text:
    In re William J. AUBREY.
    No. 2006-B-0004.
    Supreme Court of Louisiana.
    April 28, 2006.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

_J_jThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, William J. Aubrey, an attorney licensed to practice law in Louisiana but currently on interim suspension pursuant to our order in In re: Aubrey, 02-2535 (La.10/23/02), 830 So.2d 293.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The ODC filed two sets of formal charges against respondent. The first set, bearing the disciplinary board’s docket number 01-DB-Ó72, was filed on July 10, 2001 and consists of five counts of misconduct. The second set, bearing the disciplinary board’s docket number 04-DB-082, was filed on October 15, 2004 and consists of four counts of misconduct.

01-DB-072

Count I — The Holland,/Gearhart Matter

In October 1994, Julia and Jonathan Holland and Heather and David Gearhart hired respondent to handle a personal injury matter stemming from an automobile accident. In October 1995, petitioner filed suit on behalf of his clients against GEI-CO, the liability insurer, and USAA, the Hollands’ UM insurer.

lain January 1996, GEICO provoked a concursus proceeding and deposited $20,000, its policy limits, into the registry of the court. Respondent assisted in settling the concursus proceeding, and pursuant to a February 1997 stipulated judgment, respondent’s clients received $8,158.88 of the concursus funds.

Thereafter, respondent neglected the USAA claim and failed to properly communicate with his clients.

In its formal charges, the ODC alleged that respondent’s conduct in the Holland/Gearhart matter violated the following Rules of Professional Conduct: Rules 1.1 (failure to provide competent representation to a client), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

Count II — The Landry Matter

In June 1995, Jacqueline Landry hired respondent to handle a personal injury matter. After filing suit on behalf of Ms. Landry, respondent settled the matter for $15,750 in April 1998. Respondent endorsed Ms. Landry’s name on the settlement check and deposited the funds into his trust account on April 20, 1998. In May 1998, respondent disbursed $6,486.79 to Ms.. Landry’s doctor as payment of her medical |sbill. On May 30, 2000, respondent provided Ms. Landry with a check for $6,800 as her portion of the settlement.

However, between April 20, 1998 and May 30, 2000, respondent’s trust account balance repeatedly fell below $9,263.21, the balance of Ms. Landry’s settlement still in the account. Respondent also misled Ms. Landry about the settlement and stalled payment of her funds. Furthermore, respondent withheld $1,241 from Ms. Landry’s settlement as medical expenses to be paid. However, he failed to disburse these funds to either Ms. Landry or her medical providers.

In its formal charges, the ODC alleged that respondent’s conduct in the Landry matter violated the following Rules of Professional Conduct: Rules 1.3, 1.4, 1.15 (safekeeping property of clients or third parties), 8.4(a), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d).

Count III — The Failure to Cooperate Matter

Respondent failed to respond to the ODC’s letter requesting that he forward copies of his trust account bank statements. Consequently, the ODC subpoenaed respondent to produce the bank statements. While respondent appeared on June 30, 2000 pursuant to the subpoena, he failed to produce the bank statements. During his sworn statement given that date, respondent agreed to produce within two weeks his bank statements for the period between April 1, 1998 and June 30, 2000. However, respondent failed to do so. On July 28, 2000, respondent again promised to provide the bank statements; thereafter, he again failed to do so. Consequently, he was served with another subpoena to produce the bank statements. In response, respondent faxed Lto the ODC his bank statements for the period between April 1998 and June 1998. Therefore, the ODC served respondent with another subpoena. However, despite being served a third time, respondent failed to produce the bank statements.

In its formal charges, the ODC alleged that respondent’s conduct violated the following Rules of Professional Conduct: Rules 1.15(a) (failure to keep complete trust account records), 3.3(a)(2) (candor toward the tribunal), 3.4(a) (unlawfully obstructing another party’s access to evidence), 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 3.4(d) (failure to make reasonable efforts to comply with an opposing party’s discovery request), 4.4 (respect for rights of third persons), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a), 8.4(c), 8.4(d), and 8.4(g) (failure to cooperate with the ODC in its investigation). The ODC also alleged that respondent violated Supreme Court Rule XIX, § 9(c) (knowing failure to respond to a lawful demand from a disciplinary authority).

Counts IV & V — The Bronzoulis Matter

In August 1998, Mikel Bronzoulis hired respondent on a contingency basis to represent him in tobacco litigation. Respondent neglected the matter, failed to communicate with Mr. Bronzoulis, and failed to provide him with any evidence of any meaningful action on his behalf.

In February 2001, Mr. Bronzoulis filed a complaint against respondent with the ODC. Respondent received notice of the complaint on April 2, 2001 but failed to respond.

In its formal charges, the ODC alleged that respondent’s conduct in the Bronzoul-is matter violated the following Rules of Professional Conduct: Rules 1.3,1.4, 8.1(b) (knowing failure to respond to a lawful demand from a disciplinary |sauthority), 8.1(c), 8.4(a), 8.4(d), and 8.4(g). The ODC also alleged that respondent violated Supreme Court Rule XIX, § 9(c).

0I-DB-082

Counts I & II — The Law Office Abandonment Matter

In August 2002, while in an “Of Counsel” relationship with the law firm of Do-mengeaux, Wright, Roy & Edwards (“DWRE”) in Lafayette, respondent abandoned his law practice without notice to either DWRE or his clients. At the time he abandoned his law practice, respondent was still representing numerous clients, including, but not limited to, Stephen Breaux (worker’s compensation and bankruptcy), Alton Senegal, Jr. (worker’s compensation), Ronald Arceneaux (worker’s compensation, child custody, and personal injury), Freddie Dartez (domestic), Cecile Wiltz (personal injury), Sharon Guillory (divorce), Derek Evans (child custody and support), Robert LeRoy, Sr. (personal injury), Raehelle Holland (personal injury), and Angel Miller (child custody and support). Neither his clients, opposing counsel, nor the courts were able to contact respondent..

At some point, respondent apparently went to DWRE’s offices after hours and removed his clients’ files, numbering as many as 150. However, he did not establish a new law office. Instead, he neglected his clients’ cases, failed to communicate with them, failed to return their file materials, failed to provide them with account-ings, and failed to refund unearned fees.

Between August 2001 and January 2003, the above-named clients filed complaints against respondent with the ODC. Additionally, in September 2002, James Roy filed a complaint against respondent with the ODC on behalf of DWRE. | ^Respondent failed to respond to these complaints. He also failed to otherwise cooperate with the ODC in its investigation of the complaints.

In its formal charges, the ODC alleged that respondent’s conduct violated the following Rules of Professional Conduct: Rules 1.3, 1.4, 1.16(d) (obligations ■ upon termination of the representation), 8.3 (failure to report professional misconduct), 8.4(a), 8.4(c), 8.4(d), and 8.4(g).

Counts III & IV — The Guidry Matter

In June 1994, respondent enrolled as counsel for William Guidry, plaintiff in an ongoing personal injury lawsuit captioned Guidry v. Speer, No. 92-C-0739 on the docket of the 27th Judicial District Court. Previously, in September 1993, USF & G filed an intervention and lien to recover $57,659.61 in worker’s compensation funds.

Without his client’s knowledge or consent, respondent settled Mr. Guidry’s suit for $114,500. Thereafter, again without his client’s knowledge or consent, respondent endorsed Mr. Guidry’s name on the settlement checks. On August 14,1995, he deposited the checks into his trust account. However, respondent failed to disburse the settlement proceeds to either Mr. Guidry or USF & G. He also deceived his client about the status of the suit, failed to return the settlement release to the defense attorney, and failed to provide his client with an accounting of the settlement funds. Furthermore, during the time period respondent should have been holding the settlement funds in his trust account because he had not yet disbursed them, the balance of the account fell below the settlement amount on several occasions, one of the lowest amounts being $31.57 in July 1998.

|7Coincidentally, in July 1998, the trial court ordered respondent to pay USF & G $57,659.61 as its portion of the settlement proceeds. Respondent failed to do so and was found in contempt of court in May 2002.

Respondent represented Mr. Guidry in another personal injury lawsuit captioned Guidry v. Haydel, No. 56587 on the docket of the 16th Judicial District Court. Without his client’s knowledge or consent, respondent settled the suit for $8,110. Furthermore, again without his client’s knowledge or consent, respondent endorsed Mr. Guidry’s name on the settlement check. On December 7, 1999, he deposited the check into his trust account. However, respondent failed to disburse the settlement proceeds to Mr. Guidry. He also deceived his client about the status of the suit, failed to return the settlement release to the defense attorney, and failed to provide his client with an accounting of the settlement funds.

In its formal charges, the ODC alleged that respondent’s conduct in the Guidry matter violated the following Rules of Professional Conduct: Rules 1.4, 1.15, 8.4(a), 8.4(c), and 8.4(d).

DISCIPLINARY PROCEEDINGS

In 01-DB-072, 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 November 29, 2001. The ODC submitted documentary evidence, including the depositions of Julia Holland, Heather Gearhart, and Collier McCall as well as respondent’s June 30, 2000 sworn statement. The ODC called Jacqueline Landry, James Pate (opposing counsel in the Landry matter), Mikel Bronzoulis, and Eddie Landry (witness in the Bronzoulis matter) to testify before the committee. Respondent failed to appear for the hearing.

| sIn 04-DB-082, 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.

Both the hearing committee and the disciplinary board considered the consolidated matters in their respective reports and recommendations.

Hearing Committee Recommendation

Findings in 01-DB-072

After considering the testimony and evidence presented at the hearing, the hearing committee made factual findings as follows:

Respondent took no further'action in the Holland/Gearhart matter following the disbursal of the GEICO funds. He failed to return Ms. Holland’s phone calls and failed to settle the UM claim despite two requests by Ms. Holland to do’ so. When Ms. Holland attempted to' obtain new counsel, she was told the abandonment delays on the UM claim had run. She granted her father power of attorney to settle the claim, which he was able to do within a couple of months.

