author: MONACO, J.

text:
    Donald K. WILLINGHAM, Appellant, v. The CITY OF ORLANDO, Officer Wayne Costa, etc., Appellee.
    Nos. 5D05-736, 5D05-1111.
    District Court of Appeal of Florida, Fifth District.
    May 12, 2006.

      Kathryn L. Kasprzak of Kathryn L. Kasprzak, P.A., Orlando, and Jeremy K. Markman of The Markman Law Firm, P.A., Orlando, for Appellant.
    Walter A. Ketcham, Jr. and Ramon Vazquez of Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A., Orlando, for Appellees, The City of Orlando and Wayne Costa.
    John S. McEwan, II and David C. Bibb of McEwan, Martinez & Dukes, P.A., Orlando, for Appellee, Orange County.
   MONACO, J.

This case requires us to examine the potential liability of law enforcement officers and their governmental employers in connection with the execution of an arrest warrant and the taking into custody of the person named in the warrant. Because we conclude that no cause of action for false arrest or false imprisonment against the officer or the involved agencies could be alleged under the facts of this case, we affirm.

The appellant, Donald K. Willingham, asserts that in January of 2000, his wallet was stolen. A month later he realized that one Craig Caldwell was unlawfully using his identity. Apparently Mr. Caldwell had been charged with displaying another’s driver’s license in violation of section 322.32, Florida Statutes (1999). The license that he wrongly displayed was that of a third person not involved in this case. When Mr. Caldwell was confronted about his display of another’s license, however, he then claimed to be Donald K. Willing-ham, and gave Mr. Willingham’s address as his own. The real Mr. Willingham was thereafter notified that he had been charged in Lake County with driving at an unlawful speed. After he protested and the Lake County authorities investigated the matter, they concluded that Mr. Will-ingham’s identity had in fact been misused by Mr. Caldwell. Mr. Willingham was then issued a civil infraction disposition dismissing the charge because of mistaken identity.

Several years later, according to Mr. Willingham, he was stopped in Orlando by Officer Wayne Costa of the Orlando Police Department. Officer Costa was investigating an outstanding warrant issued in Osceola County for failure to redeliver a hired vehicle, in violation of section 817.52, Florida Statutes (2003). Based on the outstanding Osceola County warrant, Officer Costa arrested Mr. Willingham outside his residence despite the protests of the appellant to the effect that his identity had been stolen, and that the officer had the wrong man. Mr. Willingham offered to get documentation for Officer Costa to demonstrate that he was not the person being sought pursuant to the warrant. Specifically, Mr. Willingham offered to produce the civil infraction disposition from the Lake County unlawful speeding case, as well as two booking photographs from the Orange County Correctional Facility. Officer Costa, however, chose not to investigate Mr. Willingham’s assertion of mistaken identity.

Mr. Willingham was first taken to the Orange County Jail, and was then transported to the Osceola County Correctional Facility. Once at the correctional facility, Mr. Willingham continued to protest his innocence to staff members. After five days of confinement, Mr. Willingham was released when the staff there completed an investigation into his assertions.

Several months later Mr. Willingham filed a civil complaint against Officer Wayne Costa and his employer, the City of Orlando, and Orange County, the operator of the jail where he was originally taken after his arrest. In the first count of the complaint Mr. Willingham sought damages against the City of Orlando for false arrest. He asserted that Officer Costa, an employee of the City, improperly and unreasonably restrained him when he was arrested, and that the City knew or should have known that Mr. Willingham was not the person named in the warrant. He further alleged that the City did not have a “valid warrant” to effect his arrest. The second count sought damages against Officer Costa for false arrest, both individually and in his official capacity. Mr. Willing-ham there asserted that the exercise of restraint by Officer Costa was improper and unreasonable because the warrant was invalid and not based on “probable cause.” The remaining counts asserted claims of false imprisonment against the City of Orlando, Officer Costa, and Orange County.

In response the City and Officer Costa alleged that probable, cause existed to arrest Mr. Willingham because of the existence of the arrest warrant, and asserted that there was no theory under which Mr. Willingham could recover against either of them. In addition, Officer Costa claimed that he was clothed with qualified immunity from personal liability for damages by virtue of section 768.28(9)(a), Florida Statutes (2003), because his actions were “conducted in good faith,” and with “the actual and reasonable belief that such actions were legal and proper under the circumstances.” Finally, Officer Costa pointed out that at no time did he act in his individual capacity with respect to the arrest of Mr. Willingham.

Orange County answered by asserting, among other things, that the arrest and confinement of Mr. Willingham involved a “discretionary function” associated with the enforcement of law, and that it was therefore entitled to sovereign immunity from liability. Finally, Orange County also urged that its agents and employees acted in accordance with the law regarding the enforcement of arrest warrants.

All three defendants sought partial summary judgment. At the hearing, Mr. Will-ingham argued that he had booking photographs near him from the incident in 2000, but that Officer Costa refused to look at either the photographs or other documents from the previous identity theft incident. His argument was as follows:

My position in this case is that this police officer didn’t make a reasonable mistake, because by choosing to be deliberately indifferent in- — in choosing not to look at the photographs, that wasn’t reasonable. Because it was right there. He was at the scene. There was no reason he shouldn’t look at them. No reason he couldn’t have looked at them. If the jury chooses to believe that they weren’t presented to him, then, essentially, no case. If the jury believes that they were presented to him, and that was a reasonable mistake, still against— against me. But if the jury chooses to believe that they were presented to the officer at the scene, and the officer, by choosing not to look at them, wasn’t being reasonable, then it’s in favor of Donald Willingham.

The trial court, however, granted a summary judgment on the authority of McGhee v. Volusia County, 679 So.2d 729 (Fla.1996); Stayer v. State, 590 So.2d 25 (Fla. 4th DCA 1991); and McCray v. State, 496 So.2d 919 (Fla. 2d DCA 1986). The court also cited Pollock v. Florida Dep’t of Highway Patrol, 882 So.2d 928 (Fla.2004), for the proposition that no special duty of care was owed to Mr. Willingham because of a failure to abide by any office procedures. The court eventually concluded that neither the City of Orlando, nor Orange County, nor Officer Costa violated Mr. Willingham’s rights by executing a “valid arrest warrant.” This appeal followed. We find no error.

We review a trial court’s grant of a summary judgment using a de novo standard. See Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001); Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). In order to determine the propriety of a summary judgment, a reviewing court must resolve whether there is any genuine issue as to any material fact, and whether the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c). The moving party for summary judgment has the burden to demonstrate conclusively the nonexistence of any genuine issue of material fact. A reviewing court will consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the nonmoving party. If the slightest doubt exists, summary judgment cannot stand. See Mivan (Florida), Inc. v. Metric Constructors, Inc., 857 So.2d 901, 902 (Fla. 5th DCA 2003); Krol v. City of Orlando, 778 So.2d 490, 491-92 (Fla. 5th DCA 2001); see also Horizons Rehab., Inc. v. Health Care and Ret. Corp., 810 So.2d 958 (Fla. 5th DCA), review denied, 832 So.2d 104 (Fla.2002). With those precepts in mind, we separately consider Mr. Will-ingham’s claims against the officer individually, and against the governmental entities collectively.

I. The Claims Against The Police Officer For Personal Liability.

Officer Costa suggests that he was entitled to immunity from suit and from damages against him personally by virtue of section 768.28(9)(a), Florida Statutes (2003), which reads as follows:

No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. ... The exclusive remedy for injury or damage suffered as a result of an act, event, or omission of an officer, employee, or agent of the state or any of its subdivisions or constitutional officers shall be by an action against the governmental entity, or the head of such entity in her or his official capacity or the constitutional officer of which the officer, employee, or agent is an employee, unless such act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

(Emphasis added). Thus, unless Officer Costa acted in bad faith, or with malicious purpose, or with willful and wanton disregard of human rights, safety or property, he was entitled to summary judgment with respect to any personal liability, and Mr. Willingham was limited to seeking damages against the officer’s governmental employer.

Importantly, the immunity provided by section 768.28(9)(a) is both an immunity from liability and an immunity from suit, and the benefit of this immunity is effectively lost if the person entitled to assert it is required to go to trial. See Tucker v. Resha, 648 So.2d 1187 (Fla.1994); Lemay v. Kondrk, 923 So.2d 1188 (Fla. 5th DCA 2006); Seminole Tribe of Fla. v. McCor, 903 So.2d 353 (Fla. 2d DCA 2005). Thus, we agree with the dissent in Ondrey v. Patterson, 884 So.2d 50 (Fla. 2d DCA), review denied, 888 So.2d 18 (Fla.2004), and the dissent in Lemay v. Kondrk, 860 So.2d 1022 (Fla. 5th DCA 2003), that the trial judge must act as a gatekeeper in these circumstances, and should terminate civil proceedings when the immunity applies. We have noted that in fulfilling the gatekeeping function when summary judgment is sought, the trial judge should ask whether a reasonable trier of fact could possibly conclude that the conduct was willful and wanton, or would otherwise fall within the exceptions to the statute. See Lemay, 923 So.2d at 1191. If a reasonable jury could not so conclude, summary judgment is appropriate. In the present case, no exception applies. The actions of Officer Costa do not fall within the definition of willful and wanton, and were clearly not malicious or taken in bad faith, and no reasonable jury could have concluded otherwise. There was, in fact, no assertion in Mr. Willingham’s complaint that Officer Costa so acted. Thus, to implement the immunity from suit, and to fulfill its responsibility as gatekeeper, the trial court acted properly in granting summary judgment in favor of Officer Costa.

