author: SULLIVAN, Judge.

text:
    Juanita THIBODEAUX, et al. v. CONOCO PHILLIPS CO., et al.
    No. 06-1282.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.

      Randall A. Smith, Smith & Fawer, L.L.C., New Orleans, Louisiana, for Appellants, Douglas M. Schmidt, Peter Borstell, Law Offices of Douglas M. Schmidt, APLC, Douglas M. Schmidt, APLC.
    Allen L. Smith, Jr., Plauche, Smith & Nieset, Lake Charles, Louisiana, for Ap-pellee, Patrick A. Juneau, Jr., Special Master.
    Richard F. Zimmerman, Jr., Jennifer A. Hataway, Kantrow, Spaht, Weaver, & Blit-zer, Baton Rouge, Louisiana, for Appel-lees, Plaintiffs’ Steering Committee, Robert H. Schmolke, Calvin C. Fayard, Jr., Drew A. Ranier.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and MICHAEL G. SULLIVAN, Judges.
   SULLIVAN, Judge.

| ,This is a dispute over the allocation of attorney fees in a class action. Appellants appeal the trial court’s refusal to approve the payment of attorney fees and expenses according to an agreement reached among attorneys representing claimants in the class and the issuance of a preliminary injunction enjoining Appellants from proceeding in a suit in another court to enforce the fee agreement. Appellees filed a motion to dismiss this appeal, arguing Appellants’ waived their right to appeal by acquiescing in the trial court’s order awarding attorney fees.

Facts

The parties to this appeal are attorneys who represented plaintiffs in a class action suit which was settled. In conjunction with the settlement, a fund for the payment of attorney fees and expenses was established. During the course of the litigation, a Plaintiffs’ Steering Committee (PSC) was appointed by the trial court. The PSC and some attorneys of members of the class entered into agreements among themselves for the allocation of attorney fees and expenses. Pursuant to that agreement, Appellants were to receive $4 million in fees. On September 21, 2005, the trial court held a hearing on the issue of attorney fees. The trial court refused to approve the fee agreement, finding that it was unreasonable, against public policy, and unethical because it violated the Rules of Professional Conduct. The trial court then awarded fees as recommended by the court-appointed Special Master which it deemed reasonable and equitable. It awarded Appellants $2,490,966.67, not the $4 million provided in the fee agreement.

| gAppellant Doug Schmidt attended the hearing. He did not object to the proceeding and accepted the fees awarded to Appellants by the trial court. Mr. Schmidt signed a Receipt, Release, and Unconditional Acquiescence in Judgment (Release), which stated in part:

2 .... (b) Releasor has read and reviewed the Attorneys’ Fees Order and Judgment and is thus fully aware of the Court’s award of attorneys’ fees and/or costs to Releasor and/or the Firm, as contained therein; (c) Releasor and the Firm are bound by all of the terms, conditions, and obligations contained in the Attorneys’ Fees Order and Judgment; and (d) Releasor is satisfied that the Court’s award of attorneys’ fees and/or costs to Releasor and/or the Firm as contained in the Attorneys’ Fees Order and Judgment is fair and adequate.
3. Without limiting the foregoing, in consideration of the Court’s award of attorneys’ fees and/or costs to Releasor and/or the Firm as contained in the Attorneys’ Fees Order and Judgment, Releasor and the Firm hereby voluntarily and unconditionally: (a) acquiesce in the Attorneys’ Fees Order and Judgment and the Court’s award of attorneys’ fees and/or costs to Releasor and/or the Firm, as contained therein, (b) waive any right to appeal, petition, bring a writ or law suit or request court review or extraordinary relief from or with respect to the Attorneys’ Fees Order and Judgment, (c) release and forever discharge any and all claims for any amounts whatsoever, including, but not limited to, claims for attorneys’ fees and costs, whether common benefit or otherwise, arising out of or related to any of the Releases, whether part of the Class Action and/or the Pending Actions or in any way related to the Class Action and /or the Pending Actions, that Releasor and/or the Firm have, or may have had, against any one or more of the Released Parties, the PSC, ...

(Emphasis added.)

On November 28, 2005, Appellants filed a lawsuit in the Civil District Court of New Orleans, in which they asserted claims of breach of contract and unfair trade practices against members of the PSC. The PSC sought a preliminary injunction to enjoin Appellants from proceeding with that litigation. After a hearing, the trial court granted the injunction based on the Release. On November 30, 2005, Appellants filed this appeal.

1 ¾Motion to Dismiss Appeal

Pursuant to La.Code Civ.P. art. 2085, “[a]n appeal' cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him.” This court addressed the dismissal of an appeal where an appellant acquiesced in a settlement of his claim, stating: “The acquiescence that prohibits an appeal, or destroys it when taken, is the acquiescence in a decree commanding something to be done or given. If thé thing commanded to be done or given is done or given, there has been acquiescence in the judgment.” West v. Bruner Health Group, Inc., 03-152, p. 8 (LaApp. 3 Cir. 10/29/03), 866 So.2d 260, 267, writs denied, 04-913, 04-935 (La.6/18/04), 876 So.2d 805, 806 (quoting Times Picayune Publ’g Corp. v. New Orleans Aviation Bd., 99-237, p. 5 (LaApp. 5 Cir. 8/31/99), 742 So.2d 979, 982, writ denied, 99-2838 (La.12/10/99), 751 So.2d 257).

Appellants sought attorney fees and were awarded attorney fees by the trial court which they accepted and in conjunction therewith signed the Release. Their acquiescence to their fee award prohibits this appeal. However, our discussion cannot end here because Appellants attack the validity of the trial court’s judgments.

Consent

Appellants claim they acted under duress which vitiates their consent to the acceptance of the fees and the execution of the Release. Louisiana Civil Code Article 1959 provides:

Consent is vitiated when it has been obtained by duress of such a nature as to cause a reasonable fear of unjust and considerable injury to a party’s person, property, or reputation.
14Age, health, disposition, and other personal circumstances of a party must be taken into account in determining reasonableness of the fear.

Appellants lived and had their offices in the New Orleans area. They urge that they were so negatively impacted by Hurricane Katrina they were compelled to accept the trial court’s fee award and execute the Release. Comment (b) to Article 1959 explains that the article contemplates two kinds of duress. One is physical duress; the other occurs where “a person makes an improper threat that induces a party who has no reasonable alternative to manifest his assent.” La.Civ.Code art. 1959, Comment (b).

Some Louisiana courts have held that economic stress does not constitute legal duress as contemplated by Article 1959. See Sidr-Mar’s Rest. & Lounge, Inc. v. Gardner, 02-1109 (La.App. 5 Cir. 3/25/03), 844 So.2d 178; Aubert v. Entergy Corp., 00-30 (La.App. 5 Cir. 5/30/00), 762 So.2d 288; Adams v. Adams, 503 So.2d 1052 (La.App. 2 Cir.1987). However, the supreme court has held that the fear of economic deprivation can constitute duress which vitiates consent. Wolf v. La. State Racing Comm’n, 545 So.2d 976 (La.1989); see also, Marico P’ship v. Frazier, 01-72 (La.App. 3 Cir. 6/6/01), 787 So.2d 1196.

In Wolf, the Fair Grounds Corporation, which operated the New Orleans Fair Grounds race track, required the jockeys, whom it conceded were independent contractors, to sign contracts in which they agreed to accept workers’ compensation benefits as their sole remedy for injuries they suffered due to negligence by the racetrack or the jockeys. By signing the contract, the jockeys also waived the right to sue the Fair Grounds Corporation. Only jockeys who signed the contract were allowed to race at the track. The jockeys sought a declaratory judgment declaring the |ficontracts invalid because the Fair Grounds Corporation did not have the authority to require them to sign the contracts and because the contracts were signed under duress.

The supreme court initially determined that the Fair Grounds Corporation did not have the legal authority to require the jockeys to sign such waivers. The court then observed that the threat of doing a lawful right is not duress. See La. Civ. Code art. 1962. However, because the Fair Grounds Corporation exceeded its authority, requiring the jockeys to sign the contracts constituted duress. The jockeys signed the contracts only after a protest clause was included, which the court found evidenced that they acted under duress. The supreme court also observed that the agreement effectively denied the jockeys the ability to earn an income.

After viewing the evidence as a whole, we do not find that Appellants’ claim of fear of economic deprivation meets the level of duress required to vitiate their consent to the Release. They had the option of not accepting the fee awarded and appealing and/or filing suit to enforce their fee agreement. The trial court did not threaten that they would not receive a fee or that their fee would in some way be jeopardized if they did not accept the award on September 21, 2005. Further, Appellants never voiced concerns to the trial court that their financial situation was such that they felt compelled to accept the award, even though they did not believe it was fair or in their best interests.

Due Process

Appellants also claim that their right to due process was violated. They argue that the trial court erred in conducting the September 21, 2005 hearing to allocate fees because notice of the hearing was not provided as required by the Code of Civil Procedure and because they were displaced by Hurricane Katrina. Mr. Schmidt ^appeared in person and represented Appellants at the hearing. He filed a Motion and Order to Enforce Fee Allocation Agreement and for Stay of Proceedings with a supporting memorandum prior to the hearing. The motion sought a stay of the distribution of attorney fees to allow disputes among the attorneys regarding the distribution to be resolved. Appellants did not seek a stay or continuance of the hearing because they were displaced by Hurricane Katrina or because participation in the hearing would be a hardship on them. If Appellants had raised these objections in the trial court, the trial court would have had the opportunity to continue the hearing to a later date. Appellants’ failure to inform the trial court of their situation and request a continuance constituted a waiver of those objections which will not be considered on appeal. See Lafayette City-Parish Consol. Gov’t v. Francis, 06-235, p. 4 (La.App. 3 Cir. 6/28/06), 934 So.2d 258, 261, where this court noted: “Generally, a party’s failure to object to a procedural irregularity is considered to constitute a waiver to object to the irregularity on appeal.”