In the Landry matter, respondent endorsed Ms. Landry’s name on the settlement check and deposited it into his trust account on April 20,1998. Respondent did not pay Ms. Landry her portion of the proceeds until May 30, 2000. During this time, respondent misled his client about the settlement and stalled payment of her funds. After paying her doctor in May 1998, the remaining account balance in respondent’s trust account was $9,263.21, which amount respondent Rshould have maintained until the final accounting was presented and paid. However, on May 8, 1998, the trust balance was $4,550.81, and on August 26, 2001, the trust balance was $31.57. As of June 30, 2000, respondent had disbursed a total of $14,509 of Ms. Landry’s settlement funds, including $1,022.21 to himself as his fee, leaving a remaining unpaid balance to Ms. Landry of $1,241.

In the failure to cooperate matter, respondent was served with three subpoenas requiring that he produce his trust account records for the period between April 1, 1998 and June 30, 2000. Respondent failed to produce the required records, and the ODC had to subpoena same directly from the bank.

In the Bronzoulis matter, respondent was retained on a contingency basis to represent Mr. Bronzoulis in tobacco litigation. Respondent failed to communicate with Mr. Bronzoulis. He also neglected the matter and failed to provide his client with any evidence that he took any meaningful action in the matter. When Mr. Bronzoulis filed a complaint against respondent, he failed to respond to the complaint and failed to cooperate with the ODC in its investigation. Respondent also failed to appear at the formal hearing of these matters.

Based on these findings, the committee determined that respondent violated the Rules of Professional Conduct and Supreme Court Rule XIX as alleged in the formal charges. After an analysis of the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the baseline sanction is disbarment or suspension. Aggravating factors present are dishonest or selfish motive, a pattern of misconduct, multiple offenses, and bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency. Additionally, respondent’s failure to communicate with his clients led to injury or potential injury. The committee found no mitigating factors.

| findings in 0I-DB-082

After considering the ODC’s submission, the committee determined that respondent abandoned his law practice without notice to DWRE or his clients, making himself unavailable to his clients. As to the specific clients who filed complaints, the committee found the following:

1) Respondent neglected Stephen Breaux’s case, which prescribed, and falsely informed Mr. Breaux he was handling the case. Respondent also refused to provide Mr. Breaux with copies of his work product.
2) Respondent failed to forward Alton Senegal’s file to his new attorneys, who withdrew from the case after trying to contact respondent for four weeks. Respondent also failed to prepare discovery responses on behalf of Mr. Senegal.
3) Respondent has not taken any action in Ronald Arceneaux’s personal injury matter since 2001, and file materials were missing.' Respondent also apparently settled Mr. Arceneaux’s worker’s compensation matter but did not disburse his client’s portion of the proceeds, nor did he provide his client with status updates.
4) Freddie Dartez paid respondent $3,000 to handle a domestic matter. Thereafter, respondent abandoned his law practice but did not refund Mr. Dartez’s fee.
5) Cecile Wiltz hired respondent to handle her slip and fall claim. Respondent failed to communicate with Ms. Wiltz, neglected her case, then abandoned the representation without notice.
In6) Sharon Guillory paid respondent $400 to handle her divorce. Respondent neglected the matter, and Ms. Guillory had to pay another attorney to complete the divorce. .
7) Derrick Evans paid respondent $800, which he believed was a flat fee, to handle his .uncontested child support and custody matter. Following his interim suspension in 2002, respondent sent Mr. Evans a bill for an additional $400.
8) Robert LeRoy hired respondent to handle a personal injury matter. Mr. LeRoy has been unable to contact respondent since July 2002. A $10,000 insurance check was issued to respondent on behalf of Mr. LeRoy; however, Mr. LeRoy did not receive his portion of the proceeds. Furthermore, DWRE was unable to locate Mr. LeRoy’s file.
9) Rachelle Holland hired respondent to handle a personal injury matter and a domestic matter. Respondent checked out the record of the personal injury case from the courthouse, and the record could not be located after respondent abandoned his law practice. The personal injury matter apparently settled for $30,000; however, Ms. Holland claimed she never received her portion of the proceeds.
10) Angel Miller paid respondent $500 to handle a child custody and support matter. Respondent apparently failed to communicate with her and made decisions about the case without informing her. After she left respondent a voicemail informing him she wanted to hire another attorney, he finally contacted her.
11) (A) Respondent represented William Guidry in a personal injury matter. The judge in the matter submitted a complaint to the ODC detailing respondent’s 118neglect of the matter and failure to obey court orders. The case was settled in June 1995 for $114,500. A year later, the settlement documents had not been signed. Therefore, the court ordered the plaintiff, Mr. Guidry, to pay the intervenor $57,659.61. In July 1998, the court ordered respondent to pay the inter-venor, which he failed to do. Respondent also failed to comply with the court’s order to produce records regarding his possession of the settlement funds. Counsel for intervenor filed a motion for contempt. Respondent did not appear at the hearing and a warrant was issued. However, respondent was given an opportunity to purge the contempt by appearing at a later date. Respondent again failed to appear, citing health problems. Counsel for intervenor introduced a copy of respondent’s trust account statement, indicating the funds were missing. Neither Mr. Guidry nor the intervenor received their portion of the settlement proceeds.
(B) Respondent also handled a second personal injury matter for Mr. Guidry. Counsel for the defendant mailed a check in the amount of $8,110 to respondent on behalf of Mr. Guidry. However, Mr. Guidry never received his portion of the proceeds.

Based on the above findings, the committee determined there is evidence that respondent converted client funds belonging to Ms. Landry, Mr. LeRoy, and Mr. Guidry. The total funds converted exceeded $100,000 and resulted in substantial harm to respondent’s clients and third parties. Citing Guideline 1 (“[rjepeated or multiple instances of intentional conversion of client funds with substantial harm”) of the permanent disbarment guidelines, the committee recommended that respondent be permanently disbarred.

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

Disciplinary Board Recommendation Findings in 01-DB-072

After review, the disciplinary board determined that most of the hearing committee’s factual findings were not manifestly erroneous. However, the board modified two findings in the Landry matter to read as follows:

1) After paying Ms. Landry’s doctor in May 1998, the remaining funds of $9,263.21 should have been maintained in respondent’s trust account; and
2) On August 26, 1998, the trust balance was $31.57.

Despite these two errors, the board found that the committee properly applied the Rules of Professional Conduct. The board determined that respondent knowingly and intentionally violated duties owed to his clients, the public, the legal system, and as a professional.

The board further found that respondent’s neglect caused the Hollands’ and Gearharts’ UM claim to prescribe. Fortunately for them, Ms. Holland’s father was able to settle the claim. In the Landry matter, respondent signed his client’s name to the settlement check without her knowledge and did not advise her of the settlement for two years. During this time, the balance in his trust account fell below the balance owed to Ms. Landry. Respondent did riot pay Ms. Landry her settlement funds for two years and still owes her medical providers approximately $1,241. Respondent also neglected Mr. Bronzoulis’ claim, at the very least causing a delay. Furthermore, respondent’s failure to cooperate with the ODC caused unjust delays in this proceeding and imposed an additional burden on the disciplinary system.

| ^Applying the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is disbarment. The board adopted the committee’s aggravating factors and added the aggravating factor of substantial experience in the practice of law (admitted 1980). The board also found that absence of a prior disciplinary record is present as a mitigating factor.

Findings in 0I-DB-082

The board determined that the committee’s factual findings are supported by the deemed admitted facts and/or the evidence submitted by the ODC. Based on these findings, the board determined that respondent violated Rules 1.3, 1.4, 1.15, 1.16(d), 8.3, 8.4(a), 8.4(c), 8.4(d), and 8.4(g) of the Rules of Professional Conduct. Respondent abandoned his law practice and neglected or refused to properly attend to his clients’ needs. He was unavailable for. contact by his clients, opposing counsel, and the courts. Respondent also failed to return file materials to his clients after removing the files from DWRE and failed to refund unearned fees. He also settled Mr. Guidry’s lawsuits without his permission and deceived him about the status of his suits. Respondent received $114,500 and $8,110 in settlement funds on behalf of Mr. Guidry, endorsed Mr. Guidry’s name on the checks without his knowledge or consent, and deposited the funds into his trust accourit, thereafter converting the funds to his own use. He did not provide Mr. Guidry with an accounting and did not return the settlement releases to defense counsel. He also failed to disburse $57,659.61 to USF & G. Finally, when he abandoned his law practice, he failed to report his actions to the ODC and failed to cooperate with its investigations.

Based on these findings, the board determined that respondent intentionally violated duties owed to his clients, the public, the legal system, and as .a professional. LsHis actions caused substantial harm in that Mr. LeRoy, Rachelle Holland, and Mr. Guidry lost substantial sums of money and Ms. Landry’s medical providers have not been paid. Furthermore, numerous clients’ cases were abandoned, and the status of their claims are unknown. At least two cases prescribed.

Aggravating factors present are dishonest or selfish motive, a pattern of misconduct, multiple 'offenses, bad faith destruction of the disciplinary process by intentionally failihg to comply with rules or ordérs of the disciplinary agency, failure to acknowledge the wrongful nature of the conduct, vulnerability of the victims, substantial experience in the' practice of law, and indifference to making-restitution. The only mitigating factor found by the board is- the absence of a prior disciplinary record.

The board found that conversion of client funds was charged and proven in the Landry and Guidry matters. The board also determined that, while there is evidence of conversion of Mr. LeRoy’s and Rachelle Holland’s funds, the ODC did not specifically charge respondent with conversion in those cases. Nonetheless, the board found that the Landry and Guidry matters involved three instances of conversion of client funds.

Citing,Guideline 1 of the permanent disbarment guidelines, the board determined that permanent disbarment is appropriate in this matter.

Accordingly, the board recommended that respondent be permanently disbarred. The board also recommended that respondent be assessed with all costs and expenses of these proceedings.

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

|1fiDISCUSSION

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 testimony, evidence, and deemed admitted facts support the disciplinary board’s findings in the consolidated matters. Among other serious misconduct, respondent neglected legal matters, failed to communicate with , clients, abandoned his law practice, failed to cooperate with the ODC in numerous investigations, and converted client funds in excess of $120,000.