False arrest is defined as the unlawful restraint of a person against that person’s will. See Johnson v. Weiner, 155 Fla. 169, 19 So.2d 699 (1944). In a false arrest action, probable cause is an affirmative defense to be proven by the defendant. See City of St. Petersburg v. Austrino, 898 So.2d 955, 957 (Fla. 2d DCA), review denied, 911 So.2d 97 (Fla.2005). A number of cases have addressed the legal status of an arrest by a law enforcement officer pursuant to a warrant. In Dodson v. Solomon, 134 Fla. 284, 183 So. 825 (1938), for example, the Florida Supreme Court held:

If the imprisonment is under legal authority it may be malicious but it cannot be false. This is true where legal authority is shown by valid process, even if irregular or voidable.

Dodson, 183 So. at 825.

In Jackson v. Navarro, 665 So.2d 340 (Fla. 4th DCA 1995), the trial court, while acting on a suit filed against the sheriff for false arrest, held that summary judgment for the sheriff was appropriate based on the general proposition set forth in Dodson and S.H. Kress & Co. v. Powell, 132 Fla. 471, 180 So. 757, 762 (1938).

Although not always observed the distinction between malicious prosecution and false imprisonment is fundamental. But briefly, the essential difference between a wrongful detention for which malicious prosecution will lie, and one for which false imprisonment will lie, is that in the former the detention is malicious but under the due forms of law, whereas in the latter the detention is without color of legal authority. In malicious prosecution plaintiff must allege and prove malice and want of probable cause and the termination of the proceeding favorably to plaintiff, whereas in false imprisonment the allegation of want of probable cause is not essential, and the burden is on defendant to prove probable cause as a defense or in mitigation. Malice is material only on the issue of damages, and the termination of the proceeding is not material. If the imprisonment is under legal authority it may be malicious but it cannot be false. This is true where legal authority is shown by valid process, even if irregular or voidable. Void process will not constitute legal authority within this rule. (Emphasis added).

See Jackson, 665 So.2d at 341; see also Erp v. Carroll, 438 So.2d 31 (Fla. 5th DCA 1983) (imprisonment under “process regular and in legal form issued by lawful authority” is not false).

Several other district courts have built upon this proposition. See McCray (although capias was mistakenly issued, arrest was valid since officers who learned of the outstanding capias had no discretion but to arrest defendant); see also Crain v. State, 914 So.2d 1015, 1023 (Fla. 5th DCA 2005) (officers are not expected to possess a lawyer’s understanding of the nuances of Fourth Amendment law and are not permitted to second guess the validity of a facially sufficient warrant); Fields v. State, 591 So.2d 1129 (Fla. 4th DCA 1992) (detective had no discretion in arresting Fields on an outstanding warrant); Stayer (same); Johnson v. Heinrich, 543 So.2d 831, 832 (Fla. 2d DCA 1989). Indeed, many courts have held that so long as a warrant is valid on its face, the officer is entitled to an absolute grant of immunity springing from the judicial immunity of the judicial officer who issued the warrant. See, e.g., Mays v. Sudderth, 97 F.3d 107, 112-13 (5th Cir.1996); see also Martin v. Hendren, 127 F.3d 720, 721 (8th Cir.1997)(law enforcement officer who carried out order of judge to handcuff and remove plaintiff from courtroom entitled to absolute quasi-judicial immunity); Valdez v. City & County of Denver, 878 F.2d 1285, 1289-90 (10th Cir.1989)(law enforcement officers who carried out order of judge to arrest and incarcerate spectator in court are entitled to absolute quasi-judicial immunity).

Officer Costa acted reasonably under the circumstances in fulfilling the nondis-cretionary requirements of his position to arrest Mr. Willingham under the warrant, even if it was mistakenly issued. It was simply not within Officer Costa’s authority to second guess the warrant. See Florida Statutes, §§ 839.19-839.20. Moreover, the documents that Mr. Willingham was anxious to show to Officer Costa would not have made a difference. Just because Mr. Willingham’s identity had been misused with respect to a case that concluded several years earlier does not mean that he could not have committed the more recent offense. The immunity from suit provided by section 768.28(9)(a) was designed specifically to address situations such as this, and there was no error in granting a summary judgment in favor of Officer Costa.

II. The Claims Against The City And Against The County.

Mr. Willingham asserted in his complaint purported causes of action against the City of Orlando for false arrest and false imprisonment, and against Orange County for false imprisonment. He argues that the trial court erred in granting summary judgment in favor of these entities. Once again, however, we find no error.

False imprisonment, as the Florida Supreme Court has noted, is often “distinguishable in terminology only from the action for false arrest.” See Johnson, 19 So.2d at 700. The cases seem to treat false imprisonment and false arrest as essentially the same tort when the issue involves an arrest and detention by a law enforcement officer. See, e.g., Spears v. Albertson’s, Inc., 848 So.2d 1176 (Fla. 1st DCA 2003); Jackson, 665 So.2d at 340. In any event, the County and the City assert defensively that taking a person into custody pursuant to a valid warrant issued by another entity having the legal authority to issue warrants cannot be false imprisonment. Secondly, the City and County aver that their actions vis-á-vis Mr. Willingham concerned their respective discretionary functions involving the enforcement of law and the protection of public safety, and that they were thus entitled to sovereign immunity.

In Pollock, the Supreme Court determined that the State of Florida had waived sovereign immunity from liability in tort actions for any act for which a private person under similar circumstances would be held liable. There could be, however, no governmental liability unless a common law or statutory duty of care existed that would have been applicable to an individual, as opposed to the general public, under similar circumstances. See Pollock, 882 So.2d at 931. Accordingly, if no duty of care is owed to the individual with respect to alleged tortious conduct, there is no governmental liability, and the question of whether the sovereign is immune from suit need not be reached. See Kaisner v. Kolb, 543 So.2d 732, 734 (Fla.1989). Judgmental or discretionary government functions are immune from legal action, whereas operational acts are not protected by sovereign immunity. Thus, it is only if there is a duty of care owed that we must consider whether sovereign immunity acts as a bar to an action for breach of that duty. See Pollock, 882 So.2d at 933.

The Pollock court held further that patrolling the state highways, control-' ling the flow of traffic, and enforcing the traffic laws are duties that the Florida Highway Patrol owes to the general public. “The responsibility to enforce the laws for the good of the public cannot engender a duty to act with care toward any one individual, unless an official assumes a special duty with regard to that person.” Pollock, 882 So.2d at 935. Similarly, in Holodak v. Lockwood, 726 So.2d 815 (Fla. 4th DCA 1999), the Fourth District held that the Clerk of Court does not owe drivers a duty of care individually to properly record their payment of fines for traffic violations to avoid fee assessments and license suspensions. The Fourth District came to a similar conclusion with respect to a claim by an arrestee based on the failure of the clerk to inform the sheriff that a capias for his arrest had been set aside. See Lovett v. Forman, 883 So.2d 319 (Fla. 4th DCA 2004), review denied, 894 So.2d 971 (Fla.2005). We fully agree with this line of cases. The enforcement of facially sufficient and validly issued arrest warrants are duties that law enforcement and the governmental entities associated with them owe to the general public and not to any individual person. There was no exercise of discretion involved. The warrant was validly issued, and it was the duty of the agencies to see to it that the warrant was given full effect. See State v. Walkin, 802 So.2d 1169, 1171 (Fla. 3d DCA 2001); Wigfall v. State, 323 So.2d 587, 589 (Fla. 3d DCA 1975); State v. Foust, 262 So.2d 686 (Fla. 3d DCA 1972). Thus, we conclude that under these circumstances, there was no special duty owed to Mr. Willingham by either the City or the County, and that they were not liable for his arrest or detention.

Mr. Willingham argues that our earlier decision in Lester v. City of Tavares, 603 So.2d 18 (Fla. 5th DCA 1992), compels a reversal. That case, however, involved a warrantless, and thus by definition a discretionary arrest. We concluded that there could be no immunity for false arrest there specifically because the actions of the arresting officer were discretionary. Here, there was no discretion and no special duty owed to the individual. The warrant was live and enforceable, and Officer Costa and the agencies acted as duty directed.

Similarly, Mr. Willingham also calls our attention to Jibory v. City of Jacksonville, 920 So.2d 666 (Fla. 1st DCA 2005), review dismissed, 926 So.2d 1269 (Fla. 2006). In that case officers arrested the claimant on a “warrant” that they had previously arrested him on. Apparently, the City failed to delete the warrant from its computer records after its own officers had executed it two years earlier. Once a warrant has been executed, it becomes void, or no longer active. See Robinson v. State, 885 So.2d 951, 954 (Fla. 1st DCA 2004); State v. Gifford, 558 So.2d 444, 445 (Fla. 4th DCA 1990). The Jibory court held that sovereign immunity would not protect the City under these circumstances. It carefully pointed out, however, that this was not a case where the City was entitled to accept the warrant as lawful because it was issued by another entity having the legal authority to issue warrants. “Rather, this case presents a situation where appellee, through its own employees, failed to delete the warrant from its computer records after appellee’s officers executed it....” Jibory, 920 So.2d at 667. Jibory, therefore, does not compel a different result.

Accordingly, the summary judgments in favor of Officer Costa and the governmental bodies were appropriate.

AFFIRMED.

