3, 1.4, 1.5(f)(6), 1.15(c), 1.16(a), 1.16(d), 3.2, 8.1(c), 8.4(a), 8.4(c), 8.4(g) and Louisiana Supreme Court Rule XIX, Section 9(c).

In the Mitchell matter, the committee found respondent’s failure to appear for the pre-trial conference and failure to timely appear for the contempt rule before Judge Methvin do not, standing alone, constitute violations of the Rules of Professional Conduct. Therefore, the committee found the evidence presented on these charges is insufficient to establish by clear and convincing evidence any violation of Rules 1.1(a), 1.3, 1.4, 1.16, 3.2, 3.4, 8.4(a) and 8.4(d). However, the committee found that respondent violated Rules 3.2, 8.1(c), 8.4(a) and 8.4(g) and Louisiana Supreme Court Rule XIX, Section 9(c) due to his failure to cooperate with the ODC.

The committee recognized the aggravating factors of prior discipline, substantial experience in the practice of law, refusal to cooperate with the ODC’s investigation, knowing violation of duties to clients, courts, and the profession, vulnerability of the |1Rclients, substance abuse, and most significantly, chronic, pattern of misconduct. The committee recognized no mitigating factors.

Based on these findings, the committee recommended .that respondent be disbarred.

02-DB-061

This hearing encompassed the charges in the Edwards matter. Respondent failed to file an answer to these charges. As a result, the charges were deemed admitted.

The committee found respondent had knowledge of and personally guaranteed the medical lien. Respondent failed to deposit settlement funds into his trust account, failed to account for funds marked specifically for medical expenses, and failed to pay the lien upon receiving the settlement funds from State Farm. Respondent admitted to commingling and conversion. Respondent did not make any payments to Dr. Lee until nearly two years after he settled the Edwards case, and then only after Dr. Lee filed a complaint with the ODC. Respondent still owes Dr. Lee $535.50.

The committee determined that respondent violated Rules 1.3, 1.4,1.5, 1.16(a), I.16(d),8.4(a), 8.4(c) and 8.4(d). After considering the ABA’s Standards for Imposing Lawyer Sanctions and relevant jurisprudence, the committee determined the baseline sanction for respondent’s misconduct is disbarment. The committee | ^recognized the aggravating factors of prior disciplinary offenses, dishonest or selfish motive, pattern of misconduct and multiple offenses. In mitigation, the committee recognized that respondent faced personal and emotional problems.

Based on these circumstances, the committee recommended that respondent be disbarred.

Recommendation of the Disciplinary Board

Before the disciplinary board, the ODC moved to consolidate all of the charges pending against respondent into a single proceeding. The disciplinary board granted the motion to consolidate and considered all of the charges together.

In the Richard matter (00-DB-092), the board agreed with the committee’s finding respondent violated Rules 8.4(a), 8.4(c) and 8.4(d). However, the board found that the committee erred in finding violations of Rules 1.15 and 4.4 in the Richard matter, noting these rule violations were not alleged in the formal charges and could not be considered a lesser included charge.

In the Domingeaux matter (00-DB-120), the board accepted the committee’s finding that respondent violated Rules 1.5(a), 1.5(b), 3.4(c), 8.1(c), 8.4(a), 8.4(c) and 8.4(g). However, as in the Richard matter, the board rejected the committee’s finding of a violation of Rules 4.1(a), 4.1(b), 4.4 and 8.4(d), on the ground the ODC did not charge a violation of these rules.

In the Vallare matter (01-DB-057), the board found the record supported the committee’s conclusions that respondent’s conduct violated Rules 1.1(a), 1.3, 1.4. |173.4(c) and 8.4(d). However, the board found the committee erred in failing to find additional violations. Specifically, the board found that respondent’s delay in submitting his portion of the joint status report constituted a Rule 3.2 violation (failure to expedite litigation). The board also found that respondent’s failure to assist in the ODC’s investigation constituted a Rule 8.4(g) violation. Finally, the board found a Rule 8.4(a) violation because respondent violated other rules.

In the Henry matter (01-DB-073), the board determined the record clearly supported the committee’s finding that respondent violated Rules 1.1(a), 1.3, 1.4, 3.4(c) and 8.4(d). However, the board made additional factual findings that respondent failed to withhold settlement funds from Ms. Henry’s settlement and make payment to Ortego, despite his assurance to her that he did so. As a result, the board found respondent also violated Rules 1.4,1.15(b), 1.16(d) and 8.1(a).

In the Ortego matter (01-DB-073), the board agreed with the committee’s determination that respondent violated Rules 1.3, 1.15(b), 8.4(a) and 8.4(c). In addition, the board found that respondent’s failure to pay the amount due to Ortego violated Rule 1.15(a), because he failed to hold property of a client or third person separate from his own property. Also, respondent’s failure to pay the balance due to Ortego constituted a violation of Rule 1.16(d), (because he failed to protect client’s interests upon termination of representation). The board agreed with the committee’s determination that it does not appear that respondent violated Rule 8.4(d)(conduct prejudicial to the administration of justice).

The board also agreed with the committee that respondent violated Rule 3.4(c) when he failed to cooperate in the ODC’s investigations of the Henry/Ortego matters. Further, it determined the committee properly declined to find a Rule 8.1(a) violation |isbecause there was insufficient evidence to show that respondent made false statements of fact during the disciplinary proceedings.

In the Guidry matter (02-DB-021), the board found that the committee’s findings of fact were not manifestly erroneous. The board stated that the record amply supports the committee’s conclusion that respondent “absolutely failed to act with reasonable diligence and promptness in representing Mr. Guidry.” The board agreed with the committee’s application of the rules, with one minor modification.

In the Edwards matter (02-DB-061), the board found the record supported the conclusion that respondent failed to protect a third party’s interest in settlement proceeds, commingled and converted funds, failed to maintain a trust account and failed to keep his client advised of the status of the case. Accordingly, the board found that respondent violated Rules 1.3, 1.4, 1.15, 1.16(a), 1.16(d), 8.4(a), 8.4(c) and 8.4(d).

Considering the record, the board found respondent knowingly violated duties to his clients when he failed to diligently pursue their claims, failed to keep them advised and failed to preserve property entrusted to him. Respondent violated duties to the legal system when he failed to comply with court orders and when he made misrepresentations during settlement negotiations. Respondent violated duties to the profession when he failed to cooperate in the ODC’s investigation.

The board found that respondent’s misconduct resulted in serious injury to his clients, the legal system and the profession. As aggravating factors, the board recognized prior disciplinary offenses, pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceedings, vulnerability of the victim and substantial experience in the practice of law. The board found the sole mitigating factor to be partial restitution.

|19The board concluded that respondent has demonstrated a callous disregard for the standards of the legal profession and the legal system. Based on these findings, the board recommended that respondent be disbarred.

Neither respondent nor the ODC has objected 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; 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.

Based on our review, we conclude the record supports the findings of the hearing committees, as modified by the disciplinary board, that respondent has engaged in persistent and serious professional misconduct. The evidence overwhelmingly supports the conclusion that respondent knowingly and intentionally failed to communicate with his clients, neglected his clients’ legal matters, abandoned his clients, failed to respond to his clients’ requests for information, failed to expedite his clients’ litigation, failed to account for or refund unearned fees, failed to return his clients’ files, failed to withhold sums from clients’ settlements and/or remit payment Lnto third parties, made misrepresentations during settlement negotiations, and failed to cooperate with the ODC.