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

117The baseline sanction for this type of misconduct is clearly disbarment. Therefore, the only issue presented for our consideration is whether respondent’s misconduct is so egregious as to warrant permanent disbarment.

Supreme Court Rule XIX, Appendix E depicts conduct that may warrant permanent disbarment. We agree with the hearing committee and the disciplinary board that Guideline 1 (“[r]epeated or multiple instances of intentional conversion of client funds with substantial harm”) is applicable in this matter. Respondent intentionally converted funds belonging to Ms. Landry and Mr. Guidry. In Mr. Guidry’s case, the converted funds total $122,610. Restitution has not been made to either client.

The intentional conversion of client funds, coupled with respondent’s abandonment of his law practice without notice to his clients, indicates respondent lacks the requisite honesty and integrity to practice law. Accordingly, respondent must be permanently disbarred.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of William J. Aubrey, Louisiana Bar Roll number 2597, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Respondent's settlement disbursal, dated July 24, 1997, indicates the Hollands received $3,277.96, the Gearharts received $1,638.97, and respondent received $3,106.95 in costs and fees, for a total of $8,023.88. Respondent’s disbursal document does not indicate what happened to the remainder of the settlement. However, it appears that respondent charged his clients twice for $135 in mileage and long distance costs, indicating he may have converted the extra $135 of his clients' money to his own use.

      . The Hollands and Gearharts discharged respondent on July 11, 2000. Mrs. Holland's father, Collier McCall, was given power of attorney to handle the UM claim for the Hollands and Gearharts. Mr. McCall was able to negotiate a settlement with USAA in December 2000, and the Hollands and the Gearharts received a total of $10,000 from USAA.

      . Because conversion was not charged in the LeRoy and Holland matters, the board did not consider these in determining that permanent disbarment is appropriate.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Elaine RODRIGUE v. LAFOURCHE PARISH SCHOOL BOARD.
    No. 2006-CC-0459.
    Supreme Court of Louisiana.
    May 5, 2006.
   PER CURIAM.

| ¶ This case arises from workers’ compensation litigation in which defendant disputes claimant’s disability status. The hearing officer presiding over the case directed the parties to appear for a mediation conference before Elizabeth Lanier, an attorney who served as a mediator for the Office of Workers’ Compensation. The parties participated in mediation, but the matters in dispute were not resolved.

Subsequently, the presiding hearing officer retired, and Ms. Lanier was appointed as hearing officer in this case. After learning of Ms. Lanier’s appointment as hearing officer, defendant filed a motion to recuse her. After hearing before another hearing officer, defendant’s motion was denied. Defendant applied for supervisory relief, which was denied by the court of appeal, with one judge dissenting. This application followed.

A review of La.Code Civ. P. art. 151 indicates there is no provision which directly addresses the unusual circumstances presented in this case. However, we find an analogy may be made to La.Code Civ. P. art. 151(B)(3), which provides that a judge may be recused if he “[h]as performed a judicial act in the cause in another court....” That subsection focuses on the relationship between the judge and the case. See F. MaRaist and H. Lemmon, Louisiana Civil Law TREATISE: Civil Prooe-dure § 10.7 (1999). We find Ms. Lanier’s prior actions in this case as court-jappoint-ed2 mediator disqualifies her from serving as presiding hearing officer.

Accordingly, the writ is granted. Defendant’s motion to recuse Ms. Lanier is granted, and the case is remanded to the Office of Workers’ Compensation for real-lotment of the case.


text:
    STATE of Louisiana v. Wade KNOTT, Jr.
    No. 2005-K-2252.
    Supreme Court of Louisiana.
    May 5, 2006.
   PER CURIAM.

11 Granted. The decision of the court of appeal is reversed, defendant’s convictions and sentences on the remaining three counts of the grand jury indictment are reinstated, and this case is remanded to the trial court for execution of sentence.

Although defendant failed to file a motion to quash or otherwise call the court’s attention to the error at any time before verdict,'the trial court acted properly in vacating defendant’s conviction bn one count of the grand jury indictment returned on July 7, 1999, on grounds that the state had not timely instituted prosecution for a crime committed at some point between 1981 and the end of 1982 and which had fully prescribed no later than 1987, well before 1993 La. Acts 592 enacted La.C.Cr.P. art. 571.1 and greatly expanded the time limits for instituting prosecution of sex crimes committed against juveniles. See La.C.Cr.P. art. 577 (defén-dant may raise a claim that the state has not timely instituted prosecution “at any time”); La.C.Cr.P. art. 859(7)(providing as a ground to arrest | ¡judgment that “[t]he prosecution was not timely instituted, if not previously urged.”).

However, the trial court also ruled correctly when it denied defendant’s motion for new trial with respect to the verdicts returned by the jury on the remaining three counts of the indictment. Although defendant claimed, and a majority on the court of appeal panel agreed, State v. Knott, 04-1594 (La.App. 3rd Cir.6/8/05), 908 So.2d 28 (Gremillion, J., dissenting), that joinder of the time-barred crime prejudiced him on the other counts because it permitted introduction of otherwise inadmissible evidence of another unrelated sex crime, his failure to raise the issue before trial deprived the trial court of the opportunity to correct the error in a timely fashion by quashing the time-barred count and, in effect, severing that count from trial of the remaining charges. See La.C.Cr.P. art. 495.1 (court may sever counts joined in a single proceeding on a showing of. prejudice). Louisiana’s contemporaneous objection rule provides generally that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” See State v. Thomas, 427 So.2d 428, 433 (La.1982)(on reh’g)(“The contemporaneous objection rule has two purposes: (1) to put the trial judge on notice of the alleged irregularity so that he may cure the problem and (2) to prevent a defendant from gambling for- a favorable verdict and then resorting to appeal on errors that might easily have been corrected by objection.”). Defendant’s failure to object to the joinder of all four offenses in a single proceeding thereby waived any error with respect to the introduction of evidence regarding the time-barred count three of the indictment at trial of the other counts charged against him. Cf. State v. Robicheaux, 412 So.2d 1313, 1321 (La.1982) (defendant must object to joint trial with co-defendant or waive the complaint on [¡¡appeal); State v. Tytus, 256 So.2d 962, 240 So.2d 723 (1970)(objeetion to joint trial with co-defendant comes too late in motion for new trial.)

Accordingly, even assuming, arguendo, that the denial of a motion for new trial “to serve the ends of justice,” La.C.Cr.P. art. 851(5) is subject to review by an appellate court under an abuse-of-discretion standard, as a majority on the court of appeal panel believed in the present case, Knott, 04-1594 at 5, 908 So.2d at 31, but see State v. Toomer, 395 So.2d 1320, 1328 (La.1981)(grant or denial of a new trial under art. 851(5) “presents nothing for this Court’s appellate review”), a trial court does not abuse its discretion or otherwise commit an error of law by denying a defendant a new trial on the basis of a claim that defendant waived by failing to assert it in a timely manner. See La.C.Cr.P. art. 858 (the granting or denying of a motion for new trial on any ground is not subject to review “except for an error of law.”)


text:
    Edward BUGGAGE v. VOLKS CONSTRUCTORS, A Division of AKM, LLC., ABC and XYZ Insurance Companies and John Fridge.
    No. 2006-C-0175.
    Supreme Court of Louisiana.
    May 5, 2006.
   PER CURIAM.

Writ granted. The ruling of the court of appeal is reversed. The trial court’s ruling granting the motion for summary judgment filed by Volks Constructors, Inc., is reinstated.

The court of appeal erred as a matter of law in considering a late-filed opposition to the motion for summary judgment, which consisted of a memorandum and a purported affidavit of plaintiff, in its de novo review of the merits of the summary judgment motion. The opposition had been disallowed by the trial court, which acted within its discretion in excluding an opposition filed a few minutes before the scheduled Rearing on the motion.

The time limitation established by La. C.C.P. art. 966(B) for the serving of affidavits in opposition to a motion for summary judgment is mandatory; affidavits not timely filed can be ruled inadmissible and properly excluded by the trial court. See American Bank & Trust Company v. International Development Corporation, Inc., 506 So.2d 1234, 1235-36 (La.App. 1 Cir.1987). Given the facts and circumstances of this case, we find no abuse of discretion by the trial court in excluding the opposition, and thus no error in granting the motion for summary judgment in favor of the defendant.


text:
    Eugene RALPH, Gregory Pembo, Helen E. Robinson, Phyllis Everage, Lionel Brackitt and Elle Bennett v. CITY OF NEW ORLEANS and the New Orleans City Council.
    No. 2006-C-0153.
    Supreme Court of Louisiana.
    May 5, 2006.
   PER CURIAM.

h Finding that the court of appeal erred in affirming the trial court’s judgment granting the defendants’ peremptory exception of no right of action, we grant this writ and reverse that portion of the court of appeal’s decree.

The City of New Orleans (“City”) enacted local ordinances that acknowledge domestic partnerships and establish a Domestic Partnership Registry. Under the City’s health care program, the City implemented a new policy to provide domestic partner coverage to same-gender partners of City employees who were registered with the Domestic Partnership Registry. The City’s health care program provides benefits funded by both City and individual employee contributions. The City’s contribution is generated from the General Fund Operating Budget, which includes non-dedicated taxes (including, inter alia, sales, use and property taxes), fees, fines and service charges. Plaintiffs filed a petition seeking a declaratory judgment that the City Council acted ultra vires and without statutory authority in enacting the Domestic Partnership Registry and related ordinances, and the City acted ultra vires in extending health care insurance and/or other benefits to registered domestic partners of city employees. Plaintiffs also filed a petition for injunction against the City to enjoin the enforcement of Domestic Partnership policy and its related ordinances. | ^Defendants filed Peremptory Exceptions of No Cause of Action, No Right of Action and No Interest in Plaintiffs to Institute this Suit. The trial court granted all Peremptory Exceptions.

On appeal, the court found the trial court erred in granting the exception of no cause of action. We agree with that portion of the court of appeal’s opinion. In a split decision, the court of appeal affirmed the trial court’s granting defendants’ exception of no right of action. The majority found that, absent a showing by plaintiffs that they possess a real and actual interest vested in their assertions that the public fisc is affected by the actions of the City and the Council, the plaintiffs did not establish the minimal requisite interest sufficient to afford them a right of action. Ralph v. City of New Orleans, 04-1270, p. 17 (La. Ct.App. 4 Cir. 12/14/05), 921 So.2d 988.

