author: VICTORY, J. KNOLL, J.,

text:
    Betty Jo H. WRIGHT, et al. v. LOUISIANA POWER & LIGHT, et al.
    No. 2006-C-1181.
    Supreme Court of Louisiana.
    March 9, 2007.

      Thomas Moore Hayes, III, Monroe, McGlinchey Stafford, Colvin Gamble Nor-wood, Jr., New Orleans, for Applicant.
    Leger & Mestayer, Michael John Mes-tayer, Walter J. Leger, Jr., New Orleans, Davenport, Files & Kelly, Michael J. Fon-tenot, Monroe, for Respondent.
   VICTORY, J.

hWe granted a writ application in this nullity action to determine whether the court of appeal erred in reversing the trial court’s rulings granting exceptions of no cause of action and prescription, and motion for summary judgment in favor of defendant. After reviewing the record and applicable law, we find that court erred in reversing the trial court’s ruling granting the motion for summary judgment and reinstate the trial court’s ruling.

FACTS AND PROCEDURAL HISTORY

On the afternoon of October 16, 1988, Ned Wright drove his 1982 Mercedes-Benz SL open-topped convertible up a guy wire anchoring a light pole in Monroe, Louisiana, causing the car to overturn. Mr. Wright, who was unbelted, was partially ejected and died minutes after the accident. His wife, Betty Jo Wright, who was sitting in the passenger seat, survived. Tests taken at the hospital showed Mr. Wright had a blood alcohol level of 0.19 at the time of the accident. There is no dispute that Mr. Wright was solely at fault in causing the accident.

In November of 1988, Mrs. Wright, through her attorneys, sold the 1982 Mercedes to Steven Taylor for $11,455 in Monroe. Taylor repaired and replaced all of the Mercedes’s damaged parts, including the windshield frame, i.e., the A-pillars above the belt line, the left front fender, the headlight assembly, and the left door. All | ¿removed parts were sold to Auto Shred and destroyed and no photographs were taken by Taylor of the vehicle in its damaged condition.

On September 12, 1989, plaintiffs filed suit against Louisiana Power and Light (LP & L), as the owner of the utility-pole, and Mercedes-Benz of North America, Inc. (MBNA). Plaintiffs alleged that the open-topped convertible was defectively designed because it lacked adequate “rollover protection” that would have prevented Mr. Wright’s death. Specifically, plaintiffs faulted the convertible’s design because it (1) lacked a rollover bar and (2) lacked stronger A-pillars. On October 23, 1989, plaintiffs propounded a request for production of documents to MBNA, requesting |athe following: “Request for Production No. 20: Any and all tangible evidence retrieved from the accident site involved herein or taken from the vehicle in question following the death of Ned. D. Wright.” On December 8, 1989, MBNA responded to the request as follows: “Response to Request for Production No. 20: Defendant, MBNA, has no such evidence.” There is no dispute that this response was truthful and correct at the time it was made.

MBNA propounded a Request for Production on plaintiffs, seeking the production of the vehicle or any parts of the vehicle. Plaintiffs responded that “Plaintiff does not own or control the vehicle in question and cannot produce same” and “Plaintiff does not have any component parts of the vehicle in question in her possession.”

In February of 1990, Taylor sold the repaired vehicle in Dallas, Texas to the Dallas Auto Mart. On January 1, 1992, Defendants filed a spoliation motion alleging that plaintiffs spoliated evidence by selling the vehicle to a person who would undoubtedly replace all of the Mercedes’ damaged parts, particularly the A-pillars which were alleged to be defective. Defendants claimed that the failure of plaintiffs to preserve the evidence which they knew would be involved in litigation prejudiced their ability to prepare a defense and sought the following relief: (1) dismissal of all plaintiffs’ claims regarding the vehicle; or (2) refusal to allow any evidence to be presented regarding alleged defects in the vehicle. Plaintiffs responded to the spoliation motion that the vehicle was sold without any attempt to hide or destroy evidence or to gain any unfair advantage, and that defendants had waited nearly two years from the date of the accident to request information concerning the whereabouts of the vehicle and “had they acted more promptly, knowing full well the significance l4of their delay, they may have had an opportunity to examine the car before repairs were made.” The trial court denied the motion.