Having found professional misconduct, the sole issue presented for our consideration is the appropriate sanction for respondent’s misconduct. In determining the 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).

Respondent’s actions caused actual harm to his clients, third parties and the legal system. In addition to disregarding his responsibilities to his clients and third parties, he has repeatedly ignored orders of courts. Numerous aggravating factors are present, including prior disciplinary offenses, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary process by failing to comply with the disciplinary rules, vulnerability of the victims, and substantial experience in the practice of law. The sole mitigating factor is that respondent made partial restitution by making some payments to the chiropractic clinics he owed.

We find respondent’s actions taken as a whole demonstrate he has little regard for the welfare of his client or his responsibilities as a member of the bar. The sheer volume of misconduct presented in this case reveals that respondent lacks the fitness necessary to practice law in Louisiana.

Accordingly, we must disbar respondent from the practice of law.

| ^DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of Joshua G. Frank, Jr., Louisiana Bar Roll No. 18221, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked, retroactive to his December 14, 2001 interim suspension. Respondent is ordered to provide complete accountings and full restitution to his victims. 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.

      . In re: Frank, 01-2855 (La.12/14/01), 803 So.2d 970.

      . Ms. Henry had authorized her prior attorney, Barry Fontenot, to settle her case for at least $4,000.00. Apparently, Mr. Fontenot relocated out of town and referred Ms. Henry's case to respondent to handle the settlement disbursement.

      . Respondent later asserted that he attempted to return the file through a third party.

      . Respondent testified that instead of entering "pre-trial conference” on his calendar, his secretary entered "trial.” Respondent met with his client the night before the date of the pre-trial conference and they both agreed that the trial was not the next day, but approximately two weeks later. Respondent concluded his secretary mis-calendared the date and he therefore did not go to court or call in for the pre-trial conference.

      . Respondent did arrive and report to the judge’s chambers after the hearing had already concluded and presented a note from Judge Aaron McGee, 27th Judicial District Court, stating that he had been in his court that afternoon for jury selection. Judge Methvin stated that she had no reason to question the authenticity of the note, but it did not negate respondent’s failure to participate in the telephone conference or his failure to contact the court in a timely manner to report a scheduling conflict.

      .According to the assistant U.S. attorney, defendant contacted him and expressed interest in a plea bargain but stated he had been unsuccessful in contacting respondent. The assistant U.S. attorney informed defendant that he could not discuss the case with him because defendant was represented by counsel, but stated that he already sent a plea package to respondent. Respondent testified in his deposition that he did not bother to reply to the assistant U.S. attorney or to convey the plea package to his client because the offer was ''ridiculous” and an "insult.”

      . Based on respondent’s history of contempt orders and information adduced at the hearing indicating that respondent was not adequately representing Mr. Mitchell, Judge Methvin ordered that he be terminated as counsel for Mr. Mitchell. The Office of Federal Public Defender was thereafter appointed to represent the defendant. Judge Methvin also recommended that respondent be suspended from the practice of law in the United States District Court for the Western District.

      . The committee acknowledged respondent claimed he was abusing drugs and alcohol during the time of the misconduct. However, the committee noted that the only evidence respondent submitted regarding his alleged substance abuse was a letter dated May 9, 2000 addressed "To Whom It May Concern” and signed by Byron Thevenote, Director of Rainbow House Detox in Pineville. The letter indicated that respondent was enrolled in a 35-day program at the facility and that upon completion, the facility might recommend continued care at another facility.

      . The committee recommended the following conditions:
      1. He make restitution to Audubon Insurance Group in the amount of $284.50;
      2. His trust account(s) be audited by an independent certified public accountant at his expense; and
      3. That a practice monitor be appointed to periodically review his files to determine if payment is owed to third party healthcare providers.

      . Respondent offered his cocaine addiction and efforts at rehabilitation in mitigation. The committee instead found this to be an aggravating factor and also commented that respondents testimony is not persuasive that he accepts complete responsibility for his misconduct.

      . For guidance, the committee relied on In re: Schambach, 01-2375 (La.9/13/02), 826 So.2d 539, and In re: Carter, 02-2066 (La.10/14/02), 829 So.2d 1023. In In re: Schambach, respondent violated Rules 1.3, 1.4, 1.5 and 8.4. He had a prior disciplinary record, dishonest and selfish motive, a pattern of misconduct, multiple offenses and other aggravating factors. This court disbarred respondent. In In re: Carter, respondent violated Rules 1.4, 1.15, 8.4. Aggravating factors included selfish or dishonest motive and substantial experience in the practice of law. Respondent was disbarred.

      . In support, the board cited Louisiana State Bar Ass’n v. Keys, 567 So.2d 588 (La.1990)(due process prohibits sanctioning an attorney for unrelated misconduct revealed by evidence in the disciplinary proceeding when the attorney has not been notified that the uncharged violations would be considered as disciplinary offenses or that he should be prepared to present a defense as to that misconduct).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Stephen P. BASCO, et ux. v. LIBERTY MUTUAL INSURANCE COMPANY, et al.
    No. 2004-CC-1316.
    Supreme Court of Louisiana.
    June 25, 2004.
   PER CURIAM.

Granted. Because the trial court failed to completely decide the admissibility of defendants’ expert evidence under Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and State v. Foret, 628 So.2d 1116 (La.1993), the court was premature in reaching plaintiffs’ motion for partial summary judgment. See Independent Fire Ins. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226.

Accordingly, the judgment of the court of appeal is vacated and set aside. The case is remanded to the trial court to decide the admissibility of defendants’ expert evidence under Daubert/Foret and to decide plaintiffs’ motion for partial summary judgment, following the standards set forth in Independent Fire.

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


text:
    Stephen P. BASCO, et ux. v. LIBERTY MUTUAL INSURANCE COMPANY, et al.
    No. 2004-CC-1518.
    Supreme Court of Louisiana.
    June 25, 2004.
   PER CURIAM.

Granted. Because the trial court failed to completely decide the admissibility of defendants’ expert evidence under Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and State v. Foret, 628 So.2d 1116 (La.1993), the court was premature in reaching plaintiffs’ motion for partial summary judgment. See Independent Fire Ins. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226.

Accordingly, the judgment of the court of appeal is vacated and set aside. The case is remanded to the trial court to decide the admissibility of defendants’ expert evidence under Daubert/Foret and to decide plaintiffs’ motion for partial summary judgment, following the standards set forth in Independent Fire.

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


text:
    STATE ex rel. Talmadge SEYMOUR v. STATE of Louisiana.
    No. 2003-KH-0685.
    Supreme Court of Louisiana.
    June 2, 2004.
   In re Seymour, Talmadge;—Plaintiff; Applying for Reconsideration of this Court’s action dated March 19, 2004; to the Criminal District Court Div. J, No. 391-294; to the Court of Appeal, Fourth Circuit, No. 2002-K-2775.

Reconsideration denied.


text:
    Abdullah Hakim EL-MUMIT v. STATE of Louisiana.
    No. 2003-OK-1563.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re El-Mumit, Abdullah Hakim;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge.

