author: CANADY, Judge.

text:
    METRO DEVELOPMENT GROUP, L.L.C., Appellant, v. 3D-C & C, INC., S. Morris Keithendale, Inc., and S. Morris Swope, Appellees.
    No. 2D05-4141.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 2006.

      Fredric S. Zinober and Simon Gaugush of Zuckerman Spaeder LLP, Tampa, for Appellant.
    Celene Humphries and Dale Swope of Swope, Rodante P.A., Tampa, for Appel-lees.
   CANADY, Judge.

In this case, we consider whether an option contract provision requiring that an option extension payment be made on a Saturday should be interpreted so that an extension payment made the following Monday — the first business day after the day provided for in the option — would be deemed timely. The trial court determined that the payment made on Monday was not timely and entered a final summary judgment in favor of the optionors, 3D-C & C, Inc., S. Morris Keithendale, Inc., and S. Morris Swope (the Swope defendants). The optionee, Metro Development Group, L.L.C., now appeals the ruling in favor of the optionors. For the reasons we will explain, we agree with the trial court’s determination that the extension payment was not timely and that Metro’s rights under the option therefore were terminated.

I. Background

The option contract was executed by Metro on August 17, 2004, and by the Swope defendants on August 18, 2004. Under the option contract, Metro paid an initial escrow deposit of $15,000 in return for the option to purchase property from the Swope defendants. Paragraph three of the contract dealt with the option term and payments. Specifically it provided that: (1) Metro was to deposit $15,000 into an escrow account; (2) on the forty-fifth day after the effective date of the contract, Metro had to either terminate the contract or, if Metro chose not to terminate the contract, the $15,000 escrow deposit was to be immediately disbursed to the Swope defendants; and (3) if Metro chose not to terminate the contract, it was required to make an additional escrow deposit of $20,000 and a payment of either $119,000 or $29,575 to extend the option, depending on the length of the extension that Metro desired. The contract required that the additional escrow deposit and extension payment be made on or before the forty-fifth day after the effective date. Additionally, the contract provided that “[a]t any time when these payments are not made within the time described, the purchaser[’]s rights under this contract will terminate [and the] obligations of the seller to the [p]urchaser shall terminate.”

Paragraph three refers simply to “the 45th day” and makes no reference to “business” days. Various other deadlines in the contract are stated without reference to “business” days. The sole reference to “business” days in the contract is contained in a provision that extends the time for the buyer’s inspection of the property “until the expiration of five (5) business days from the date cured or waived by Purchasers, whichever last occurs.”

Finally, the contract contains this general provision: “Time is of the essence of this agreement.”

Since the contract provided that its effective date would be “the date on which the last of the parties execute” the contract, August 18, 2004, was the effective date of the contract. The forty-fifth day after that date fell on Saturday, October 2, 2004. On Friday, October 1, 2004, Metro paid an additional escrow deposit of $20,000 but failed to make any extension payment until the following Monday, October 4, 2004, when it tendered an extension payment of $29,575.

The Swope defendants rejected the $29,575 check and notified Metro that because the $15,000 initial escrow deposit had not been immediately disbursed on October 2, 2004, the option had not been extended. Although the escrow agent asked the Swope defendants to reconsider, they refused to do so. Ultimately, the escrow agent filed a suit for interpleader and Metro filed a cross-claim seeking specific performance of the agreement or, alternatively, damages for breach of contract.

The Swope defendants then filed a motion to dismiss and, subsequently, a motion for summary judgment. In the summary judgment motion, the Swope defendants alleged that the option had expired when Metro failed to timely make the $29,575 extension payment. The Swope defendants also alleged that the $15,000 escrow deposit was not deposited in accordance with the escrow agreement.

Metro responded by arguing that the option should not have been terminated because paragraph three of the option contract contained a latent ambiguity by failing to address a situation that was not readily apparent to the parties when they drafted the contract — i.e., what happened when the forty-fifth day fell on a Saturday, Sunday, or holiday. Metro also asserted that because the option contract contained a latent ambiguity, the trial court should look to custom and usage in the real estate industry and the conduct of the parties, both of which indicated that payment could be made the next business day after the deadline.

In granting summary judgment for the Swope defendants, the trial court found that the contract was clear on its face and no latent ambiguity existed. Consequently, the trial court refused to consider any parol evidence to ascertain the parties’ intent and determined the $29,575 payment was not timely made.

II. Argument on Appeal

Metro argues that the trial court erred in concluding that the option contract did not contain a latent ambiguity. Metro contends that the contract’s failure to delineate the rights and duties of the parties when the payment deadline falls on a non-business day constitutes a latent ambiguity-

The Swope defendants argue in response that the option contract provided a clear payment deadline and did not contain language permitting exceptions for late payments when the deadline fell on a weekend day or holiday. The Swope defendants further argue that if Metro wanted to include “exception” language for circumstances such as those which occurred here, it should have included that in the contract.

III. Analysis

“Florida courts have adhered to the distinction [between patent and latent ambiguities] and ordinarily allow parol evidence where there is a latent ambiguity and reject it where there is a patent ambiguity.” Landis v. Mears, 329 So.2d 323, 325-26 (Fla. 2d DCA 1976). Under Florida law, “when a contract is rendered ambiguous by some collateral matter, it has a latent ambiguity, and the court must hear parol evidence to interpret the writing properly.” RX Solutions, Inc. v. Express Pharmacy Servs., Inc., 746 So.2d 475, 476 (Fla. 2d DCA 1999). “A latent ambiguity — as distinct from a patent ambiguity— arises Vhere the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings.’ ” Mac-Gray Servs., Inc. v. Savannah Assocs. of Sarasota, LLC, 915 So.2d 657, 659 (Fla. 2d DCA 2005) (quoting Ace Elec. Supply Co. v. Terra Nova Elec., Inc., 288 So.2d 544, 547 (Fla. 1st DCA 1974)). A latent ambiguity thus exists “[i]f a contract fails to specify the rights or duties of the parties under certain conditions or in certain situations, [and] the occurrence of such condition or situation reveals an insufficiency in the contract not apparent from the face of the document.” Hunt v. First Nat’l Bank of Tampa, 381 So.2d 1194, 1197 (Fla. 2d DCA 1980).

Metro’s argument that a latent ambiguity arose under the option contract is unpersuasive. The requirement of paragraph three for the payment of the extension payment on or before the forty-fifth day after the effective date of the contract is clear and unambiguous. This is not a case where “a contract is rendered ambiguous by some collateral matter,” RX Solutions, Inc., 746 So.2d at 476, or where extraneous circumstances have revealed an “insufficiency in the contract,” Hunt, 381 So.2d at 1197. The circumstance that the forty-fifth day after the effective date of the contract might fall on a weekend or holiday is a circumstance that is obvious.

The claim that a latent — that is, hidden — ambiguity arose from that circumstance borders on the nonsensical. Any competent person agreeing to the terms of the option contract would know that there was a significant chance that such an eventuality would ensue. We thus reject the view that contracts which refer simply to “days” are affected by latent ambiguity. The implausibility of Metro’s contention is highlighted by the provision in the contract extending the inspection period until five business days after the cure or waiver of title defects. The inclusion of that provision demonstrates that the parties were well aware of the difference between “days” and “business days.”

Metro’s reliance on a purported custom and usage in the real estate industry is unavailing. The fact that parties to real estate contracts often agree that the time for performance of various contractual obligations will be extended from a weekend day or holiday to the next business day does not create a latent ambiguity affecting a contract which does not contain such an agreement of the parties. The parties to a contract are free to contract as they choose and to provide — or not to provide — that contractual deadlines falling on a weekend or holiday be extended to the next business day.

Here, the parties to the option contract chose not to provide for such an extension. In addition, the parties agreed to include in the contract a provision that “[t]ime is of the essence” — a provision which there is no reason to believe was not intended to apply to the obligation to make payments for extending the option. See C.W. Kistler Co. v. Hotel Martinique, Inc., 44 So.2d 288, 291 (Fla.1950) (stating that where a stipulated time is mentioned in an option contract, it becomes the essence of the contract, which must be performed within the time mentioned). Furthermore, Metro’s failure to timely make the option extension payment was in no way attributable to any action or inaction of the Swope defendants. In such circumstances, a court should not rewrite the agreement of the parties and alter the obligation for timely performance to which Metro unequivocally agreed. See Beach Resort Hotel Corp. v. Wieder, 79 So.2d 659, 663 (Fla.1955) (“It is well settled that courts may not rewrite a contract or interfere with the freedom of contract or substitute their judgment for that of the parties thereto in order to relieve one of the parties from the apparent hardship of an improvident bargain.”).

IV. Conclusion

The record before the trial court established that the extension payment was untimely. The trial court correctly determined that there were no disputed issues of material fact and that the Swope defendants were entitled to judgment as a matter of law. We therefore affirm the final summary judgment in favor of the Swope defendants.

Affirmed.

FULMER, C.J., and WALLACE, J., Concur.


source: Caselaw Access Project

author: TORPY, J. PER CURIAM.

license: Public Domain

text:
    REMINGTON COMMUNITY DEVELOPMENT DISTRICT, Appellant, v. EDUCATION FOUNDATION OF OSCEOLA, ETC., et al., Appellee.
    No. 5D05-2271.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 2006.
    Opinion Certifying Question Nov. 3, 2006.
    Rehearing Denied Nov. 3, 2006.
    Scott D. Clark and Mitchell E. Albaugh of Scott D. Clark, P.A., Winter Park, for Appellant.
    Charles W. Sell of Shuffield, Lowman & Wilson, P.A., Orlando, for Appellee.
   TORPY, J.