After the enrollment of new and additional counsel, on July 31,1998, defendants filed a Motion for Partial Summary Judgment and/or Motion to Partially Dismiss based on Spoliation and/or Motion in Li-mine to Exclude Claims Concerning the Alleged Defects in the A-pillar. This motion was supplemented on or about November 30, 1998, and defendants filed a reply brief on August 13, 1999. The motion claimed that they were unable to present a defense to the defective A-pillars claim because plaintiffs had allowed the A-pillars to be destroyed. Plaintiffs defended this motion on the same grounds it defended the first spoliation motion. While this motion was pending, defendant’s new counsel, Timothy Smith, hired an investigator to find the vehicle in question. The investigator found the vehicle by conducting a Department of Motor Vehicles search and traced it to Texas. On November 23, 1998, defendants filed into the record a “Supplemental Exhibit List,” which specifically listed as an exhibit: “1. Registration Certificate from Texas showing that Ned Wright’s vehicle was sold to Mr. Hudson.” On March 1, 1999, Mr. Smith purchased the vehicle on behalf of defendants from its then owner, Meredith Misenhelter, and after examination confirmed that the A-pillars had been removed. Title to the vehicle was put into Mr. Smith’s name. Defendants did not inform plaintiffs or the court that they had purchased and had possession of the vehicle. On August 23, 1999, the spoliation motion regarding the A-pillars was argued and denied by the trial court.

|BOn August 13, 1999, defendants filed a Motion to Limit Dr. Limpert’s [plaintiffs’ expert] Testimony to Design Defect Theories Regarding the Lack of Additional Spot welds on A-pillars and Lack of a Fixed Roll Bar. As part of their argument, defendants argued that Dr. Limpert had admitted that he never saw Mr. Wright’s vehicle. The trial court denied defendant’s motion in limine, allowing Dr. Limpert to testify as an expert. On March 3, 2000, the Second Circuit denied defendants’ writ application, ruling as follows:

The trial court correctly decided that Dr. Limpert’s testimony has a sufficiently reliable basis for admissibility under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and State v. Foret, 628 So.2d 1116 (La.1993). Dr. Limpert testified extensively that the structures and forces involved in an auto crash of this type are simple and, given the witness’ expertise in engineering, readily capable of explanation. Moreover, Dr. Limpert has access to the blueprints of the A-pillar design in question and to DBAG’s [Daimler Benz Ak-tiengesellschaft] own A-pillar test results.

Trial on the merits occurred from April 3-19, 2000. On April 19, 2000, the trial court granted Directed Verdict in favor of MBNA because it was a “non-manufacturing seller.” The jury found in favor of all defendants. Plaintiffs’ motion for new trial was denied and in March of 2001 the case was settled regarding a cost award assessed against plaintiffs and plaintiffs’ appeal was dismissed with prejudice.

On December 10, 2003, plaintiffs filed a Petition for Damages and for Equitable Remedy Nullifying Judgment and Ordering New Trial Based upon Fraud or Ill Practices and Spoliation of Evidence, naming as defendants the original | (¡defendants to the Wright lawsuit, and also the law firms representing those defendants. The Petition alleged as follows:

VUI.
The plaintiffs’ causes of action in the prior litigation were based upon product liability claims related to alleged defects in design, defects in material or composition, and defects as a result of failure to warn.
IX.
During the course of the litigation, plaintiffs requested that the defendants produce any tangible evidence from the accident site and this request included the vehicle in question.
X.
The defendants initially responded to the requested production of the vehicle in question in an apparent truthful manner, but subsequently their counsel located and purchased the vehicle in his individual name.
XI.
After purchasing the vehicle, defense counsel for defendant did not inform the plaintiffs or the Court that they had physical possession of the vehicle, and filed numerous pleadings suggesting just the opposite.
XII.
While having possession of the vehicle in question, defendants sought to have the plaintiffs’ claims dismissed on the basis of spoliation, on the basis of failure to demonstrate defects in design, construction or composition, or in failure to warn, and on the basis that the plaintiffs’ experts who had not examined the case were incompetent to testify as experts.
XIII.
Defendants had an affirmative obligation under Article 1428 of the Code of Civil Procedure to disclose the possession and ownership of the vehicle and failed to do so.
_h.xiv.
Defendants had an affirmative obligation to the Court to disclose that their attacks on the plaintiffs’ legal position and on the plaintiffs’ experts were inaccurate because the defendants had actual possession of the vehicle.
XV.
The failure to disclose of this “crown jewel of product liability litigation” to opposing counsel or to the Court constituted a fraud or ill practice as defined by Article 2004 of the Louisiana Code of Civil Procedure and constituted conscious spoliation of evidence by secreting and later destroying the vehicle at issue.
XVI.
The plaintiffs first learned of the possibility of the above recited fraud or ill practice less than one year from the date of the filing of this Petition.
XVII.
As a result of the intentional hiding of critical evidence, plaintiffs were prevented from presenting critical evidence to the Court and the jury, all of which resulted in the lost opportunity to present factual evidence to a trier of fact to obtain just compensation for the damages sustained by the plaintiffs in the accident of 16 October 1988.
XVIII.
Defendants’ conscious decision to secret and destroy the critical evidence in the former litigation constituted a fraud or ill practice, negligent spoliation of evidence, intentional spoliation of evidence, and/or fraud upon the court, thereby entitling the plaintiffs to recover all damages related to the former litigation.
XIX.
The defendants acted in concert and with full knowledge of the deceit upon the Court and opposing counsel and should, therefore, be solidarily cast in judgment for the entirety of all damages sustained.