Granted for the sole purpose of transferring the plaintiffs application to the 19th JDC for its consideration. The district court is further directed to hold a status conference in the pending case of State v. Perry, No. 9-85-472, at which it shall address the conditions of Michael Owen Perry’s continuing confinement on death row as the result of this Court’s decision in State v. Perry, 610 So.2d 746, 771 (La.1992), staying Perry’s execution until such time as he regains “his sanity and competence for execution independently of the effects of or influence of antipsychotic drugs.” The district court is directed to provide this court with a copy of its ruling.


text:
    STATE of Louisiana v. Joenathan ROCHELLE.
    No. 2004-KK-0939.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Rochelle, Joenathan;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson Davis, 31st Judicial District Court Div. 0, Nos. 645-03, 646-03; to the Court of Appeal, Third Circuit, No. KW 04-00301.

Not considered; not timely filed.


text:
    STATE of Louisiana v. Jacob GUILLORY, Jr.
    No. 2003-KP-2106.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Guillory, Jacob Jr.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Evangeline, 13th Judicial District Court Div. B, No. 35999; to the Court of Appeal, Third Circuit, No. KW 02-01144.

Denied.


text:
    STATE of Louisiana v. Diego ZAPATA.
    No. 2003-KP-2110.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Zapata, Diego;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 94-5634; to the Court of Appeal, Fifth Circuit, No. 03-KH-604.

Denied.

CALOGERO, C.J., recused.

JOHNSON, J., would grant the writ.


text:
    STATE of Louisiana v. Chad DICHARRY.
    No. 2003-KP-2153.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Dicharry, Chad;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 344,233; to the Court of Appeal, First Circuit, No. 2003 KW 1182.

Denied. Moot.


text:
    STATE of Louisiana v. Romalis COOK.
    No. 2003-KP-2164.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Cook, Romalis;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 97-6228; to the Court of Appeal, Fifth Circuit, No. 2003-KH-0683.

Denied.


text:
    STATE of Louisiana v. Kenneth WILSON.
    No. 2003-K-3232.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re State of Louisiana;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. G, No. 207,959; to the Court of Appeal, Second Circuit, No. 37,555-KA.

Denied.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.


text:
    STATE of Louisiana v. John PEARSON.
    No. 2004-KO-0166.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Pearson, John;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. F, No. 00-5403; to the Court of Appeal, Fifth Circuit, No. 03-KA-652.

Denied.


text:
    STATE of Louisiana v. Edward J. BELL, Jr.
    No. 2004-K-0180.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Bell, Edward J. Jr.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. V, No. 01-02-420; to the Court of Appeal, First Circuit, No. 2003-KA-0115.

Denied.


text:
    STATE of Louisiana v. Toney CONVERSE.
    No. 2004-K-0195.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Converse, Toney;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. A, No. 01-2850; to the Court of Appeal, Fifth Circuit, No. 03-KA-711.

Denied.


text:
    STATE of Louisiana v. Robert Clancey STEWART.
    No. 2004-KO-0234.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Stewart, Robert Clancey;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Red River, 39th Judicial District Court Div. 0, No. 92,787; to the Court of Appeal, Second Circuit, No. 37,841-KA.

Denied.


text:
    STATE of Louisiana v. Scott Allen COOPER.
    No. 2004-K-0236.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Cooper, Scott Allen;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. B, No. 88706A; to the Court of Appeal, Third Circuit, No. 03-161.

Denied.


text:
    STATE of Louisiana v. Leamon L. POUNCY.
    No. 2004-KO-0247.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Pouncy, Leamon L.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. H, No. 211,748; to the Court of Appeal, Second Circuit, No. 37,781-KA.

Denied.


text:
    STATE of Louisiana v. Arvel H. GURGANUS, III.
    No. 2004-K-0254.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Gurganus, Arvel H. III;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. C, No. 01-0430; to the Court of Appeal, Fifth Circuit, No. 03-KA-992.

Denied.


text:
    STATE of Louisiana v. Travon WILLIAMS.
    No. 2004-KO-0261.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Williams, Travon;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. G, No. 429-055; to the Court of Appeal, Fourth Circuit, No. 2003-KA-0987.

Denied.


text:
    STATE of Louisiana v. Johnny Milburn FUSELIER, III.
    No. 2004-KO-0262.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Fuselier, Johnny Milburn III;—Defendant; Applying for Writ of Certiora-ri and/or Review, Parish of Lafayette, 15th Judicial District Court Div. G, No. 94449; to the Court of Appeal, Third Circuit, No. 03-803.

Denied.


text:
    STATE of Louisiana v. Arlen BROWN.
    No. 2004-K-0269.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Brown, Arlen;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. A, No. 10949; to the Court of Appeal, First Circuit, No. 2003 KA 1076.

Denied.


text:
    STATE of Louisiana v. Gardner TAYLOR.
    No. 2004-KK-0970.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Taylor, Gardner;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 04-103; to the Court of Appeal, Fifth Circuit, No. 04-K-401.

Denied.


text:
    STATE of Louisiana v. Robert “Bob” ODOM.
    No. 2004-KK-0989.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Odom, Robert “Bob”;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 8-02-547; to the Court of Appeal, First Circuit, No. 2003 KW 2784.

Denied.


text:
    STATE of Louisiana v. Derrick Todd LEE.
    No. 2004-KD-1094.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Lee, Derrick Todd;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 06-03-655.

Denied.


text:
    STATE of Louisiana v. Derrick Todd LEE.
    No. 2004-KD-1096.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Lee, Derrick Todd;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 06-03-655.

Denied.


text:
    STATE of Louisiana v. Derrick Todd LEE.
    No. 2004-KD-1098.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Lee, Derrick Todd;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 06-03-655.

Denied.


text:
    STATE of Louisiana v. Derrick Todd LEE.
    No. 2004-KK-1112.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Lee, Derrick Todd;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 06-03-655; to the Court of Appeal, First Circuit, No. 2004 KW 0791.

Denied.


text:
    STATE of Louisiana v. Darryl Keith COLEMAN.
    No. 2004-KK-1117.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re State of Louisiana;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. D, No. 109,233; to the Court of Appeal, Second Circuit, No. 38,-483-KA.

Denied.


text:
    STATE of Louisiana v. Ann M. PARADES.
    No. 2004-KK-1169.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Parades, Ann M.;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 02-6056; to the Court of Appeal, Fifth Circuit, No. 04-K-1641.

Denied. Defendant relator may re-raise the issue on appeal, if convicted.


text:
    STATE ex rel. Charles HENSLEY v. STATE of Louisiana.
    No. 2003-KH-1691.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Hensley, Charles;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, No. 99-1501; to the Court of Appeal, Fifth Circuit, No. 03-KH-487.

Writ granted in part; otherwise denied; case remanded. Because under La. C.Cr.P. art. 922(B) and U.R.C.A. 2-18.2 relator’s conviction did not become final until 14 days after the court of appeal issued its opinion, State v. Hensley, 00-1448 (La.App. 5th Cir.2/28/01), 781 So.2d 834, his application filed March 12, 2003, and placed in prison authorities’ hands even earlier, Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988); State ex rel. Johnson v. Whitley, 92-2689 (La.1/6/95), 648 So.2d 909; Tatum v. Lynn, 93-1559 (La.App. 1st Cir.1994), 637 So.2d 796, arrived timely. Accordingly, the district court is directed to give merits considerations to his claims.


text:
    STATE ex rel. Louie SCHEXNAYDER v. STATE of Louisiana.
    No. 2003-KH-0458.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Schexnayder, Louie,—Plaintiff; Applying for Reconsideration of this Court’s order dated March 19, 2004; Parish of Jefferson, 24th Judicial District Court Division E, No. 94-6099; to the Court of Appeal, Fifth Circuit, No. 02-KH-1285.