Appellants urge that Executive Order KBB 2005-32 and La.R.S. 9:5821-5825, which codified Executive Orders KBB 2005-32, 48, and 67, mandated that the hearing be continued. The intent of these provisions was to protect all persons affected by Hurricanes Katrina and Rita and to “prevent injustice, inequity, and undue hardship to persons who were prevented by these hurricanes from timely access to courts and offices in the exercise of their legal rights,.... ” La.R.S. 9:5821. If Appellants had requested a continuance of the September 21, 2005 hearing, they would have been entitled to it. However, they chose to attend the hearing and accept the trial court’s award of attorneys fees without objection. Under these 1 circumstances, neither the Executive Orders nor the cited provisions excuse their failure to request a continuance before participating in the hearing.

Injunction

Appellants contend that the trial court improperly enjoined their suit for breach of contract and unfair trade practices regarding their fee agreement. Appellate review of the issuance of a preliminary injunction is limited. The issuance of a preliminary injunction is within the sound discretion of the trial court and can be reversed only if that discretion has been abused or improvidently exercised. Lafayette City-Parish Consol. Gov’t v. Lafayette Mun. Fire & Police Civil Serv. Bd., 01-1460 (La.App. 3 Cir. 5/8/02), 816 So.2d 977, writ denied, 02-1565 (La.9/30/02), 825 So.2d 1194.

Appellants argue they had “no recourse but to file a separate suit” against the individual members of the PSC to enforce their rights under their fee agreement. This argument ignores the fact that they could have refused the trial court’s fee award and appealed the matter to this court. Instead, they chose to accept the fee award and left the courthouse with a check in hand. By accepting the check and signing the Release, Appellants waived “any right to appeal, petition, bring a writ or law suit ... with respect to the Attorneys’ Fees Order and Judgment.” See Release para. 3.

Appellants contend that the Release does not bar their suit because they waived the right to sue the PSC, which is identified in the Release, but not the individual members of the PSC, who were not individually identified in the Release. Louisiana Civil Code art. 24 defines a juridical person as “an entity to which the law attributes personality, such as a corporation or a partnership. The personality of a juridical person is distinct from that of its members.” The PSC is not a juridical entity; it is a group of individual attorneys appointed by the trial court to efficiently control and Indirect the litigation for the benefit of the class. Therefore, suit against the individual members of the PSC is suit against the PSC.

Appellants attack the grant of the preliminary injunction on the basis that Appellees did not prove they would suffer irreparable harm as required by La.Code Civ.P. art. 3601(A). The trial court cited two reasons for granting the preliminary injunction: 1) Appellants’ suit violated its Order and the Release and interfered with its continuing jurisdiction over the class action as provided in La.Code Civ.P. art. 594, and 2) Appellants breached an obligation not to file suit as provided in the Release.

Article 3601 does require an applicant for a preliminary injunction to prove that he will suffer irreparable injury if the injunction does not issue and that he is entitled to the relief sought. However, there are exceptions to this requirement. One exception is where an injunction is sought to enjoin actions clearly contrary to expressed law. In such situations, a showing of irreparable injury is not necessary. Galle v. Coile, 556 So.2d 957 (La.App. 3 Cir.1990); Bossier v. Lovell, 410 So.2d 821 (La.App. 3 Cir.), writ denied, 414 So.2d 376 (La.1982). In Bossier, this court affirmed the issuance of an injunction to prevent the general partner of a partnership from violating provisions of the partnership agreement. Having found that the PSC is not a separate entity from its individual members, we conclude that Appellants violated the trial court’s Order and the Release by filing suit to enforce the fee agreement and that the trial court’s issuance of the preliminary injunction , was not an abuse of its discretion.

In support of their contentions, appellants cite statements made by the trial court and a member of the PSC regarding the expectation of suits being filed over the lfldistribution of attorney fees. These comments were made by the trial court and a member of the PSC while discussing another attorney’s attempt to enforce the fee agreement. That attorney did not accept the trial court’s fee award. Additionally, the referenced comments preceded the trial court’s fee award to Appellants and Appellants’ execution of the Release and acceptance of those fees. The comments were not made in response to claims by Mr. Schmidt and should not have been construed by experienced trial attorneys to mean that the Release did not prohibit them from filing another suit to enforce the fee agreement.

Disposition

For these reasons, this appeal is dismissed at Appellants’ cost.

APPEAL DISMISSED.

      . Rule 1.5(e) of the Rules of Professional Conduct provides:
      A division of fee between lawyers who are not in the same firm may be made only if:
      (1)the client agrees in writing to the representation by all of the lawyers involved, and is advised in writing as to the share of the fee that each lawyer will receive;
      (2) the total fee is reasonable; and
      (3) each lawyer renders meaningful legal services for the client in the matter.


source: Caselaw Access Project

license: Public Domain

text:
    Juanita THIBODEAUX, et al. v. CONOCO PHILLIPS CO., et al.
    No. 06-1429.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.

      Randall A. Smith, Smith & Fawer, L.L.C., New Orleans, LA, for Appellants, Douglas M. Schmidt, Peter Borstell, Law Offices of Douglas M. Schmidt, APLC, Douglas M. Schmidt, APLC.
    Allen L. Smith, Jr., Plauche, Smith & Nieset, Lake Charles, LA, for Appellee, Patrick A. Juneau, Jr., Special Master.
    Richard F. Zimmerman, Jr., Jennifer A. Hataway, Kantrow, Spaht, Weaver, & Blit-zer, Baton Rouge, LA, for Appellees, Plaintiffs’ Steering Committee, Robert H. Schmolke, Calvin C. Fayard, Jr., Drew A. Ranier.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and MICHAEL G. SULLIVAN, Judges.
   SULLIVAN, Judge.

For the reasons discussed in the companion case in this consolidated matter, Thibodeaux v. Conoco Phillips Co., 061282 (La.App. 3 Cir. 3/7/07), 952 So.2d 912, this appeal is dismissed. Costs of this appeal are assessed to Appellants.

AFFIRMED.


author: GREMILLION, Judge. SAUNDERS, J.,

text:
    Shamoindra MANNING v. Edgar G. BARRILLEAUX, et al.
    No. 2006-1394.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.

      Bobby L. Stromile, Bossier City, LA, for Plaintiff/Appellant, Shamoindra Manning.
    Byron A. Richie, Charles V. Richie, Paul D. Oberle, Jr., Richie, Richie & Oberle, Shreveport, LA, for Defendant/Appellee, Imperial Fire and Casualty Ins. Co., Carrie Barrilleaux, Edgar G. Barrilleaux.
    M. Robert Voitier, Jr., Lafayette, LA, for Defendant/Appellee, Safeway Ins. Co. of Louisiana.
    Keith M. Borne, Borne & Wilkes, L.L.P., Lafayette, LA, for Defendant Ap-pellee, Safeway Ins. Co. of Louisiana.
    Court composed of JOHN D. SAUNDERS, GLENN B.
    GREMILLION, and J. DAVID PAINTER, Judges.
   GREMILLION, Judge.

1 pin this case, the plaintiff, Shamoindra Manning, appeals the trial court’s judgment awarding her $1,000 in general damages. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Manning filed suit in February 2004, following a motor vehicle accident in which she was the guest passenger in a vehicle driven by Chinkesha Taylor who was insured by Safeway, one of many defendants. The Taylor vehicle was impacted by a vehicle driven by Edgar G. Barril-leaux. Following a trial in February 2006, the trial court found in favor of Manning and against Safeway and awarded Manning $2,684.44 for medical bills and expenses and $1,000 for general damages. It further found against Taylor and in favor of Barrilleaux and his insurer. Manning now appeals and assigns as error the trial court’s award of only $1,000 in general damages.

GENERAL DAMAGES [1-4] General damages include an award for the victim’s pain and suffering, and as such, are intrinsically speculative and not subject to mathematical certainty. Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70. We review the trial court’s general damage award using the abuse of discretion standard set forth in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). The trier of fact is afforded much discretion in independently assessing the facts and rendering an award because it is in the best position to evaluate witness credibility and see the evidence firsthand. Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829 (La.1991). The award should be based on the facts and circumstances of the particular case. Id. Only if we find that the trier of fact abused its discretion, may we lower to the highest reasonable Lamount or raise the award to the lowest reasonable amount and resort to prior awards to the extent that is reasonably within our discretion. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

At the conclusion of the trial, the trial court stated with regard to damages:

As far as damages are concerned, the plaintiff went to the — She said she was in extreme pain after the accident. The emergency room record circled moderate pain, a five (5) on a one (1) to ten (10), and X-rayed the ribs and showed a bruise of the left flank. She was complaining — in court and also to Dr. Sarpy,
about other areas, but immediately after the accident or the next day, or let’s say several hours later in the morning when it got daylight, that’s what her complaints were.
She testified that she had two-and-a-half (2-1/2) to five (5) months of pain. The emergency room also only notes pain to the scapula area. She claimed that her back hurts when she washes dishes and it still hurts today even though Dr. Sarpy discharged her on May 19th of '03. And I found Dr. Sar-py’s records interesting because he said that he told the plaintiff to return for weekly visits so he could report to the attorney. That’s what he said. I find that’s a little bit excessive doctor visits for this minor of an injury and this minor of an accident. However, I’m still going to award all of plaintiffs medical — past medical expenses, two thousand six hundred eighty-four dollars and forty-four cents ($2,684.44). Dr. Sarpy did state there was no permanent injury and discharged her May 19th of 2003.
The court finds the plaintiff had poor credibility. The evidence showed it was a very minor impact. As far as the damages, she said she could not do the housework or pick up her baby almost a year after the accident when her other baby was born, yet — and that was (8) months after she was discharged by the doctor, yet she was able to get pregnant within two (2) months after the accident and have a child. So the court feels an appropriate amount of general damages to be thousand dollars ($1,000.00).