Remington Community Development District (hereinafter “District”) challenges a summary judgment entered in favor of Education Foundation of Osceola (hereinafter “School”), a charter school, concluding, among other things, that School is exempt from paying special assessments levied by District. We reverse and remand this cause for further proceedings in accordance with this opinion.

District was formed in 1994, pursuant to Chapter 190, Florida Statutes, for the purpose of constructing roads, water and wastewater systems and other infrastructure to serve the lands within District’s boundaries. Pursuant to the power conferred upon it by section 190.011(14), Florida Statutes (1994), District levied special assessments in 1994, 1997 and 1999 on the property within its boundaries. Special assessment liens, payable in installments, were placed on all affected properties. District also issued various special assessment bonds, the proceeds of which were used to fund the capital improvements. The installment payments due from the special assessment liens were pledged as collateral on the bonds.

In 2000, members of the P.M. Wells family executed a deed that transferred title to a tract of land (hereinafter “the School Property”) to School. Although originally set aside for 44 residential sites, the School Property, which is located within District’s boundaries, was specifically deeded with the requirement that it be used for a school. Thereafter, the P.M. Wells Charter School was created pursuant to a charter between the School Board of Osceola County, Florida, and School. The P.M. Wells Charter School currently serves approximately 600 students and receives its revenues from the School Board of Osceola County, Florida.

This controversy arose when an installment payment on the School Property became due in 2002. Rather than pay the installment, School filed an action seeking a declaration that it was exempt from payment of the special assessments. District counterclaimed to enforce the liens by foreclosure or mandamus.

The first issue for our determination is whether the lower court correctly determined that School is exempt from special assessments because of its statutory status as a public school. We conclude that charter schools are not so exempt because, unlike other public schools, the legislature has failed to create a statutory exemption for charter schools.

Historically, public schools in Florida were not exempt from special assessments. Blake v. City of Tampa, 115 Fla. 348, 156 So. 97 (1934). In 1953, the legislature enacted the precursor to section 1013.51, Florida Statutes (2005), which, as construed by the courts, authorized, but did not require, education boards to expend funds for special assessments. Bd. of Pub. Instruction of Duval County v. City of Jacksonville, 86 So.2d 887 (Fla.1956); City of Clearwater v. Sch. Bd. of Pinellas County, 905 So.2d 1051, 1055 (Fla. 2d DCA 2005); City of Newberry v. Sch. Bd. of Alachua County, 368 So.2d 87 (Fla. 1st DCA 1979).

The dilemma School faces here is that although charter schools are, by legislative decree, “public schools,” the only statutory exemption from special assessments that arguably applies — section 1013.51, Florida Statutes (2005) — clearly does not apply to charter schools. In section 1002.33(16)(a), Florida Statutes (2005), the legislature exempted charter schools from “all statutes” contained in Chapter 1013, which includes section 1013.51.

The clarity of these provisions notwithstanding, School argues that, because section 1002.33(1), Florida Statutes (2005), declares that charter schools are “public schools,” we should conclude that the legislature intended that the exemption apply. It theorizes that the legislature intended that all public schools be treated alike. We disagree. Obviously, the legislature did not intend that all “public schools,” charter and non-charter, be treated equally; otherwise, it would not have “exempted” charter schools from the numerous statutes governing non-charter, public schools. For us to conclude otherwise would require that we improperly ignore the plain language of the statutes and speculate about what the legislature really intended.

Citing Loxahatchee River Environmental Control District v. School Board of Palm Beach County, 496 So.2d 930 (Fla. 4th DCA1986), School argues alternatively that it is exempt from the assessments here at issue because the assessments “were actually in the nature of ad valorem taxes, impact fees and service availability fees” for which School does enjoy a statutory exemption pursuant to sections 1002.33(18)(c) and (d), Florida Statutes (2005). Again we disagree. Loxahatchee involved an attempt by a taxing district to impose “service availability and line charges” as preconditions to connecting to a sewer system that was already in place. The legal issue in Loxahatchee was whether the charge was actually an impact or service availability fee, from which the school board enjoyed a statutory exemption. Loxahatchee did not involve a special assessment for capital improvements.

Here, by contrast, District imposed assessments for statutorily enumerated capital improvements in accordance with the special benefit conferred upon the lands within District’s boundaries. No attempt was made to charge the equivalent of an ad valorem tax, impact fee or service availability fee. Loxahatchee, therefore, is distinguished.

We conclude that the lower court erred in determining that School is exempt from the special assessments. Based on our conclusion on this issue, it is unnecessary for us to consider District’s alternative argument that School, even if exempt, may not avoid the assessment liens at issue here because the liens were in place before School took title to the land. However, we are left to consider whether the liens may be enforced by forced sale of the property.

Section 170.10, Florida Statutes (2005), provides that, upon default in the payment of an assessment installment, the governing authority may proceed in chancery to foreclose the lien and sell the property to satisfy the lien. This provision notwithstanding, School contends that foreclosure is not available because the property is in use by a public school. See Blake, 156 So. at 90-100 (based on Florida Constitution, property in use by public school not subject to forced sale to satisfy special assessment lien). At oral argument, District’s counsel candidly conceded this point but urged that mandamus is available to enforce the lien. We agree. State v. Caldwell, 160 Fla. 355, 35 So.2d 642, 646 (1948); City of Titusville v. Bd. of Pub. Instruction of Brevard County, 258 So.2d 836 (Fla. 4th DCA 1970). But see City of Coral Gables v. Bd. of Pub. Instruction of Dade County, 313 So.2d 92 (Fla. 3d DCA 1975) (mandamus not available to compel school board to pay special assessment but trial court has authority to compel payment).

REVERSED AND REMANDED.

PLEUS, C.J. and ORFINGER, J„ concur.

ON MOTION FOR REHEARING

PER CURIAM.

The court denies Appellee’s, Education Foundation of Osceola, Inc.’s, motion for rehearing. The court partially grants Ap-pellee’s motion to certify questions of great public importance and, as rephrased, certifies the following two questions:

1. ARE CHARTER SCHOOLS, WHICH ARE DEEMED BY STATUTE TO BE PUBLIC SCHOOLS, EXEMPT FROM SPECIAL ASSESSMENTS?

2. IF NOT, CAN MANDAMUS BE USED TO COMPEL A PRIVATE CORPORATION OPERATING A CHARTER SCHOOL TO USE PUBLIC SCHOOL BOARD FUNDS TO SATISFY SPECIAL ASSESSMENTS?

QUESTIONS CERTIFIED.

PLEUS, C.J., ORFINGER and TORPY, JJ., concur.

      . The so-called statutory exemption in favor of public schools is not a model of legislative clarity by any means. Section 170.201(2), Florida Statutes (2005), states that “property owned or occupied by a ... school ... shall be exempt from any special assessment levied by a municipality to fund any service if the municipality so desires.” (emphasis added), implying that the discretion to levy certain assessments against school property lies with the levying authority. Section 1013.51, Florida Statutes (2005), by contrast, simply states that a school board "may expend funds” or "may pay its proportionate share” of special assessments, implying that the board has the discretion to pay or not pay assessments. Notwithstanding these seemingly contradictory statutes, the litigants seem content that the meaning of section 1013.51 is settled and that its intent is to confer upon school boards an exemption from special assessments that they may unilaterally invoke.

      . We have not overlooked School's equal protection argument, which we reject without discussion.

      . The fact that the legislature expressly exempted charter schools from ad valorem taxes, impact fees and service availability fees further bulwarks District’s argument that, had the legislature intended to create a similar exemption from special assessments, it would have done so expressly. See Young v. Progressive Southeastern Ins. Co., 753 So.2d 80, 85 (Fla.2000) (applying doctrine of expressio uni-us est exclusio alterius to list of statutory exclusions).

      .Section 170.01, Florida Statutes (2005), authorizes special assessments for, among other things, the construction or repair of streets, sidewalks, lighting, landscaping, greenbelts, swales, culverts, sewers, drainage structures, water supply systems, parks, recreational facilities and other infrastructure.


text:
    In re CONFIDENTIAL PARTY.
    No. 2006-B-2491.
    Supreme Court of Louisiana.
    Oct. 31, 2006.
   ORDER

Considering the Joint Petition for Consent Discipline filed by respondent and the Office of Disciplinary Counsel,

IT IS ORDERED that the Joint Petition for Consent Discipline be and hereby is rejected pursuant to Supreme Court Rule XIX, § 20.

IT IS FURTHER ORDERED that this matter be remanded for consideration of the previously filed formal charges.

/s/ John L. Weimer Justice, Supreme Court of Louisiana


text:
    In re Justice of the Peace Wade COOK.
    No. 2006-0-2474.
    Supreme Court of Louisiana.
    Nov. 1, 2006.
   ORDER

On recommendation of the Judiciary Commission of Louisiana,

IT IS ORDERED, ADJUDGED AND DECREED that Justice of the Peace Wade Cook, District 1, Parish of Sabine, State of Louisiana, be and he hereby is disqualified from exercising any judicial function during the pendency of further proceedings in this matter, pursuant to La. Const, art. V, § 25(C) and Supreme Court Rule XXIII, § 27.