PALMER and ORFINGER, JJ., concur.


source: Caselaw Access Project

author: FALVEY, C. A., Associate Judge.

license: Public Domain

text:
    Heather MORCROFT, Guardian Ad Litem, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D05-2804.
    District Court of Appeal of Florida, Fifth District.
    May 12, 2006.

      Heather Morcroft, Legal Aid Society of the Orange County Bar Association, Guardian ad Litem, Orlando, pro se.
    Charles D. Peters, Orlando, for Appellee Department of Children and Families.
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Legal Custodian, A. J.
    Timothy A. Straus, of Moyer, Straus <& Patel, P.A., Altamonte Springs, for Mother, R.S.
   FALVEY, C. A., Associate Judge.

Heather Morcroft, guardian ad litem of the minor children, M.J. and C.J., appeals two orders entered on July 11, 2005 in a dependency action. The first order continued the adjudication of dependency against the custodian of the children, A.J. The second order denied Morcroft’s motion to set aside the case plan, join the petition and amend the petition. The second order also dismissed the shelter and dependency petition Morcroft filed against the mother of the children, R.S. We affirm.

The facts of the case are not in material dispute. Sometime in 2003, the mother, a Haitian citizen, sent her children to live with the custodian in the United States. The father of the children died in 1998. In January 2005, the Department of Children and Family Services (DCF) took the children into custody and filed a shelter petition after receiving a report that M.J. had bruises on her arm. The mother did not receive formal notice of the petition, which noted her location in Haiti but listed her address as unknown.

The trial court found probable cause to shelter the children and placed them in a foster home. In early February 2005, DCF filed a Petition for Adjudication of Dependency against the custodian. After an arraignment hearing, DCF and the custodian entered into a case plan with a goal of reunification. The predecessor guardian ad litem, Robert Dietz, agreed to the case plan. In April 2005, the trial court accepted the case plan and entered an order adjudicating M.J. and C.J. dependent.

In May of 2005, Morcroft replaced Dietz as the guardian ad litem for the children. Subsequently, in June 2005, she filed a motion to set aside the case plan, join the petition and amend the petition arguing that the mother was not joined as a party to the original petition and attacking A.J.’s status as a legal custodian. Additionally, Morcroft filed a petition for dependency and a shelter petition against the mother.

On July 11, 2005, the trial court denied Moreroft’s motion and her petition for dependency and shelter during a hearing at which the mother’s attorney appeared and requested that the children be returned to the custodian. This appeal ensued.

In the first issue on appeal, Mor-croft essentially argues that the trial court lacked jurisdiction to enter an order of adjudication of dependency because the mother was not properly notified and joined as a party to the proceedings. Her argument is based upon the provisions of section 39.01(49)-(51), Florida Statutes (2005), and Florida Rule of Juvenile Procedure 8.210, which define “parent,” “participant,” and “party,” and the provisions of sections 39.501 and 39.502, Florida Statutes (2005). She also argues the record lacks sufficient proof of the custodian’s legal status.

Morcroft’s jurisdictional challenge is misplaced. While based upon the record Morcroft is correct that the mother’s parental rights remain intact, the trial court had jurisdiction to proceed in this matter. The power of Florida’s circuit courts to exercise jurisdiction over dependent children is codified by statute. Simms v. State, Dep’t of Health & Rehabilitative Servs., 641 So.2d 957, 961 (Fla. 3rd DCA), review denied, 649 So.2d 870 (Fla.1994). Pursuant to section 39.013(2), Florida Statutes (2005), circuit courts have “exclusive original jurisdiction” of dependency actions brought under Chapter 39. This section further provides that the court may assume jurisdiction “regardless of whether the child was in the physical custody of both parents, was in the sole legal or physical custody of only one parent, caregiver, or some other person, or was in the physical or legal custody of no person when the event or condition occurred that brought the child to the attention of the court.” § 39.013(2), Fla. Stat. (2005) (emphasis added); see also K.H. v. Dep’t of Children & Family Servs., 846 So.2d 544, 546-547 (Fla. 3rd DCA 2003). Thus, DCF’s failure to initially join the mother in the proceedings does not render the trial court’s adjudication of dependency against the custodian void. Under the statute, the trial court has jurisdiction to proceed against the person who has custody of the children. Here, the mother, who is now represented by counsel, has no objection to the court’s jurisdiction over the children.

As a second issue on appeal, Mor-croft argues that the trial court erred in denying her petition for dependency and shelter against the mother because the minor child, C.J., is an illegal alien. For this reason, Moreroft contends the trial court erred by failing to follow the requirements of section 39.5075, Florida Statutes (2005) (effective July 1, 2005), and the provisions of rule 65C-9.003, Florida Administrative Code. Significantly, in the July 11th hearing, Moreroft advised the trial court that “[w]e may or may not ask for special immigrant status for [C.J.].” Thus, the issue was not properly raised by Moreroft below.

However, Moreroft is correct that the requirements of section 39.5075 and the provisions of rule 65C-9.003 apply. Accordingly, as' part of this dependency action, the trial court should require DCF to comply with the requirements of the statute and the rule with regard to the immigration status of the minor child, C.J. Finally, regardless of the placement arrangements ultimately made for the children, if the custodian substantially complies with the case plan, the trial court should conduct an independent analysis to determine whether reunification with the custodian would be in the best interests of the children. In proceedings related to children in the custody of the State, the courts are charged with the duty of ensuring that the best interests of the children are advanced; this duty exists during dependency .proceedings and continues through adoption proceedings. B.Y. v. Dep’t of Children & Families, 887 So.2d 1253 (Fla.2004); see also § 39.01(41), Fla. Stat. (2005) (long-term custody arrangements involve an analysis of the best interests of the minor child); § 39.622, Fla. Stat. (2005) (statutory conditions for long-term custody arrangements).

AFFIRMED.

ORFINGER and LAWSON, JJ„ concur.

      . Although the parties refer to the custodian by differing initials, the custodian will be referred to as "AJ.” throughout this opinion.

      . For purposes of appeal, Morcroft's motion is treated as a Florida Rule of Juvenile Procedure 8.270(b) motion to set aside the order of adjudication of dependency.

      .Official-looking documents, written in French and executed in Haiti, purport to give custody of the children to A.J.

      . The plan indicated the mother was contacted regarding the proceedings and that A.J. was the "legal custodian" of the children.

      . On appeal, Morcroft argues that the petition for dependency she requested should have been granted pursuant to section 39.5075, Florida Statutes (2005) and rule 65C-9.003, Florida Administrative Code, because the minor child, C.J., is an illegal alien.

      .During oral argument, DCF’s counsel incorrectly asserted that the mother's parental rights were no longer intact given the custody arrangement. However, this assertion is not supported by either the record or existing law. Casbar v. DiCanio, 666 So.2d 1028, 1029 (Fla. 4th DCA 1996) (under Florida law parental rights may be terminated only by adoption or through Chapter 39 proceedings).


author: ORFINGER, J.

text:
    James Corey POWELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2292.
    District Court of Appeal of Florida, Fifth District.
    May 12, 2006.

      James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

After entering no contest pleas at arraignment in seven cases for various crimes, James Corey Powell was sentenced in accordance with his plea agreement with the State. He subsequently moved to withdraw his pleas, and after the trial court denied the motion, this appeal ensued. We affirm.

When a defendant files a motion to withdraw a plea after sentencing, he has the burden of proving that “a manifest injustice has occurred.” LeDuc v. State, 415 So.2d 721, 722 (Fla.1982). This is a more stringent standard than a motion to withdraw a plea filed before sentencing; the burden falls on the defendant to prove that withdrawal is necessary to correct the manifest injustice. See Lynn v. State, 687 So.2d 39, 41 (Fla. 5th DCA 1997). We conclude that Powell’s motion was facially insufficient because it failed to allege that withdrawal of his plea was necessary to correct a manifest injustice. Bradford v. State, 869 So.2d 28, 29 (Fla. 2d DCA 2004). Further, conclusory allegations are insufficient. Rather, a defendant must offer some proof that his plea was not voluntarily entered. Robinson v. State, 761 So.2d 269, 274 (Fla.1999). That was not done here.

AFFIRMED.

GRIFFIN and THOMPSON, JJ., concur.


author: PER CURIAM.

text:
    Robert JIMINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4170.
    District Court of Appeal of Florida, Fifth District.
    May 12, 2006.
    Robert Jiminez, Daytona Beach, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Robert Jiminez appeals the denial of his fourth rule 3.800(a) motion to correct illegal sentence. In this successive motion, Jiminez argued he was sentenced with an improperly calculated scoresheet. The trial court properly ruled he was not entitled to relief. We affirm with an opinion that prohibits Jiminez from filing pro se pleadings.

Jiminez was convicted of aggravated child abuse for performing what he called his “pile driver” wrestling move upon his girlfriend’s 3-year-old daughter. She was taken to the hospital after she was found on the floor, unconscious, with labored breathing. Hospital tests revealed one or two “bleeds” on her brain. At trial, a pediatric neurosurgeon testified that the toddler’s head injury was potentially life threatening caused by “non-accidental trauma.” The trial court reviewed his sentencing scoresheet, adjudicated Jiminez a habitual felony offender, and sentenced him to 15 years’ incarceration based in part on his prior New Jersey convictions. No objection to his prior convictions was raised at sentencing nor was this issue raised in his initial appeal. His conviction was affirmed. See Jiminez v. State, 767 So.2d 1224 (Fla. 5th DCA 2000).