Manning, who was seventeen at the time of the accident, testified that she and some friends were returning from a basketball game when she was hit from behind, “knocked down the road a little,”'and hit again from the side. She stated that |4the police came and she and her friends were able to drive away and return to the Comfort Inn where they were staying. Manning testified that as she was getting ready to go to bed, she started hurting all of sudden in her back and neck. She stated the pain was severe. She testified that the next morning she went to the hospital and was prescribed Tylenol III, but that she did not get the prescription filled. She stated that once she returned home she went to the emergency room at Willis Knighton where X-rays were performed. She stated that they did not give her any medication, but told her to move around as much as possible.

Manning testified that she next saw Dr. Sarpy, at her attorney’s referral, on March 12, 2003, and continued seeing him twice a week for about three months until her discharge on May 19, 2003. She testified that she was having continued low back pain and that Dr. Sarpy administered heat massage and stimulation treatment. Manning testified that her daily activities were limited in that she could not stand or lay down for a long period of time. Manning stated she was in constant severe pain for the first three or four weeks following the accident. She stated that she did not have any back problems prior to the accident. Manning testified that she was never prescribed any medications other than Tylenol.

Manning testified that she has not returned to see Dr. Sarpy since she was discharged from his care. She further testified that she has two children, one born before the accident and one born following the accident in January 2004.

Pamela Johnson, Manning’s mother, testified that when her daughter returned home the day after the accident she was crying a lot and her neck and back were hurting. Johnson stated that prior to the accident Manning cared for her son, |swho has cerebral palsy, but that after the accident, she mostly took care of him. She further stated that Manning helped around the house, but after the accident she was limited in her activities. Johnson stated that Manning did not visit with friends and was not as outgoing for a period of three to four months following the accident. However, she admitted that Manning got pregnant within one month following the accident. Quinton Johnson, Manning’s father, essentially reiterated his wife’s testimony.

Having reviewed the testimony and medical records submitted into evidence, we cannot say the trial court abused its discretion in awarding Manning $1,000 in general damages. Clearly, the trial court found that Manning lacked credibility, which was a reasonable conclusion based on the evidence. Manning claimed to be in severe constant pain from this very minor accident for a period of four weeks, yet, she was able to engage in sexual relations and become pregnant within one month following the accident. Moreover, the emergency room records are inconsistent with her later claims. We find the trial court’s award in this case, while on the low side, is still appropriate considering that Dr. Sarpy’s own comments could reasonably lead one to conclude that these symptoms were exaggerated or prolonged for litigation purposes.

CONCLUSION

The judgment of the trial court awarding the plaintiff-appellant, Shamoindra Manning, $1,000 in general damages is affirmed. All costs of this appeal are assessed against Manning.

AFFIRMED.

SAUNDERS, J., dissents.

SAUNDERS, J.,

dissents.

|J respectfully dissent. The award of $1000.00 is abusively low and constitutes manifest error.


author: GREMILLION, Judge.

text:
    Marvin W. BUXTON v. IOWA POLICE DEPT.
    No. 2006-1389.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.

      Marcus Zimmerman, Lake Charles, LA, for Plaintiff/Appellant, Marvin W. Buxton.
    Christopher R. Philipp, Lafayette, LA, for Defendant/Appellee, Iowa Police Dept.
    Court composed of JOHN D. SAUNDERS, GLENN B.
    GREMILLION, and J. DAVID PAINTER, Judges.
   GREMILLION, Judge.

hln this contentious workers’ compensation suit, the plaintiff, Marvin Buxton, appeals the judgment of the workers’ compensation judge finding that he failed to rebut the presumption of intoxication provided by La.R.S. 23:1081 and dismissing his claim against his employer, the Iowa Police Department, with prejudice. We reverse, render, and remand.

FACTS

Buxton, a corporal with the Iowa Police Department (Iowa), was involved in a work-related accident on May 7, 2004, when his police unit was struck by a motorcycle as he attempted to block Thompson Street in Iowa. The Lake Charles Police Department had requested assistance from the Iowa Police Department in stopping the driver of the motorcycle, who had refused to pull over for speeding in Lake Charles. The driver evaded the Lake Charles Police by heading east toward Iowa on Highway 90 at speeds in excess of 110 miles per hour. When he reached Iowa, the driver turned south on Thompson Street. Buxton, who was traveling north on Thompson Street, turned his unit to block both lanes of travel. While attempting to pass to the left of Buxton, the driver of the motorcycle hit the front passenger side of the police unit with his bike, causing him to fall into the ditch. Buxton claimed that he hit his head on the door of his unit as he attempted to exit it prior to the impact.

This incident occurred at approximately 2:00 a.m. After the accident, Buxton continued working until his shift ended at 6:00 a.m. At that time, he was told by the Chief of Police, Charles Ipes, to undergo a drug screen. The facts conflict asj^o what occurred next, however, the end result is that the test was never conducted. Bux-ton claimed that he was unable to find an open facility to perform the test. He also said that he was wary of undergoing the drug screen because he was taking his wife's pain medication for an abscessed tooth. Later that morning, he was told by Chief Ipes to go to the Pathology Laboratory in Lake Charles to take the test. However, shortly after arriving there, Buxton and his wife left because he was in a great deal of pain and felt that it would take too long to undergo the test. They returned to Iowa, where Buxton was seen by his family doctor, Dr. Young Bin Kang, who 'diagnosed him as suffering from a left hand contusion, headache, and neck pain. His La.R.S. 23:1208 Medical History Questionnaire states that prior to the accident, he was taking Hydrocodone and Carispro-dol, a muscle relaxer. Buxton has not worked since the accident.

Prior to the accident, Buxton was the custodian of the evidence room at the police station. Afterwards, Chief Ipes turned the job over to Officer Jimmy Hor-ner, who inventoried the evidence room. In doing so, he discovered discrepancies in the evidence located there and that an amount of money was missing. Chief Ipes requested that the Calcasieu Parish Sheriffs Office step in and perform an investigation into the matter. Pursuant to a warrant, a search was made of Buxton’s home, where numerous evidence envelopes were found, along with marijuana, other drugs, and drug paraphernalia. On the advice of his counsel, Buxton resigned from the Iowa Police Department on June 9, 2004. Thereafter, charges were filed against him for malfeasance in office, obstruction of justice, and possession of CDS I: marijuana. Buxton later pled no contest to the charge of malfeasance in office andjjwas sentenced to two years of supervised probation.

Overshadowing all of this is the fact that shortly before this incident, Chief Ipes was reported to the Louisiana State Police for malfeasance in office by Buxton’s brother, Berlin Buxton, the former assistant chief of police, and Captain Robert Lane, the present assistant chief of police. Although it is unclear what part he played, Buxton was involved in this investigation.

Buxton filed a disputed claim for compensation seeking worker’s compensation benefits based on Iowa’s failure to pay him wage benefits or authorize medical treatment. He further stated that he had never refused to take a drug screen after the subject accident. Iowa answered arguing the affirmative defense of intoxication based on Buxton’s failure to undergo the drug screen. Following a hearing on a rule, Iowa was ordered to authorize Bux-ton’s evaluation by Dr. Clark Gunderson.

Following a hearing on the merits, the workers’ compensation judge rendered a judgment finding that Buxton refused to undergo the drug screen and that Iowa was entitled to the presumption of intoxication as provided by La.R.S. 23:1081(7)(b). The workers’ compensation judge further held that Buxton failed to rebut the presumption and dismissed his claims against Iowa with prejudice. This appeal by Buxton followed.

ISSUES

On appeal, Buxton argues that the workers’ compensation judge erred in finding that he refused to undergo the drug screen and that he failed to rebut the presumption of intoxication or that the intoxication did not contribute to the workjrelated4 accident. He further argues that the workers’ compensation judge erred in finding that no work-related accident occurred and that he is not entitled to penalties and attorney’s fees.

INTOXICATION

In his first two assignments of error, Buxton argues that the workers’ compensation judge erred in finding that he refused to undergo the drug screen and that he failed to present sufficient evidence to rebut the presumption of intoxication.

Louisiana Revised Statutes 23:1081(l)(b) provides that an employee may not recover compensation if his injury was caused by intoxication, unless the intoxication was related to the employer’s interests or its provision of intoxicating substances. An employee is presumed to be intoxicated if there is evidence of use of a nonprescribed controlled dangerous substance. La.R.S. 23:1081(5).

An employer also has the right to administer drug testing or demand that the employee submit to a drug test immediately after the accident. La.R.S. 23:1081(7)(a). If the employee refuses to submit to the test, then the employer is entitled to the presumption that the work-related accident arose as a result of the employee’s intoxication. La.R.S. 23:1081(7)(b) and (12). Once the presumption is in place, the burden shifts to the employee to prove by a preponderance of the evidence that the intoxication was not a contributing cause of the accident. La. R.S. 23:1081(12).