In Alliance for Affordable Energy v. Council of the City of New Orleans, 96-0700 (La.7/2/96), 677 So.2d 424, we explained what constitutes “standing” in an action brought by a taxpayer seeking to challenge a-local ordinance:

Louisiana jurisprudence recognizes the right of a taxpayer to enjoin unlawful action by a public body. Id. [citing Louisiana Associated Gen. Contractors, Inc. v. Calcasieu Parish School Bd., 586 So.2d 1354, 1357 (La.1991).] Under our law, a taxpayer may resort to judicial authority to restrain public servants from' transcending their lawful powers or violating their legal duties in any unauthorized mode which would increase the burden of taxation or otherwise unjustly affect the taxpayer or his property. Stewart v. Stanley, 199 La. 146, 5 So.2d 531 (1941). “The fact that the taxpayer’s interest may be small and insusceptible of accurate determination is not sufficient to deprive him of the right.” Id.
This Court in League of Women Voters of New Orleans v. City of New Orleans, 381 So.2d 441 (La.1980), further refined this standard and held that “a taxpayer will not be allowed to compel the performance of a public duty by mandamus absent a showing of some special interest which is separate and distinct from the interest of the public at large.” Id. at 447. |aOn the other hand, a citizen seeking to restrain unlawful action by a public entity, Stewart, 5 So.2d at 531, is not required to demonstrate a special or particular interest distinct from the public at large. Id. Consequently, taxpayer plaintiffs seeking to restrain action by a public body are afforded a right of action upon a mere showing of an interest, however small and indeterminable. See Woodard v. Reily, 244 La. 337, 152 So.2d 41 (1963); Stewart, 5 So.2d at 531.
Alliance, 96-0700 at p. 6, 677 So.2d at 428.

In the case sub judice, the plaintiffs have alleged the City is spending tax money to pay for health insurance and other benefits for at least one person who has qualified as a “domestic partner” under the ordinance. The spending of tax money, no matter how minuscule the effect on the City budget, clearly affects the public fisc. When a plaintiff is attempting to restrain action by a public body that affects the public fisc, the plaintiff has an interest, however small and indeterminable, which is sufficient to afford him a right of action. McCall v. McCall, 96-0394, p. 4 (La. Ct.App. 4 Cir. 1/29/97), 688 So.2d 193, 196, writ denied, 97-0534, 693 So.2d 745, 97-0539 (La.5/1/97), 693 So.2d 745, (citing Davis v. Franklin Parish Sch. Bd., 412 So.2d 1131, 1133 (La.App. 2 Cir.1982), writ denied, 415 So.2d 942 (La.1982)). The taxpayers/plaintiffs in this matter have demonstrated an interest, no matter how small and indeterminable. The plaintiffs have standing to challenge the City’s act of extending benefits.

The plaintiffs also have standing to challenge the ordinance instituting the Domestic Partner Registry. The City’s policy of extending benefits to domestic partners of its employees is premised upon those employees registering with the Domestic Partner Registry. Thus, the ordinance is intertwined with the policy of extending benefits, which has an affect on the public fisc.

Accordingly, the court of appeal decision sustaining defendants’ exceptions of |4no cause of action and interest of plaintiffs to institute the suit is reversed. This matter is remanded to the trial court for further proceedings.

      . Fundamentally there is no distinction between the exception of no right of action and that of no interest in plaintiff to institute the suit. Wischerv. Madison Realty Co., Inc., 231 La. 704, 709, 92 So.2d 589 (1956). We will treat these as a single exception.

      . The City admits that approximately ten employees are currently receiving health insurance benefits for registered domestic partners.


author: PER CURIAM. CALOGERO,

text:
    Kenneth and Donna BARNHILL, William H. and Barbara A. Barnhill, Alan M. Barrosse and Kerry McGee, Grace M. Barosse, Guy W. and Edith B. Ridgel, Gerard J. Cortese, Sr., George D. and Niki A. Dargis, Sr., Fred and Linda Eisenmann, et al. v. REMINGTON OIL AND GAS CORPORATION, Cedar Bayou, L.L.C. and Kenneth M. Carter, Individually.
    No. 2006-C-0047.
    Supreme Court of Louisiana.
    May 5, 2006.
   PER CURIAM.

Writ 'granted. The judgments of the district court and court of appeal are reversed. Their rulings granting the exception of no cause of action filed by the defendant are incorrect. Plaintiffs’ petition adequately asserts a cause of action. In them petition, plaintiffs assert that defendants Cedar Bayou and Kenneth Carter led them to believe that their right of first refusal was being preserved and remained in full force and effect, thus, indicating that the defendants assumed in the credit sale and assignment of leases, the vendor’s obligation including the lessor/vendor’s extension of a right of first refusal. Further, once an exception of no cause of action is granted, the plaintiff should be afforded an opportunity to amend the pleadings within the delays allowed by the court. See La.Code C. Pro. art. 984. This case is remanded to the district court for further proceedings.

JOHNSON, J., recused.

CALOGERO, C.J., additionally concurs and assigns reasons.

CALOGERO,

Chief Justice assigning additional reasons for concurrence.

hi participated in the majority’s disposition of the above case, being of the view that it was error on the part of the two lower courts to grant the defendants’ exception of no cause of action. I venture to add in this concurring opinion a couple of brief comments, which may be helpful to the parties and the trial court in connection with the trial of this case.

I believe that it was the majority’s view, and it certainly is my own, that there were at least two problems with disposing of this case by the lower courts’ granting the exception of no cause of action. First, the plaintiffs adequately requested in their petition that the court apply the equitable remedy of judicial control of leases, where in certain circumstances the courts are vested with discretion to decline to grant a lessor’s cancellation of a lease although such right appears to be available to the lessor. Second, without a merits trial, it is not evident that the plaintiffs could not establish a cause of action, notwithstanding the absence of recordation of their leases, because the plaintiffs may in fact be able to prove, as they have asserted, that the defendant Cedar Bayou assumed the obligation of Remington Oil to the plaintiff tenants, including a right of first refusal.

With respect to one or the other theories of recovery urged, or such as the plaintiffs may yet assert in supplemental pleadings, I believe that the plaintiffs should | yhave the opportunity to prove the facts that they assert regarding the assumption by Cedar Bayou of lessor Remington Oil’s lease obligations to the tenants and/or have the trial judge determine whether the tenants are entitled to equitable relief under the doctrine of judicial control of leases. See Canco, Inc. v. Outdoor Systems Advertising, 96-0559 (La.App. 4 Cir.1996), 681 So.2d 33; Motwani v. Fun Centers, Inc., 388 So.2d 1173 (La.App. 4 Cir.1980); Carriere v. Bank of Louisiana, 95-3058 (La.12/13/96), 702 So.2d 648, 654.


author: VICTORY, J.,

text:
    April GLAZE v. WAL-MART STORES, INC.
    No. 2005-C-1734.
    Supreme Court of Louisiana.
    May 5, 2006.
    CALOGERO, C.J., and TRAYLOR, J., would grant.
    VICTORY, J., dissents from the writ denial and assigns reasons.
   VICTORY, J.,

dissenting from the writ denial.

| ¾ While stating that payment of workers’s compensation benefits does not constitute an admission that they are owed, the court of appeal failed to apply the statute. Since Wal-Mart has disputed that an accident occurred and plaintiff was disabled as a result, there can be no penalty or attorneys’ fees at this time for failure to pay the correct amount of benefits. Wal-Mart may prevail at the trial of the case on the merits that there was no accident and/or no resulting disability and no workers’ compensation is owed. Surely, an employer cannot be penalized for failing to pay the “correct” amount of benefits, when no benefits are owed.

I would grant Wal-Mart’s writ application.


author: WELCH, J. WHIPPLE, J.

text:
    STATE of Louisiana v. Calvin LINDSEY.
    No. 2005 KA 0465.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 29, 2005.

      Richard J. Ward, Jr., District Attorney, Elizabeth A. Engolio, Asst. District Attorney, Plaquemine, for State — Appellee.
    Gwendolyn K. Brown, Baton Rouge, for Defendant — Appellant Calvin Lindsey.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   WELCH, J.

laThe defendant, Calvin Lindsey, was charged by bill of information with distribution of a Schedule II controlled dangerous substance (cocaine), a violation of La. R.S. 40:967(A)(1). The defendant pled not guilty. Following a jury trial, the defendant was found guilty as charged. He was sentenced to nine years imprisonment at hard labor, with the first two years of the sentence to be served without the benefit of parole, probation, or suspension of sentence. The defendant filed a motion to reconsider sentence, which the trial court denied. The defendant now appeals, designating the following two assignments of error: (1) The trial court erred in denying the defendant’s challenge for cause of a prospective juror; (2) The trial court erred by failing to sustain the defendant’s hearsay objection. Finding merit in defendant’s first assignment of error, we reverse the conviction, vacate the sentence and remand for a new trial.

FACTS

On March 11, 2003, several police officers from the L.E.A.D. Task Force of the Plaquemine City Police Department, assisted by police officers from the Vermillion Parish Sheriffs Office, were conducting an undercover narcotics operation around the Plaquemine area in Iberville Parish. The undercover agents drove around the area purchasing narcotics from street-level narcotics dealers.

The defendant, who had one leg and was in a wheelchair, approached one of the undercover vehicles, which was equipped with a wireless transmitter and a video recorder, and asked the officers what they needed. The officer driving the vehicle told the defendant he needed a “forty” (slang for $40.00 worth of crack cocaine). The defendant told the officer to “make a block” and meet him on the other side of the tracks. When they met at this second location, the defendant sold the officer on the passenger side two rocks of .19 grams of crack cocaine for forty dollars. The transaction was videotaped.

| ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, the defendant avers the trial court erred in denying his challenge for cause of Bonny Lewin, a prospective juror. Specifically, the defendant contends that Ms. Lewin’s comments during voir dire that she would credit the testimony of police officers over the testimony of other witnesses indicated she could not be a fair and impartial juror.