Since that time, Jiminez has filed numerous pleadings contesting the New Jersey convictions used to habitualize him. This court issued a Spencer show cause order “why he should not be denied further pro se access to the Court for any proceeding to further attack the conviction and sentence rendered below in Volusia County, Seventh Judicial Circuit Court, case number 98-1189-CFWAS.” Appellant responded he was entitled to make this successive claim of an “illegal sentence based on procedural due process.”

At this point, Jiminez is abusing the judicial process by his successive attacks upon his conviction and habitual felony offender sentence. In order to conserve judicial resources, we prohibit Robert Jim-inez, a/k/a Robert Jimenez, from filing with this Court any further pro se pleadings concerning Volusia County, Seventh Judicial Circuit Court Case No. 98-1189 CFAWS. The Clerk of this Court is directed not to accept any further pro se filings concerning this case. Any further pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar. See Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (“Enough is enough.”) The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2005); Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

AFFIRMED; future pro se filings PROHIBITED; certified opinion FORWARDED to Department of Corrections.

PLEUS, C.J., GRIFFIN, and THOMPSON, JJ., concur.

      . See Fla. R. Crim. P. 3.800.

      . State v. Spencer, 751 So.2d 47 (Fla.1999).


text:
    Hugo Quental BARROS, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4243.
    District Court of Appeal of Florida, Fifth District.
    May 12, 2006.
    Hugo Q. Barros, Wewahitchka, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Hugo Q. Barros appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. As to grounds two and three, we affirm without further comment. As to ground one, we reverse for a hearing as the allegations, if true, would demonstrate that counsel “entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing,” resulting in the presumption of prejudice. U.S. v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); Dillbeck v. State, 882 So.2d 969 (Fla.2004). .

AFFIRMED IN PART, REVERSED IN PART.

SAWAYA, PALMER and ORFINGER, JJ., concur.


text:
    Benjamin LaFLOWER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-902.
    District Court of Appeal of Florida, Fifth District.
    May 12, 2006.
    Benjamin LaFlower, Punta Gorda, for Petitioner.
    Scott L. Sterling, of Law Offices of Scott L. Sterling, Orlando, for Respondent.
   PER CURIAM.

LaFlower seeks a writ of mandamus from this court to compel his former attorney (apparently a specially appointed public defender) to provide him with copies of his documents in a case file. His attorney has responded that copies of depositions and discovery materials have previously been provided to LaFlower, which LaFlower denies. Based on prior case law, LaFlower is entitled to the originals, or copies thereof, of depositions and transcripts, or any other materials in his former attorney’s possession that were prepared at public expense. See Potts v. State, 869 So.2d 1223 (Fla. 2d DCA 2004); Ramos v. State, 757 So.2d 616 (Fla. 3d DCA 2000); Colon v. Irwin, 732 So.2d 428 (Fla. 5th DCA 1999). However, he is not entitled to items related to the performance of professional services, and if provided, should compensate the attorney for charges incurred in copying them. See Potts; Sanford v. Black, 782 So.2d 548, 549 n. 2 (Fla. 5th DCA 2001).

Because LaFlower’s petition does not specify what kind of documents he seeks and there are fact issues as to whether or not some or all have been provided to him, we dismiss his petition for mandamus, without prejudice to file a more factually detailed petition in the circuit court. Cf. Olivera-Herrera v. Taylor, 920 So.2d 765 (Fla. 5th DCA 2006); Dumas v. Marrero, 864 So.2d 531 (Fla. 5th DCA 2004).

Petition for Writ of Mandamus DISMISSED.

SHARP, W., GRIFFIN and SAWAYA, JJ., concur.


author: SHARP, W., J.

text:
    Rickey T. NEAL, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-848.
    District Court of Appeal of Florida, Fifth District.
    May 12, 2006.
    See also, 915 So.2d 746.
    Rickey Neal, Sanderson, pro se.
    No Appearance for Appellee.
   SHARP, W., J.

Neal appeals from an order which denied his motion to disqualify a judge in a post-conviction proceeding. We dismiss this appeal because it is untimely, as well as moot.

Neal filed his post-conviction motion pursuant to Florida Rule of Criminal Procedure 3.850, which was denied by Judge Anthony Johnson on December 22, 2004. Based on the mailbox rule, he filed a motion to disqualify Judge Johnson on January 12, 2005, and a motion for rehearing of his 3.850 motion, on January 13, 2005. Both were denied by Judge Jose Rodriguez on August 16, 2005, after Judge Johnson had been reassigned to another division.

On September 8, 2005, pursuant to the mailbox rule, Neal filed a motion for reconsideration of the order denying his motion to disqualify. On September 14, 2005, pursuant to the mailbox rule, he also filed a notice of appeal from both Judge Johnson’s order denying his 3.850 motion, and Judge Rodriguez’s denial of his motion for rehearing. The 3.850 appeal was dismissed by this court because the motion for rehearing was untimely and did not toll the time for filing an appeal. See Neal v. State, 915 So.2d 746 (Fla. 5th DCA 2005).

Judge Rodriguez denied Neal’s motion for reconsideration of his order denying disqualification of Judge Johnson, by a written order rendered on February 14, 2006. Neal is seeking to appeal that order in this appeal.

Such an order may be reviewed by prohibition or on appeal. See Kokal v. State, 901 So.2d 766 (Fla.2005), rev. denied, Kokal v. Florida, — U.S.-, 126 S.Ct. 560, 163 L.Ed.2d 471 (2005). However, it is not clear under Florida Rule of Judicial Administration 2.160, whether rehearings are authorized if a motion for disqualification is denied. Since the order is not final, it does not appear that rehearing would be appropriate. If not authorized, the motion for reconsideration would not toll the time to file an appeal, and the appeal should have been filed within thirty days after the rendition date of the order denying the motion to disqualify.

Even if a motion for reconsideration is authorized, under the facts of this case, it could be viewed as being abandoned when the notice of appeal was filed from the orders denying the 3.850 motion and motion for rehearing. The 3.850 appeal was dismissed as untimely.

Alternatively, the motion for reconsideration was untimely and thus did not toll the time for taking an appeal. The order denying the motion to disqualify was served by mail on August 16, 2005. For motions for .rehearing filed under Florida Rule of Criminal Procedure 3.850,. the motion must be filed within 15 days from service of the order denying relief. If three days are added to the fifteen-day period because service was by mail, the eighteenth day fell on a Saturday and the following Monday was a holiday. Thus, Neal had until September 6, 2005 to place his motion into the hands of prison officials for mailing. The official prison stamp indicates his motion was provided to prison officials for mailing on September 8, 2005.

We also view the motion to disqualify as moot. It was directed to Judge Johnson, who did not act on it after he had been transferred to another division. Thus, it was not necessary to disqualify Judge Johnson in order to have Neal’s motion for rehearing, which was directed to his 3.850 motion, considered and ruled upon by a successor judge. Judge Rodriguez actually ruled on it.

DISMISSED.

GRIFFIN and TORPY, JJ., concur.

      . See Fla. R.App. P. 9.420(a)(2).

      . See Fla. R.Crim. P. 3.850(g); Fla. R.Crim. P. 3.070.


author: ROTHENBERG, Judge.

text:
    Roosevelt HOLMES, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2359.
    District Court of Appeal of Florida, Third District.
    May 17, 2006.
    Roosevelt Holmes, Jr., in proper person.
    Charles J. Crist, Jr., Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Roosevelt Holmes, Jr. (“Holmes”), appeals the trial court’s order entered on August 30, 2005, denying his motion for postconviction relief, finding that the motion was procedurally barred because the motion was either successive and/or the claims raised in the motion could have been raised on direct appeal. As we conclude that claims # 1, # 2 and #4 could have been raised on direct appeal, we affirm the denial of the defendant’s motion regarding these claims. As to the remaining claims we reverse and remand for an evidentiary hearing, as they are neither successive nor claims which could have been raised on direct appeal.

Holmes was convicted of robbery with a firearm, aggravated battery with a firearm, and grand theft. His convictions and the sentences imposed were affirmed on appeal on June 23, 2004, Holmes v. State, 878 So.2d 420 (Fla. 3d DCA 2004), with a mandate being issued on August 20, 2004. During the pendency of the direct appeal and prior to a ruling by this court, Holmes filed a motion for relief of judgment under Florida Rule of Civil Procedure 1.540, which was denied by the trial court on March 13, 2004. Additionally, Holmes filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), wherein he alleged that his habitual violent offender sentence was illegal under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which was also denied by the trial court on August 24, 2004. The instant 3.850 motion was filed on April 8, 2005, and was denied by the trial court as successive and/or because the claims which were made could have been raised on direct appeal and are, therefore, procedurally barred.

We write to explain the understandable confusion which perhaps led to the trial court’s ruling. Generally, Florida Rule of Civil Procedure 1.540 is an improper mechanism to collaterally attack a conviction, see Steinhorst v. State, 636 So.2d 498, 500 (Fla.1994); Williams v. State, 925 So.2d 427 (Fla. 3d DCA 2006), and may render a subsequently filed 3.850 motion successive. In this case, however, as the 1.540 motion was filed and ruled upon while the defendant’s direct appeal was pending, the 1.540 motion must be treated as a nullity and a subsequently filed 3.850 motion is not considered a successive motion. See Daniels v. State, 712 So.2d 765 (Fla.1998).