It is well settled that the manifest error. — clearly wrong standard applies in an appellate court’s review of the lower court’s factual finding. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733. However, a sufficiency 15of the evidence issue raises a question of law, which the reviewing court resolves by determining if the lower court’s ruling is legally correct. Edwards v. Ford Motor Co., 06-101 (La.App. 3 Cir. 6/21/06), 934 So.2d 221, writ denied, 06-1847 (La.10/27/06), 939 So.2d 1282; Chelette v. Sec. Indus. Ins., 94-815 (La.App. 3 Cir. 12/7/94), 647 So.2d 469. Thus, once we have determined whether the workers’ compensation judge was manifestly erroneous in his factual findings, we must determine whether he was legally correct in finding that Buxton failed to present sufficient evidence to rebut the presumption of intoxication.

Presumption of Intoxication

In his oral reasons, the workers’ compensation judge held that Iowa was entitled to the presumption of intoxication based on a finding that Buxton was using illegal drugs at the time of the accident. Although the workers’ compensation judge addressed the issue of whether Buxton refused to undergo the drug screen, he never specifically held that he did so. However, under either scenario if proven, a presumption would arise in favor of Iowa. As the judgment states that Buxton refused to undergo the test subsequent to the accident and, as the final judgment governs the controversy, we will address whether the workers’ compensation judge erred in finding that he refused to undergo the drug screen. LaRocca v. Bailey, 01-618 (La.App. 3 Cir. 11/7/01), 799 So.2d 1263.

After reviewing the record, we agree with the workers’ compensation judge’s observation that the testimony in this matter was sharply divided based on whose side each witness represented. All of the witnesses employed by Iowa testified strictly in support of Chief Ipes; whereas, Bux-ton’s and his wife’s testimony sharply [^contradicted that presented by Iowa. As a result, the workers’ compensation judge found that all of the witnesses’ credibility suffered to some degree, a finding which is irrefutable.

The record presented two differing views of the evidence. Buxton testified that he never refused to undergo the drug screen although Chief Ipes ordered him to undergo such a test. He stated that he initially did not undergo the test because he and Captain Lane could find no place open at 6:30 a.m. to administer the test. Although he was later given $20 and told to have the test performed at the Pathology Laboratory in Lake Charles, Buxton testified that he did not undergo the test because he was feeling dizzy from the accident and because the place was packed. He stated that he and his wife returned to Iowa, where he was seen by Dr. Kang. Although Iowa was called to verify payment for his treatment, Buxton stated that Dr. Kang was not told to administer the drug screen, even though Chief Ipes knew that he had not yet undergone such a test.

Buxton stated that he was suspicious as to why Chief Ipes requested the test after speaking to Captain Lane, who wondered why Chief Ipes was insistent on Buxton undergoing the drug screen. Buxton testified that he told Captain Lane that he could pass the test, but admitted that he had taken his wife’s pain medication for an abscessed tooth the night before. He stated that he also informed Chief Ipes of this fact. Buxton explained that he was wary of Chief Ipes’ reasons because this incident occurred shortly after the chief was reported to the State Police for malfeasance of office, the investigation in which Buxton was involved. He further testified that other than a pre-employment drug test, he was never required to undergo a drug screen 17following his previous work-related accidents, and he knew of three other officers who were not required to undergo testing following accidents. Buxton admitted that Chief Ipes told him to have a drug screen performed, but denied being told by either Chief Ipes or Captain Lane that he would be terminated from his job if he refused to undergo the test.

Margaret Buxton verified her husband’s testimony that they were given $20 to have the drug screen performed in Lake Charles. She stated that they went to Lake Charles, but left because Buxton was hurting and the place was packed. She stated that she told her husband that if Chief Ipes wanted the drug test performed, he would ask the doctor to perform it. She said that they went back to Iowa, where Buxton was seen by Dr. Kang. She testified that Dr. Kang did not perform a drug test on Buxton.

Chief Ipes testified that he met with Buxton at 6:00 a.m. and told him that he was ordering a drug screen. He said that Buxton told him that he could not undergo such a test because he had taken his wife’s prescription pain medication the night before. He testified that Buxton said that his back was hurting and that he was worried about exposure in the community and what it would do to his family and that he would rather walk away from his job than take the test. Chief Ipes stated that he told Buxton that he needed to take the test in order to save his job. He testified that Buxton returned to the police station later with his wife and reiterated that he was not going to take the drug screen. At that point, he stated that he told Buxton to talk to Captain Lane. Although Buxton took the $20 given to him by the dispatcher, Chief Ipes did not know where they went after they left the station. However, he stated that |sthey later returned, but said that Buxton had not undergone the test. At that point, he said that he told Buxton to go to the doctor.

Chief Ipes denied treating Buxton differently from any other officer employed by Iowa. He stated that it is the written policy of the Town of Iowa that every employee involved in an on-the-job injury undergo a drug screen. He further stated that pursuant to the Larson Act, he was not allowed to terminate Buxton for refusing to undergo the drug screen. Although he is allowed to suspend him without pay, he stated that he did not do so as Buxton was claiming an injury as a result of the incident with the motorcycle. Finally, Chief Ipes stated that he was exonerated in the State Police investigation of the charge of malfeasance in office.

Captain Lane testified that after he went on duty at 6:00 a.m., he heard that Chief Ipes was ordering Buxton to undergo a drug screen. He stated that he met with Buxton and discussed the situation. He said that Buxton told him that he would have a hard time taking the test because he had" taken his wife’s medication. Captain Lane testified that he told Buxton that if he refused to take the test he would probably be fired. After Buxton and his wife returned to the police station at approximately 9:00 a.m., Captain Lane testified that he was told by Chief Ipes that Buxton refused to undergo the drug screen because of .the medication he had taken. He stated that he talked to them and told them that if Buxton refused a direct order, then he would probably be terminated. He said that Buxton complained that he was being singled out because other officers in- the past had not been required to undergo drug screens. However, he stated that the drug screen policy was at the discretion of the chief , of police.

19Berlin Buxton, the former assistant chief of police and Buxton’s brother, testified via deposition. He confirmed that it is the policy of the police department that any time an officer is involved in an accident in which they are at fault, a drug screen is performed. He stated that it is left to the chief of police’s discretion whether an officer is screened.

Sandra Turley, the clerk for the Town of Iowa, testified that Iowa has written drug policies in place which apply to all town employees, including police officers.

Based on the preceding evidence, we find no error in the workers’ compensation judge’s finding that Buxton refused to submit to the drug screen. He was ordered to undergo the test by Chief Ipes and he failed to do so. Accordingly, it was reasonable for the workers’ compensation judge to find that Iowa was entitled to rely on the presumption that the accident occurred as a result of Buxton’s intoxication.

Rebuttal of Presumption

Based on the above finding,' the burden shifted to Buxton to rebut the presumption of intoxication by a preponderance of the evidence. He testified that he started his shift at 6:00 p.m. and that he resumed his duties after the accident occurred and continued working until his shift ended at 6:00 a.m. the next morning. The police log introduced into evidence contains approximately eighty-four contacts between Buxton and the police dispatcher, with seventy-one occurring prior to the subject incident and the remainder occurring either as a result of the incident or subsequent to it.

ImBuxton testified that while executing the road block, he stopped his police unit in the correct position, with escape routes on either side of his unit, a maneuver he would not have been able to perform had he been intoxicated. He further testified that he drove his police unit after his shift ended while he and Captain Lane looked for a place to administer the drug screen. He stated that Captain Lane would have noticed if he was intoxicated and would not have allowed him to drive his police unit. Additionally, he testified that he drove it home, back to the police station, to Lake Charles to the Pathology Laboratory, and then back to Iowa. Buxton testified that at no time was he ever administered a field sobriety test. Buxton’s wife verified that he continued driving his police unit after he completed his work shift.

Tony Ponthieux, an officer with Iowa, testified that he was on patrol on the night of the accident at issue. He testified that Buxton did not act intoxicated at the scene of the accident and later that morning at the police station, he was “[ajcting nonchalant, somewhat in a way of joking and — of the matter at hand.” He stated that Bux-ton was asked for his driver’s license by the Calcasieu Parish Sheriffs Deputy, who was investigating the matter, but he did not have it. From what he observed, Pon-thieux testified that Buxton did not act as though he was intoxicated.

Captain Lane testified that he saw nothing peculiar in Buxton’s manner which would lead him to believe that he was intoxicated. Even Chief Ipes testified that Buxton did not appear to be intoxicated when he spoke to him after 6:00 a.m. the next morning. He further admitted that Buxton continued driving his police unit after he saw him that morning.

In Annette Jordan, an employee of the Iowa Police Department, testified that she was the dispatcher at the time of the accident. She testified that Buxton seemed fine when she talked to him over the radio and that he appeared normal when she saw him later that morning.

In finding that Buxton failed to present sufficient evidence to rebut the presumption, the workers’ compensation judge stated:

However, testimony suggested that after the incident, the behavior of Officer Buxton was, at the least, suspect. Granted, he was not seen falling down or stumbling; but that’s not the criteria for being under the influence. Testimony was that,- among other things, Officer Buxton couldn’t find his driver’s license to present to the investigating officer and his air of nonchalance seemed to be exaggerated and out of place.
The evidence forces the conclusion that Officer Buxton fell short, far short, of showing that his intoxication or impairment was not a contributing cause of the accident.
In short, the argument that Officer Buxton was in fact impaired at the time of the accident because of illegal drug use appears far more plausible than his denial. Let me emphasize that this decision takes into full account the fact that the Chief and his allies have utterly no use for Officer Buxton and haven’t for a long time. I understand that. And the Chiefs credibility is underwhelming, but Officer Buxton’s is more so. The case is dismissed.