Reconsideration denied.


text:
    STATE ex rel. Charles CARTER v. STATE of Louisiana.
    No. 2002-KH-3181.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Carter, Charles; — Plaintiff(s); Applying for Reconsideration of this Court’s order dated December 12, 2003; Parish of Pointe Coupee, 18th Judicial District Court Div. D, No. 59,370; to the Court of Appeal, First Circuit, No. 00-KW-1242.

Reconsideration denied.

WEIMER, J., recused.


text:
    STATE ex rel. George LAWSON v. STATE of Louisiana.
    No. 2003-KH-1667.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Lawson, George;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 99-2151; to the Court of Appeal, Fifth Circuit, No. 03-KH-473.

Denied.


text:
    STATE ex rel. Marcus ARTIS v. STATE of Louisiana.
    No. 2003-KH-1728.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Artis, Marcus;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Allen, 33rd Judicial District Court Div. A, No. CR-0095-3570; to the Court of Appeal, Third Circuit, No. KH-02-00967.

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


text:
    STATE ex rel. Roderick HALL v. STATE of Louisiana.
    No. 2003-KH-1770.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Hall, Roderick;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. C, No. 84,753; to the Court of Appeal, Third Circuit, No. KH-03-00114.

Denied.


text:
    STATE ex rel. Timothy GOLDSMITH v. STATE of Louisiana.
    No. 2003-KH-1897.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Goldsmith, Timothy;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. H, No. 193,468; to the Court of Appeal, Second Circuit, No. 37631-KH.

Denied.


text:
    STATE ex rel. William PRESTON v. STATE of Louisiana.
    No. 2003-KP-1901.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Preston, William;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 9-01-609; to the Court of Appeal, First Circuit, No. 2003 KW 0597.

Denied.


text:
    STATE ex rel. Marlon BROWN v. STATE of Louisiana.
    No. 2003-KH-1907.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Brown, Marlon;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. C, No. 98-23; to the Court of Appeal, Third Circuit, No. KH-02-01340.

Denied.


text:
    STATE ex rel. Willie PETERS v. STATE of Louisiana.
    No. 2003-KH-1918.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Peters, Willie;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 288-175; to the Court of Appeal, Fourth Circuit, No. 2003-K-0718.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Arthur WASHINGTON v. STATE of Louisiana.
    No. 2003-KH-1964.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Washington, Arthur;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, No. 98-1121; to the Court of Appeal, Fifth Circuit, No. 03-KH-663.

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


text:
    STATE ex rel. Felix A. PRICE v. STATE of Louisiana.
    No. 2003-KH-1965.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Price, Felix A.;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 269-823; to the Court of Appeal, Fourth Circuit, No. 2003-K-0726.

Denied.


text:
    STATE ex rel. Edward SCOTT v. STATE of Louisiana.
    No. 2003-KH-1976.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Scott, Edward;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 288358; to the Court of Appeal, First Circuit, No. 2003 KW 0573.

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


text:
    STATE ex rel. James ALLEN v. STATE of Louisiana.
    No. 2003-KP-2008.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Allen, James;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 10-00-675; to the Court of Appeal, First Circuit, No. 2003 KW 0401.

Denied.


text:
    STATE ex rel. Freddy LUNDY v. STATE of Louisiana.
    No. 2004-KK-0976.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Lundy, Freddy;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. G, No. 100502; to the Court of Appeal, First Circuit, No. 2003 KW 2476.

Denied.


text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. Albert A. DEGLER.
    No. 2004-CC-1155.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Degler, Albert A.;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 17,384; to the Court of Appeal, First Circuit, No. 2003 CW 2826.

Denied.


text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. Lisa Brabham BURNETT.
    No. 2004-CC-1156.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Burnett, Lisa Brabham;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of East Feliciana, 20th Judicial District Court Div. B, No. 33,847; to the Court of Appeal, First Circuit, No. 2003 CW 2827.

Denied.


text:
    Debra HAYES v. Kerry CLARK.
    No. 2004-C-0924.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Clark, Kerry et al.; Zurich Ins. Co.;—Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Natchitoches, 10th Judicial District Court Div. A, No. 73,621; to the Court of Appeal, Third Circuit, No. 03-272.

Denied.


text:
    Ralph TALBOT v. L J B HOMES, INC., et al.
    No. 2004-CC-0994.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Hall, William L. III; Hall, Jane W.; TLC Novelty Company, Inc.; Travelers Ins., Co.;—Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 48-989; to the Court of Appeal, Fourth Circuit, No. 2004-C-0361.

Denied.

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

TRAYLOR, J., would grant the writ.


text:
    Kate MUTLEY v. WINN-DIXIE SUPERMARKETS, et al.
    No. 2004-CC-0995.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Southern Store Fixtures Inc.;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. J, No. 2002-17435; to the Court of Appeal, Fourth Circuit, No. 2004-C-0496.

Denied.


text:
    Jennifer L. REGAN v. LAKELAND MEDICAL CENTER.
    No. 2004-C-1005.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Lakeland Medical Center;—Defendant; Applying for Writ of Certiorari and/or Review Office of Workers’ Comp. Dist. 8, No. 02-00995; to the Court of Appeal, Fourth Circuit, No. 2003-CA-1347.

Denied.

VICTORY, J., would grant the writ.

WEIMER, J., would grant the writ.


text:
    Sister Nira LEDOUX and Gale Thomas v. GRAND CASINO-COUSHATTA, et al.
    No. 2004-CC-0971.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Grand Casino of Louisiana, Inc.—Coushatta et al.; Coushatta Tribe of Louisiana;—Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Allen, 33th Judicial District Court Div. C, No. C-2002-627; to the Court of Appeal, Third Circuit, No. CW 04-00087.

Denied.


text:
    Davy P. LABORDE, Jr. and Lisa Marie Laborde v. Quentin D. DASTUGUE, Penny Matherne Dastugue, Jack Lehman Sternberg, Glynis Elizabeth Schmolke, d/b/a S.H. Bremen Company, Tommy Crane and Tommy Crane, Inc.
    No. 2004-C-0973.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Laborde, Davy P. Jr. et al.; Laborde, Lisa Marie; —Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, No. 99-65; to the Court of Appeal, Fourth Circuit, No. 2003-CA-1491.

Denied.

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


text:
    M.P.G. CONSTRUCTION, INC. and Alpha Painting & Construction Co., A Joint Venture v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, State of Louisiana.
    No. 2004-C-0975.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Department of Transportation & Development;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 468,196; to the Court of Appeal, First Circuit, No. 2003 CA 0164.

Denied.


text:
    Joseph RIZZUTO and Neal Sartalamacchia v. The STATE of Louisiana Through the Louisiana DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2004-C-0978.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Louisiana State of et al.; Transportation and Development Dept. of;—Defendants); Applying for Writ of Certiorari and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. C, No. 87-639; to the Court of Appeal, Fourth Circuit, No. 2002-CA-1687.