We, therefore, affirm the denial of claims #1, #2, and # 4, wherein the defendant claims that his Fifth Amendment rights were violated, challenges the racial composition of the jury, and claims that the prosecutor committed prosecutorial misconduct by offering perjured testimony, respectively, since these are claims which could have been raised on direct appeal. We reverse the remaining claims, # 3 and # 5-9 which are based upon allegations of ineffective assistance of counsel and remand for an evidentiary hearing as to those claims.

Affirmed in part; reversed and remanded in part.


text:
    In re Robert L. BARRIOS.
    No. 2005-B-1932.
    Supreme Court of Louisiana.
    April 17, 2006.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

J^This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Robert L. Barrios, an attorney licensed to practice law in Louisiana.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1977. Since that time, he has been disciplined on six occasions, as follows:

1) October 1984 — formal private reprimand for neglecting a legal matter;

2) November 1984 — -formal private reprimand for neglecting a legal matter and failing to communicate with a client;

3) June 1989 — formal private reprimand for failing to cooperate in a disciplinary investigation;

4) March 1993 — admonition for neglecting a legal matter, failing to communicate with a client, failing to promptly refund an unearned fee, and failing to cooperate with the ODC in its investigation;

5) June 1993 — admonition for failing to cooperate with the ODC in its investigation; and

1⅞6) September 1993 — admonition for failing to cooperate with the ODC in its investigation.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The ODC filed three sets of formal charges against respondent. The first set, bearing the disciplinary board’s docket number 00-DB-104, was filed on August 16, 2000 and consists of three counts of misconduct. The second set, bearing the disciplinary board’s docket number 02-DB-090, was filed on August 27, 2002 and consists of one count of misconduct. The third set, bearing the disciplinary board’s docket number 04-DB-015, was filed on March 1, 2004 and consists of one count of misconduct.

The three sets of formal charges were considered by separate hearing committees, then consolidated by order of the disciplinary board on January 18, 2005. On July 25, 2005, the disciplinary board filed in this court a single recommendation of discipline encompassing all three sets of formal charges.

00-DB-m

Count I — The Davis Matter

In August 1998, Wanda Davis retained respondent to file suit against a contractor who had failed to complete renovations to her parents’ home. Ms. Davis paid respondent a flat fee of $1,500 for the representation, plus $170 for costs. Because the property had never been legally transferred to Ms. Davis’ parents, respondent recommended a succession be opened to accomplish this. Ms. Davis agreed and paid respondent a flat fee of $750 for the succession.

Respondent filed suit against the contractor corporation in August 1998 but later found that the corporation was no longer in existence. Respondent planned to Lamend the suit to add the contractor individually and get a judgment against him. However, respondent failed to follow through with this plan. He also failed to do any work on the succession. .Furthermore, respondent failed to keep Ms. Davis informed of the status of the legal matters.

In September 1999, Ms. Davis filed a complaint against respondent with the ODC. Respondent failed to respond to the complaint, necessitating the issuance of a subpoena by the ODC to obtain his sworn statement. During his sworn statement on February 21, 2000, respondent agreed to provide a written response to the complaint and an accounting of the fees paid by Ms. Davis within fifteen days. Despite follow-up requests from the ODC, respondent failed to provide the information.

In November 2000, respondent reimbursed Ms. Davis $1,500, representing the entire fee for the succession and half of the fee for the suit against the contractor.

In its formal charges, the ODC alleged that respondent’s conduct in the Davis matter violated the following Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5 (failure to account for and refund an unearned fee), 3.2 (failure to make reasonable efforts to expedite litigation), and 8.4(g) (failure to cooperate with the ODC in its investigation). Additionally, the ODC alleged that respondent violated Supreme Court Rule XIX, § 9(c) (failure to respond to a lawful demand for information from a disciplinary authority).

Counts II & III — The Toups/Adams Matter

In 1986, respondent represented Gary Toups in his divorce from Helen Hill Toups (now Adams). The matter involved child custody, alimony, and community | ¿property. Mr. Toups hired respondent again in 1992 to handle a satisfaction of judgment in the same matter.

In 1996, Mr. Toups was served with pleadings in the same matter, which reflected that respondent was now representing Ms. Adams, Mr. Toups’ ex-wife, in her attempt to obtain an increase in child support. Mr. Toups attempted to contact respondent, but his calls were not returned. Mr. Toups then went to respondent’s office and questioned whether respondent’s representation of Ms. Adams was a conflict of interest. Respondent informed Mr. Toups that it was not.

Respondent represented Ms. Adams in the same matter in 1999, again in her attempt to obtain an increase in child support. Ms. Adams paid him a $500 fee plus $125 for costs. When Mr. Toups informed Ms. Adams that respondent should not be representing her because of the conflict of interest, she sought advice on the subject from another attorney. Thereafter, in May 2000, Ms. Adams requested in writing that respondent return her file and the $625 she had paid him. Respondent failed to respond to this request.

In September 1999, Mr. Toups filed a complaint against respondent with the ODC. He alleged that respondent engaged in a conflict of interest by representing his ex-wife. In June 2000, Ms. Adams filed a complaint against respondent with the ODC. She alleged that respondent delayed her case because of the conflict of interest and the complaint filed against him by Mr. Toups. She also alleged that respondent failed to communicate with her or keep her informed of the status of her case.

Respondent failed to respond to the complaint filed by Mr. Toups, necessitating the issuance of a subpoena by the ODC to obtain his sworn statement. During his sworn statement on February 21, 2000, respondent agreed to provide a written response to the complaint. Despite followup requests from the ODC, respondent | ¡Jailed to provide the response. Notice to respondent of Ms. Adams’ complaint was returned marked “unclaimed.”

At the formal hearing of this matter, Ms. Adams testified that two weeks before the hearing, respondent refunded the $500 fee she paid him and forwarded her file to her new attorney.

In its formal charges, the ODC alleged that respondent’s conduct in the Toups/ Adams matter violated the following Rules of Professional Conduct: Rules 1.3, 1.4, 1.5, 1.9(a) (conflict of interest involving a former client), 1.16(d) (obligations upon termination of the representation), and 8.4(g). Additionally, the ODC alleged that respondent violated Supreme Court Rule XIX, § 9(c).

Respondent answered the formal charges and generally denied any misconduct. The matter then proceeded to a formal hearing on the merits, which was conducted by the hearing committee on December 13, 2000. The ODC submitted documentary evidence, including the deposition of Gary Toups, and called Wanda Davis and Helen Adams to testify before the committee. Respondent likewise introduced documentary evidence, and he called his secretary, Michelle Nesom, to testify before the committee. Respondent also testified on his own behalf.

The parties also filed a joint stipulation, stipulating to the following:

1) Despite repeated requests by the Office of Disciplinary Counsel, Respondent failed to respond to Ms. Davis’ complaint such that Respondent had to be subpoenaed to respond to the complaint under oath.
2) During his sworn statement taken on February 21, 2000, Respondent agreed to produce a written response to the Davis complaint as well as an accounting of fees paid by Ms. Davis within fifteen (15) days. Despite follow-up requests by the Office of Disciplinary Counsel, Respondent failed to provide this information.
|63) Respondent represented Gary Toups in a domestic matter against his ex-wife, Helen Hill (now Adams), in 1986. The matter involved child custody, support, alimony and community property. Mr. Toups hired Respondent again in 1992 to handle a Satisfaction of Judgment in the same matter.
4) In 1996, Mr. Toups was served with pleadings in the same matter reflecting that Respondent was now representing Helen Hill (now Adams).
5) Respondent admits that he represented Helen Hill (now Adams) in the same matter in which her interests were materially adverse to the interests of Respondent’s former client, Mr. Toups, in violation of Rule 1.9(a) of the Rules of Professional Conduct.
6) During his sworn statement taken on February 21, 2000, Respondent agreed to provide a written response to Mr. Toups’ complaint. However, despite follow-up requests for the same by the Office of Disciplinary Counsel, Respondent failed to provide same.
7) Helen Adams (Mr. Toups’ ex-wifé) hired respondent on July 11, 1999 and paid him a fee of $500.00 to represent her against Mr. Toups.
8) Ms. Adams sent Respondent a certified letter requesting a refund and her file. Respondent has not responded to Ms. Adams’ letter, failed to timely refund her fee, and failed to send her file.
9)Ms. Adams’ case for a child support increase was delayed due to the complaint filed by Mr. Toups as a result of Respondent’s conflict of interest.
10)The Office of Disciplinary Counsel sent Respondent a certified letter requesting a response to Ms. Adams’ complaint within fifteen (15) days. Respondent failed to respond at all.

Hearing Committee Recommendation

After considering the joint stipulation, the testimony of the witnesses, and the documentary evidence presented at the hearing, the hearing committee made factual findings as follows:

|7In Count I, the Davis matter, Ms. Davis hired respondent to sue a contractor for failing to complete renovations on her family home, paying respondent a $1,500 flat fee plus $170 for costs. Ms. Davis also hired respondent to complete a succession. Respondent failed to respond to Ms. Davis’ complaint and had to be subpoenaed to respond under oath. During his sworn statement, respondent agreed to provide a written response to the complaint and an accounting of fees paid by Ms. Davis within fifteen days. However, despite followup requests from the ODC, he failed to provide this information.