This order shall be effective immediately-

/s/ Jeffrey P. Victory Justice, Supreme Court of Louisiana


author: PER CURIAM.

text:
    In re Donita Brooks COLLINS.
    No. 2006-B-2356.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent made an obscene gesture in response to an adverse ruling by the trial judge. Following the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which respondent admits that her conduct was intended to disrupt the tribunal and was prejudicial to the administration of justice, in violation of Rules 3.5 and 8.4(d) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Donita Brooks Collins, Louisiana Bar Roll number 23667, be publicly reprimanded.

IT IS FURTHER ORDERED that respondent shall enroll in and attend the Ethics School program offered by the Louisiana State Bar Association’s Practice Assistance and Improvement Committee.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

KIMBALL and TRAYLOR, JJ„ would reject the consent discipline.


text:
    In re Frederick P. HEISLER.
    No. 2006-B-1202.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

1, This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Frederick P. Heisler, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

The facts of this matter are not disputed. On June 6, 1998, Harriett Butler was injured while a passenger on a lift bus operated by the New Orleans Regional Transit Authority. Two days later, Ms. Butler consulted with respondent, who agreed to undertake her representation on a contingent fee basis. Respondent advanced Ms. Butler’s medical expenses and attempted to negotiate a settlement of her claim with the RTA. At some point in 1998 or 1999, the RTA offered the sum of $8,000 in settlement of Ms. Butler’s personal injury claim. Respondent did not convey the offer to Ms. Butler before he rejected it as insufficient. Further settlement discussions proved fruitless, and in May 1999, respondent filed suit on Ms. Butler’s behalf in the Civil District Court for the Parish of Orleans. After preliminary discovery efforts, respondent took no further steps in the prosecution of Ms. Butler’s suit.

During the course of the representation, Ms. Butler contacted respondent’s office to learn the status of her case and to request loans. In November 1999, Ms. Butler received an advance of $50. In June 2001, respondent issued his check in the ^amount of $969.47 in exchange for Ms. Butler’s check in the same amount. In November 2001, Ms. Butler delivered several pieces of jewelry to respondent as collateral for a loan in the amount of $1,000. About a month later, Ms. Butler retrieved the jewelry without repaying the loan. In January 2002, Ms. Butler received an advance of $200; she repaid this sum to respondent in April 2002.

In December 2002, Ms. Butler telephoned respondent to inquire about the status of her case. During this conversation, respondent for the first time advised Ms. Butler of the earlier settlement offer, and he told Ms. Butler that in his opinion the offer was inadequate. Nevertheless, Ms. Butler directed respondent to accept the offer and to settle her case for $8,000. Upon reviewing the file, respondent realized that there had been no activity in the case for over three years, and he knew that any effort to revive the case at that point would likely be met with a motion to dismiss the suit on grounds of abandonment.

Rather than advise his client of the truth, respondent decided to proceed as if the settlement had been confected as Ms. Butler had requested. In other words, respondent decided to fund the settlement himself. He prepared a simulated settlement sheet for Ms. Butler’s signature, reflecting a gross settlement of $8,000 and deductions for medical expenses ($590), court costs ($773.50), client advances ($1,050) and a 40% attorney’s fee ($3,200). On December 19, 2002, respondent disbursed $2,386.50 to Ms. Butler as her share of the “settlement proceeds.” In August 2003, after Ms. Butler complained that she was not satisfied with the amount she received from the settlement, respondent gave her an additional $1,613.50, for a total of $4,000, or one-half of the $8,000 settlement offer.

lain November 2003, Ms. Butler filed a complaint against respondent with the ODC. Respondent answered the complaint and admitted his misconduct.

DISCIPLINARY PROCEEDINGS

On June 30, 2004, the ODC filed one count of formal charges against respondent, alleging that his conduct violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.8(a) (entering into a business transaction with a client), 1.8(e) (providing financial assistance to a client), 1.8(h) (settling a claim for the lawyer’s malpractice without first advising the client to seek independent counsel), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct. Respondent answered the formal charges and admitted his misconduct, but requested a hearing in mitigation. Respondent was the only witness to testify at the hearing.

Hearing Committee Recommendation

The hearing committee acknowledged respondent’s admission of misconduct in the Butler matter and determined that he violated Rules 1.3, 1.4, 1.8, and 8.4 of the Rules of Professional Conduct. The committee found respondent to be honest and forthright in his testimony and recognized that he made well-intentioned efforts to remedy his wrongdoing. Considering the numerous mitigating factors present, including the absence of a prior disciplinary record, respondent’s good faith effort to | ¿make restitution, and remorse, the committee concluded that a fully deferred suspension is appropriate.

Based on this reasoning, the committee recommended that respondent be suspended from the practice of law for one year, fully deferred, subject to a period of supervised probation.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

After reviewing the record, and considering respondent’s admission that the factual allegations of the formal charges are correct, the disciplinary board determined that respondent violated Rules 1.3, 1.4, 1.8(a), 1.8(e), 1.8(h), 8.4(a), and 8.4(c) of the Rules of Professional Conduct. Respondent neglected Ms. Butler’s case and allowed it to become abandoned. He also failed to communicate an $8,000 settlement offer to Ms. Butler, then created a simulated settlement without advising her of his malpractice and her right to seek legal counsel. Finally, respondent acknowledged the impropriety of loaning money to Ms. Butler while holding her jewelry as collateral.

Based on these findings, the board determined that respondent violated duties owed to his client and the public. Respondent’s conduct was partly negligent and partly knowing. Respondent timely filed the personal injury matter but negligently failed to pursue it thereafter and failed to communicate a settlement offer to Ms. Butler. Respondent knowingly attempted to make Ms. Butler whole through a simulated settlement, instead of advising her to seek legal counsel regarding his malpractice. Ms. Butler lost her day in court and her right to participate in the | ^decisions about her case. Respondent’s creation of a simulated settlement is a failure to maintain personal integrity and a breach of duties owed to the public. The ABA’s Standards for Imposing Lawyer Sanctions suggest that the baseline sanction for respondent’s misconduct ranges from a public reprimand to a suspension.

In mitigation, the board recognized the absence of a prior disciplinary record, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and remorse. The board found that there are no aggravating factors present in this case.

Relying on the prior jurisprudence involving misconduct similar to that at issue here, the board recommended that respondent be suspended from the practice of law for one year, deferred in full, subject to a one-year period of unsupervised probation. The board also recommended that respondent be assessed with all costs and expenses of these proceedings.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992).

Respondent has admitted his misconduct in handling Ms. Butler’s personal injury matter and in attempting to remedy his malpractice through an improper | (¡settlement. He acted knowingly in some respects, but his actions were largely negligent and did not cause harm to his client.

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

In prior cases involving misconduct similar to respondent’s, we have imposed suspensions from the practice of law, with all or a portion of the suspension deferred. The only applicable aggravating factor in the instant matter is respondent’s substantial experience in the practice of law (admitted 1951). However, this factor |7is far outweighed by the mitigating factors present, which include respondent’s remorse for his actions, his cooperation in these proceedings, and his lack of any prior disciplinary infractions during his fifty-five years of practice.

Under the circumstances, we conclude the appropriate sanction for respondent’s misconduct is a one-year suspension from the practice of law. We will defer this suspension in its entirety and place respondent on unsupervised probation for a period of one year, subject to the condition that any misconduct by respondent during the one-year probationary period may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Fredei'ick P. Heisler, Louisiana Bar Roll number 6756, be and he hereby is suspended from the practice of law for a period of one year. It is further ordered that this suspension shall be deferred in its entirety, and respondent shall be placed on unsupervised probation for a period of one year from the finality of this judgment, subject to the condition that any misconduct by respondent during the one-year probationary period may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

TRAYLOR, J., would reject.

      . Respondent did not charge Ms. Butler any interest on the advances he made to her.

      . The ODC served Ms. Butler with a subpoena to testify before the committee, but she subsequently informed the ODC that she did not wish to appear because she has known respondent for many years and did not want to do anything “to cause him any harm."

      . See, e., g., In re: Spears, 00-0028 (La.2/4/00), 753 So.2d 204 (one year and thirty-one day suspension, with all but thirty days deferred, followed by a two-year period of probation with conditions, imposed upon an attorney who allowed his client's claim to prescribe, then misled her into believing that the case had settled and paid her $5,000 from his personal funds as the "settlement”); In re: Parker-Davis, 99-2953 (La.1/7/00), 763 So.2d 569 (fully deferred three-month suspension, plus Ethics School, imposed upon an attorney who allowed her aunt’s personal injury case to prescribe and then gave her a check for $300, explaining that "when a case expires, this is what lawyers do”); In re: Southall, 97-3221 (La.5/8/98), 710 So.2d 245 (one year and one day suspension, with six months deferred, followed by a one-year period of supervised probation, imposed upon an attorney who agreed to represent clients in a legal matter, but negligently failed to conduct settlement negotiations, timely file suit, or keep her clients informed of the status of the matter); In re: Thompson, 98-0079 (La.5/8/98), 712 So.2d 72 (fully deferred one-year suspension, subject to an eighteen-month period of supervised probation with conditions, imposed upon an inexperienced attorney who allowed his client's claim to prescribe and then monetarily settled his liability without advising his client to seek independent legal advice); In re: Elbert, 97-1303 (La.9/5/97), 698 So.2d 949 (one-year suspension, with six months deferred, followed by a two-year period of supervised probation with conditions, imposed upon an attorney who failed to communicate a settlement offer to his clients and then monetarily settled his liability without advising his clients to seek independent legal advice); and In re: Broussard, 95-1454 (La.9/15/95), 660 So.2d 818 (fully deferred one year and one day suspension, subject to a two-year period of supervised probation with conditions, imposed upon an attorney who failed to timely file suit in his client's personal injury matter, falsely informed the client that the claim had settled, and then distributed funds in accordance with a fictitious accounting).