The defense counsel tried to have Ms. Lewin removed for cause, but the trial court denied the challenge because it found that it had rehabilitated her. However, Ms. Lewin was the fourth peremptory strike used by the defense counsel; thus, Ms. Lewin never served on the jury for the defendant’s trial.

An accused in a criminal case is constitutionally entitled to a full and complete voir dire examination and to the exercise of peremptory challenges. La. Const. art. I, § 17(A). The purpose of voir dire examination is to determine prospective jurors’ qualifications by testing their competency and impartiality and discovering bases for the intelligent exercise of cause and peremptory challenges. State v. Burton, 464 So.2d 421, 425 (La.App. 1st Cir.), writ denied, 468 So.2d 570 (La.1985). A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice, or inability to render judgment according to law may be reasonably implied. State v. Martin, 558 So.2d 654, 658 (La.App. 1st Cir.), writ denied, 564 So.2d 318 (La.1990). A refusal by the trial court to excuse a prospective juror on the ground that he is not impartial is not an abuse of discretion where, after further inquiry or instruction, he has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. State v. Copeland, 530 So.2d 526, 534 (La.1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1558, 103 L.Ed.2d 860 (1989). A trial court is accorded great discretion in determining whether to seat or reject a juror for cause, and such | ¿rulings will not be disturbed unless a review of the voir dire as a whole indicates an abuse of that discretion. Martin, 558 So.2d at 658.

A defendant must object at the time of the ruling on the refusal to sustain a challenge for cause of a prospective juror. La.C.Cr.P. art. 800(A). Prejudice is presumed when a challenge for cause is erroneously denied by a trial court and the defendant has exhausted his peremptory challenges. To prove there has been reversible error warranting reversal of the conviction, a defendant need only show (1) the erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges. State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278, 1280-1281. Defense counsel exhausted all of his peremptory challenges. Therefore, we need only determine the issue of whether the trial judge erred in denying the defendant’s challenge for cause regarding prospective juror Ms. Lewin.

Pursuant to La.C.Cr.P. art. 797(2), a prospective juror may be challenged for cause on the ground that:

The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence[.]

The initial relevant voir dire of Ms. Lew-in was conducted by the court:

Q. Do you have any friends or relatives employed by the District Attorney’s office or any law enforcement agency of any kind?
A. Well, I have friends on the Baton Rouge City Police force.
Q. Okay. The fact that you have friends that work in law enforcement, would that in any manner affect your ability to sit here and give both State and the Defendant a fair trial?
A. No, sir.
Q. Will you be able to evaluate the credibility of law enforcement officers just as much as you will evaluate the credibility of any other witness?
| bA. Yes, sir.

Later during voir dire, when the defense counsel questioned Ms. Lewin further, her attitude regarding the credibility of police officers became more fully realized:

Q. You don’t have a problem with sitting in judgement (sic) of anybody?
A. No.
Q. Making a determination? Okay. Police officers’ testimony, you heard me ask the questions and you can see -
A. I tend to give them a little more credibility.
Q. You do? Why?
A. I don’t know. I just feel like they’re trained, like lawyers, I think they tend to tell the truth more than some of these laymen.
Q. Lawyers tell the truth more?
A. I know there are some jokes out there, but in my opinion. I’m just being honest with you, I tend to give a little more credibility.
Q. Okay. So you would give more credibility to a police officer’s testimony than you would someone else?
A. Probably.
Q. Okay. Well, you understand that that’s not a reason to do that, just because they’re a police officer; do you understand that?
A. Yes.
Q. Okay. If the judge told you you can’t do that just because they’re a police officer, would that pose a problem for you?
A. I would do my best to make it all legal, but I’m just being honest with you.
Q. Okay. And that’s what -
A. If I have two people there, and one was a police officer telling me a story[,] I’d tend to believe the police officer first.
Q. Okay. You can’t say, well, that’s a human being just like anybody else?
A. I can do my best.
|fiQ. Because, see, what you have to determine, it wouldn’t matter whether it’s a police officer or not, just anybody, you have to determine credibility because that’s one of your jobs as a juror.
A. Right.
Q. Okay. But you don’t think you could just treat them the same way as anybody else?
A. I’m not sure; I’ve never been put in that position.
Q. Okay. Well, that’s why we’re asking you the questions because we’re fixing to put you in that position.
A. Right.
Q. Okay. But you really think you’d have a problem treating them like anybody else?
A. I would try to, I can’t — I don’t know.
Q. Okay. Well, I’m going to have to ask you in this fashion, can you promise me that you could put it aside and not give them any more believability because they are a police officer; could you do that?
A. I’m not sure.
Q. Okay. Thank you. Would you please pass the microphone.

Following this exchange, the court attempted to rehabilitate Ms. Lewin:

THE COURT:
Just before we go through the questions of cause, the Court wants to go back because I foresee something coming. Ms. Lewin, since you have the microphone, I just have a quick question as to — as the attorneys say, there is no right or wrong answer but I just want to clarify in regard to your opinion of police officers!’] testimony. And I understand sometimes certain people in certain occupations may, I mean, if we put a priest on the witness stand we assume he’s an honest person that’s going to tell the truth, but sometimes in the real - MS. LEWIN:
I think that’s basically what I’m trying to say.
THE COURT:
— sometimes in the real world we don’t know if they do or they don’t. MS. LEWIN:
Right.
|7THE COURT:
The fact that a police officer testifies that this book is red and another guy says it’s green, you wouldn’t necessarily believe this book would be red - MS. LEWIN:
Right.
THE COURT:
— just because he’s a police officer? MS. LEWIN:
No, I wouldn’t.
THE COURT:
Okay. What I’m asking is that — and I’m going to give you instructions at the end and if those instructions were going to tell you the law and the way you weigh evidence and things of that nature, of course, you’re the trier of fact, you have to decide what the facts are, will you be able to put your personal feelings aside as to, you know, who’s giving that testimony and weigh how they testify and how they say it and what you see before you make your decision?
MS. LEWIN:
I would think so. Like you said, the red and the green, definitely. But I just do hold them in a higher regard; I was just trying to be honest with that.
THE COURT:
I understand.
MS. LEWIN:
I would do my best to give all testimony the same.
THE COURT:
Thank you, ma’am.

Following a recess for challenges, the following exchange took place at the bench:

THE COURT:
Ms. Lewin, Bonn y, I was of the opinion that she rehabbed (sic) a little bit.... Price and Little, I’m going to give you those two. Ms. Lewin, giving them more weight or anything, I don’t believe -
MR. PARKS [defense counsel]:
She was very honest, I asked her three times. Well, since we’re only having police officers, it’s kind of hard that you’re going to say that, hey, we’re going to believe - THE COURT:
|SI understand, just like you hold a priest — I understand what she was saying. She’s rehabilitated. I’m going to give y’all Little and I’m going to give y’all Price. I’m not going to give you Lewin....

The defendant argues that the trial court erred because, as a whole, Ms. Lew-in’s responses reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied. We agree. Aside from the introductory comments by Ms. Lewin regarding credibility when the court first questioned her, Ms. Lewin’s comments establish a pattern of insistence on the veracity of testifying police officers. Ms. Lewin’s answers during voir dire reveal her settled conviction that a police officer will testify more truthfully than a lay witness.

In State v. Jones, 623 So.2d 877 (La.App. 1st Cir.), writ denied, 629 So.2d 419 (La.1993), Linda Bishop, a prospective juror, had worked for the Louisiana State Police for twelve years in several capacities, including an administrative assistant. During voir dire, the following exchange took place between the State and Ms. Bishop:

Q. Do you think that your work at the State Police would be a [hindrance] to being a fair and impartial juror?
A. It plays a bit part. I would do my best to be fair, but, of course, you know, when for nine years you’ve seen that side of it, this is a whole new side to me. It’s my first experience as a juror. It’s quite an experience.
Q. Do you think that you could sit and listen to the testimony and the evidence as presented in this court and, if you were selected as a juror, just base your verdict on whatever you heard in the [courtroom]?
A. Yes, I’d do my best to do that.

Id. at 879.

Later, the following exchange took place between the defense counsel and Ms. Bishop:

Q. Okay. You know, I was in law enforcement for about six or seven years.... You’re around people in law enforcement and you do get sort of a slant, don’t you? It’s hard not to.
A. That’s the only side that you see.
Q. Sure. Sure, ffiid you’ve got a lot of friends that are in law enforcement, make arrests every day, and you would like to think | {¡they’re doing their job properly, that they’re not out [there] busting people who don’t deserve to be busted.
A. Right.
Q. So you do get a one-sided picture, don’t you?
A. Right.
Q. Do you feel that it may have an effect on you? That everything else being equal, if you were sitting on this jury, that you might tend to lean towards the State’s favor because you know so many people that are in law enforcement and all?
A. In all honesty, I would say, yes, it could.
Q. Okay. And that’s what I’m asking.
A. I mean, I think it would be foolish to say, oh, no.
Q. And not withstanding (sic) the fact that the judge would read you a bunch of instructions and would tell you what the law is, you feel, even knowing the law, that just because of your situation, you do feel like you might lean towards the State’s favor, wouldn’t you?
A. Yes.

Id. at 879-880.

At this point, the defense counsel challenged Ms. Bishop. The State then obtained permission to ask the following questions:

Q. Ms. Bishop, you indicated to Mr. Wilson that because of your profession you might have a tendency to lean towards the State. I think different people have-whether they’re related to law enforcement may feel that totally irrespective of their profession. The real question is, can you set aside what you may feel because of your job or because of any reason that you might tend to lean towards the State and listen to the facts and the evidence presented and base your verdict, if you’re a juror, solely on the facts and the evidence presented?
A. I would do my best to do that. But you have to understand, when you’re around it, you type arrest warrants, you type [subpoenas.] I’d do my best. I would.
Q. Let me ask you this. If you' felt that the State had not proven its case, would you vote guilty just because of your relationship to law enforcement? A. No, I wouldn’t.
Q. You would try to render the fairest and [most just] verdict as you could based upon the facts?
A. Yes, I would.