In Counts II and III, the Toups/Adams matter, respondent represented Mr. Toups in a domestic matter against his ex-wife, Ms. Adams, in 1986. In 1996, Mr. Toups was served with pleadings in the same matter wherein respondent represented Ms. Adams; however, Mr. Toups never consented to respondent’s representation of his ex-wife. Respondent admitted representing Ms. Adams in the same matter in which her interests were materially adverse to the interests of Mr. Toups, his former client, in violation of Rule 1.9(a) of the Rules of Professional Conduct. During his sworn statement, respondent agreed to provide a written response to Mr. Toups’ complaint. However, he failed to do so despite follow-up requests by the ODC. Ms. Adams hired respondent on July 11, 1999 to represent her against Mr. Toups, paying him a $500 fee. Thereafter, she sent him a certified letter requesting a refund and her file. Respondent failed to respond to the letter, failed to timely refund her fee, and failed to return her file. Ms. Adams’ case for an increase in child support was delayed due to the complaint filed by Mr. Toups as a result of respondent’s conflict of interest. Respondent failed to respond to Ms. Adams’ complaint filed with the ODC.

Based on these findings, the committee determined that respondent violated Rules 1.3, 1.4, 1.5, 1.9, 1.16, 3.2, and 8.4 of the Rules of Professional Conduct. He violated duties owed to his clients and as a professional, but the injury to his clients |swas not substantial. With the exception of his failure to respond to the ODC’s requests, his actions were negligent. The committee determined that the ABA’s Standards for Imposing Lawyer Sanctions indicate suspension and reprimand are the baseline sanctions.

The committee found the following aggravating factors to be present: prior disciplinary offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, and substantial experience in the practice of law (admitted 1977). In mitigation, the committee found 1) remoteness of prior offenses, 2) respondent cured his failure to cooperate with the ODC by cooperating in connection with the hearing, and 3) his actions were not intentional.

Under these circumstances, the committee recommended that respondent be suspended from the practice of law for nine months, with all but thirty days deferred, followed by two years of probation.

The ODC filed an objection to the hearing committee’s recommendation in 00-DB-104, suggesting that respondent’s probation be supervised by a practice monitor and that he be required to attend Ethics School.

02-DB-090

In November 2000, Erica Corte hired respondent to handle her divorce. She paid respondent a $1,500 retainer to be billed against his hourly fee. She also gave respondent a check made payable to the Clerk of Court in the amount of $250 for the filing fee. Because respondent did not have a client trust account, he deposited the $1,500 check into his operating account, despite the fact that the $1,500 was not earned when deposited.

^Thereafter, respondent filed a petition for divorce on Ms. Corte’s behalf. A hearing was set for January 19, 2001; however, prior to the hearing, Ms. Corte reconciled with her spouse. She attempted to contact respondent several times to receive an itemized bill and a refund of any unearned fee. Respondent did not respond to her requests.

Respondent also failed to respond to the complaint Ms. Corte filed with the ODC. As such, the ODC subpoenaed respondent to provide a sworn statement on April 15, 2002. He could provide no explanation for his failure to respond but promised to provide a written response, including a copy of his time sheet and his entire file in the matter, by April 23, 2002. Despite three follow-up requests from the ODC, respondent failed to provide the promised information.

In its formal charges, the ODC alleged that respondent’s conduct in the Corte matter violated the following Rules of Professional Conduct: Rules 1.4, 1.5(f)(3) (failure to place client funds in a trust account and failure to render a periodic accounting for client funds), 1.5(f)(6) (failure to refund an unearned fee), 1.15 (conversion of client funds), and 8.4(g). Additionally, the ODC alleged that respondent violated Supreme Court Rule XIX, § 9(c).

Respondent was served with the formal charges via certified mail delivered on August 29, 2002. Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

\inHearing Committee Recommendation

After reviewing the ODC’s submission, the hearing committee found that respondent failed to communicate with Ms. Corte regarding an itemized bill and a refund of fees paid. Respondent also placed Ms. Corte’s retainer fee in his operating account and thereby utilized the funds. Thereafter, respondent failed to respond to the complaint filed with the ODC and repeatedly failed to cooperate with the ODC. The committee found that respondent could offer no reasonable explanation for his failure to cooperate with either his client or the ODC.

Citing this court’s prior jurisprudence, the committee determined that the baseline sanction for respondent’s misconduct is a suspension for one year and one day. The committee found no mitigating factors and determined that a number of aggravating factors are present, including prior disciplinary offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, substantial experience in the practice of law, and indifference to making restitution.

Based on these findings, the committee recommended that respondent be suspended from the practice of law for one year and one day. Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation. However, respondent subsequently filed a motion to vacate the deemed admitted order. On October 6, 2003, the disciplinary board denied respondent’s motion but remanded the matter to the hearing committee for the sole purpose of receiving mitigating evidence.

After hearing the evidence in mitigation, the committee determined that the mitigating factors of depression and remorse are present. In light of these factors, the committee filed a supplemental report recommending that respondent be suspended from the practice of law for one year and one day, with all but six months deferred, followed by two years of supervised probation.

InNeither respondent nor the ODC filed an objection to the hearing committee’s recommendation in 02-DB-090.

OJp-DB-015

In September 2002, Brian Belcastro, the president of a Florida company, Southern Concrete Pavers, Inc., retained respondent to file a lien against Ellendale Country Club for the $39,112.14 owed to the company for the installation of the golf cart path on the country club’s golf course. Mr. Belcastro paid respondent $250 in cash in connection with the representation. Respondent did not open a file on the matter and did not file the lien. Thereafter, having received no communication from respondent, Mr. Belcastro began attempting to contact him.

When his attempts were unsuccessful, Mr. Belcastro filed a complaint against respondent with the ODC in December 2002. Respondent failed to respond to the complaint. As such, the ODC subpoenaed him to give a sworn statement on April 30, 2003. During his sworn statement, respondent promised to provide the ODC with evidence of a refund to Mr. Belcastro within ten days. Respondent failed to provide the evidence and failed to respond to two additional letters sent by the ODC.

On October 6, 2003, respondent’s counsel sent Mr. Belcastro a refund of the $250 fee paid to respondent.

In its formal charges, the ODC alleged that respondent violated the following Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f)(6), and 8.4(g). Additionally, the ODC alleged that respondent violated Supreme Court Rule XIX, § 9(c).

Respondent was personally served with the formal charges on May 18, 2004. Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No Informal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Recommendation

After reviewing the ODC’s submission, the hearing committee found that respondent failed to communicate with Mr. Bel-castro regarding the lien. He also failed to open a file on the matter and failed to file the lien. Furthermore, he failed to account for and refund the unearned fee. Finally, respondent failed to respond to the complaint filed with the ODC and repeatedly failed to cooperate with the ODC. The committee found that respondent could offer no reasonable explanation for his failure to cooperate with either his client or the ODC.

Citing this court’s prior jurisprudence, the committee determined that the baseline sanction for respondent’s misconduct is a suspension for one year and one day. The committee found no mitigating factors and determined that a number of aggravating factors are present, including prior disciplinary offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, substantial experience in the practice of law, and indifference to making restitution.

Based on these findings, the committee recommended that respondent be suspended from the practice of law for one year and one day, followed by twelve months of supervised probation.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation in 04-DB-015.

1Disciplinary Board Recommendation

00-DB-10k, 02-DB-090, & 0k-DB-015

After reviewing the consolidated matters, the disciplinary board made the following determinations with respect to each set of formal charges:

00-DB-104: The board determined that the hearing committee’s factual findings are not manifestly erroneous. The board also made additional factual findings relating to Count I, the Davis matter. In August 1998, respondent filed suit against the contractor corporation on behalf of Ms. Davis’ parents. Respondent had at least two meetings with Ms. Davis and went to the home to survey the renovation project around the time the suit was filed. Ms. Davis testified that she spoke with respondent “not more than ten times” during the time period of his representation (August 1998 until June 2000); however, she had no communication with him between January 1999 and July 1999, and between September 1999 and March 2000.

On May 19, 1999, respondent filed an answer on behalf of Ms. Davis’ parents in a suit involving a materialman’s lien filed by a lumber company that provided materials to the contractor corporation in connection with the renovation project. In March 2000, respondent sent a letter to Ms. Davis’ parents requesting that they answer outstanding discovery in the lien suit. They failed to respond to the letter. In May 2000, respondent sent another letter to Ms. Davis’ parents concerning a motion for' default judgment filed in the lien suit because they had not answered the j rediscovery. Ms. Davis and her parents responded to this letter and went to court. Either Ms. Davis fired respondent at court or respondent resigned. Regardless of which occurred, Ms. Davis consulted another attorney after the June 2000 court date.

The contractor suit remained dormant because the corporation was a non-viable entity and the individual contractor could not be located. The succession was not filed because respondent did not think it was prudent to transfer the property to Ms. Davis’ parents while the lien suit was pending. The lumber company ultimately placed a lien on the home in which Ms. Davis’ parents resided.

After the ODC filed formal charges against respondent, he refunded the entire $750 fee for the succession and half of the $1,500 fee for the contractor suit.

Based on the factual findings, as supplemented, the ’ board determined respondent violated Rules 1.8, 1.4, 1.5(f)(6), 3.2, and 8.4(g) of the Rules of Professional Conduct as well as Rule XIX, § 9(c) with respect to the Davis matter. With respect to the Toups/Adams matter, the board determined that respondent violated Rules 1.3, 1.4, 1.5(f)(6), 1.9(a), 1.16(d), and 8.4(g) of the Rules of Professional Conduct as well as Rule XIX, § 9(c).