After reviewing the foregoing evidence, we find that Bruxton presented sufficient evidence to rebut the presumption of intoxication. Although there is evidence in the record that marijuana, drugs, and drug paraphernalia were found in his home approximately a month after the accident, that has no bearing on whether he was intoxicated at the time of the accident. All of the witnesses, even those hostile to Bux-ton, testified that he appeared normal after the accident. Furthermore, Officers Ponthieux and Jordan testified that there was nothing in his demeanor right after the accident which would lead them to conclude that he was intoxicated. This is borne |12out by the fact that Chief Ipes allowed Buxton to continue driving his police unit after his shift ended and after he refused to undergo the drug screen. Accordingly, we find that the workers’ compensation judge was incorrect in finding that Buxton failed to rebut the presumption of intoxication.

WORK-RELATED ACCIDENT

In his final assignments of error, Buxton argues that the workers’ compensation judge erred in finding that no work-related accident occurred, in denying his disability and entitlement to benefits, and in denying his claim for penalties and attorney’s fees. He further argues that he is entitled to additional attorney’s fees for work performed pursuant to this appeal.

The hearing officer did not address any of the issues stated above based on his finding that Buxton failed to rebut the presumption of intoxication. However, as we find the record before us is insufficient for us to make a determination on these issues, we remand the matter to the workers’ compensation judge for further proceedings. We award Buxton $3000 in attorney’s fees for work performed on appeal.

CONCLUSION

Based on the foregoing, the judgment of the workers’ compensation judge is reversed and judgment is rendered finding that Buxton rebutted the presumption of intoxication. The matter is remanded to the Office of Workers’ Compensation for further proceedings. We further award Buxton $3000 in attorney’s fees for work performed on appeal. The costs of this appeal are assessed to the defendant-ap-pellee, Iowa Police Department.

REVERSED, RENDERED, AND REMANDED.


author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana DEPARTMENT OF SOCIAL SERVICES, Kristi Hemand v. Kyle REUTHER.
    No. 06-CA-842.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2007.
    Rehearing Denied April 10, 2007.

      Paul D. Connick, Jr. District Attorney, Joseph R. McMahon, Jr., John D. Fitzmor-ris, Jr., Assistant District Attorneys, Harvey, Louisiana, Laura Jean Todaro, Neil D.W. Montgomery, Attorneys at Law, Kenner, Louisiana, for Plaintiff/Appellee.
    Bennett Wolff, Hayley Harmon, Attorneys at Law, Metairie, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

|aIn this child support enforcement case, Kyle Reuther appeals from a judgment of the trial court increasing the amount of his child support obligation. For the reasons stated more fully herein, we vacate the judgment of the trial court and remand the case for further proceedings.

Factual and Procedural History

Kyle Reuther, the biological father of the minor child, Taylor Michael Hastings, and Kristi Hastings, the child’s biological mother, entered into a consent judgment in April of 2000 whereby the parties agreed to a joint custody arrangement with a specified visitation schedule. In this judgment, Mr. Reuther was ordered to pay child support for the minor child in the amount of $380.00 per month. Mr. Reuther failed to make timely payments pursuant to this order, and Ms. Hastings subsequently applied for enforcement services with the State of Louisiana. On November 19, 2004, | Ahe case was transferred to Juvenile Court, and on March 14, 2005, the hearing officer entered a recommendation to adopt the previous child support order in addition to 5% in court costs.

Mr. Reuther agreed with this recommendation, and it became an order of the court on March 14, 2005. However, Mr. Reuther subsequently filed a rule to reduce child support. A hearing was held on June 2, 2005, wherein both parties agreed that the minor child was living with the maternal grandmother at the time. Accordingly, the hearing officer recommended that ongoing support be suspended to allow the grandmother to apply for support services. The State of Louisiana, on behalf of Ms. Hastings as recipient, filed a notice of disagreement and request for hearing.

On June 22, 2006, the State filed a motion to reinstate child support. A hearing on this motion was held by the hearing officer on July 20, 2006. The hearing officer recommended reinstatement of child support in the amount of $810.85, plus 5% court costs per month. This support amount included payment of private school tuition. Mr. Reuther noticed his disagreement with this recommendation and the matter was heard in Juvenile Court on August 14, 2006.

On this date, both Mr. Reuther and Ms. Hastings testified regarding the issue of child support. Further, the record indicates that a copy of a letter from Blue Cross/Blue Shield of Louisiana indicating an increase in health insurance premiums for the minor child Taylor Hastings was accepted as evidence by the court. Following the hearing, the court affirmed the hearing officer’s ruling dated July 20, 2006. No reasons for judgment were provided. Mr. Reuther now appeals from this judgment.

\4Piscussion

By this appeal, Mr. Reuther contends that the trial court erred by adopting the hearing officer’s recommendation where there was insufficient evidence in the record to support the granting of such an award. Mr. Reuther also contends that the trial court erred in ordering him to pay for the child’s private school tuition.

The State filed a reply brief arguing that the trial court was not manifestly erroneous in its child support determination. Attached to this brief were eleven exhibits which the State argued supported the trial court’s award. Kristi Hastings also filed a reply brief arguing that the trial court’s award was based on sufficient evidence, and similar documentation was also attached to this brief.

Thereafter, the State filed a motion to supplement the record with documentation which was contained in the trial court record as stated in an affidavit of the deputy clerk of Juvenile Court. This court ordered the Clerk of Juvenile Court to supplement the appellate court record with the record compiled in Juvenile Court. On February 28, 2007, the Juvenile Court supplemented the appellate court record with the entire Juvenile Court record in this matter. We therefore address the merits of this appeal as follows:

A trial judge determines the basic child support obligations pursuant to La. R.S. 9:315.2, which provides:

lfiA. Each party shall provide to the court a verified income statement showing gross income and adjusted gross income, together with documentation of current and past earnings. Suitable documentation of current earnings shall include but not be limited to pay stubs, employer statements, or receipts and expenses if self-employed. The documentation shall include a copy of the party’s most recent federal tax return. A copy of the statement and documentation shall be provided to the other party.
B. If a party is voluntarily unemployed or underemployed, his or her gross income shall be determined as set forth in R.S. 9:315.9.
C. The parties shall combine the amounts of their adjusted gross incomes. Each party shall then determine by percentage his or her proportionate share of the combined amount. The amount obtained for each party is his or her percentage share of the combined adjusted gross income.
D. The court shall determine the basic child support obligation amount from the schedule in R.S. 9:315.14 by using the combined adjusted gross income of the parties and the number of children involved in the proceeding.
E. After the basic child support obligation has been established, the total child support obligation shall be determined as hereinafter provided in this Part.

The standard of appellate review of factual findings in a civil action is a two-part test: (1) the appellate court must find from the record there is a reasonable factual basis for the finding of the fact finder, and (2) the appellate court must further determine the record establishes the finding is not clearly wrong (manifestly .erroneous). State, Dept. of Social Services, ex rel. Clark v. Ruiz, 04-1064 (La.App. 5 Cir. 2/15/05), 898 So.2d 514, 518, citing, Mart v. Hill, 505 So.2d 1120,1127 (La.1987).

In cases where the record contains inadequate information and documentation upon which to make a child support determination under the | ^guidelines, a remand to the trial court is necessary. Inzinna v. Acosta, 623 So.2d 1357, 1359 (La. App. 5 Cir.1993). If there is sufficient evidence in the record to render a decision in the case, remand is unnecessary even if some of the required documentation is lacking. State on Behalf of Taylor v. Thomas, 93-1039 (La.App. 5, Cir. 6/28/94), 639 So.2d 837, 839. See also, State, Dept. of Social Services ex rel Clark v. Ruiz, 04-1064 (La.App. 5 Cir. 2/15/05), 898 So.2d 514, 519.

After review of the record in this case, including a review of the entire Juvenile Court record which was received as a supplement, we have determined that it fails to contain sufficient documentation pertaining to income of the parties as mandated by La. R.S. 9:315.2. The Juvenile Court record contains a child support information sheet which was prepared by Kyle Reuther on July 20, 2006 indicating he earned $13.00 an hour as an installer. The record contains a second information sheet prepared by .Mr. Reuther on August 14, 2006, the date of trial, indicating he earned $11.00 an hour as a truck driver, a position he had held for one week. The two sheets prepared by Ms. Hastings indicated she was unemployed on July 20, 2006 and August 14, 2006.

The record also contains several LASES obligation worksheets which were apparently used by the hearing officer to calculate the parties child support obligation. The worksheet. relied upon by the trial court in affirming the hearing officer’s recommendation sets Mr. Reuther’s monthly gross income at $3100.00 based on an hourly wage of $15.00, and sets his child support obligation at $810.85. However, the hourly wage listed on this sheet was manually changed to $13.00 and it does not appear that the monthly income was adjusted accordingly. Further, although this worksheet stated |7that Catholic school tuition was denied, the transcript of the hearing in the trial court indicates that this tuition was included in the ultimate award.

In addition to the discrepancies in the record listed above, the record fails to contain any documentation of current and past earnings such as pay stubs or employer statements. Also absent are federal income tax statements as mandated by La. R.S. 9:315.2. Further, there is no supporting documentation on the actual cost of the Catholic School tuition included in the award. In fact, the only exhibit contained in the record before us is a copy of a letter from Blue Cross/Blue Shield indicating an increase in the child’s health insurance premiums. While the proper documentation may have been provided to the individual who determined the amount of support, there is nothing contained in the appellate court record which enables us to determine the propriety of the amount of child support awarded. See, State v. Fri-sará, 96-368 (La.App. 5 Cir. 4/29/97), 694 So.2d 1032,1041.