Id. at 880.

The trial court then asked the following questions:

Q. Ms. Bishop, the bottom line is this. We’re looking for 12 fair and impartial jurors. If the court gives you the law that you are to apply, can you follow that law?
A. (Ms. Bishop nodded.)
|inQ. We’re all affected by our experiences in life.... But the question is, can you separate yourself from your experiences and listen to what’s presented in this [courtroom] and provide a verdict based on what facts are presented in this [courtroom] and give the State as well as the defendant a fair and impartial trial?
A. I would do my best to do that.

Id.

The trial court denied the challenge for cause. This court reversed the trial court, relying partly on and quoting from the Louisiana Supreme Court decision of State v. Hallal, 557 So.2d 1388, 1389-1390 (La.1990) (per curiam), wherein the court stated:

[The prospective juror] never expressly stated that she could put aside her acquaintanceship with the police officers, and it was not reasonable for the trial court to accept assurances that she would judge the case impartially on the evidence at trial from a juror who began with the premise that the police officers directly involved in the arrest and questioning of the defendant were telling the truth.

In finding the relevant inquiry to be whether Bishop could put aside her natural and understandable bias and be a fair and impartial juror, this court noted:

She very honestly and candidly, from the beginning to the end of her examination and rehabilitation, never “expressly” stated she would or could put this bias aside. As far as she would commit was to say she would “do her best” to give defendant a fair and impartial trial. This was not sufficient because Bishop, after expressing reservations about her impartiality, at no time during the attempted rehabilitation by the trial court and the State, ever expressly assured the court she could be fair and impartial and give defendant a fair trial. See State v. Williams, 458 So.2d 1315, 1335 (La.App. 1st Cir.1984), writ denied, 463 So.2d 1317 (La.1985). Defendant was entitled to completely neutral jurors. Bishop tried to tell everyone that she was not positive she could be.

Jones, 623 So.2d at 880-881.

Similarly, in the instant matter, while on three separate occasions, Ms. Lewin said she would “do [her] best” to be a fair and impartial juror, she never expressly stated that, despite her acquaintanceship with the police officers she knew from the Baton Rouge City Police force, she would or could put her bias aside. Also, just as Bishop tried to inform the court that she was not positive that In she could be a neutral juror, so too did Ms. Lewin on more than one occasion with responses like: “I tend to give them a little more credibility;” “I don’t know.... I think they tend to tell the truth more than some of these laymen;” “I know .. I’m just being honest with you, I tend to give a little more credibility;” and “If I have two people there, and one was a police officer telling me a story[,] I’d tend to believe the police officer first.”

In its brief, the State asserts the defendant “mistakably” relies on Jones because there is a “distinct and crucial difference between Jones and the instant case” in that while the juror in Jones disregarded the judge’s charge, “Ms. Lewin expressed willingness and ability to apply the law as instructed by the trial judge.” Our review of the transcript reveals otherwise. Not only did Ms. Lewin repeatedly express reservations about her ability to apply the law, but the juror in Jones, in one instance, clearly expressed her ability to be impartial despite her ties to law enforcement:

Q. Let me ask you this. If you felt that the State had not proven its case, would you vote guilty just because of your relationship to law enforcement?
A. No, I wouldn’t.
Q. You would try to render the fairest and [most just] verdict as you could based upon the facts?
A. Yes, I would.

Id. at 880.

The State points out in its brief that the crux of the matter is “whether the juror can assess the credibility of the witness independent” of his association with law enforcement (quoting State v. Coleman, 32,906 (La.App. 2nd Cir.4/5/00), 756 So.2d 1218, 1231, writ denied, 2000-1572 (La.3/23/01), 787 So.2d 1010)). The State asserts Ms. Lewin satisfied this requirement when she responded to a hypothetical posed by the trial court that she would not believe a green book was red because a police officer said it was red. We disagree. Ms. Lewin’s response |1gthat she would regard a green book as a green book, despite a police officer’s statement to the contrary, established, not that she could be impartial, but merely that the erroneous testimony of an ostensibly credible witness would not affect her ability to recognize a self-evident, independently observable fact. We do not find that the trial court rehabilitated Ms. Lewin, despite its assertion that “she rehabbed a little bit.”

Ms. Lewin’s voir dire responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied. Accordingly, the trial court erred in denying the defendant’s challenge for cause. Since resolution of this assignment of error results in a reversal of the defendant’s conviction and sentence, we pretermit discussion of the second assignment of error.

CONVICTION REVERSED AND SENTENCE VACATED; REMANDED FOR A NEW TRIAL.

WHIPPLE, J., dissents and assigns reasons.

WHIPPLE, J.

dissenting.

_JjAs the majority correctly notes, a trial court’s erroneous ruling which deprives a defendant of a peremptory challenge substantially violates that defendant’s rights. See State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278, 1280-1281. However, a trial judge has broad discretion in ruling on challenges for cause. Moreover, a refusal by a trial judge to excuse a prospective juror on the ground that she is not impartial is not an abuse of discretion where, as here, after further inquiry and instruction, she had demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. See State v. Copeland, 530 So.2d 526, 534, (La.1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1558, 103 L.Ed.2d 860 (1989).

In my view, the juror’s responses, considered in their entirety, demonstrated the juror’s willingness to follow the law and ultimately showed her ability to be fair and impartial. Accordingly, I respectfully dissent from the majority’s decision to reverse conviction and remand for a new trial.

      . That portion of the voir dire to which the State refers is the following:
      THE COURT:
      The fact that a police officer testifies that this book is red and another guy says it’s green, you wouldn’t necessarily believe this book would be red -
      MS. LEWIN:
      Right.
      THE COURT:
      — just because he's a police officer?
      MS. LEWIN:
      No, I wouldn’t.


author: WHIPPLE, J.

text:
    Louvenia DAVIS, Individually and on Behalf of the Estate of Margaret Allen, Deceased v. ST. FRANCISVILLE COUNTRY MANOR, LLC.
    No. 2005 CA 0072.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2006.

      Kimberly A. Ramsey, Shreveport, for Plaintiff/Appellant, Louvenia Davis, Individually and on Behalf of the Estate of Margaret Allen.
    Joel E. Gooch, Lafayette, for Defendant/Appellee, St. Francisville Country Manor, LLC.
    Before: WHIPPLE, McCLENDON and WELCH, JJ.
   WHIPPLE, J.

| ^Plaintiff appeals the judgment of the trial court granting in part defendant nursing home’s exception of no cause of action, granting defendant’s exception of prematurity and dismissing plaintiffs action for damages arising out of alleged violations of the Nursing Home Residents Bill of Rights Act (“NHRBRA”), LSA-R.S. 40:2010.6 et seq. For the following reasons, we reverse in part and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

Alleging violations of the NHRBRA, on May 17, 2004, plaintiff, Louvenia Davis, individually and on behalf of the estate of Margaret Allen, sued St. Francisville Country Manor, LLC, seeking damages for injuries to her deceased mother, Ms. Allen. According to the petition, Ms. Allen was admitted to St. Francisville Country Manor in April 2003 and remained a resident there until her death in December 2003. While Ms. Allen was in residence, St. Francisville Country Manor was allegedly understaffed, resulting in the neglect of its patients.

Specifically, Davis alleged that St. Fran-cisville Country Manor was negligent by leaving Ms. Allen to lie in her own urine and waste for extended periods of time without being cleaned; by failing to provide adequate custodial turning and repositioning of Ms. Allen, resulting in the development and worsening of pressure sores; by failing to sufficiently feed Ms. Allen to prevent malnutrition; by failing to ensure that Ms. Allen received adequate fluids to prevent dehydration; by failing to provide sufficient staff to ensure that Ms. Allen’s custodial care needs were met; and by failing to treat Ms. Allen courteously, fairly and with the fullest 13measure of dignity. According to the petition, as a result of these acts of negligence, Ms. Allen suffered injuries including physical pain and suffering, mental anguish, disability, loss of enjoyment of life, humiliation and emotional distress.

Shortly before instituting the instant suit, Davis also filed with the Commissioner of Administration a request for the formation of a medical review panel, to evaluate the professional services and health care provided to Ms. Allen while she was a resident of St. Francisville Country Manor. In the request, Davis specifically alleged that St. Francisville Country Manor failed to meet the applicable standard of care in rendering services and health care to Ms. Allen by: (1) failing to properly assess her as a patient and to develop a care plan to meet her needs; (2) failing to properly reassess Ms. Allen and to modify her care plan as significant changes in her physical condition occurred; (3) failing to properly notify Ms. Allen’s family and treating physician of significant changes in her physical condition and needs and failing to timely intervene to meet those needs; and (4) failing to render professional services and health care to Ms. Allen with respect to the treatment of her skin tears, pressure sores, dehydration and malnutrition.

In response to the petition filed in the trial court below, St. Francisville Country Manor filed a dilatory exception of prematurity and a peremptory exception of no cause of action. With regard to the exception of prematurity, it argued that because it was a qualified health care provider and because the petition alleged medical malpractice, Davis had to present her claims to a medical review panel in accordance with the Louisiana Medical Malpractice Act (“MMA”), LSA-R.S. 40:1299.47(A)(1), prior to filing suit in district court.

|4With regard to the exception of no cause of action, St. Francisville Country Manor contended first that the petition failed to state a cause of action because it lacked sufficient factual allegations to give rise to any cognizable legal redress. Additionally, it argued that LSA-R.S. 40:2010.8(D)(1) and 2010.9(A) and (B) of the NHRBRA had been amended by Acts 2003, No. 506 to remove the right to recover money damages as a method of enforcing the rights set forth in the NHRBRA, an amendment which it alleged was procedural and thus retroactive. Therefore, St. Francisville Country Manor contended that, even if the petition did set forth sufficient factual allegations, Davis nonetheless failed to state a cause of action under the NHRBRA for the type of legal redress she sought, ie., money damages.