      . The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. See In re: Pepper, 05-2093 (La. 1/27/06), 922 So.2d 527.


text:
    STATE of Louisiana v. Robert “Bob” ODOM.
    No. 2006-K-0975.
    Supreme Court of Louisiana.
    Nov. 3, 2006.
   PER CURIAM.

LThe state’s application is granted, the decision of the court of appeal is reversed, and this case is remanded for further proceedings in the district court consistent with the views expressed herein.

On August 22, 2002, the state indicted defendant/respondent, Commissioner of Agriculture and Forestry in Louisiana, for a variety of offenses arising from allegations of public corruption. In the complex procedural history that ensued, the state dismissed several counts, portions of the remaining counts became the subject of a plethora of motions to quash filed by the defense, appellate review of the trial court’s rulings on the motions proceeded in due course, and the state moved to continue the initial trial date set by the district court, December 2, 2002, pending completion of the appellate review process. The trial court denied the motion and the state sought emergency relief in the court of appeal, which denied it, State v. Odom, 02-2517 (La.App. 1st Cir.12/3/02)(Ciaccio, J., pro tem., dissenting), and then in this Court, which granted the state’s application, reversed the ruling of the Rfrial judge, and directed that “[t]he district court should not reset this case for trial until the merits of all of its rulings with respect to the remaining counts, including its partial quashing of five of the counts presently at issue in the court of appeal, have been finally resolved upon timely application for review by either the state or the defense.” State v. Odom, 02-2932 (La.12/5/02), 835 So.2d 1286. This Court further observed that “[t]he interests of judicial economy require that all of the counts remaining of the original indictment returned against respondent be tried together in a single proceeding unless properly severed.” Id.

Appellate review of the trial court’s rulings on respondent’s motions to quash various counts or parts of various counts remaining in the indictment continued throughout 2003 and into 2004 as the court of appeal affirmed the trial court’s order quashing several of the counts, including portions of count one. State v. Odom, 02-2404 (La.App. 1st Cir.6/27/03), 861 So.2d 202. This Court reversed the courts below with respect to count one (only) and remanded the case to the trial court for reconsideration of the motion to quash that count, State v. Odom, 03-2143 (La.10/17/03), 861 So.2d 117. The trial court subsequently denied respondent’s motion to quash count one altogether, and the court of appeal and this Court then denied review of that ruling. State v. Odom, 03-2784 (La.App. 1st Cir.3/22/04), writ denied, 04-0989 (La.6/4/04), 876 So.2d 76. This Court’s order of June 4, 2004, brought to a close appellate review of this aspect of the pre-trial litigation in the trial court.

On January 28, 2005, defendant moved to quash the indictment on grounds of the state’s failure to commence trial within the statutory time limit of two years from the institution of prosecution as required by La.C.Cr.P. art. 578(2). The trial court granted the motion on February 11, 2005, and the state sought review of that 1¡¡ruling in the court of appeal, which affirmed the trial court’s judgment in a split opinion. A majority on the panel interpreted this Court’s December 5, 2002 order as “pertaining [only] to those matters that were pending at the time rendered,” State v. Odom, 05-0850, p. 14 (La.App. 1st Cir. 3/29/06)(unpub’d)(Kuhn, J., dissenting), 925 So.2d 776. In the view of the majority, the order therefore did not apply to the trial court’s subsequent ruling on December 20, 2002, quashing portions of count one of the indictment. On that premise, the majority calculated the running of the two-year time limit, subject to periods of suspension, from December 20, 2002, the date the trial court last ruled on respondent’s initial pre-trial motions, including the motion to quash count one, and concluded that the state had had until December 1, 2004, to commence trial, a date which had then lapsed nearly two months before respondent filed his motion to quash. Dissenting, Judge Kuhn argued that the effect of this Court’s December 5, 2002 order was to stay “the proceeding as to all of the remaining counts in the indictment until all preliminary matters, including the defendant’s motions to quash, were finally resolved.” Odom, 05-0850 at 1, 925 So.2d 776 (Kuhn, J., dissenting). Judge Kuhn therefore calculated that the state had one year from this Court’s order of June 4, 2004, denying respondent’s writ as to count one, or until June 4, 2005, a date that would not lapse until several months after respondent moved to quash the prosecution at the end of January, 2005.

The majority on the court of appeal panel erred. Apart from any question about how broadly to read our order of December 5, 2002, Louisiana’s statutory rules governing not only suspension of the time limits specified in La.C.Cr.P. art. 578 by the filing of “preliminary pleas,” La. C.Cr.P. art. 580, but also joinder of two or more offenses in a single proceeding, La. C.Cr.P. art. 493 and art. 493.1, combined to cause the delays in the present case. Once the original two-year |4period from institution of prosecution in the present case lapsed as a matter of La.C.Cr.P. art. 578(2), the state bore a heavy burden of justifying any subsequent delay. State v. Rome, 93-1221, p. 3 (La.1/14/94), 630 So.2d 1284, 1286; State v. Nations, 420 So.2d 967 (La.1982). However, a motion to quash constitutes a preliminary plea for purposes of La.C.Cr.P. art. 580 and suspends the running of the time limits from the date of filing until the date the trial court rules on the motion. State v. Hamilton, 369 So.2d 1299, 1300 (La.1979); State v. Butler, 302 So.2d 585, 587 (La.1974); cf. State v. Cranmer, 306 So.2d 698, 700 (La.1975) (a preliminary plea is any pleading or motion filed by the defense which has the effect of delaying trial); State v. Elfert, 247 La. 1047, 175 So.2d 826, 828 (1965)(same). Appellate review of that ruling lengthens the period of suspension because the state may not bring the case to trial until the issues raised by the motion are fully and definitely resolved. See State v. Washington, 02-1346, pp. 4-6 (La.5/20/03), 846 So.2d 723, 726-27; cf. State v. Bennett, 610 So.2d 120, 125 (La.1992).

Accordingly, although the trial court ruled on respondent’s motion to quash count one after this Court issued its order of December 5, 2002, appellate review of that ruling, initiated first by the state and then pursued by the defense after the trial court reconsidered its grant of the motion, extended the period of suspension from the filing of the motion until this Court finally resolved matters by denying respondent’s writ application on June 4, 2004. The period of suspension applied not only as to count one but also as to all remaining counts charged in the indictment because continued litigation over the validity of any one or more of the counts had the effect of delaying trial on all of the counts joined in the indictment unless, as our order of December 5, 2002, recognized, the charges were properly severed. See Washington, 02-1346 at 4, 846 So.2d at 726 (“We agree with the | BState that Washington’s application for a writ to the third circuit court to review the denial by the trial court of post-conviction relief on the armed robbery counts prevented the State from proceeding to trial on the aggravated rape count because of the proper joinder of the two counts in the indictment.”). Thus, because the surviving counts presently alleged in the indictment have remained joined in a single proceeding, the state had, as Judge Kuhn found, until June 5, 2005 in which the bring this case to trial. Respondent’s motion to quash filed on January 29, 2005, several months short of that date, once again suspended the time limits imposed by La.C.Cr.P. art. 578(2), and the state will therefore have at least an additional year in which to try the case from the date of finality of the decision herein. La.C.Cr.P. art. 580.

DECISION OF THE COURT OF APPEAL REVERSED; JUDGMENT OF TRIAL COURT GRANTING MOTION TO QUASH SET ASIDE; CASE REMANDED.

CALOGERO, C.J., and KIMBALL, J., would grant and docket.


text:
    STATE of Louisiana v. Randy ROSE.
    No. 2006-K-0402.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re State of Louisiana; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. I, No. 445-176; to the Court of Appeal, Fourth Circuit, No. 2005-KA-0396.

Granted.


text:
    William J. SCHEFFLER, III v. ADAMS AND REESE, LLP, et al.
    No. 2006-CC-1774.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Adams and Reese LLP et al.;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 2005-13510; to the Court of Appeal, Fourth Circuit, No. 2006-C-0700.

Granted.


text:
    SUPREME SERVICES AND SPECIALTY CO., INC. v. SONNY GREER, INC., et al.
    No. 2006-C-1827.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re AXA Global Risk U.S. Insurance Company; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. E, No. Comeaux; to the Court of Appeal, Third Circuit, No. 04-1400.

Granted.


text:
    The COUNCIL OF the CITY OF NEW ORLEANS v. SEWERAGE & WATER BOARD OF NEW ORLEANS; Boh Bros. Construction Co., L.L.C.; Renaissance Integrated Solutions, LLC; and Ris New Orleans, LLC.
    No. 2006-C-1989.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re New Orleans City of; — Other; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 2005-01478; to the Court of Appeal, Fourth Circuit, No. 2005-CA-0384'.

Granted.


text:
    John and Klea HEBERT v. RAPIDES PARISH POLICE JURY, et al.
    No. 2006-C-2001.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Transportation & Dev. Dept, of; Louisiana State of; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. F, No. 184,823; to the Court of Appeal, Third Circuit, No. 05-471.

Granted.


text:
    John and Klea HEBERT v. RAPIDES PARISH POLICE JURY, et al.
    No. 2006-C-2164.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Hebert, John; Hebert, Klea;— Plaintiff(s); Applying for Writ of Certiora-ri and/or Review, Parish of Rapides, 9th Judicial District Court Div. F, No. 184,823; to the Court of Appeal, Third Circuit, No. 05-471.