Although appellee also argues that the testimony of the parties in the record regarding their current income and the general amount of school tuition is sufficient to support the present award, we disagree. Mr. Reuther gave scant information as to his hourly wage, and the record lacks a clear statement of Mr. Reuther’s current or past income. Further, Mr. Reuther in his testimony only estimated what he believed to be the private school tuition in this case. Based on our review of the record before us, we fail to find sufficient documentation to support the child support award rendered in this case. See, State, Dept. of Social Services ex rel Clark v. Ruiz, 04-1064 (LaApp. 5 Cir. 2/15/05), 898 So.2d 514, 519; Barrios v. Barrios, 95,1390 (LaApp. 1 Cir. 2/23/96), 694 So.2d 290, 293, writ denied,, 960743 (La.|5/3/96), 672 So.2d 691; Inzinna v. Acosta, 623 So.2d 1357, 1359 (LaApp. 5 Cir.1993); Mannina v. Mannina, 588 So.2d 176 (LaApp. 5 Cir.1991).

Accordingly, based on our finding herein regarding the lack of documentation and evidence in the record supporting the child support award, we are unable to apply the guidelines set forth by La. R.S. 9:315.2 to determine if there is a reasonable factual basis for the trial court’s judgment. Under these circumstances, it is necessary to vacate the judgment increasing Mr. Reuther’s child support obligation. We remand the matter for the recalculation of the support obligation in accordance with the provisions of La. R.S. 9:315.2.

VACATED AND REMANDED.

      . Mr. Reuther filed a Motion to Strike these exhibits based on the fact that the exhibits were not introduced at trial. However, by order of this Court dated February 26, 2007, the record herein has been supplemented with the entire Juvenile Court record, and we find that this motion has been rendered moot.

      . In response to this brief, Mr. Reuther filed in this Court an Exception of No Right of Action, asserting that Ms. Hastings had no standing to file an appellate brief in this Court as she had assigned to the State of Louisiana her entire right, title and interest in obtaining child support pursuant to La. R.S. 46:236.1.5. Based on our holding herein vacating the award, we pretermit a discussion of this exception. Mr. Reuther may raise this exception in the trial court on remand.


author: GRAVES, Justice, for the Court. CARLSON, Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Bruce ROBERTS.
    No. 2006-JP-01016-SCT.
    Supreme Court of Mississippi.
    March 29, 2007.

      Luther T. Brantley, III, attorney for appellant.
    Bruce Roberts, appellee, pro se.
   GRAVES, Justice, for the Court.

¶ 1. The Mississippi Commission on Judicial Performance (Commission) recommended that Harrison County Justice Court Judge Bruce Roberts be publicly reprimanded, suspended for thirty (30) days without pay, fined $1,500 and assessed costs of $100 for judicial misconduct. Judge Roberts does not deny the misconduct alleged by the Commission, but asks this Court to consider mitigating evidence and, at most, to adopt the Commission’s recommendations. Finding that Judge Roberts did engage in misconduct, this Court adopts the Commission’s recommendation and orders that Judge Roberts be publicly reprimanded, suspended for thirty (30) days without pay, fined $1,500 and assessed costs of $100.

FACTS

¶ 2. As the facts are not in dispute, the following are quoted from the Commission’s Findings of Fact, Conclusions of Law and Recommendation:

On or about October 7, 2002, Mr. Dennis M. Klubnik filed simple assault-domestic violence charges against his ex-wife, Jodi Klubnik, at the Harrison County Justice Court, Cause No. GT056/1453. The matter was set for trial on July 16, 2004 before Respondent. Ms. Klubnik plead [sic] guilty to the charges and was fined $500.00, which was suspended, and assessed costs of court. After the plea was accepted by Respondent, he voiced his opinion in open court that it was ridiculous that Mr. Klubnik had filed the charges against the ex-wife and that the domestic violence statutes were designed to protect women.
On January 15, 2004, Jodi Klubnik filed charges against Dennis Klubnik for trespassing, Cause No. GT058/131, Harrison County Justice Court. Klubnik was arrested on that date. A trial was scheduled for September 13, 2004. At trial, Respondent remanded the charges to the file for a period of two (2) years. Respondent did not allow Klubnik to present any evidence and threatened to incarcerate him for six (6) months if he appeared before him again within the next two (2) years.
On or about September 20, 2004, John Wesley Cole was arrested in Gulfport, Mississippi on the charge of murder, State of Mississippi v. John Wesley Cole, Cause No. GF065/0136, Harrison County Justice Court. Respondent, after speaking with law enforcement personnel, set Cole’s bond at $250,000.00 and Cole bonded out of jail the next day.
On Wednesday, September 22, 2004, an article appeared in the Sun Herald newspaper, stating that Cole had been released on bond and that the victim’s family was disappointed and felt the bond amount was insufficient. Later that day, Respondent, without notice, affidavit or additional information, issued an Alias Warrant ordering Harrison County law enforcement officials to immediately re-arrest Cole. Simultaneously therewith, Respondent issued an Order for Preliminary Hearing setting aside the previous bond of $250,000.00 and ordering Cole held without bond pending a preliminary hearing. As a result, Cole was re-arrested and held without bond.
On Friday, September 24, 2004, Respondent was quoted in an article published by the Sun Herald [sic] and stated that “The bond I set originally was based on information available to me at the time I was approached by police officers. Upon review of additional information, I issued ah alias warrant, or a secondary or additional warrant, that he be re-arrested and be held without bond pending a preliminary hearing on this matter.” Coles [sic] petitioned the Circuit Court for his release on the previous bond amount and was released following a hearing on September 30, 2004.
On October 13, 2003, Travis L. Page, Jr. was arrested by the Harrison County Sheriffs Department on charges of Driving Under the Influence-2nd offense, Driving Under Suspension and Improper Lane Usage, Cause Nos. GT113/0516-0518, State of Mississippi v. Travis L. Page, Jr., Harrison County Justice Court.
A trial on the above charges was scheduled for March 9, 2004 before Respondent. Page entered a guilty plea to Driving Under the Influence-2nd offense and Driving Under Suspension. The prosecution nolle prosequied the charge of Improper Lane Usage. Respondent sentenced Page to six (6) months on each of the charges to which he plead [sic] guilty, but suspended all but seven (7) days of the sentence which were to be served on the weekends, plus fines and costs of court. On March 12, 2004, the first weekend Page was to report to serve his time, Page arrived at the jail allegedly smelling of alcohol. The deputy at the jail called Respondent who revoked Page’s weekend sentence and ordered the jailer to hold Page with no bond pending an initial appearance. The deputies subsequently filed an affidavit against Page charging him with Public Drunk and Disorderly Conduct. See State of Mississippi v. Travis L. Page, Jr., Cause Nos. 058/395 and 396, Harrison County Justice Court.
On March 24, 2004, Page appeared before Respondent for a revocation hearing though no affidavit or petition for revocation had been filed with the Court. Counsel for Page objected to going forward with the revocation hearing without any filings in place and proper notice to Page. At the insistence of Page’s counsel, Respondent released Page on that date, after spending twelve (12) days in jail with no bond.
In August, 2004, Page again appeared before Respondent for a hearing on the revocation of probation. Still no affidavit or Petition to Revoke had been served on Page. Counsel for Page requested that Respondent recuse himself from the case due to a conflict of interest. Respondent agreed to recuse himself from the case and Judge Louise D. Ladner was asked to hear the matter.
On September 22, 2004, Page was scheduled to appear before the Court on the charges of Public Drunk and Disorderly Conduct and other misdemeanors. Upon arrival, Page was served with a Petition to Revoke filed that date. Over the objections of Page’s attorney, citing Respondent’s previous recusal, Respondent informed Page that he would hear the revocation matter. Counsel for Page again asked Respondent to recuse himself due to statements made by Respondent prior to the hearing that he wanted to give Page significant jail time. Respondent refused to recuse and went forward with the hearing.
Respondent, at the start of the revocation hearing,- admitted that he had previously recused himself from the Public Drunk and Disorderly Conduct cases against Page, but since the affiant on those charges was not present at the hearing, he dismissed the Public Drunk and Disorderly Conduct charges on his own motion. The hearing on the revocation continued over objections of counsel due to the recusal issues and lack of proper notice since Page had been served with the Petition for Revocation just that' morning. At the conclusion of the hearing, Respondent found that Page had violated his probation and sentenced him to 90 days on Driving Under the Influence-2nd offense and 90 days on the Driving Under Suspension charge, the sentences to run concurrent.
On or about April 8,- 2004, Levi Pace Corr Stanley was arrested by the Harrison .County Sheriffs Department on charges of Careless Driving and Driving Under the Influence-lst offense, State of Mississippi v. Levi Pace Corr Stanley, Cause Nos. GT120/190 and 191. On March 1, 2005, Respondent held a trial on the charges and as a result found Stanley not guilty of the Driving Under the Influence-lst offense charge and guilty of Careless Driving. In addition, Respondent, without legal authority to do so, ordered Stanley not to drive a vehicle in Harrison County, Mississippi for a period of two (2) years.
On or about September 4, 2004, Sarah J. Ivy was issued a citation in Harrison County, Mississippi, for speeding, State of Mississippi v. Sarah Ivy, Cause No. GT126/0811. On November 1, 2004, Jim Davis, an attorney, mailed a letter to the Justice Court Clerk of Harrison County, Mississippi, advising the court of his representation of Ms. Ivy and requesting a plea of not guilty be entered on her behalf and that a trial date be set in the matter. The letter was placed in the court file.
Having heard nothing regarding a trial date, Davis’ office personnel faxed a copy of the November 1, 2004, letter to Rachel at the Harrison County Justice Court on February 1, 2005 and again requested a trial date. Again, having received no response, Davis faxed and mailed a letter to the Justice Court Clerk of Harrison County on February 7, 2005, advising of his representation of Ms. Ivy and requesting a court date. Davis enclosed a copy of the November 1, 2004 letter. The February 7, 2005 letter was placed in the court file.
On February 7, 2005, Davis received a telephone call from a fellow attorney advising him that the Ivy case had been called for trial in the Justice Court of Harrison County by Respondent. Neither Davis nor his client, Ms. Ivy, responded and she was tried in absentia, found guilty of speeding and fined $100.00 plus court costs. In addition, Respondent issued a bench warrant for the arrest of Davis for contempt of court. Davis immediately appeared before Respondent and advised he had not been advised of the court date and should not be arrested on the bench warrant. While he was appearing before Respondent, a law enforcement official arrived at Davis’ office to arrest him on the bench warrant. Respondent, upon reviewing the file, determined that Davis did not have notice to appear and cancelled the warrant.
On or about February 4, 2005, Calvin Taylor, an attorney in Pascagoula, Mississippi called the Justice Court of Harrison, Mississippi and requested, on behalf of his client, Mr. Kempson, a continuance of a matter set for February 7, 2005, State of Mississippi v. Kevin Kempson, Cause No. GT 057/1058. An Order of Continuance was prepared by Taylor and forwarded to the Respondent for his signature.
On February 7, 2005 at approximately 11:30 a.m. Respondent called Taylor’s law office, spoke with Taylor’s office personnel, and angrily demanded that Taylor appear before him at 1:00 p.m. Respondent stated that the failure of Taylor to appear would result in a bench warrant being issued for his arrest. Taylor, upon learning of the threat, authored a letter to Respondent .advising him of the law regarding the issuance of arrest warrants and explaining civil remedies to Taylor in the event Respondent had him arrested illegally. Though a warrant was issued, it was never served on Taylor.
On or about October 27, 2004, Leon A. Hamilton appeared before Respondent to enter a plea of not guilty to charges of No Driver’s License and No Proof of Insurance, State of Mississippi v. Leon Hamilton, Cause Nos. GT125/764 & 765, Harrison County Justice Court. It was brought to the attention of Respondent that Hamilton had some outstanding fines levied by the Court on September 2, 1987 for Improper Driver’s License, No Motor Vehicle Inspection and Expired Tag. Respondent, without proper motion of the prosecutor or defendant, and without authority to do so, dismissed the 1987 cases, as stale cases, thereby failing to collect fines or assessments due Harrison County. Also, Respondent improperly set aside the orders of another judge without notice or hearing.
On or about March 7, 2005, Michael S. Stepp was issued a citation by the Harrison County Sheriffs Department for Driving with a Suspended License, Harrison County Justice Court No. GT131/252. On April 13, 2005, Stepp appeared before Defendant to enter a plea. Respondent, without the prosecutor or affiant present, with no proper motion pending before him, and without
legal authority to do so, amended the charge to No Driver’s License and accepted a guilty plea from Stepp.