Not considered; not timely filed.


text:
    Eugene TAYLOR v. CARVILLE FAMILY, LLC d/b/a Brusly Chevron and State Farm Fire and Casualty Company.
    No. 2004-CC-0966.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Carville Family LLC d/b/a; Brusly Chevron; State Farm Fire & Casualty Co.;—Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. B, No. 57,064; to the Court of Appeal, First Circuit, No. 2003 CW 2770

Denied.


text:
    Jerry L. ROBINETT v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Delisa Marchand.
    No. 2004-C-0950.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Robinett, Jerry L.;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. B, No. 99-19685; to the Court of Appeal, Fourth Circuit, No(s). 2002-CA-2484, 2003-CA-1208.

Denied.


text:
    Jerry L. ROBINETT v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Delisa Marchand.
    No. 2004-C-0927.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Robinett, Jerry L.;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. B, No. 99-19685; to the Court of Appeal, Fourth Circuit, No. 2003-CA-0578.

Denied.


text:
    Larry LEMOINE and Kathryn Lemoine v. ILLINOIS NATIONAL INSURANCE COMPANY, Allstate Insurance Company, and Jennifer M. Boyer.
    No. 2004-C-0926.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Boyer, Jennifer M.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. B, No. 01-4745; to the Court of Appeal, Second Circuit, No. 38,-237-CA.

Denied.

TRAYLOR, J., would grant the writ.


text:
    Larry LEMOINE and Kathryn Lemoine v. ILLINOIS NATIONAL INSURANCE COMPANY, Allstate Insurance Company and Jennifer M. Boyer.
    No. 2004-C-0904.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Lemoine, Larry et al; Lemoine, Kathryn;—Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. B, No. 01-4745; to the Court of Appeal, Second Circuit, No. 38,237-CA.

Denied.

TRAYLOR, J., would grant the writ.


text:
    Jennifer L. REGAN v. LAKELAND MEDICAL CENTER.
    No. 2004-C-0961.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Regan, Jennifer L.;—Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Comp. Dist. 8, No. 02-00995; to the Court of Appeal, Fourth Circuit, No. 2003-CA-1347.

Denied.


text:
    BARHAM & ARCENEAUX v. Charles KOZAK and Mull & Mull (A Louisiana Partnership).
    No. 2004-C-0930.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Kozak, Charles;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 2000-13215; to the Court of Appeal, First Circuit, No. 2002 CA 2325.

Denied.


text:
    Noretta THOMAS, et al. v. A. WILBERT & SONS, L.L.C., et al.
    No. 2004-CC-0903.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Dow Chemical Co.;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. B, No. 55,127; to the Court of Appeal, First Circuit, No. 2003 CW 2792.

Denied.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.


text:
    Linda JOHNSON, et vir. v. LSU MEDICAL CENTER, et al.
    No. 2004-C-0890.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re LSU Medical Center et al.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. I, No. 459,387; to the Court of Appeal, Second Circuit, No. 38,204-CA.

Denied.


text:
    RIVERSIDE BAPTIST CHURCH OF BOSSIER CITY, INC., et al. v. Lee T. JENKINS, et al.
    No. 2004-CC-0875.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Jenkins, Lee T. et al.; Riverside Church Inc.;—Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. E, No. 111,557; to the Court of Appeal, Second Circuit, No. 38,196-CW.

Denied.


text:
    RATHBORNE PROPERTIES, L.L.C., et al. v. EXXON MOBIL CORP., et al.
    No. 2004-CC-0856.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Sphere Drake Insurance Limited;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 2001-12081; to the Court of Appeal, Fourth Circuit, No. 2004-C-0151.

Denied.

KNOLL, J., concurs. Relator has an adequate remedy on appeal.


text:
    Yong TURNER v. SOUTHWEST LOUISIANA HOSPITAL ASSOCIATION, et al.
    No. 2004-C-0826.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Louisiana Patients’ Compensation Fund;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. F, Nos. 2000-12, 2000-1000; to the Court of Appeal, Third Circuit, No. 03-0237.

Denied.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.


text:
    Peggy Dunlap Flanagan LAMKIN v. Benjamin Neil FLANAGAN.
    No. 2004-C-0808.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Lamkin, Peggy Dunlap Flanagan;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Red River, 39th Judicial District Court Div. 0, No. 32,688; to the Court of Appeal, Second Circuit, No. 37,911-CA.

Denied.

KNOLL, J., would grant the writ.


text:
    Michael L. MYERS v. Lloyd P. CHAMPAGNE, M.D., Leon N. Dement, Jr., M.D., the Baton Rouge Clinic, and Richard G. Gaynor, M.D.
    No. 2004-CC-0746.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Champagne, Lloyd P. M.D. et al.; Gaynor, Richard G. M.D.;—Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 364-440; to the Court of Appeal, First Circuit, No. 2003 CW 2382.

Denied.


text:
    Daniel J. DAMRILL and Calvin Kirkland v. IMINORITIES.COM., INC.
    No. 2004-C-0689.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re iMinorities.Com., Inc. a/k/a; IMDiversity, Inc.;—Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 2002-4833; to the Court of Appeal, Fourth Circuit, No, 2003-CA-0739.

Denied.

JOHNSON, J., would grant the writ.


text:
    RATHBORNE PROPERTIES, L.L.C., et al. v. EXXON MOBIL CORPORATION, et al.
    No. 2004-CC-0687.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Shell Oil Co.; Shell Offshore Inc.; SWEPILP; Kerr-McGee Oil & Gas Corp.; Atofina Petrochemicals Inc.; Amerada Hess Corp.; Chevron USA Inc.; Texaco Inc.; Amoco Production Co.; n/k/a BP American Production Co.l; Arco Oil & Gas Co.; BP Exploration Inc.; n/k/a BP Exploration & Oil Inc.; EOG Resources Inc.; Louisiana Land & Exploration Co.; Marathon Oil Co.; Union Oil Co. of CA; Conoco Phillips Company; OXY USA Inc.; Placid Oil Co.; Sexton -Oil & Minerals Corp.; Exxon Mobil Corp.; Superior Oil Co. Inc.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 2001-12081; to the Court of Appeal, Fourth Circuit, No(s). 2004-C-0060, 2004-C-0096, 2004-C-0097, 2004-C-0099.

Denied.

VICTORY, J., would grant the writ.


text:
    BATON ROUGE PRESS, INC. v. Donna J. ANDRIES, et al.
    No. 2004-C-0592.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Baton Rouge Press, Inc.;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. E, No. 204,044; to the Court of Appeal, Third Circuit, No. 03-808.

Denied.


text:
    John Henry TAYLOR, et ux. v. CHRISTUS HEALTH SOUTHWESTERN LOUISIANA d/b/a Christus St. Patrick Hospital.
    No. 2004-CC-1162.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Christus Health Southwestern Louisiana d/b/a; Christus St. Patrick Hospital;—Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. F, No. 2003-006422; to the Court of Appeal, Third Circuit, No. CW 0A-00429.

Stay denied.


text:
    Jimmy COYNE, d/b/a J.C. Boat Repair v. Warren E. LOPEZ, Jr.
    No. 2004-CC-0933.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Coyne, Jimmy d/b/a; J.C. Boat Repair;—Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 2002-13955; to the Court of Appeal, First Circuit, No. 2003 CW 2583.