Davis countered that St. Francisville Country Manor’s negligence was not related to medical treatment, but to custodial care, bringing it within the realm of the NHRBRA rather than the MMA. Davis further asserted that the injuries sustained by Ms. Allen as a nursing home resident gave rise to a distinct cause of action under the NHRBRA due to St. Francisville Country Manor’s violations of Ms. Allen’s rights as specifically set forth in the NHRBRA. Additionally, with regard to the amendment to LSA-R.S. 40:2010.9 of the NHRBRA, Davis contended that the amendment eliminating the recovery of actual damages was substantive and should not be applied retroactively prior to its August 15, 2003 effective date to deprive her of her vested right to a cause of action for money damages. Additionally, with regard to her claim for money damages for injuries Ms. Allen suffered after the effective date of the amendment, Davis argued that this claim was for damages due to the nursing home’s negligence, rather |Rthan medical malpractice, and, accordingly,-that she was entitled to assert that claim pursuant to LSA-C.C. art. 2315.

Following a hearing on the exceptions, the trial court maintained in part the exception of no cause of action, finding that Davis failed to state a claim for money damages pursuant to LSA-R.S. 40:2010.9. This ruling was based upon the trial court’s specific finding that the 2003 amendment to LSA-R.S. 40:2010.9, eliminating the right to recover money damages for an NHRBRA violation, was procedural in nature and, thus, applied retroactively to deprive Davis of the money damages claim under the NHRBRA. The trial court further maintained the exception of prematurity, finding that the allegations of wrongdoing in the petition constituted allegations of medical malpractice, thus requiring Davis to first submit her claim to a medical review panel. Accordingly, the trial court dismissed Davis’ claims, which it deemed to be covered by the MMA, without prejudice.

From this judgment, Davis appeals, specifically challenging: (1) the trial court’s finding that leaving a nursing home resident to lie for extended periods of time on a daily basis in her own feces and urine constitutes medical malpractice rather than a violation of the NHRBRA and, thus, maintaining the exception of prematurity; and (2) the trial court’s finding that the 2003 amendment to LSA-R.S. 40:2010.9 was procedural and, thus, retroactive and, consequently, that Davis had failed to state a cause of action for monetary damages.

OVERVIEW OF THE NHRBRA

The NHRBRA, LSA-R.S. 40:2010.6 et seq., was enacted in 1985 and was based on the legislature’s finding that persons residing in nursing homes are isolated from the community and often lack the means to assert their frights as individual citizens. Short v. Plantation Management Corporation, 99-0899, p. 6 (La.App. 1st Cir.12/27/00), 781 So.2d.46, 52. As the Louisiana Supreme Court has held, the legislature did not intend for the NHRBRA to repeal, supplant or replace the MMA’s application to medical malpractice claims against nursing homes. Rather, the NHRBRA contemplates matters far beyond the scope of the MMA. Specifically, the NHRBRA addresses twenty-two different rights of nursing home residents, of which, the Louisiana Supreme Court has held, twenty-one could never be characterized as “malpractice.” Richard v. Louisiana Extended Care Centers, Inc., 2002-0978, p. 10 (La.1/14/03), 835 So.2d 460, 467. Included among those rights, and at issue herein as alleged in the petition, are the’ right to privacy in treatment and in caring for personal needs; the right to be treated courteously, fairly and with the fullest measure of dignity; the right to be free from mental and physical abuse; and the right to rise and retire in accordance with the resident’s reasonable requests. LSA-R.S. 40:2010.8(A)(8), (9), (10) & (21).

In order to better enable residents to find legal representation, the legislature initially provided that a claimant who successfully proved a violation of one of the rights set forth in the NHRBRA was entitled to attorney’s fees in addition to costs and damages. LSA-R.S. 40:2010.9 (prior to amendment by Acts 2003, No. 506); Richard, 2002-0978, at p. 10, 835 So.2d at 467; Short, 99-0899 at pp. 6-7, 781 So.2d at 53. However, in 2003, the legislature amended LSA-R.S. 40:2010.9 to eliminate the |7provision in the statute that provided for the recovery of “actual damages” and to provide instead that a resident could assert a cause of action for “injunctive relief.” Acts 2003, No. 506, § 1.

TRIAL COURT’S RULING ON EXCEPTION OP NO CAUSE OF ACTION

(Assignment of Error No. 2)

In this assignment of error, Davis avers that the trial court erred in maintaining in part the exception of no cause of action and dismissing her claim for monetary damages under the NHRBRA. The function of the exception of no cause of action challenges the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Perere v. Louisiana Television Broadcasting Corporation, 97-2873, p. 3 (La.App. 1st Cir.11/6/98), 721 So.2d 1075, 1077. No evidence may be introduced to support or controvert the objection. LSA-C.C.P. art. 931. A court must review the petition and accept all well-pleaded facts as true, and the only issue on the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Cage v. Adoption Options of Louisiana, Inc., 94-2173 (La.App. 1st Cir.6/23/95), 657 So.2d 670, 671.

In finding that Davis had failed to set forth a cause of action for monetary damages for the alleged negligent acts of St. Francisville Country Manor under the NHRBRA, the trial court specifically relied upon its finding that the 2003 amendment to LSA-R.S. 40:2010.9 eliminating the right to recovery actual damages was procedural and, thus, retroactive. For the following reasons, we conclude that the trial court legally erred in reaching this conclusion.

The legislature is free, within constitutional confines, to give its enactments retroactive effect. Modal v. Smith & Wesson Corporation, 2000-1132, p. 8 (La.4/3/01), 785 So.2d 1, 9, cert. denied, 534 U.S. 951, 122 S.Ct. 346, 151 L.Ed.2d 262 (2001). A court must defer to the legislature’s intent when determining whether a statute should be applied retroactively. LSA-C.C. art. 6; Mortal, 2000-1132 at p. 8, 785 So.2d at 9. Louisiana Civil Code article 6 provides that “[i]n the absence of contrary legislative expression, substantive laws apply prospectively” and that “[p]ro-cedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.”

Article 6 requires a two-fold inquiry. First, we must ascertain whether in the enactment, the legislature expressed its intent regarding retroactive or prospective application. If the legislature did not express its intent, we must classify the enactment as substantive, procedural or interpretive. Modal, 2000-1132 at p. 9, 785 So.2d at 10. Furthermore, even where the legislature has expressed its intent to give a law retroactive effect, the law may not be applied retroactively if doing so would impair contractual obligations or disturb vested rights in violation of the Contract and Due Process Clauses of the Federal and State Constitutions. U.S. Const. art. I, § 10; U.S. Const, amend. XIV, § 1; La. Const, art. I, §§ 2, 23. If it does so, then in spite of legislative pronouncements to the contrary, the law is substantive, rather than procedural or interpretive. State Farm Mutual Automobile Insurance Company v. Noyes, 2002-1876, p. 7 (La.App. 1st Cir.2/23/04), 872 So.2d 1133, 1138.

In the instant case, examining the language of Act 506 itself reveals that the legislature did not specifically express any intent regarding retroactive application. Thus, the enactment must be classified as substantive, procedural or interpretive. State Farm Mutual Automobile Insurance Company, 2002-1876, at p. 7, 872 So.2d at 1138. While the trial 19court, in giving the amendment retroactive effect and, thus, maintaining the exception of no cause of action, determined that the amendment was procedural, in that it merely determined the procedure available to plaintiff to enforce the rights set forth in the NHRBRA, Davis, on the other hand, contends that the amendment was substantive in that it eliminated a cause of action under the NHRBRA for monetary damages.

Substantive laws either establish new rules, rights and duties or change existing ones. State Farm Mutual Automobile Insurance Company, 2002-1876, at p. 8, 872 So.2d at 1139. Procedural laws, on the other hand, describe methods for enforcing, processing, administering or determining rights, liabilities or status. State, Department of Transportation and Development v. Hellenic, Inc., 93-0870 (La.App. 1st Cir.4/8/94), 636 So.2d 1004, 1009, writ denied, 94-1637 (La.10/7/94), 644 So.2d 635.

With regard to the trial court’s holding that the amendment at issue was procedural, we note that a cause of action for money damages, which accrues at the time of injury, is a vested property right protected by the guarantee of due process. See Bourgeois v. Wiley, 2002-1420, p. 9 (La.App. 1st Cir.5/9/03), 849 So.2d 632, 638; see also Ginn v. Woman’s Hospital Foundation, Inc., 99-1691, p. 6 (La.App. 1st Cir.9/22/00), 770 So.2d 428, 432, writ denied, 2000-3397 (La.2/2/01), 784 So.2d 647. Once a party’s cause of action accrues, it becomes a vested property right that may not constitutionally be divested. Thus, statutes enacted after the acquisition of such a vested property right cannot be retroactively applied so as to divest the plaintiff of his vested right in the cause of action, because such a retroactive application would contravene the due process guarantees. Adams v. Owens-Corning Fiberglas Corporation, 2004-1296, p. 3 (La.App. 1st Cir.9/23/05), 921 So.2d 972, 976; Cheron v. LCS Corrections Services, Inc., 2002-1049, p. 13 (La.App. 1st Cir.2/23/04), 872 So.2d 1094, 1102, aff'd, 2004-0703 (La.1/19/05), 891 So.2d 1250. Accordingly, we conclude, as have our colleagues on the Second Circuit Court of Appeal, that the 2003 amendment to LSA-R.S. 40:2010.9 that eliminated the right to bring a cause of action under the NHRBRA for actual monetary damages cannot be applied retroactively to divest Davis of her vested property right. See Furlow v. Woodlawn Manor, Inc., 39,485, pp. 3-4 (La.App. 2nd Cir.4/20/05), 900 So.2d 336, 338-339, writ denied, 2005-1320 (La.12/9/05), 916 So.2d 1064, Burks v. Christus Health Monroe, 39,540, pp. 3-4 (La.App. 2nd Cir.4/6/05), 899 So.2d 775, 778, writ denied, 2005-1184 (La.11/28/05), 916 So.2d 146 and Henry v. West Monroe Guest House, Inc., 39,442 (La.App. 2nd Cir.3/2/05), 895 So.2d 680, 682 n. 1 (wherein the Second Circuit held that the amendment to LSA-R.S. 40:2010.9 by Acts 2003, No. 506, § 1 was substantive in nature and could not be applied retroactively).