¶ 3. The Commission asserts that Roberts is in violation of Canons 1, 2 A, 2 B, 3 B(l), 3 B(2), 3 B(4), 3 B(5), 3 B(7), 3 B(8), 3 B(9), 3 C(l) and 3 E of the Code of Judicial Conduct. Further, the Commission asserts that Roberts’ conduct constitutes willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute, pursuant to Section 177A of the Mississippi Constitution, as amended.

DISCUSSION

¶ 4. The standard of review for judicial misconduct is de novo. Miss. Comm’n on Judicial Performance v. Gunn, 614 So.2d 387, 389 (Miss.1993). While this Court gives “great deference” to the Commission’s findings, we are obligated to make an independent inquiry. Miss. Comm’n on Judicial Performance v. Peyton, 555 So.2d 1036, 1038 (Miss.1990).

I. WHETHER THE CONDUCT OF THE RESPONDENT, JUSTICE COURT JUDGE BRUCE ROBERTS, CONSTITUTED WILLFUL MISCONDUCT IN OFFICE AND CONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE WHICH BROUGHT THE JUDICIAL OFFICE INTO DISREPUTE, PURSUANT TO SECTION 177A OF THE MISSISSIPPI CONSTITUTION OF 1890, AS AMENDED.

¶ 5. The Commission found by clear and convincing evidence that Judge Roberts’ conduct violated Canons 1, 2 A, 2 B, 3 B(l), 3 B(2), 3 B(4), 3 B(5), 3 B(7), 3 B(8), 3 B(9), 3 C(l) and 3 E of the Code of Judicial Conduct. Further, the Commission found by clear and convincing evidence that Judge Roberts engaged in willful misconduct and conduct prejudicial to the administration of justice which brings the judicial office into disrepute in violation of the provisions of the Mississippi Constitution. This Court has held:

Willful misconduct in office is the improper or wrongful use of power of his office by a judge acting intentionally or with gross unconcern for his conduct and generally in bad faith. It involves more than an error of judgment or a mere lack of diligence. Necessarily, the term would encompass conduct involving moral turpitude, dishonesty, or corruption, and also any knowing misuse of the office, whatever the motive.... Willful misconduct in office of necessity is conduct prejudicial to the administration of justice that brings the judicial office into disrepute. However, a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute.

Miss. Comm’n on Judicial Performance v. Carr, 786 So.2d 1055, 1058-59 (Miss.2001).

¶ 6. Judge Roberts has agreed to the Commission’s recommendation and has joined the Commission’s motion for approval of recommendations. Further, Judge Roberts acknowledges that he engaged in the conduct in violation of the Code of Judicial Conduct. As there is no dispute of relevant facts and because Judge Roberts admits that his actions were in violation of the judicial canons, we must determine the appropriate sanctions.

II. WHETHER PUBLIC REPRIMAND, SUSPENSION FROM OFFICE AND ASSESSMENT OF COSTS ARE APPROPRIATE SANCTIONS.

¶ 7. Judge Roberts is accused of violating Canons 1, 2 A, 2 B, 3 B(l), 3 B(2), 3 B(4), 3 B(5), 3 B(7), 3 B(8), 3 B(9), 3 C(l) and 3 E of the Code of Judicial Conduct. Canon 1 requires that a judge “shall uphold the integrity and independence of the judiciary.” The other canons state, in relevant part:

CANON 2

A judge shall avoid impropriety and the appearance of impropriety in all activities.

A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
B. Judges shall not allow their family, social, or other relationships to influence the judges’ judicial conduct or judgment. Judges shall not lend the prestige of their offices to advance the private interests of the judges or others; nor shall judges convey or permit others to convey the impression that they are in a special position to influence the judges. Judges shall not testify voluntarily as character witnesses.

CANON 3

A judge shall perform the duties of judicial office impartially and diligently.

A. Judicial Duties in General. The judicial duties of judges take precedence over all their other activities. The judges’ judicial duties include all the duties of their office prescribed by law. In the performance of these duties, the following standards apply.
B. Adjudicative Responsibilities.
(1) A judge shall hear and decide all assigned matters within the judge’s jurisdiction except those in which disqualification is required.
(2) A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.
(3) A judge shall require order and decorum in proceedings before the judge.
(4) Judges shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom they deal in their official capacities, and shall require similar conduct of lawyers, and of their staffs, court officials, and others subject to their direction and control.
(5) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not permit staff, court officials and others subject to the judge’s direction and control to do so. A judge shall refrain from speech, gestures or other conduct that could reasonably be perceived as sexual harassment and shall require the same standard of conduct of others subject to the judge’s direction and control.
(6) A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status, against parties, witnesses, counsel or others. This Section 3 B(6) does not preclude legitimate advocacy when race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status, or other similar factors, are issues in the proceedings.
(7)A judge shall accord to all who are legally interested in a proceeding, or their lawyers, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:
(a) where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized: provided:
(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and
(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.
(b) Judges may obtain the advice of a disinterested expert on the law applicable to a proceeding before them if the judges give notice to the parties of the person consulted and the substance of the advice, and afford the parties reasonable opportunity to respond.
(c) A judge may consult with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities or with other judges.
(d) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.
(e) A judge may initiate or consider any ex parte communications when expressly authorized by law to do so.
(8) A judge shall dispose of all judicial matters promptly, efficiently and fairly.
(9) A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing. The judge shall require similar abstention on the part of court personnel subject to the judge’s direction and control. This Section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. This Section does not apply to proceedings in which the judge is a litigant in a personal capacity.
C. Administrative Responsibilities.
(1)A judge shall diligently discharge the judge’s administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and shall cooperate with other judges and court officials in the administration of court business.
E. Disqualification.
(1) Judges should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law, including but not limited to instances where:
(a)the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentia-ry facts concerning the proceeding;
(b) the judge served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(c) the judge knows that the judge, individually or as a fiduciary, or the judge’s spouse or member of the judge’s family residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be. substantially affected by the outcome of the proceeding;
(d) the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) is to the judge’s knowledge likely to be a material witness in the proceeding;
(2)Recusal of Judges from Lawsuits Involving Major Donors. A party may file a motion to recuse a judge based on the fact that an opposing party or counsel of record for that party is a major donor to the election campaign of such judge. Such motions will be filed, considered and subject to appellate review as provided for other motions for recusal.