Granted.


text:
    Sonja JACKSON v. STATE of Louisiana, et al.
    Nos. 2005-C-2021, 2005-C-2026.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Jackson, Sonja — Plaintiff; Applying for Rehearing of this Court’s action dated September 29, 2006; Parish of Oua-chita, 4th Judicial District Court Div. A, No. 98-4060; to the Court of Appeal, Second Circuit, No. 39,759-CA.

Rehearing denied.


text:
    STATE of Louisiana v. Craig O’Neal COLLIER.
    No. 2006-KO-0251.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Collier, Craig O’Neal; — Defendant; Applying for Reconsideration of this Court’s action dated September 15, 2006, Parish of Caddo; 1st Judicial District Court, Div. H, No. 228,570: to the Court of Appeal, Second, Circuit, No. 39,882-KA.

Reconsideration denied.


text:
    Charles CARTER v. Burl CAIN, et al.
    No. 2006-CI-0569.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Carter, Charles; — Plaintiff(s); Applying for Reconsideration of this Court’s action dated September 22, 2006; Parish of E. Baton Rouge, 19th Judicial District Court Div. 2, No. 524-318; to the Court of Appeal, First Circuit, No. 2005-CW-1243.

Reconsideration denied.


text:
    STATE ex rel. Wilfred GUY v. STATE of Louisiana.
    No. 2006-KH-0645.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Guy, Wilfred; — Plaintiff; Applying for Reconsideration of this Court’s action dated September 22, 2006; Parish of Orleans, Criminal District Court Div. G, No. 306-419; to the Court of Appeal, Fourth Circuit, No. 2005-K-1433.

Reconsideration denied.


text:
    Charles CARTER v. Burl CAIN, Warden, et al.
    No. 2006-CI-1378.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Carter, Charles, applying for Reconsideration this Court’s order dated September 22, 2006; Parish of East Baton Rouge, 19th District Court Div. M, No. 528,663; to the First Circuit Court of Appeal, No. 2006-CW-0211.

Reconsideration denied.


text:
    VIEUX BIJOU, INC. v. Patrick M. MCCARTHY.
    No. 2006-C-0840.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re McCarthy, Patrick M.; — Defendants); Applying for Reconsideration of this Court’s action dated September 15, 2006; Parish of Orleans, Civil District Court Div. J, No. 01-08202; to the Court of Appeal, Fourth Circuit, No. 2004-CA-2041.

Reconsideration not considered. See Louisiana Supreme Court Rule IX, Section 6. Original application not timely filed. See Supreme Court Rule X, Section 5.


text:
    Collette F. MATHIS v. Michael Ray COOPER.
    No. 2006-C-1389.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Cooper, Michael Ray; — Defendant; Applying for Reconsideration of this Court’s action dated September 29, 2006; Parish of E. Baton Rouge, Family Court Parish of East Baton Rouge, No. 137,366; to the Court of Appeal, First Circuit, No. 2005 CA 1215.

Not considered. See Louisiana Supreme Court Rule IX, Section 6..


text:
    Deone MEYERS on Behalf of Her Minor Daughter, Kiyante MEYERS v. CITY OF NEW ORLEANS, New Orleans Department of Streets and Downtown Development District.
    No. 2006-C-1530.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Meyers, Deone; — Plaintiff; Applying for Reconsideration of this Court’s action dated September 29, 2006, Parish of Orleans, Civil District Court Div. E, No. 98-4181; to the Court of Appeal, Fourth Circuit, No. 2005-CA-1142.

Not considered. See Louisiana Supreme Court Rule IX, Section 6..


text:
    STATE of Louisiana v. John DOOLITTLE.
    No. 2006-KP-0424.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 128,459; to the Court of Appeal, Second Circuit, No. 41041-KW.

Denied.


text:
    STATE of Louisiana v. Gregory JEAN-LOUIS.
    No. 2006-KP-0561.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Jean-Louis, Gregory; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. J, No. 66602; to the Court of Appeal, Third Circuit, No. KW 05-01225.

Denied.


text:
    STATE of Louisiana v. Gentry SYLVESTER.
    No. 2006-KP-0617.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Sylvester, Gentry; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 381-449; to the Court of Appeal, Fourth Circuit, No. 2005-K-1306.

Denied.


text:
    STATE ex rel. Juan MATTHEWS v. STATE of Louisiana.
    No. 2006-KH-0742.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Matthews, Juan; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 356-485; to the Court of Appeal, Fourth Circuit, No. 2004-K-0180.

Denied.


text:
    STATE of Louisiana v. Colbert FRANKLIN.
    No. 2006-KP-0877.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Franklin, Colbert; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. A, No. 03-3403; to the Court of Appeal, Fourth Circuit, No. 2005-K-1460.

Denied.


text:
    STATE of Louisiana v. Douglas D. CASEY.
    No. 2006-KP-0911.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Casey, Douglas D.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. A, No. 04-0678; to the Court of Appeal, Fourth Circuit, No. 2006-K-0136.

Denied.


text:
    STATE ex rel. Jamie D. WATSON v. STATE of Louisiana.
    No. 2006-KH-0948.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Watson, Jamie D.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 03-05-0881.

Denied. Moot.


text:
    STATE of Louisiana v. Ricky VALENTINE.
    No. 2006-K-1062.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Valentine, Ricky; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. E, No. 448-390; to the Court of Appeal, Fourth Circuit, No. 2005-KA-0223.

Denied.


text:
    STATE of Louisiana v. James FLOWERS.
    No. 2006-KO-1068.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Flowers, James; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of East Feliciana, 20th Judicial District Court Div. B, No. 03-CR-1099; to the Court of Appeal, First Circuit, No. 2005 KA 0826.

Denied.


text:
    STATE ex rel. Derek VANCE v. STATE of Louisiana.
    No. 2006-KH-1071.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Vance, Derek; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 435-205; to the Court of Appeal, Fourth Circuit, No. 2003-KA-1946.

Denied.


text:
    STATE ex rel. Lige ROGERS v. STATE of Louisiana.
    No. 2006-KH-1072.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Rogers, Lige; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. D, No. 147-351; to the Court of Appeal, Fourth Circuit, No. 2006-K-0062.

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


text:
    STATE ex rel. Marcus WILHITE v. STATE of Louisiana.
    No. 2006-KH-1078.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Wilhite, Marcus; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. F, No. 99F0910; to the Court of Appeal, Second Circuit, No. 40,-539-KA.

Denied.


text:
    STATE ex rel. Levy JOHNSON v. STATE of Louisiana.
    No. 2006-KH-1079.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Johnson, Levy; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. D, No. 03-0088; to the Court of Appeal, Fifth Circuit, No. 05-KA-285.

Denied.


text:
    STATE of Louisiana v. Aristede Francois BURD.
    No. 2006-KO-1083.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Burd, Aristede Francois; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. B, No. 226,971; to the Court of Appeal, Second Circuit, No. 40480-KA.

Denied.


text:
    STATE of Louisiana v. Cornell KING.
    No. 2006-KO-1084.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re King, Cornell; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. N, No. 03-3623; to the Court of Appeal, Fifth Circuit, No. 05-KA-553.

Denied.


text:
    STATE of Louisiana v. Larry ADDISON.
    No. 2006-KO-1087.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Addison, Larry; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. M, No. 03-682; to the Court of Appeal, Fifth Circuit, No. 05-KA-378.

Denied.


text:
    STATE ex rel. Rhonda OLIVER v. STATE of Louisiana.
    No. 2006-KH-1088.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Oliver, Rhonda; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 01-955; to the Court of Appeal, Fifth Circuit, No. 06-KH-3.

Denied. Claims not presented below. La.C.Cr.P. art. 926(A).


text:
    STATE ex rel. Hernando Cortez HALEY v. STATE of Louisiana.
    No. 2006-KH-1091.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Haley, Hernando Cortez;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. H, No. 222,855; to the Court of Appeal, Second Circuit, No. 41035-KH.

Denied. State ex rel. Bernard, v. Cr.D.C., 94-2247, p. 1 (La.4/28/95), 658 So.2d 1174, 1175.


text:
    STATE ex rel. Mark A. RICHARDSON v. STATE of Louisiana.
    No. 2006-KH-1092.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Richardson, Mark A.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. H, Nos. 05-168442, 90-128477, 98-151160; to the Court of Appeal, First Circuit, No. 2005 KW 2222.

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

WEIMER, J., recused.


text:
    STATE ex rel. Michael BROWN v. STATE of Louisiana.
    No. 2006-KH-1094.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Brown, Michael; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 97-365; to the Court of Appeal, Fifth Circuit, No. 05-KH-959.

Denied. Untimely, not cognizable on collateral review, and repetitive. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La. C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172; La.C.Cr.P. art. 930.4(D).


text:
    STATE of Louisiana v. Carroll Potts GOINS a/k/a Carol Goins.
    No. 2006-KO-1097.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Goins, Carol; Goins, Carroll Potts a/k/a; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Oua-chita, 4th Judicial District Court Div. F, No. 00-F0484; to the Court of Appeal, Second Circuit, No. 40,364-KA.

Denied.


text:
    STATE ex rel. Terrance THOMAS v. STATE of Louisiana.
    No. 2006-KH-1100.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Thomas, Terrance; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 400^482; to the Court of Appeal, Fourth Circuit, No. 2005-K-1437.

Denied.


text:
    STATE ex rel. Wallace PITTMAN v. STATE of Louisiana.
    No. 2006-KH-1101.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Pittman, Wallace; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 03-3976; to the Court of Appeal, Fifth Circuit, No. 06-KH-51.