02-DB-090: The board found that the deemed admitted facts are not manifestly erroneous. Accordingly, the board determined that respondent violated Rules 1.4, 1.5(f)(3), 1.5(f)(6), and 8.4(g) of the Rules of Professional Conduct as well as Rule XIX, § 9(c). Respondent failed to return Ms. Corte’s telephone calls. He failed to provide her with an accounting and failed to place disputed funds in his trust account. He also failed to cooperate with the ODC in its investigation. However, the board found that respondent did not violate Rule 1.15 because he produced a time sheet showing he had earned the entire fee paid by Ms. Corte. Thus, the ODC did not prove by clear and convincing evidence that respondent converted the money.

|1b04-DB-015: The board found that the deemed admitted facts are not manifestly erroneous. Accordingly, the board determined that respondent violated Rules 1.3, 1.4, 1.5(f)(6), and 8.4(g) of the Rules of Professional Conduct as well as Rule XIX, § 9(c). Respondent failed to file the lien on behalf of Southern Concrete Pavers, Inc. and failed to communicate with Mr. Belcastro. He also failed to timely refund the $250 unearned fee paid by his client. Finally, respondent failed to cooperate with the ODC in its investigation of this matter.

Based on the above findings, the board determined that respondent violated duties owed to his clients and as a professional. He acted negligently with respect to the conflict of interest in the Toups/Adams matter. He acted knowingly with respect to his lack of diligence, failure to communicate, and failure to account for and timely refund unearned fees. He acted intentionally when he failed to cooperate with the ODC. Respondent’s conduct harmed his clients, jeopardizing their legal matters, delaying the resolution of their cases, and/or depriving them of their money by failing to timely refund unearned fees. The conflict of interest had the potential to cause harm to Mr. Toups and Ms. Adams. He also harmed the profession by failing to cooperate with the ODC. Relying upon the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction for respondent’s misconduct is suspension.

The aggravating factors found by the board included respondent’s prior disciplinary offenses, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, and substantial experience in the practice of law. In mitigation, the board recognized respondent’s personal or emotional problems stemming from his depression.

|1fiThe board found that the facts, case law, and ABA Standards support a suspension in the range of twenty-four months to thirty-six months. Accordingly, the board recommended that respondent be suspended from the practice of law for two years and be assessed with all costs and expenses of these proceedings.

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

DISCUSSION

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

The rule violations found by the disciplinary board are supported by the record of the consolidated matters. Respondent has engaged in a pattern of misconduct involving the neglect of .his clients’ legal matters, failure to communicate with his clients, and failure to account for and timely refund unearned fees. He furthermore has faded to cooperate with the ODC in its investigation of these matters.

117Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In considering that issue, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts 'of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent knowingly violated duties owed to his clients, and intentionally failed to cooperate with the ODC. His misconduct harmed his clients and impaired the orderly functioning of the disciplinary system. Our prior jurisprudence indicates that the sanction for similar misconduct falls within the range of an eighteen-month suspension to a three-year suspension. Considering the aggravating and mitigating factors present in this case, we find the sanction recommended by the disciplinary board is appropriate. Accordingly, we will suspend respondent from the practice of law for a period of two years.

DECREE

Upon review of the findings and recommendations of the hearing committees and the disciplinary board, and considering the record, it is ordered that Robert L. 11sBarrios, Louisiana Bar Roll number 2823, be suspended from the practice of law for two years. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . The board actually found that Ms. Davis testified to speaking with respondent “more than ten times.” However, the board was clearly erroneous with respect to this finding. A review of Ms. Davis' hearing testimony indicates that she actually testified to speaking with him “not more than ten times.” Transcript of December 13, 2000 hearing, p. 37:22-25.

      . The board also found that Ms. Davis failed to keep at least three appointments with respondent. Again, the record reveals that the board was clearly erroneous with respect to this finding. Respondent introduced a copy of his calendar showing Ms. Davis had three scheduled appointments, and he testified that he had no recollection of Ms. Davis not showing up for those appointments. Transcript of December 13, 2000 hearing, p. 181:11-19. Furthermore, Ms. Davis testified to showing up for her appointments with respondent. Transcript of December 13, 2000 hearing, p. 36:22-37:2.

      . The board cited In re: Szuba, 01-1877 (La.10/5/01), 797 So.2d 41 (attorney suspended for two years for violating Rules 1.3, 1.4, and 1.16(d) with respect to three clients; numerous aggravating factors, including prior disciplinary offenses, were present, as well as the mitigating factor of significant personal problems), and In re: Brown, 04-1119 (La.1/14/05), 892 So.2d 1 (attorney suspended for three years for violating Rules 1.3, 1.4, 1.5, 3.2, and 8.4(g) with respect to five clients; numerous aggravating factors, include prior disciplinary offenses, were present, but no mitigating factors were found).

      . See In re: Wyatt, 02-0053 (La.4/12/02), 814 So.2d 1265 (eighteen-month suspension for neglecting two legal matters, failing to communicate with clients, and failing to cooperate with the ODC in four separate investigations); In re: Waltzer, 04-1032 (La. 10/8/04), 883 So.2d 973 (two-year suspension for failing to communicate with three clients and failing to cooperate with the ODC in three separate investigations); and In re: Brown, 04-1119 (La. 1/14/05), 892 So.2d 1 (three-year suspension for neglecting five legal matters, failing to communicate with clients, failing to return unearned fees, failing to safeguard client property, and failing to cooperate with the ODC in two investigations).


text:
    RADCLIFFE 10, LLC v. ZIP TUBE SYSTEMS OF LOUISIANA, et al.
    No. 2006-CC-0128.
    Supreme Court of Louisiana.
    May 12, 2006.
   In re Zip Tube System of Louisiana Inc. et al.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. J, Nos. 2003-14116, 2003-14973, 99-10161; to the Court of Appeal, First Circuit, No. 2005 CW 2179.

Granted.


text:
    Cynthia M. ROSENBERRY v. Mikel A. ROSENBERRY.
    No. 2006-CC-1117.
    Supreme Court of Louisiana.
    May 15, 2006.
   In re Rosenberry, Mikel A.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 617— 777; to the Court of Appeal, Fifth Circuit, No. 06-C-278.

Stay denied. Writ denied.

TRAYLOR, J., would grant.


text:
    STATE of Louisiana v. John R. COVINGTON.
    No. 2006-KK-1053.
    Supreme Court of Louisiana.
    May 16, 2006.
   In re Covington, John R.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 11-04-0439; to the Court of Appeal, First Circuit, No. 2006 KW 0384.

Denied.


author: TERRI F. LOVE, Judge.

text:
    In re The Texas Matter of The MARRIAGE OF Vesta L. KUNTZ and Hal M. Kuntz and In The Interest of Vesta M. Kuntz, Minor Child.
    No. 2005-CA-0172.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 1, 2006.

      Carl D. Rosenblum, Alida C. Hainkel, Jones Walker Waechter Poitevent Carrere & Denegre, New Orleans, LA, for Appellant.
    Robert A. Vosbein, Mark R. Beebe, Ronald J. Sholes, Robert N. Markle, Adams and Reese LLP, New Orleans, LA, for Appellee.
    (Court composed of Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

I,The issue in this case is whether certain documents, withheld by McMoran Oil and Gas L.L.C. are subject to discovery. The trial court ordered the production of the documents and this appeal followed. We find that the trial court did not abuse its discretion in ordering production of the documents. Therefore, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Appellee, Vesta Kuntz (“Vesta”) sought to compel discovery from nonparty-appel-lant, McMoran Oil and Gas L.L.C., McMo-ran Exploration Co., Freeport McMoRan Sulphur, Inc., and McMoRan Offshore Exploration Co. (collectively, “MOXY”).

By way of background, Vesta was married to Hal Kuntz (“Hal”) for almost sixteen years, from October 1983 to June 1999 when they divorced. They reached a court approved Agreement Incident to Divorce (“AID”) in order to divide their property. The AID contains the following pertinent language:

Husband by virtue of employment or as a partner of CLK may earn additional interests in oil and gas leases and properties, which Husband may acquire by assignment from McMoran Offshore Exploration Co. (“MOXY”) or its successors or predecessors in the future. All such interests which have not been assigned by MOXY shall be the property of Husband, except Wife will have the right to |;>25% of all overriding royalty interests, if any, from MOXY assigned to Husband after the date of the divorce that results from projects on which CLK forwarded letters of recommendation to MOXY to drill during the marriage.

MOXY is an independent oil and gas company engaged in the exploration, development and production of oil and gas. Under a prior contract MOXY retained CLK Company, L.L.C. (“CLK”) as a geological and geophysical consultant. CLK evaluated oil and gas prospects for MOXY. After the evaluation, CLK would send MOXY a Letter of Recommendation (“LOR”) detailing its findings and recommending whether MOXY should drill in the area or not. The consulting agreement between MOXY and CLK provided that the data and information belonged exclusively to MOXY and Hal was obligated to maintain confidentiality of the data and the written consent of the CLK board was required to disclose the information to third parties.