Not considered; not timely filed.


text:
    Hezekiah DWIGHT v. HCI.
    No. 2004-C-0962.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Dwight, Hezekiah;—Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation Dist. -8, No. 00-09493; to the Court of Appeal, Fourth Circuit, No. 2002-CA-2179.

Not considered; not timely filed.


text:
    Steven ROSEN, Individually and on Behalf of His Minor Children, Jordan Rosen and Courtney Rosen, and Robin Renee Fuller, Wife of Steven Rosen v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Fireman’s Fund Insurance Company, Ryan Sturprich and Adele Lejune.
    No. 2004-C-0964.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Rosen, Steven et al.; Fuller, Robin Renee; Rosen, Robin Renee Fuller;—Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. M, No. 92-18044; to the Court of Appeal, Fourth Circuit, No. 2003-CA-1744.

Denied.


text:
    Kellee KNIGHTEN v. Howard THOMPSON, General Paper Company, and State Farm Insurance Company.
    No. 2004-CC-0948.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Knighten, Kellee;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, Nos. 482,284, 487-940; to the Court of Appeal, First Circuit, No. 2003 CW 2491.

Not considered; not timely filed.


text:
    Rebecca CHEFFER and Raymond Edwards v. George RODRIGUE.
    No. 2004-CC-0911.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Cheffer, Rebecca et al.; Edwards, Raymond;—Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 2002-15035; to the Court of Appeal, Fourth Circuit, No. 2003-C-1855.

Not considered; not timely filed.


text:
    Majin SIERRA, Augustus Matamoros, Ronald Lemoine, Carl Cabler, and Russell Lapeyrouse v. KEEBLER COMPANY a/k/a Keebler Foods Company, President Baking Company, Inc., Wyndham Baking Company, Craig Nolinske, Brian Guttuso, Eddie Tobin, Walter Comeaux, and Danny McDaniel.
    No. 2004-CC-1029.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Keebler Company a/k/a; Keebler Foods Company; President Baking Company Inc.; Murray Biscuit Company L.L.C.;—Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 570-408; to the Court of Appeal, Fifth Circuit, No. 04-C-194.

Denied.


text:
    Keith A. WILLIAMS and Debra Williams Individually and on Behalf of Their Minor Son Keith Williams, II v. MEMORIAL MEDICAL CENTER (Formerly Known as Mercy-Baptist Hospital), Dr. John N. Udall, Dr. Charles B. Hill, Dr. Victor E. Lunyong, Children’s Hospital, Dr. Uwe Blecker, Dr. Elizabeth E. Mannick, Marlene M. Buis and Dr. Eberhard Schmidt-Sommerfeld.
    No. 2004-C-0963.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Williams, Keith A. et al.; Williams, Debra;—Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. C, No. 2000-17701; to the Court of Appeal, Fourth Circuit, No. 2003-CA-1806.

Denied.


text:
    Robert DAHMES and Victoria Dahmes v. CHAMPAGNE ELEVATORS, INC., Perfection Gear, A Division of Peerless-Winsmith, Inc., Waupaca Elevators, Inc., Kone, Inc., Audubon Insurance Company, et al.
    No. 2004-C-0844.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Perfection Gear; Peerless-Winsmith, Inc.;—Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. D, No. 2002-1583; to the Court of Appeal, Fourth Circuit, No(s). 2003-CA-0807, 2003-CA-0983.

Denied.


text:
    Sylvia BLACK, Administratrix of Succession of Cody Cortez Black v. LOFLAND COMPANY, Fireman’s Fund Insurance Company, and H & S Services, Inc.
    No. 2004-C-0787.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Lofland Company et al.; H & S Services Inc. d/b/a; Snelling Personnel Services;—Defendant(s); Applying for Writ of Certiorari and/or Review Office of Workers Comp. Dist. 1W, No. 00-09156; to the Court of Appeal, Second Circuit, No. 37,862-WCA.

Denied.

VICTORY, J., would grant the writ.


text:
    CAPITOL CITY TOWING & RECOVERY INC.; Blackjack Towing, Inc.; Tow Power, Inc.; and Yvonne E. Reed v. STATE of Louisiana, Through the DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Office of State Police—Towing and Recovery Unit; Office of State Police—Troop A; and Sgt. R. Wayne Ryland.
    No. 2004-C-0770.
    Supreme Court of Louisiana.
    June 4, 2004.
   In re Capitol City Towing & Recovery Inc. et al.;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 428,638; to the Court of Appeal, First Circuit, No. 2003 CA 0647.

Denied.


author: CALOGERO, C.J.,

text:
    Anthony AMATO and Kenneth St. Charles v. ORLEANS PARISH SCHOOL BOARD.
    No. 2004-CD-1392.
    Supreme Court of Louisiana.
    June 7, 2004.
   In re Amato, Anthony et al.; St. Charles, Kenneth;—Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 2004-8282; to the Court of Appeal, Fourth Circuit, No. 2004-C-0956.

Writ denied as moot.

CALOGERO, C.J.,

concurring. I agree that the application should be denied as moot for the following reasons. The district court judge denied the temporary restraining order sought by the plaintiffs. The court of appeal denied the plaintiffs’ writ application. The plaintiffs sought a writ in this Court. Before this Court had an opportunity to act, the United States District Court for the Eastern District of Louisiana granted a temporary restraining order preventing the Orleans Parish School Board from conducting the meeting on Friday evening, June 4, 2004, which action made moot the plaintiffs’ request in this matter to enjoin that same meeting.

JOHNSON, J., would deny the writ.

WEIMER, J., would deny the writ.


author: IgDECUIR, Judge.

text:
    STATE of Louisiana v. Wayne Jasper PRATER.
    No. 02-0780.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.
    Bennett R. LaPoint, Assistant District Attorney, Jennings, LA, for State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Wayne Jasper Prater.
    Court composed of HENRY L. YELVERTON, OSWALD A. DECUIR, and ELIZABETH A. PICKETT, Judges.
   IgDECUIR, Judge.

The Defendant, Wayne Jasper Prater, was charged by bill of information with driving while intoxicated, third offense, a violation of La.R.S. 14:98. Under a separate docket number, the Defendant was also charged with aggravated battery, a violation of La.R.S. 14:34. On November 13, 2001, trial commenced on both charges. On November 15, 2001, a twelve-person jury found the Defendant guilty of driving while intoxicated, third offense, and simple battery, a responsive verdict to the aggravated battery charge. He was sentenced to five years at hard labor and fined $2,000.00, plus court costs, for the DWI conviction and ninety days in the parish jail on the battery conviction. On appeal of the DWI conviction, the Defendant contends the trial court erred in imposing an illegal and excessive sentence for the conviction of driving while intoxicated, third offense.

Because the Defendant was improperly tried before a twelve-member jury, we conclude that his conviction and sentence are null and must be vacated.