Denied.


text:
    STATE ex rel. Jameel MALIK v. STATE of Louisiana.
    No. 2006-KH-1111.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Malik, Jameel; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, Nos. 366-626, 366-631; to the Court of Appeal, Fourth Circuit, No. 2005-K-1339.

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


text:
    STATE ex rel. John E. BLUNT v. STATE of Louisiana.
    No. 2006-KH-1118.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Blunt, John E.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 3-01-575; to the Court of Appeal, First Circuit, No. 2005 KA 0416.

Denied.


text:
    STATE ex rel. Tommy BORDELON v. STATE of Louisiana.
    No. 2006-KH-1122.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Bordelon, Tommy; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 98-4883; to the Court of Appeal, Fifth Circuit, No. 06-KH-50.

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

KNOLL, J., recused.


text:
    STATE of Louisiana v. Leroy FRANK.
    No. 2006-KO-1123.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Frank, Leroy; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. H, No. 441-162; to the Court of Appeal, Fourth Circuit, No. 2004-KA-2003.

Denied.


text:
    STATE ex rel. William MOSER v. STATE of Louisiana.
    No. 2006-KH-1124.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Moser, William; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div..E, No. 184773; to the Court of Appeal, First Circuit, No. 2005 KW 2037.

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


text:
    STATE ex rel. Tommy BORDELON v. STATE of Louisiana.
    No. 2006-KH-1370.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Bordelon, Tommy; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 98-4883; to the Court of Appeal, Fifth Circuit, No. 06-KH-50.

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

KNOLL, J., recused.


text:
    The SUCCESSION OF William Edward FAGET Pier Marie Faget Jenkins, as Independent Administratrix of the Succession of William Edward Faget v. Audrey Menard FAGET.
    No. 2006-C-1719.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Colomb, Kerri Louise; — Other; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. E, Nos. 2005-10183, 2003-30467; to the Court of Appeal, First Circuit, No(s). 2005 CA 1434, 2005 CA 1435.

Denied.

JOHNSON, J., would grant.

KNOLL, J., would grant.

WEIMER, J., would grant.


text:
    Joseph WILLIAMS and Stacy Williams v. Mark ROBERTS and McCoy, Roberts, & Begnaud, Ltd.
    No. 2006-C-1780.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Williams, Joseph et al.; Williams, Stacy; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Natch-itoches, 10th Judicial District Court Div. A, No. 00076252; to the Court of Appeal, Third Circuit, No. 06-169.

Denied.

CALOGERO, C.J., would grant.


text:
    Allen MCMILLIN v. Michael BREEN, Breen Chiropractic Corporation, and ABC Insurance Company.
    No. 2006-C-1817.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Breen Michael et al.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. G, No. 2001-001 867; to the Court of Appeal, First Circuit, No. 2005 CA 0732.

Denied.

CALOGERO, C.J., would grant.

JOHNSON, J., would grant.

VICTORY, J., would grant.


text:
    Bonnie SHELTON v. Johnny Charles SANTANGELO, Jr., Cheryl Anne Viola Santangelo, and Anthony Ellis Santangelo.
    No. 2006-C-1819.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Santangelo, Johnny Charles Jr. et al.; — Defendant; Applying for Writ of Cer-tiorari and/or Review, Parish of Tangipa-hoa, 21st Judicial District Court Div. C, No. 2003-002663; to the Court of Appeal, First Circuit, No. 2005 CA 0827.

Denied.

JOHNSON, J., would grant.

KNOLL, J., would grant.


text:
    Sharon A. GERACI v. Thomas J. BYRNE, Jr. and Financial Indemnity Company.
    No. 2006-C-1850.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Allstate Insurance Company; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 591-389; to the Court of Appeal, Fifth Circuit, No. 06-CA-58.

Denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


text:
    STATE ex rel. Tommy BORDELON v. STATE of Louisiana.
    No. 2006-KH-1879.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Bordelon, Tommy; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 98-4883; to the Court of Appeal, Fifth Circuit, No. 06-KH-478.

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

KNOLL, J., recused.


text:
    Magalene LEWIS, et ux. v. ALBERTSON’S INC., et al., Rio Beach & Back Yard Flag Chair, All-Luminum Products, Inc., and Travelers Insurance.
    No. 2006-C-1943.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Lewis, Magalene et al.; Lewis, Sellus; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. B, No. 111,722; to the Court of Appeal, Second Circuit, No. 41,234-CA.

Denied.

JOHNSON, J., would grant.


text:
    SUCCESSION OF Sadie Ricks MCCOY.
    No. 2006-CC-1966.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re McCoy, James Timothy; — Other; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. F, No. 9730261; to the Court of Appeal, First Circuit, No. 2006 CW 0714.

Denied.

JOHNSON, J., would grant.

VICTORY, J., would grant.

WEIMER, J., would grant.


text:
    Gary L. MILLER v. CONAGRA, INC.
    No. 2006-CC-1994.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Miller, Gary L.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. A, No. 707,371B; to the Court of Appeal, Third Circuit, No. CW 06-00653.

Denied.


text:
    Gary L. MILLER v. CONAGRA, INC.
    No. 2006-CC-2217.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Miller, Gary L.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. B, No. 70,371; to the Court of Appeal, Third Circuit, No. CW 06-00653.

Denied.


text:
    Anissa CONSTANT-PLYLER v. Andreas P. PLYLER
    No. 2006-CJ-2524.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Constant-Plyler, Anissa; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. E, Nos. 98051, 97508; to the Court of Appeal, First Circuit, No(s). 2006 CU 0797, 2006 CU 0798.

Denied.

KIMBALL, J., would grant to examine issue of credits against spousal support.

KNOLL, J., would grant.


text:
    Carmen Pillow SMITH v. Cedric SMITH.
    No. 2006-CC-2549.
    Supreme Court of Louisiana.
    Nov. 9, 2006.
   In re Smith, Carmen Pillow; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. C, Nos. 03-5442, 03-3146; to the Court of Appeal, Fourth Circuit, No. 2006-C-1182.

Denied.


author: CHARLES R. JONES, Judge.

text:
    James G. DERBES v. CITY OF NEW ORLEANS.
    No. 2005-CA-1249.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 30, 2006.

      James G. Derbes, New Orleans, LA, pro se.
    Edward R. Washington, III, Deputy City Attorney, Evelyn F. Pugh, Chief Deputy City Attorney, Sherry S. Landry, Former City Attorney, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., and Judge ROLAND L. BELSOME).
   CHARLES R. JONES, Judge.

hThe City of New Orleans appeals the district court’s judgment granting the Ap-pellee’s, Mr. Derbes’, Partial Motion for Summary Judgment and Motion for Preliminary Injunction. The judgment prevents the City from interfering with his current usage of his property, as well as denying the City’s Motion for Summary Judgment as to whether Mr. Derbes’ use of the property for paid events has achieved non-conforming status under the terms of La. R.S. 9:5625(G) as a matter of law. The judgments of the district court are AFFIRMED.

Mr. Derbes is the owner of the Benachi House, a property bearing municipal number 2257 Bayou Road, New Orleans, Louisiana. The property is located in Square 1191 of the Third Municipal District, in an area zoned RD-3. The Benachi House is a local landmark built circa 1858 in the Greek Revival style. Mr. Derbes purchased the property in 1982. He completely restored the home, landscaped the grounds, and then restored the adjoining Carriage House.

The Benachi House is both a “historical preservation,” and a “landmark.” It is located in the Esplanade Ridge Historic District, and within that district it is 12rated “Blue,” a building of Major Architectural Importance. The Benachi House was also designated as an Orleans Parish “landmark” by the Orleans Parish Landmarks Commission.

By Ordinance No. 15696, the New Orleans City Council granted a conditional use for the Benachi House as a bed and breakfast historic home, in accordance with Article 11 of the City’s Comprehensive Zoning Ordinance (hereinafter “CZO”). The Benachi House has been continuously operated, without interruption, as a bed and breakfast historic home since the Ordinance was signed into law on February 10,1993.

The neighborhood is one of mixed uses. The House on Bayou Road, another bed and breakfast historic home, and Restaurant Indigo, are both located in the same Square (No. 1191) as the Benachi House. Across Bayou Road from the Benachi House is Square 1190, where two properties are non-conforming uses, currently being used as offices. In the 2300 Block of Esplanade Avenue is the Degas House, a bed and breakfast that, in 1997, was authorized by the New Orleans City Council to conduct paid event rentals.

The record shows that beginning in 1985, and on a regular and consistent basis since 1993, Mr. Derbes has allowed bed and breakfast guests of the Benachi House to use it for events, mostly weddings and wedding receptions. For most of the events, Mr. Derbes charged a fee in addition to the regular charges for rental of the guest rooms.

[.^Procedural History

In 2004, Mr. Derbes sought an additional conditional use permit from the New Orleans City Planning Commission and the New Orleans City Council. Specifically, Mr. Derbes sought permission: (1) to increase the number of bed and breakfast guest rooms from two to four (which was granted); (2) to operate the Benachi House bed and breakfast while residing in a house to be constructed on an adjoining lot that is historically a part of the Benachi House grounds (which was denied); and (3) to hold paid events — referred to by the parties as “event rentals” — at the Benachi House (which was also denied).