In determining appropriate sanctions, this Court applies the following test:

(1) The length and character of the judge’s public service; (2) Whether there is any prior case law on point; (3) The magnitude of the offense and the harm suffered; (4) Whether the misconduct is an isolated incident or evidences a pattern of conduct; (5) Whether moral turpitude was involved; and (6) The presence or absence of mitigating or aggravating circumstances.

Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004).

¶ 8. First, Judge Roberts is serving his first term as a Justice Court Judge and has no previous formal complaints filed against him. Second, there is prior case law on point. See Miss. Comm’n on Judicial Performance v. McPhail, 874 So.2d 441 (Miss.2004). Third, Roberts violated various judicial canons numerous times. Fourth, Roberts had multiple complaints filed against him, but no formal complaints previously filed by the Commission. Fifth, the Commission admits, and we agree, that moral turpitude was not involved. Sixth, the Commission concedes that Roberts did not gain personally or financially from his actions and that Roberts has no previous record of judicial misconduct with the Commission.

¶ 9. The concurring opinion asserts that Judge Roberts’ conduct did involve moral turpitude and cites Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155 (Miss.2004), and Miss. Comm’n on Judicial Performance v. Sanford, 941 So.2d 209 (Miss.2006). In Gibson, this Court quoted the willful misconduct language and found that Judge Gibson’s “actions constituted willful misconduct prejudicial to the administration of justice which brought the judicial office into disrepute. ...” Id. at 1157. This Court stated in a footnote that “[mjoral turpitude includes, but is not limited to, actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute.” Id. at 1158, n. 2. However, this Court found that “there was no moral turpitude involved” where Judge Gibson dismissed fines and/or tickets and set aside a judgment of another judge. Based on Gibson, this Court did not deviate from the quoted language above which clearly indicates willful misconduct can, but does not always, include moral turpitude.

¶ 10. In Sanford, this Court found that the conduct involved moral turpitude, as quoted in the concurring opinion. However, this Court did so by weighing the morality of the actions and finding that the “case involves some of the basic tenets of daily living in a civil society....” Sanford, 941 So.2d at 217. Additionally, as the concurring opinion points out, Judge Sanford’s conduct was more egregious than Judge Roberts’ conduct. Therefore, even Sanford does not support a finding of moral turpitude in this case.

¶ 11. As stated previously, this Court has said that moral turpitude can include, but is not limited to, actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute. These are merely guidelines for actions that may involve moral turpitude. Based on the clearly established precedent and the actual definition of moral turpitude, an action must involve some immorality to rise to the level of moral turpitude. Further, actions involving interference with the administration of justice or which bring the judiciary into disrepute do not necessarily include moral turpitude. If they did, then this Court would have to make a finding of moral turpitude every time it found that a judge should be reprimanded.

¶ 12. Judge Roberts’ actions involved procedural matters and ignorance of the law. There are no allegations that Judge Roberts attempted to fix a ticket or to improperly influence the outcome of a Driving Under the Influence (DUI) charge. Likewise, there are no allegations that Judge Roberts engaged in any deceitful, corrupt, or in any other way immoral activity. It is impossible to reconcile actions involving procedural matters and/or ignorance of the law with fraud, deceit, corruption, etc. This Court has consistently found that actions involving procedural matters and/or ignorance of the law do not necessarily rise to the level of moral turpitude. See Miss. Comm’n on Judicial Performance v. Justice Court Judge T.T., 922 So.2d 781, 786 (Miss.2006). See also Gibson, 883 So.2d 1155.

¶ 13. Therefore, we find that Judge Roberts’ conduct did not involve moral turpitude.

CONCLUSION

¶ 14. Based on Judge Roberts’ misconduct and his agreement with the Commission’s recommendation, we find that Judge Roberts should be publicly reprimanded, suspended for thirty (30) days without pay, fined $1,500 and assessed costs of $100 for judicial misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute.

¶ 15. JUDGE BRUCE ROBERTS, JUSTICE COURT JUDGE FOR HARRISON COUNTY, SHALL BE PUBLICLY REPRIMANDED, SUSPENDED FOR THIRTY (30) DAYS WITHOUT PAY, FINED $1,500 AND ASSESSED COSTS OF $100.

SMITH, C.J., EASLEY AND DICKINSON, JJ., CONCUR. WALLER, P.J., CONCUR IN PART AND IN RESULT. COBB, P.J., CONCURS IN RESULT ONLY. CARLSON, J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY WALLER AND COBB, P.JJ., AND RANDOLPH, J. DIAZ, J., NOT PARTICIPATING.

CARLSON, Justice,

Concurring in Part and in Result:

¶ 16. While I join my colleagues in the plurality in finding that Judge Roberts should be publicly reprimanded, suspended from his judicial office for thirty days without pay, and assessed a fine and costs, I write separately to address the plurality’s treatment of one of the Gibson factors. Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004). That factor is moral turpitude.

¶ 17. In Gibson, we modified the factors which had been espoused in In Re Baker, 535 So.2d 47, 54 (Miss.1988). The factors which we now follow in making the determination of the appropriate sanctions in all judicial misconduct cases are: “(1) The length and character of the judge’s public service;' (2) Whether there is any prior case law on point; (3) The magnitude of the offense’ and the harm suffered; (4) Whether the misconduct is ah isolated incident or evidences a pattern of conduct; (5) Whether moral turpitude was involved; and (6) The presence or absence of mitigating or aggravating circumstances.” Gibson, 883 So.2d at 1158.

¶ 18. In a footnote, we stated in Gibson that “[mjoral turpitude includes, but is not limited to, actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute.” Id. at 1158, n. 2. However, in today’s case, we have found that Judge Roberts’s actions did not involve moral turpitude. On this point, we simply state, “[fjifth, the Commission admits, and we agree, that moral turpitude was-not involved.”

¶ 19. However, in the recent case of Miss. Comm’n on Judicial Performance v. Sanford, 941 So.2d 209, 216-17 (Miss.2006), we revisited our treatment of moral turpitude, and stated:

¶ 15. Fifth, admittedly contrary to our holding in Blakeney If where we summarily found that “[tjhere were no allegations that Judge Blakene/s violations involved moral turpitude,” 848 So.2d at 827, we are convinced, upon reflection, that such action by a judge does indeed involve moral turpitude. After all, we have previously stated that “[mjoral turpitude includes, but is not limited to, actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute.” Gibson, 883 So.2d at 1158. We now find that, contrary to the assertions of the Commission and Judge Sanford that there is no evidence of moral turpitude in this case, today’s facts, which are not only undisputed, but agreed upon by both the Commission and Judge Sanford, clearly and convincingly prove that Judge Sanford’s actions involved moral turpitude. We feel compelled to ask this question: If a judge’s clandestinely approaching the chief law enforcement official of the county to have that officer in turn approach the arresting officer in a DUI case and request (or conceivably demand) on the part of the judge that the arresting officer simply fail to appear for court so that the DUI case can be dismissed for lack of prosecution, are not actions representative of conduct exhibiting at the very least fraud, deceit, extortion and interference with the administration of justice, thus bringing the judicial office and the judiciary in general into disrepute, what judicial misconduct is required before a judge has committed an act of judicial misconduct involving moral turpitude? After all, this case is not about a judge’s conduct because of a judge’s lack of judicial education or training. This case involves some of the basic tenets of daily living in a civil society, such as living by standards of fundamental decency and honesty by not abusing the judicial process, and by revering the law and the judicial system, and upholding the dignity and respect of the judiciary through appropriate conduct and behavior toward others. Judge Sanford’s actions are clearly indicative of judicial misconduct exhibiting moral turpitude.

Id. at 216-17.

¶ 20. In today’s case, Judge Roberts committed such acts as (1) prohibiting a defendant from defending himself in a trespassing charge filed by his ex-wife and threatening the defendant with incarceration if he appeared before him again within the next two years thereafter; (2) acting sua sponte (in reacting to media coverage) by issuing a warrant to re-arrest a criminal defendant who had posted a bond which had previously been set by Judge Roberts; (3) attempting sua sponte to revoke a defendant’s probation without the filing of any written petition or affidavit, refusing to recuse himself from the proceedings, and revoking the defendant’s probation over the continuous objections of the defendant’s attorney that Judge Roberts was acting without authority; (4) ordering a DUI-lst offense defendant not to drive a vehicle in Harrison County for two years after finding the defendant not guilty of DUI; (5) issuing arrest warrants without just cause on two separate occasions, to have attorneys jailed; (6) dismissing cases without notice, resulting in previously assessed fines and other assessments going uncollected; (7) setting aside the orders of another judge, without notice; and, (8) amending charges, without authority, against a defendant, without the affiant or the prosecutor being present.

¶ 21. Therefore, similar to the question we asked in Sanford, I would ask today that if Judge Roberts’s actions, as I have outlined in the above paragraph, do not involve moral turpitude by interfering with the administration of justice, “what judicial misconduct is required before a judge has committed an act of judicial misconduct involving moral turpitude?”

¶22. For these reasons, I am constrained to write separately and state that this case against Judge Roberts does in fact involve moral turpitude, and, consistent with Sanford, we should say so. With this having been said, I concur in our decision today that Judge Roberts be publicly reprimanded, suspended without pay for thirty days, and assessed with a fine and costs, all because his actions clearly reveal that he is guilty of judicial misconduct in office and conduct prejudicial to the administration of justice, which brings his judicial office into disrepute.

WALLER AND COBB, P.JJ., AND RANDOLPH, J., JOIN THIS OPINION.

      . Miss. Comm’n on Judicial Performance v. Blakeney, 848 So.2d 824 (Miss.2003).