FACTS:

On August 11, 2000, the Defendant was stopped in his vehicle by Officer Chad Romero for driving with a broken taillight. The officer smelled an odor of alcohol. He ran a check on the Defendant’s driving record and criminal history and learned that the Defendant had been arrested on numerous driving while intoxicated charges. The officer informed the Defendant he was going to conduct a field sobriety test. The Defendant then ran back to his vehicle with Officer Romero in pursuit. As Romero attempted to pull him from his truck, the Defendant accelerated, running over Romero’s leg with the rear tire of his truck. The officer suffered a bruised leg. The Defendant was apprehended and taken into custody. A blood test was administered which showed a blood alcohol concentration of 0.14 percent.

| ¿ERRORS PATENT:

Article 1, Section 17(A) of the Louisiana Constitution provides that a case in which punishment may be confinement with hard labor or without hard labor for more than six months shall be tried before a jury of six persons, all of whom must concur in the result. Additionally, La.Code Crim.P. art. 782 provides in pertinent part: “[c]ases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict.”

Pursuant to these provisions, the two charges which the Defendant faced at trial were both triable by a jury of six members. La.R.S. 14:98, the DWI statute, provides for punishment of confinement with or without hard labor for not less than one year or more than five years. A person tried under La.R.S. 14:34, aggravated battery, is exposed to a sentence of imprisonment with or without hard labor for not more than ten years. The record before this court shows that a jury of twelve, with one alternate, was selected to try this case. Before deliberations, only the alternate was excused. Consequently, twelve persons, rather than the six required by law, rendered a verdict on the charges of driving while intoxicated, third offense, and aggravated battery.

In State v. Smith, 367 So.2d 857, 858 (La.1979), the supreme court stated:

We have consistently held that the verdict returned by a jury composed of either more or less than the correct number of jurors is null. See, State v. Nedds, 364 So.2d 588 (La.1978), and cases cited therein.
... [A]n error in the size of the jury is discoverable on the face of the record and therefore we may note it ex proprio motu without formal objection or an assignment of error. See, La.C.Cr.P. Art. 920(2); State v. Nedds, supra.

See also, State v. Mouton, 94-1074, p. 8 (La.App. 3 Cir. 3/27/96), 672 So.2d 192.

In State v. Peace, 33,719 (La.App. 2 Cir. 8/23/00), 766 So.2d 630, the defendant was tried by a twelve-person jury which found him guilty of malfeasance and indecent behavior with a juvenile. On appeal, the second circuit noted an error [4in the size of the jury which was discoverable on the face of the record. The court ordered the parties to show cause why the matter should not be assigned for summary disposition without oral argument and why the convictions and sentences should not be vacated and remanded to the district court for a new trial. In response, the defendant assigned the issue as error. The court held in pertinent part:

Our jurisprudence provides that when a defendant is charged with an offense triable by a six-member jury and he is tried by a jury of twelve members, the verdict and sentence are null. In State v. Nedds, supra, the defendant was charged with theft and tried and convicted by a twelve-member jury. Citing La. Const. art. 1, § 17 and La.C.Cr.P. art. 782, the court noted that it has consistently held that a jury composed of either more or less than the correct number of jurors renders the verdict null. Therefore, the case must be reversed and remanded to the trial court for a new trial. This rule was reiterated in State v. Smith, supra, and State v. Marcantel, 388 So.2d 383 (La.1980). In State v. Smith, supra, the supreme court stated that error in the size of the jury is discoverable on the face of the record and therefore may be noted ex proprio motu, without formal objection or an assignment of error. The rule announced in State v. Nedds, supra, has been followed by the appellate courts of this state. See State v. Clark, 589 So.2d 549 (La.App. 1st Cir.1991), writ denied, 592 So.2d 1333 (La.1992); State v. Adams, 525 So.2d 1256 (La.App. 1st Cir.1988), writ denied, 532 So.2d 130 (La.1988); State v. King, 524 So.2d 1376 (La.App. 1st Cir.1988); State v. Pollard, 438 So.2d 1208 (La.App. 3d Cir.1983), writ denied, 443 So.2d 1125 (La.1984). Accordingly, because the defendant’s convictions and sentences are invalid in this case due to improper jury size, they are hereby vacated and the matter is remanded to the trial court for a new trial. [Footnotes omitted.]

766 So.2d 630, 632-633.

Louisiana jurisprudence requires that we vacate the Defendant’s conviction. We do so reluctantly, however, as we find no prejudice to the Defendant in the proceedings below. In fact, the Defendant’s conviction by a twelve-member jury provided him with greater protections than that required by law. We agree with Justice Dennis’ views on the subject as expressed in his dissent in State v. Nedds, 364 So.2d 588, 589 (La.1978), which we quote in its entirety:

Defendant was convicted of a relative felony by a jury of twelve persons. Pri- or decisions of this Court have held that such a defect in the ^proceedings requires remand, State v. Rabbas, 278 So.2d 45 (La.1973); and several decisions have even treated jury size as jurisdictional, State v. Reeves, 128 La. 37, 54 So. 415 (1911). This position would be justified in those cases where a defendant is convicted by a jury composed of fewer persons than the law mandates. However, where the defendant is convicted by a larger jury, he has, in effect, been provided greater protection than the minimum required by law. Defendant alleged no prejudice; and I am unable to perceive how the defendant could be prejudiced by a jury composed of twelve rather than six persons. Moreover, since the defendant could have waived the jury entirely, his going to trial before a twelve person jury instead of a six person jury should constitute a waiver of his right to a trial by the smaller jury.

Nonetheless, because the jury size was improper, the Defendant’s conviction and sentence on the DWI charge are hereby vacated and the matter is remanded to the trial court for proceedings consistent with this opinion. The assignment of error submitted by the Defendant is rendered moot.

CONVICTION AND SENTENCE VACATED; CASE REMANDED.


author: LAMY, Judge.

text:
    Lorendia Kay JANUARY v. Gregory Troy JANUARY, Sr.
    No. 03-1578.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2004.

      Jennifer Jones, Jones Law Firm, Cameron, LA, for Plaintiff/Appellee, Loréndia Kay January.
    David P. Bruchhaus, Mudd & Bruch-haus, L.L.C., Cameron, LA, for Defendant/Appellant, Gregory Troy January, Sr.
    Court composed of JIMMIE C.. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges:
   LAMY, Judge.

Plaintiff-in-rule filed a petition for termination of his spousal-support obligation, claiming that amounts received in social security disability benefits by the defendant-in-rule constituted income that would offset his spousal support obligation. The trial court denied the plaintiff-in-rule’s request. From this ruling, the plaintiff-in-rule appeals. For the following reasons, we affirm.

Factual and Procedural Background

Gregory T. January, Sr., and Lorendia Kay Savoy were married on March 24, 1984, in Cameron, Louisiana. Two children were b.orn of the marriage: a son, Gregory T. January, Jr., who had attained the age of majority as of the date of trial, and a daughter, who was then thirteen years old. According to the record, the Januarys separated on February 18, 2001. Ms. January subsequently filed for divorce under the provisions of La.Civ.Code art. 102 on July 18, 2001. Matters incidental to the divorce — i.e., child custody and spousal support — were addressed in a hearing on August 29, 2001. Ms. January was granted custody of the couple’s minor daughter, and Mr. January was ordered, inter alia, to pay child support in the amount of $500 per month. In addition, the trial judge determined that Ms. January was free from fault leading to the break-up of the marriage and awarded her final periodic support in the amount of $964 per month. The parties further agreed at this time that Ms. January would temporarily receive coverage under Mr. January’s' health insurance via COBRA; she would be responsible for paying her premiums. The judgment of divorce was signed on September 4, 2001.