Mr. Derbes filed suit seeking review of the adverse City Council decisions of numbers (2) and (3), and additionally sought, inter alia, a preliminary and permanent injunction “enjoining and restraining the City from taking any action against petitioner with respect to events at the Bena-chi House ...” The City subsequently filed a Motion for Summary Judgment as to whether Mr. Derbes’ use of the Benachi House for paid events has achieved nonconforming status under the terms of La. R.S. 9:5625(G) as a matter of law.

Mr. Derbes then filed a Motion for Partial Summary Judgment and a Motion for Preliminary Injunction (to prevent the City from interfering with his current use of the Property). On March 31, 2005, the district court granted both of Mr. Derbes’ motions and denied the City’s motion, reasoning that the provisions of La. R.S. 9:5625(G) apply to use regulations and, as such, the ten year prescriptive period from the first violation applies in the instant case. The district court found |4that Mr. Derbes had acquired a legal non-conforming use of the property that was continuous and uninterrupted from October 1993 to October 2004. Accordingly, the district court also granted Mr. Derbes’ Motion for Preliminary Injunction enjoining the City from attempting to prevent Mr. Derbes’ use of his property in accordance with his legal non-conforming use. The district court designated the partial judgment as final, and this appeal follows.

Summary Judgment

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Independent Fire Insurance Company v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/2000), 755 So.2d 226; Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, scrutinized equally, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The burden of proof remains with the mover. Board of Assessors of the City of New Orleans v. City of New Orleans, 2002-0691, p. 8 (La.App. 4 Cir. 9/25/02), 829 So.2d 501, 506, writ denied, 2002-2633 (La.1/10/03), 834 So.2d 439. However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the | amotion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, thei-e is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

A fact is material if it is essential to a plaintiffs cause of action under the applicable theory of recovery and if, without the establishment of the fact by a preponderance of the evidence, plaintiff could not prevail. Generally, material facts are those that potentially insure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of a legal dispute. Prado v. Sloman Neptun Schiffahrts, A.G., 611 So.2d 691, 699 (La.App. 4 Cir.1992).

Moreover, because the interpretation of a statute is at issue, we will review de novo, as this Court reviews legal questions de novo.

Assignment of Error Nos. 12:

The City contends that the district court erred in denying its Motion for Summary Judgment and in granting Mr. Derbes’ Partial Motion for Summary Judgment with respect to whether the property has acquired a legal non-conforming use. Specifically, the City argues that the use regulation statute — La. R.S. 9:5625(A) — applies to the Benachi House use regulation, rather than the zoning restriction statute — La. R.S. 9:5625(G) — as the district court found. We disagree and find that the district court correctly found that the provisions of LSA-R.S. 9:5625(G) apply to a use regulation imposed upon an historic home. We also note that there is no controlling precedent on this particular legal question; thus, it is before us res nova.

IfiThe City also contends that the 1993 version of the statute applies to the instant case given that it was the law in effect at the time of the initial use violation by Mr. Derbes. We also disagree with this contention, and find that the district court correctly applied Subsection (G) as amended in 2001.

Louisiana Revised Statute 9:5625 provides the controlling time periods and means by which properties can acquire non-conforming status under Louisiana law. The statute consists of three sections pertinent to the instant matter. Subsection (A)(1) applies to all properties throughout the state and deals with “zoning restrictions, building restrictions, and subdivision regulations.” Subsection (A)(3) also applies to all properties throughout the state and deals with “use regulations.” Lastly, Subsection (G) applies only to historical preservations or landmarks and deals with a “zoning restriction or regulation.” La. R.S. art. 9:5625 provides in pertinent part:

A. (1) All actions civil or criminal, created by statute, ordinance, or otherwise, except those actions created for the purpose of amortization of nonconforming signs and billboards enacted in conformity with the provisions of R.S. 33:4722, which may be brought by parishes, municipalities, or their instrumentalities or by any person, firm, or corporation to require enforcement of and compliance with any zoning restriction, building restriction, or subdivision regulation, imposed by any parish, municipality, or an instrumentality thereof, and based upon the violation by any person, firm, or corporation of such restriction or regulation, must be brought within five years from the first act constituting the commission of the violation.
(3) With reference to violations of use regulations all such actions, civil or criminal, except those actions created for the purpose of amortization of nonconforming signs and billboards in conformity with the provisions of R.S. 33:4722, must be brought within five years from the date the parish, municipality, and the properly authorized 17instrumentality or agency thereof if such agency has been designated, first had been actually notified in writing of such violation.
G. (1) The provisions of this Section shall not apply to property or areas which have been identified as historic districts, historical preservations or landmarks by any historic preservation district commission, landmarks commission, or the planning or zoning commission of a governing authority; however, the prescriptive period within which to bring an action to enforce a zoning restriction or regulation or a violation thereof shall be ten years from the first act constituting the commission of the violation.
(2) The provisions of this Subsection shall apply only to zoning or planning restrictions made by a municipality or parish, or other municipal or parish entity responsible for zoning, planning, or building restrictions. (Emphasis added)

The historical preservation provision was first added to the statute effective August 15, 1997. As of August 15, 2001, three changes were made in the historical preservation provision: “shall apply” was changed to “shall not apply” and “five years” was changed to “ten years,” and the Subsection was divided into two parts.

Before the amendments adding Subsection (G), the violation of a “use” provision for all types of properties required written notice to the City and a period of two years. Thus, if after receiving written notice of a use violation, and the City took no action for two years, the use achieved nonconforming status and was allowed. In 1997, a new provision was added relating specifically to historical buildings and landmarks, eliminating the requirement of written notice to the City, and providing that prescription would commence with the “first act constituting the violation.” However, prescription was extended from two years to five years.

IsThe City first argues that the applicable statute for the Benachi House controversy is La. R.S. 9:5625(A)(3), cited above. Thus, the question in the instant matter is what type of violation is grandfathered in by the ten-year prescriptive period and which version of the statute applies to this case. Mr. Derbes asserts that La. R.S. 9:5625(G) covers zoning “use regulations” in addition to “zoning restrictions,” whereas the City contends that only zoning violations are covered. We find that the applicable'statute, La. R.S. 9:5625(G), does cover zoning “use regulations;” thus, the district court correctly denied the City’s Motion for Summary Judgment and granted Mr. Derbes’ Partial Motion for Summary Judgment.

First we look to what constitutes a use violation versus a zoning violation. According to the City, “zoning restrictions” are visible, physical items, such as “building height, front-yard, side-yard or rear-yard setback requirements, or fence heights.” The City asserts that a use violation can be hidden from view, while a zoning violation cannot. Therefore, the former requires written notice to the City for any prescriptive period to commence, while the latter requires no such written notice because it is obvious from plain view. Hence, the City is required to inspect, or notice, zoning violations, but obviously cannot know about use violations unless they -are disclosed. While we find that because the use of the Benachi House for events was open and obvious (it is a zoning violation according to the very description provided by the City), we find that the distinction drawn by the City is of no moment in the case sub judice.

19Even if the violation were considered a use violation, we find that Subsection 5625(G) would still apply to the facts of this case pursuant to the plain language of the statute. The City contends that Subsection 5625(A)(3) remains applicable to use violations for historic properties and thus, Mr. Derbes was required to give written notice of his use violation to the City. However, we disagree and find that according to the plain language of Subsection (G) the property at issue is excluded from Subsection (A)(3). Mr. Derbes has acquired a legal non-conforming use in compliance with the applicable law, Subsection 5625(G).

By its plain terms, Subsection (G) applies to “a zoning restriction or regulation” and therefore applies to all types of zoning-violations. Interpretation of any statute “begins, as it must, with the language of the statute itself.” David v. Our Lady of the Lake Hospital, Inc., 02-2675 (La.7/2/03), 849 So.2d 38, 46. We find that the City’s proposed construction is contrary to the plain language of the statute. The provisions of Act 871 are clear and unambiguous. Subsection (G) clearly and unambiguously makes the remainder of Section 5625 inapplicable to historic properties such as the one at issue. Specifically, Subsection (G) provides in pertinent part that “The provisions of this Section shall not apply to historic properties ...” (Emphasis added) When a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written, with no further interpretation made in search of the legislative intent. La. C.C. art. 9; O’Brien v. Rizvi, 04-2252 (La.4/12/05), 898 So.2d 360, 366; Russo v. Vasquez, 94-2407 (La.1/17/95), 648 So.2d 879, 883. “Only where ambiguity exists within |1(1the body of the enacted legislation does it become necessary to look further that [sic] the text to determine the legislative intent.” State v. Bar-bier, 98-2923 (La.9/8/99), 743 So.2d 1236, 1239. ‘Where no ambiguity exists, the law shall be applied as written, and no further interpretation may be made in search of the intent of the legislature.” Id., citing Tourchard v. Williams, 617 So.2d 885 (La.1993). While we find that because the provisions of Act 871 are clear and unambiguous, there is no need to review the legislative history under the pretext of determining legislative intent. We do find this issue to be one of first impression; therefore, we will examine the history of Act 871.

When the commercial use of the Benachi House began in 1993, Section 5625(A) stated as to use violations (the 1993 amendment added subsecs. C to F, relating to building and zoning) that in order for property to acquire a legal non-conforming use, there must have been written notice to the City, followed by two years of continuous uninterrupted use of the property in the non-conforming manner. If, after receiving written notice, the City did not bring an action to abate the illegal use, then in two years the City’s action to abate the use prescribed, and the owner of the property would have obtained a non-conforming use (or grandfather status for his or her property).