In her post divorce proceedings, Vesta sought production of the LORs from Hal. Vesta argued that Hal was depriving her of funds owed under the AID. The Texas Supreme Court held that Hall did not have physical possession and control of the LORs so Hal was not required to produce the documents. In re Hal G. Kuntz, 124 S.W.3d 179, 47 Tex. Supp. Ct. J. 168 (2003) Thus, Vesta filed suit against MOXY in Louisiana to obtain the documents. Vesta issued notices of depositions and subpoenas duces tecum to MOXIY requesting the following:

1) Letters of recommendation produced by CLK Company, L.L.C. for any blocks on which assignment has been made to Hal G. Kuntz since June 30, 1999. This includes, but is not limited to, letters of recommendation for those properties listed on Exhibit A to this Notice. Any information referencing depth, reserve estimates or the names of specific formations may be redacted.
|⅞2) Letters of recommendation produced by CLK Company, L.L.C. for any blocks covered by the Texaco Exploration Agreement, dated effective January 1, 2000 between McMoRan Offshore Exploration Co. and Texaco. Any information referencing depth, reserve estimates or the names of specific formations may be redacted.
3) Letters of recommendation produced by CLK Company, L.L.C. for any blocks covered by the Asset Purchase Agreement between SOI Financing and Shell Offshore, Inc. and McMoran Oil and Gas, L.L.C. dated effective December 1, 1999. Any information referencing depth, reserve estimates or the names of specific formations may be redacted.
4) The Asset Purchase Agreement dated effective December 1, 1999, between SOI Financing and Shell Offshore, Inc. and McMoRan Oil and Gas, L.L.C., and internal and external communications relating to, referencing or evidencing the analysis, negotiations, and evolution of this agreement, including any letters of recommendation on any properties proposed to be included in the sale package, any drafts of the eventual agreement, correspondence concerning the initiation and negotiation of the agreement, including but not limited to electronic correspondence, both internal and external, memoranda, notes of conversations and all other forms of communication, written and oral, external to McMo-Ran or internal, but not including any information concerning reserve estimates or economic projections, all of which may be redacted from otherwise relevant documents.
5)The Texaco Exploration Agreement dated effective January 1, 2000, between McMoRan Offshore Exploration Co. and Texaco, and all internal and external communications relating to, referencing or evidencing the analysis, negotiations, and evolution of this agreement, including any letters of recommendation on any properties proposed to be included as subjects of the agreement, any drafts of the eventual agreement, correspondence concerning the initiation and negotiation of the agreement, including but not limited to electronic correspondence, both internal and external, memoranda, notes of conversations and all other forms of correspondence, written and oral, external to McMoRan or internal, but not including any information concerning reserve estimates or economic projections, all of which may be redacted from otherwise relevant documents.

MOXY complied with the request but produced redacted responses excluding LOR’s sent after the Kuntz’s divorce, the geological and geographical location and any expired LOR. As such, Vesta filed a motion to compel the documents and MOXY in turn moved for a protective order and order to quash the |4subpoenas duces tecum contending that Vesta sought information that is a privileged trade secret under La.Code Evid. Art. 513. The trial court ordered MOXY to produce the documents as requested but pursuant to the Texas confidentiality agreement. An appeal followed.

STANDARD OF REVIEW

A trial court has broad discretion in handling discovery matters and an appellate court should not upset such a ruling absent an abuse of discretion. King v. Phelps Dunbar, 2001-1735 (La.App. 4 Cir. 4/2/03), 844 So.2d 1012.

SCOPE OF DISCOVERY

The Louisiana Supreme Court has delineated the “basic objectives” of the Louisiana discovery process as follows: (1) to afford all parties a fair opportunity to obtain facts pertinent to the litigation, (2) to discover the true facts and compel disclosure of these facts wherever they may be found, (3) to assist litigants in preparing their cases for trial, (4) to narrow and clarify the basic issues between the parties, and (5) to facilitate and expedite the legal process by encouraging settlement or abandonment of less than meritorious claims. Hodges v. Southern Farm, Bureau Cas. Ins. Co., 433 So.2d 125, 129 (La.1983). “The discovery statutes are to be liberally and broadly consti-ued to achieve [their] intended objectives.” Id.

PRODUCTION OF TRADE SECRETS

In its first and second assignments of error, MOXY argues that the trial court abused its discretion in ordering a nonparty to produce trade secrets and that Vesta failed to show that MOXY’s trade secret records were both relevant and necessary to Vesta’s claims and that good cause existed for their production.

[sIn support of its argument, MOXY submitted the affidavit of Glen A. Kleinert (“Mr.Kleinert”), President and Chief Executive Officer of McMoRan Exploration Co. and President and Chief Operating Officer of McMoran Oil and Gas L.L.C. asserting that the records sought by Vesta are trade secrets and could seriously jeopardize MOXY’s competitive position in the oil and gas industry. Mr. Kleinert testified that the success of an oil and gas exploration company depends on its ability to select, acquire and develop oil and gas interests before its competitors do. Mr. Kleinert insisted that even after MOXY has acquired an interest in an area evaluated in a LOR, the commercial sensitivity and need for strict confidentiality remain. Mr. Klei-nert stated that the confidentiality remains because the information could lead to the discovery of hydrocarbon potential in adjacent acreage that MOXY did not control. Further, confidentiality is necessary because MOXY’s interest in a lease covering an area may expire or terminate, but MOXY may reacquire an interest in the acreage in the future.

Vesta acknowledges that the LORs containing a recommendation that MOXY acquire an interest in property in which it does not yet have an interest may contain protected trade secret information. However, Vesta stated that it is not seeking those LORs but rather those related to properties in which MOXY has already acquired an oil and gas interest and therefore, is no longer confidential.

Louisiana law defines trade secret as:
Information, including a formula, pattern, compilation, program, device, method, technique, or process that: derives independent economic value, actual or potential, from not being separately known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. La. R.S. 51:1131(1) (a) (b).

| (¡The federal courts have consistently held that there is no absolute privilege for trade secrets and Louisiana has adopted the concept of ‘relative secrecy’ and not ‘absolute secrecy’, which means courts do not require extreme and unduly expensive procedures to be taken to protect trade secrets. Freeport-McMoran Sulphur, LLC v. Mike Mullen Energy Equipment Resource, Inc., 2004 WL 764174 (E.D.La.2004). In order to prove confidentiality, it must be established that the information sought is a trade secret and that its disclosure might be harmful. If the moving party meets its burden of proof then the burden shifts to the party seeking discovery to show that the requested information is both relevant and necessary to their claim. Id. In the present case, we find that MOXY met its burden of establishing that the LORs fall under Louisiana’s definition of trade secrets. As such, the burden shifted to Vesta to show that the LORS were relevant and necessary to her claim.

RELEVANCY

La. C.C.P. art. 1122 provides: “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” La. C.C.P. art. 1422 mimics the language of Federal Rule 26(b)(1) and requires that the matter must be relevant to “the subject matter involved in the pending action.” Hodges v. Southern Farm Bureau Casualty Insurance Company, 33 So.2d at 128. Further, relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probably or less probable than it would be without the evidence.” La. C.E. art. 401. Courts have established that while relevance in discovery is broader than that required for admissibility at trial, “the |7ob,ject of inquiry must have some evidentiary value before an order to compel disclosure of otherwise inadmissible material will issue.” Freeport-McMoran, 2004 WL 764174 at *5.

In support of its claim, MOXY maintains it has already produced to Vesta all information that is necessary and relevant to her claims and the trial court’s ordering MOXY to produce all LOR’s forwarded by CLK for which Hall received an assignment .falls outside what the AID states will trigger, which is Vesta’s right to overriding royalty interest. MOXY stressed that most of Vesta’s requests are for documents that are dated months after the Kuntz divorce so Vesta will not have rights to any interests.

In contrast, Vesta insisted that the trial court acted within its discretion because the basic principles of discovery are to afford all parties a fair opportunity to obtain facts pertinent to the litigation. In response to the higher standard, Vesta maintained that Courts allow the request when it is the only method by which the party can prove their claim citing Francois v. Norfolk S. Corp., 2001-1954, p. 1 (La. App. 4 Cir. 3/6/02), 812 So.2d 804, 805. In Francois, a railway company sought a motion to enforce a subpoena duces tecum it served upon an opposing parties’ medical expert. This court stated:

Although the trial court has great discretion in discovery matters, that discretion may be abused when the trial judge denies a motion to compel the production of information that meets the requirements of La. C.C.P. art. 1422, especially where, as here, examination of the requested information may be the only means available to the party seeking discovery to defend against claims made by the party from whom discovery is sought. Id.

In the present case, the information sought by Vesta is relevant and necessary because it provides the only method by which Vesta can investigate and |sdetermine what her possible royalty interests are and if she is actually being deprived money due to her under the AID.

Moreover, a complete review of the trial record reveals that it may be possible for Hal to acquire a future interest on one of the expired leases that MOXY did not produce. At the motion to compel hearing, MOXY’s counsel could not adequately refute the claim. Therefore, it may be theoretically possible for Hal to have a future claim on an expired lease, which would give Vesta rights to additional royalty interests.

Further, according to the record provided to this Court, there were some transactions that were not produced in their entirety that were negotiated during the Kuntz marriage even though the official transaction took place six months after the divorce. Thus, it is possible for a LOR to be created during the marriage and not become final until after the date of the Kuntz divorce, which may give rise to additional royalty interest for Vesta.

It is clear from the record that Vesta demonstrated relevancy and necessity for the disputed discovery request. Thus, we cannot say that the trial court abused its discretion in ordering the production the requested discovery from MOXY in accordance with the Texas confidentiality agreement.

NON-PARTY DISCOVERY

MOXY argues in its third and final assignment of error, that Vesta failed to meet her burden of seeking discovery from a nonparty, which is relevancy and good cause. Stolzle v. Safety & Systems Assurance Consultants, Inc. 2002-1197 (La.5/24/02), 819 So.2d 287. We pretermit discussion of this assignment as we have already determined that Vesta proved relevancy and necessity for the LORs.

| ¡DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Hal was a minority owner of CLK.