On May 16, 2003, Mr. January filed a petition in which he sought termination of his final periodic support obligation. In this petition, Mr. January alleged that the social security disability benefits received by his ex-wife constituted a material 12change in her financial circumstances that would serve to terminate his obligation to pay spousal support. In addition, he alleged that Ms. January’s disability did not prevent her from obtaining gainful employment.

Ms. January answered and filed a re-conventional demand for increased child support. In her answer, Ms. January admitted that she receives social security benefits; however, she asserted that the court considered her future disability benefits in arriving at a decision on the issue of alimony even though she did not begin to receive these payments until after the judgment of divorce was rendered.

The record reflects that Ms. January suffers from a chronic kidney disease. She underwent a kidney transplant in 1999, which led to serious complications requiring a two-month hospitalization. Ms. January indicated during the divorce proceedings that she makes monthly visits to the doctor in Houston and that she is no longer able to work.

A hearing was held on the spousal-support rule on June 18, 2003, at which time Ms. January voluntarily dismissed her re-conventional demand for increased child support. In defense of her alimony award, Ms. January contended that the cost of maintaining insurance coverage through COBRA was not included in the itemization of expenses submitted for the court’s consideration in fixing an amount of final periodic support. She noted that her monthly premiums for this insurance were $366.41, paid since September 2001. Ms. January noted that the COBRA coverage will terminate in September 2004; as a result, she contends that she will have no insurance for her prescription medications, which cost an estimated $1800 per month. Ms. January noted that, like the COBRA premiums, her prescription-drug expenses were not on the itemized list submitted to the court in August 2001.

|3In his oral reasons for judgment, the trial judge observed that, due to the COBRA payments, Ms. January’s needs have increased since the original judgment awarding permanent alimony. The trial judge ruled that the original alimony payments were not to be disturbed, and he dismissed Mr. January’s petition.

Mr. January appeals this ruling, asserting two assignments of error:

1. The trial judge erred in denying the petition to terminate final periodic spousal support, and
2. The trial judge erred in failing to terminate or to reduce the amount of spousal support paid.

Discussion

We note that the appellant’s assignments of error cover the same issue; accordingly, we will address them together.

With respect to spousal support, the Louisiana Civil Code provides, in Article 114, that “[a]n award of periodic support may be modified if the circumstances of either party materially change and shall be terminated if it has become unnecessary.” The second circuit has provided the following discussion of the procedure for modification or termination of a spousal support award in Gilbreath v. Gilbreath, 32,292, pp. 2-3 (La.App. 2 Cir. 9/22/99), 743 So.2d 300, 302-303:

An award of alimony is never final. White v. White, 393 So.2d 240, 241 (La.App. 1st Cir.1980). The party seeking the modification or termination of support carries the burden of proof that circumstances have changed since the original award. Rains v. Rains, 376 So.2d 1298 (La.App. 2d Cir.1979). The modification of a support award does not require a heightened burden of substantial change of circumstances, instead it requires simply showing a change of circumstances as provided in La.Civ.Code art. 142 and La. R.S. 9:311. Stogner v. Stogner, 98-C-3044 (La.7/7/99), 739 So.2d 762.

A trial court is afforded considerable discretion in determining whether to award alimony. Falterman v. Falterman, 98-158 (La.App. 5 Cir. 1/13/99), 726 So.2d 1023. As such, a trial court’s rulings in this respect may not be disturbed absent a clear abuse of such discretion or manifest error as to fact. Id.

In Robinson v. Robinson, 412 So.2d 633 (La.App. 2 Cir.1982), the petitioner wife sought an increase in spousal support payments based on need. The bulk of the income received by both spouses was in the form of social security benefits; however, the husband received a greater amount each month than did his wife. The trial court had decided that social security benefits were not income that might be used in fulfilling spousal support obligations. However, on appeal, the second circuit interpreted the Social Security Act, 42 U.S.C. § 301, et seq., as allowing social security payments to be considered in deciding the amount of spousal support to be awarded. The court reexamined the wife’s expenses in comparison to her monthly income and discovered a deficit. The second circuit determined that this deficit could be resolved by incorporating the husband’s social security benefits into his income, pursuant to former Civil Code Article 160 (redesignated as Article 112 by Acts 1990, No. 1008, § 8 and Acts 1990, No. 1009, § 10, both effective January 1, 1991), thereby increasing the amount of his spousal support obligation.

On appeal, Mr. January contends that the second circuit’s holding in Robinson requires that he be given a credit for the amount of social security benefits received by his ex-wife each month. Because social security benefits are income, and because the amount of benefits received by his wife each month approximates the amount of his monthly support obligation, Mr. Robinson posits that his support obligation should be terminated. We disagree.

In Davis v. Davis, 02-0088 (La.App. 3 Cir. 5/8/02), 816 So.2d 985, the husband petitioned for termination or reduction of his spousal support obligation, claiming that |shis ex-wife’s social security benefits could be used to fulfill that obligation. According to Davis, the petitioner’s ex-wife was granted permanent spousal support in 1992. Thereafter, in 2001, she began receiving social security disability benefits after it was determined that she was disabled. Ms. Davis was to receive a maximum of $531.00 per month in income. At the time of the hearing on the petition, Ms. Davis was receiving $300 per month in spousal support and approximately $250 each month in social security disability benefits. In support of his assertions, Mr. Davis argued that if he were to cease paying alimony or if he were to pay less than $20 per month, Ms. Davis would receive her maximum amount of income each month, $531.00, from social security. The trial court ruled that Mr. Davis was not allowed to shirk his obligation to his former wife by letting social security pay instead.

On appeal, a panel of this court noted that the Social Security Act sets forth a method for calculating disability benefits, which includes consideration of certain factors, such as the recipient’s earned and unearned income, as defined in the Act. The panel observed that, according to 42 U.S.C. § 1382a(a)(2)(E), alimony payments are considered unearned income; as such, when the Social Security Administration determines the amount of benefits to be disbursed in disability cases, it ascertains whether the disabled person is receiving spousal support and, if so, this “unearned income” is factored into the amount of benefits awarded. The panel further observed that spousal support payments do not fall within the ambit of excluded income or an excluded resource pursuant to 42 U.S.C. § § 1382a(b) or 1382(b), noting that unlike cases involving workers’ compensation payments, “there is no statutory authority for an offset in favor of a former spouse who has been ordered to pay permanent alimony.” Davis, 816 So.2d at 986. The panel concluded that Mr. Davis was not Identified to an offset based on the amount of social security benefits received by his ex-wife.

We find Davis to be persuasive in the matter before us on appeal. As was the situation of the ex-wife in Davis, Ms. January was not receiving disability benefits at the time her final periodic support payments were fixed. In another parallel to Davis, Mr. January claims that social security benefits received by his wife offset his obligation to pay spousal support. As noted above in the Davis decision, the Social Security Act provides that unearned income, including alimony, will be considered in determining a claimant’s social security benefits. As such, social security benefits are not income susceptible of offsetting a spouse’s final support obligation. Accordingly, we find no abuse of discretion on the part of the trial judge in denying Mr. January’s petition for termination of spousal support. This assignment lacks merit.

DECREE

For the foregoing reasons, the ruling of the trial court is affirmed. All costs of this proceeding are assigned to the plaintiff-in-rule-appellant, Gregory Troy January, Sr.

AFFIRMED.