As to zoning restrictions or regulations, or planning or building restrictions, in order for a property to acquire a legal nonconforming status, or in order for these types of physical violations to become grandfathered in, there must have been five years of a continuous uninterrupted physical violation of the restriction or regulation in a non-conforming manner. Written notice to the City was not required to start the five-year period. If, after the passage of five years, the City did not bring an action to abate the violation of zoning restriction or regulation, or In planning or building restriction, then the City’s action to abate the violation prescribed, and the owner of the property would have obtained a non-conforming status (or grandfather status) for that feature of his property which deviated from the restrictions or regulations.

In 1997, the law was changed to use only. Acts 1997, No. 1146, § 1 added sub-sec. G. Acts 2001, No. 871, § 1, in par. (G)(1), inserted not before apply to property; inserted historic districts, after identified as; and changed five years to ten years at the end of the paragraph.

The law was changed to require that in order for a property to acquire a legal nonconforming use, there must have been written notice to the City, followed by five years of continuous uninterrupted use of the property in the non-conforming manner. If, after receiving written notice, the City did not bring an action to abate the illegal use, then in five years the City’s action to abate the use prescribed.

For all practical purposes, the 1997 amendment basically eliminated the requirement of written notice to the City. The historical preservation provision was first added to the statute effective August 15,1997, as follows:

The provisions of this Section shall apply to property identified as historical pres-ervations or landmarks by any historic preservation district commission, landmarks commission, or the planning and/or zoning commission of a governing authority; however, the prescriptive period within which to bring an action to enforce a zoning restriction or regulation or a violation thereof shall be five years from the first act constituting the commission of the violation. [Emphasis added]

Thus, under the 1997 amendment, the prescriptive period was clearly intended to commence with “the first act constituting the violation,” not with “written notice” to the City as required under the 1993 version of the prior law.

|12When the statute was amended in 1997 to eliminate the written notice requirement, Mr. Derbes needed only to establish a five-year period of continuous and uninterrupted use of the property in order to acquire non-conforming status. Any five-year period of continuous and uninterrupted use of the property for social events before 1997 through the effective date of the 2001 amendment was sufficient to establish a non-conforming use. The record establishes that beginning in 1993, paid events at the Benachi House and commercial activities in connection therewith continued on an uninterrupted basis, for a period of five years, even before the 2001 amendment was enacted.

In 2001, the law was changed again as to non-use violations. That is, the law was changed relative to violations of zoning restrictions or regulations, or planning or building restrictions. The historic preservation provision of the statute, La. R.S. 9:5625(G), was amended effective August 15, 2001. The pertinent provisions of the amended statute reads as follows:

G. (1) The provisions of this Section shall not apply to property or areas which have been identified as historic districts, historical preservations or landmarks by any historic preservation district commission, landmarks commission, or the planning or zoning commission of a governing authority; however, the prescriptive period within which to bring an action to enforce a zoning restriction or regulation or a violation thereof shall be ten years from the first act constituting the commission of the violation. (Emphasis added)

The City concedes that as to this amendment, written notice is not required. Thus, there is no dispute that under the 2001 amendment, the prescriptive period clearly begins with “the first act constituting a violation.” The law was changed to require that in order for a property in a historic district to acquire a legal nonconforming status for violation of a zoning restriction or regulation, or planning or | lobuilding restriction, there only needed to be ten years of continuous uninterrupted existence of the illegal feature on or about the property in a non-conforming manner without any written notice. If, after ten years of illegal existence of the non-conforming feature, without the necessity of written notice the City did not bring an action to abate the illegal feature, then in ten years the City’s action to abate the physical violation prescribed.

Thus, in both the 1997 and the 2001 versions of the historical preservation provision, the prescriptive period clearly commences with “the first act constituting the violation.”

One crucial issue in the present case involves which prescriptive period applies, and thus, on which date the prescriptive period commenced to accrue with respect to Mr. Derbes’ non-conforming use of the property. Because La. R.S. 9:5625 was amended after the initial use of the property for event rentals, the question arises as to whether the original or the amended version of Section 5625 must be considered.

However, the City contends that the legislature did not “intend” to make the amendment to Subsection (G) apply retroactively, and therefore, the 1993 version of the statute (which required written notice to the City of the non-conforming event rental use for the prescriptive period to commence) applies to the case sub judice.

The City further contends that in accordance with the Louisiana Supreme Court decision in City of New Orleans v. Elms, 566 So.2d 626 (La.1990), the law in existence during the prescriptive period must be applied in this case. However, we find the facts of Elms to be distinguishable from the facts of this case. The law is clear that prescriptive statutes are to be applied retroactively unless the Julegislature provides to the contrary or if to do so would operate to disturb a vested right. Lott v. Haley, 370 So.2d 521, 523 (La.1979). The Court, in Elms, noted that because of the change in the law “both the original and the amended provisions” of the statute had to be considered. The Court then applied the pre-1972 law because the defendants in that case had proven that prescription began to accrue in 1969, and that the defendants had acquired a vested right in the non-conforming use of their property before the statute was amended. The old law therefore applied. Id. at 629.

If the property in Elms had not acquired non-conforming status before the law changed, the new law (requiring written notice to the City) probably would have been applied, although Elms does not directly address the issue of whether the amended provisions of 5625 (G) are entitled to retroactive as well as prospective application. We find that the district court correctly applied the 2001 version of La. R.S. 5625 in the instant matter.

Assignment of Error No. 3:

Lastly, the City argues that the district court erred in granting Mr. Derbes’ Motion for Preliminary Injunction enjoining the City from attempting to prevent Mr. Derbes’ use of his property in accordance with his non-conforming use. However, we find no error in the district court’s judgment granting Mr. Derbes’ Motion for Preliminary Injunction, as we find that Mr. Derbes made a prima facie showing that the conduct to be enjoined is reprobated by law; thus, Mr. Derbes is entitled to injunctive relief without the showing that no other adequate legal remedy exists.

The standard of appellate review for the granting of a preliminary injunction was set out by this Court in Burnham Broadcasting Company v. Williams, 629 So.2d 1335, 1338 (La.App. 4 Cir.1993), writ denied, 632 So.2d 770 (La.1994), cert. denied, 513 U.S. 814, 115 S.Ct. 69, 130 L.Ed.2d 25 (1994):

La. C.C.P. art. 3601, relative to the grounds for issuance of an injunction, provides, in pertinent part, as follows: ‘An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law
‘During the pendency of an action for an injunction the court may issue a temporary restraining order, a preliminary injunction, or both, except in eases where prohibited ... ’
In order to prevail at a hearing for preliminary injunction, the moving party must show two (sic) things: (1) that the injury, loss or damage he will suffer if the injunction is not issued may be irreparable; (2) that he is entitled to the relief sought; and (3) that he will be likely to prevail on the merits of the case.

Hall v. Fertility Institute of New Orleans, a Professional Corp., 94-1135 (La.App. 4 Cir. 12/15/94), 647 So.2d 1348, 1350-51, citing General Motors Acceptance Corp. v. Daniels, 377 So.2d 346 (La.1979); Franz v. Cormier, 579 So.2d 1201 (La.App. 5 Cir. 1991).

A preliminary injunction may be issued on a prima facie showing by the petitioner that he is entitled to relief. Mary Moe, L.L.C. v. Louisiana Board of Ethics, 03-2220 (La.4/14/04), 875 So.2d 22, 29, citing Werner Enterprises, Inc. v. Westend Dev. Co., 477 So.2d 829, 832 (La.App. 5 Cir.1985); Kliebert Educational Trust v. Watson Marines Services, Inc., 454 So.2d 855 (La.App. 5 Cir.1984), writ denied, 457 So.2d 682 (La.1984). Therefore, the petitioner is required to offer less proof than is necessary in an ordinary proceeding for permanent injunction. Hall, 647 at 1351. (citations omitted) Moreover, because “a preliminary injunction is an interlocutory procedural device designed to preserve the status as it exists between the parties pending trial on the merits, a trial judge has great discretion to grant or deny the relief requests.” Id; See also, Sessions, Fishman & Nathan, L.L.P. v. Salas, 04-1790 (La.App. 4 Cir. 5/25/05), 905 So.2d 373, 377.

Additionally, the Louisiana Supreme Court has stated “a showing of irreparable harm is not required in cases where the conduct sought to be restrained is unlawful.” Jurisich v. Jenkins, 749 So.2d 597 (La.1999). Mr. Derbes alleges that because the period within which to enforce a zoning restriction or regulation has expired that any attempt by the City to enforce the Comprehensive Zoning Ordinance, with respect to event rentals, would be unlawful. We agree for the reasons discussed infra, and also find that the facts in this case meet the Burnham Broadcasting test; thus, the City’s third assignment of error lacks merit.

DECREE

The judgments of the district court are hereby AFFIRMED.

AFFIRMED.

BELSOME, J., concurs in the result.

      . See A Guide for Rating of Buildings as to their Architectural Significance, published by the Historic Districts Landmarks Commission.

      . A legal non-conforming use is designed to protect those uses that were established before the enactment of a restrictive zoning regulation. City of New Orleans v. Elms, 566 So.2d 626, 628 (La.1990); Weislerv. Board of Zoning Adjustments and the City of New Orleans, 98-3007 (La.App. 4 Cir. 11/17/99), 745 So.2d 1259, 1260, citing Humphrey v. Robertson, 97-1742 (La.App. 4 Cir. 3/11/98), 709 So.2d 333, 337.

      . Mr. Derbes provided several affidavits signed by neighbors attesting to the fact that they were well aware of Mr. Derbes’ use of the Benachi House for paid event rentals.

      . La. C.C. art. 9 provides:
      When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.