Additionally, the trial court’s finding that Davis failed to set forth a cause of action for monetary damages ignores her rights to pursue a negligence action pursuant to LSA-C.C. art. 2315 for acts of negligence occurring either prior to or after the effective date of the 2003 amendment to the NHRBRA. In her petition, Davis alleged that due to the negligence of St. Francisville Country Manor (specifically in allowing Allen to lie in her own waste for extended periods without being cleaned), Ms. Allen incurred medical expenses and sustained physical pain and suffering, mental anguish, disability, loss of enjoyment of life, humiliation and emotional distress. As this court has previously recognized, such allegations set forth a delictual cause of action founded upon negligence and a concurrent cause of action under the NHRBRA. See LSA-R.S. 40:2010.9(B) (providing that the h remedies provided under the NHRBRA shall not be construed to restrict other legal and administrative remedies available to the resident, but rather, are in addition to such other remedies); McKnight v. D & W Health Services, Inc., 2002-2552, p. 4 (La.App. 1st Cir.11/7/03), 873 So.2d 18, 21.

Thus, Davis could pursue a claim for monetary damages for violations of the NHRBRA occurring prior to the effective date of the 2003 amendment to LSA-R.S. 40:2010.9, which claim would be governed by the provisions of the NHRBRA prior to amendment. Moreover, with regard to alleged acts of negligence occurring after the August 15, 2003 effective date of the amendment, Davis would nonetheless be entitled to pursue her claim for monetary damages for such negligence under general principles of tort law.

Accordingly, the portion of the trial court’s judgment maintaining St. Francis-ville Country Manor’s exception of no cause of action on the basis that Davis failed to state a cause of action for monetary damages under the NHRBRA is reversed to the extent that the judgment denied her claim for violations of the NHRBRA occurring prior to August 15, 2003. Nonetheless, the remaining question we must address is whether the trial court correctly ruled that Davis’s claims for monetary damages based upon alleged negligence and violations of the NHRBRA are in fact based upon “medical malpractice,” so as to justify maintaining St. Francisville Country Manor’s exception of prematurity. See McKnight, 2002-2552 at p. 4, 873 So.2d at 21.

|19TRIAL COURT’S RULING ON THE EXCEPTION OF PREMATURITY

(Assignment of Error No. 1)

In this assignment of error, Davis challenges the trial court’s ruling that the claims she asserted were in fact claims of medical malpractice and, thus, that she was required to present these claims to a medical review panel prior to filing suit in district court.

Under the MMA, all medical malpractice claims against a qualified health care provider must first be submitted to a medical review panel for consideration. LSA-R.S. 40:1299.47. The dilatory exception of prematurity is the proper procedural vehicle invoked by a qualified health care provider sued by a plaintiff who has not submitted a medical malpractice claim to a medical review panel prior to filing suit against the provider. McKnight, 2002-2552 at p. 3, 873 So.2d at 20. Accordingly, a claim against a private qualified health care provider is subject to dismissal on a timely filed exception of prematurity if such claim has not first been screened by a pre-suit medical review panel. Spradlin v. Acadia-St. Landry Medical Foundation, 98-1977, p. 4 (La.2/29/00), 758 So.2d 116, 119.

Whether the conduct alleged by Davis is subject to the review requirements of the MMA depends upon whether the alleged negligence arose out of the rendition of, or failure to render, health care to Ms. Allen. “Health care” is defined in the MMA as “any act, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment or confinement.” LSA-R.S. 40:1299.41(A)(9)(emphasis added).

In Richard, 2002-0978, at p. 12, 835 So.2d at 468, the Louisiana Supreme Court noted that the nursing home resident is not always receiving |iamedical care or treatment for any specific condition, but can always be said to be “confined” to the nursing home. Nonetheless, the Court stated, in its view, the legislature did not intend to have every act by any health care provider during the patient’s confinement in a nursing home covered by the MMA. Richard, 2002-0978, at p. 12, 895 So.2d at 468. Thus, the Court concluded that not all negligent acts by a nursing home will constitute medical malpractice under the MMA and that, to constitute medical malpractice, the alleged negligent act must be related to the nursing home resident’s medical treatment. Richard, 2002-0978, at p. 14, 895 So.2d at 469.

In Coleman v. Deno, 2001-1517, 2001-1519, 2001-1521, pp. 17-18 (La.1/25/02), 813 So.2d 303, 315-316, the Supreme Court set forth six factors to be considered in determining whether alleged negligent conduct by a qualified health care provider constitutes malpractice. The factors to be considered include: (1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill; (2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached; (3) whether the pertinent act or omission involved assessment of the patient’s condition; (4) whether the incident occurred in the context of a physician-patient relationship or was within the scope of activities that a hospital is licensed to perform; (5) whether the injury would have occurred if the patient had not sought treatment; and (6) whether the tort alleged was intentional. Coleman, 2001-1517, 2001-1519, 2001-1521, 813 So.2d at 315-316.

Although Davis asserted several alleged negligent acts in her petition, on appeal, she limits her argument to the alleged failure of St. Francisville Country Manor to clean Ms. Allen on a regular basis, thereby requiring her 114to lie in her own bodily waste for extended periods on a regular basis. On appeal, Davis contends that these particular negligent acts do not constitute malpractice and, thus, are not governed by the MMA. Accordingly, we will limit our analysis to whether the alleged acts of negligence in failing to timely clean and change Ms. Allen on a regular, timely basis constitute medical malpractice. See Furlow, 39,485 at p. 6, 900 So.2d at 340.

Applying the Coleman factors set forth above, we conclude, as have the Second and Third Circuits in addressing this precise issue, that the trial court erred in finding that the alleged acts of failing to timely clean and change Ms. Allen on a regular basis constitute medical malpractice and, thus, were subject to the requirements of the MMA. See Quinney v. Summit of Alexandria, 2005-237, pp. 10-11 (La.App. 3rd Cir.6/1/05), 903 So.2d 1226, 1233-1234; Rogers v. Hickory Manor Nursing & Rehabilitation, L.L.C ., 39,626, p. 5 (La.App. 2nd Cir.5/11/05), 902 So.2d 1150, 1153-1154; Womack v. Autumn Leaves Nursing & Rehabilitation Center, L,L.C., 39,710, p. 5 (La.App. 2nd Cir.5/11/05), 902 So.2d 1280, 1283; Furlow, 39,485 at pp. 7-8, 900 So.2d at 340; Burks, 39,540 at pp. 5-6, 899 So.2d at 779; and Henry, 39,442, 895 So.2d at 683. Regarding the first Coleman factor, determining when a diaper needs to be changed is not related to medical treatment. Secondly, this alleged negligence does not require expert medical evidence to determine whether the standard of care was breached. As noted by the Second Circuit, the requirement to preserve 11Bthe human dignity of a nursing home resident by keeping her clean of her own waste is not a matter on which physicians can speak with any more authority than a lay person. Furlow, 39,485 at p. 7, 900 So.2d at 340. Third, a medical assessment of the resident’s condition is not necessary to determine whether a resident who has soiled herself should be cleaned. Fourth, changing a diaper and keeping a resident clean is part of the custodial care of a nursing home and need not be performed under the direction of a physician. With regard to the fifth factor, we conclude that the obligation to clean Ms. Allen did not arise from any medical treatment she sought; thus, we need not address whether the alleged harm would have occurred if she had not sought any such treatment. See Furlow, 39,485 at p. 8, 900 So.2d at 340. Regarding the sixth factor, whether the action was intentional, the petition makes no such allegation.

Applying the above factors to the allegations herein, we conclude that Ms. Davis has asserted claims under the NHRBRA and LSA-C.C. art. 2315 of alleged negligence in failing to properly clean Ms. Allen of her own waste in a routine and timely manner, claims which do not require submission to a medical review panel. Accordingly, the portion of the judgment maintaining the exception of prematurity as it relates to these particular claims must be reversed. See Furlow, 39,485 at p. 8, 900 So.2d at 340-341; Burks, 39,540 at p. 6, 899 So.2d at 779; and Henry, 39,442, 895 So.2d at 683.

CONCLUSION

For the above and foregoing reasons, the portion of the November 3, 2004 judgment, maintaining the exception of no cause of action as to Ms. Davis’ claim for damages under LSA-R.S. 40:2010.9 for acts of negligence occurring prior to August 15, 2003 is reversed. Additionally, we reverse in part the portion of the judgment maintaining the exception of prematurity on |1fithe issue of whether St. Francisville Country Manor violated the provisions of the NHRBRA or LSA-C.C. art. 2315 by failing to keep Margaret Allen clean of her own waste. The November 3, 2004 judgment is affirmed in all other respects. This case is remanded for further proceedings. All costs of this appeal are assessed against defendant, St. Franeisville Country Manor, LLC.

REVERSED IN PART; AFFIRMED IN PART; AND REMANDED.

      . According to the petition, Ms. Allen died on December 2, 2003.

      . In stating that twenty-one of the twenty-two rights could never be characterized as malpractice, the Louisiana Supreme Court did not specifically state which right, if violated, would constitute malpractice. Richard v. Louisiana Extended Care Centers, Inc., 2002-0978, p. 10 (La. 1/14/03), 835 So.2d 460, 467. However, we note that LSA-R.S. 40:2010.8(A)(7) provides that nursing home residents have the “right to receive adequate and appropriate health care,” a violation of which would seem to invoke the MMA.

      . The clear benefit to being able to assert a claim for monetary damages under the NHRBRA prior to the 2003 amendment, rather than under general tort law principles, is the right to recover attorney’s fees upon proving a violation of any of the rights set forth therein. See LSA-R.S. 40:2010.9(A).

      . We note that the Second Circuit Court of Appeal has determined that claims relating to causation of decubitus ulcers, dehydration and malnutrition constitute medical malpractice claims that must be first presented to a medical review panel. See Henry, 39,442, 895 So.2d at 684; Buries, 39,540 at p. 6, 899 So.2d at 779. As stated above, Davis has pursued similar claims to those stated in Henry in a medical malpractice proceeding. Because these other claims are being pursued in another forum in the context of medical malpractice before a medical review panel, they are not involved in this appeal.