On April 23, 2004, plaintiffs propounded discovery requests to defendants seeking, among other things, information concerning any inspection of the vehicle done by defendants after defendants acquired the vehicle. On May 5, 2004, defendants filed a Motion for Protective Order, seeking to stay all discovery until 30 |sdays after the court had determined which division the matter would proceed, see footnote 6, supra, and “the proper division has resolved MBUSA’s exceptions demonstrating that plaintiffs state no cause of action as a matter of law.” The trial court granted the protective order.

On November 2, 2004 MBUSA filed exceptions and an alternative Motion for Summary Judgment in response to plaintiffs’ Petition to nullify the judgment. MBUSA claimed, among other things, that:

1. Plaintiffs cannot plead facts demonstrating that the defendants owed them any duty to disclose information regarding Ned Wright’s 1982 Mercedes-Benz 380 SL convertible (the “Subject Vehicle”);
2. Plaintiffs cannot meet the requirement of “diligence” under Article 2004 because they failed to exhaust obvious possibilities for finding the Subject Vehicle, including:
(a) procuring the vehicle after the litigation started, but while it was still in Monroe, for most if not all of that time in the possession of the very person to whom plaintiffs had sold the vehicle;
(b) searching the public records through easily available sources by using the Vehicle Identification Number (“VIN”) that is unique to the Subject Vehicle; or
(c) propounding discovery to defendants specifically requesting production of the vehicle or information about its current location.
3. Plaintiffs cannot demonstrate that their knowledge of the location of the Subject Vehicle at the time of trial would have changed the outcome of the jury’s verdict, because in the original proceeding, plaintiffs themselves argued that the vehicle was irrelevant to their claim; and
4. Plaintiffs’ claims are all prescribed by the applicable statute of limitations because, under plaintiffs’ own (current) theory, they now suggest that they believed the vehicle was a “critical piece of evidence” all along, yet they knew that it was missing. Thus, they clearly had the requisite level of notice — i.e., inquiry notice — to look for the vehicle by searching public records and/or propounding specific discovery.

|aThe defendant attorneys, Carrol, Burdick & McDonough LLP and Bernard, Cassisa, Elliott & Davis, joined in each exception and argument of MBUSA, and additionally argued that attorneys owe no duty of disclosure to the opposing party.

After hearing argument on the exceptions and the motion for summary judgment on May 23, 2005, Judge Sharp issued an Expedited Out of Court Judgment on June 23, 2005, in favor of defendants as follows: “For the reasons previously handed down in writing by this Court on or about 22 June 2005; IT IS THE JUDGMENT OF THIS COURT that Defendant’s exception of no cause of action is SUSTAINED. Defendant’s motion for summary judgment is SUSTAINED. Defendant’s exception of prescription is SUSTAINED. Plaintiffs case is DISMISSED with prejudice.” In its Reasons for Judgment, the trial judge described the pending action as a “peremptory exception with alternative requests being made.” The court reasoned that plaintiffs did not exercise the degree of diligence required to support a judgment in plaintiffs favor in this action for the following reasons: plaintiffs sold the car themselves before trial and put the subject vehicle “out of then-own reach” by doing so; plaintiffs minimized the need for the subject vehicle by relying on the “A-pillar theory” in the manner in which they did; after learning defendants had “traced” the subject vehicle to Texas in 1998, they did little, if anything, to secure the subject vehicle or additional data on its location; plaintiffs did not search for the vehicle in a meaningful way until 2003, three years after the trial; and plaintiffs did not narrowly tailor their discovery request to learn of the subject vehicles whereabouts. The trial judge further found that the defendants had no duty to tell plaintiffs or the court that they had purchased the vehicle in response to Request for Production No. 20 because the car was not “retrieved from the accident site involved” nor “taken from the vehicle in question.” Further, defendants told plaintiffs they had tracked the vehicle to Texas | min November of 1998. In conclusion, the court granted the exception of no cause of action, finding that the defendants had “carried that burden — and then some.” In a footnote, the court added:

For the same and/or similar reasons, this Court finds the absence of any genuine issue as to any material fact and the moving party, in the alternative, is entitled to judgment as a matter of law. Consequently, the Motion for Summary Judgment, too, is Granted. As to the issue of Prescription, this Court notes that claims to annul a judgment must be brought within one year of the discovery by the party seeking annulment. While Plaintiff asserts in paragraph XVI of their Petition that they “first learned, of the possibility of the above recited fraud or ill practice less than one year from the date of the filing of this Petition, ” the Court notes that more than one year has passed since the judgment was had in the original cause and a “conclusory” statement such as that found in paragraph XVI should not be, under these circumstances, sufficient to overcome a plea of prescription. Consequently, Defendant’s Exception of Prescription is, likewise, Sustained.

A five-judge panel of the court of appeal reversed. Wright v. Louisiana Power & Light, 40, 636, 40,637 (2 Cir. 4/19/06), 927 So.2d 1275. The court of appeal found that the trial court erred in not giving plaintiffs leave to amend their petition in order to overcome the exception of prescription. Further, the court of appeal reversed the granting of the exception of no cause of action and found that “the other reasons given in granting the exception of no cause of action, i.e., due diligence, no duty to disclose, and that the disclosure would not have changed the outcome, are applicable to the summary judgment motion and not the exception of no cause of action” and that “[cjertainly, these matters were factually pled and must be accepted as correct in |ndeciding a no cause of action exception.” Id. at 1279. Regarding the motion for summary judgment, the court of appeal found as follows:

We find defendants’ argument that their answer to the motion to produce was correct and that they had no duty to disclose to be specious. Defendants consciously hid the fact that they had the car. Whether an examination of the car could have benefitted plaintiffs’ case is unknown. Clearly, C.C.P. art. 1428(2) imposed a duty on defendants to amend their prior response to discovery requests.
Plaintiffs argue that their accident reconstruction expert, Dr. Rudy Limpert, was criticized by the defense during trial for not producing detailed drawings or tests of the accident sequence, a failure, the expert explained, which resulted from a dearth of “physical evidence” available for his inspection. Plaintiffs further contend, that, had Dr. Limpert had access to the Mercedes, plaintiffs could have effectively negated the testimony of the primary defense expert with respect both to the mechanism and severity of the accident.
Further, plaintiffs list many issues of contested fact about which discovery was sought and denied before the hearing on the motion for a summary judgment. These discovery requests center around the Mercedes while it was in the control of the defendants, such as who examined the vehicle, whether any photographs were taken of the vehicle, the welding quality of the A-pillars, whether any expert conclusions were made after an examination of the vehicle, and other similar questions.
It is clear that there are genuine issues of material fact surrounding the Mercedes while it was in the custody of defendants. It is equally apparent that refusing any discovery prior to the granting of the motion for summary judgment is violative of the directive of La. C.C.P. art. 966 C(1).

Id. We granted defendants’ writ application. Wright v. Louisiana Power & Light, 06-1181 (La.10/6/06), 938 So.2d 61.

DISCUSSION

Louisiana Code of Civil Procedure Article 2004 provides:

A final judgment obtained by fraud or ill practices may be annulled.
An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.

h2Trial courts are permitted discretion in deciding when a judgment should be annulled because of fraud or ill practices, to which discretion reviewing courts will defer. Power Marketing Direct, Inc. v. Foster, 05-2023 (La.9/6/06), 938 So.2d 662, 670; Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983).

In Johnson v. Jones-Journet, 320 So.2d 533 (La.1975), this Court reviewed the historical development of C.C.P. art. 2004 and noted that the jurisprudence under Art. 607 of the Code of Practice (the source of present C.C.P. art. 2004) established the following criteria for an action in nullity: (1) that the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief, and (2) that the enforcement of the judgment would have been unconscionable and inequitable. Since that time, this Court has accepted those two requirements as the necessary elements in establishing a nullity action under Art.2004. See Gladstone v. American Auto. Ass’n, Inc., 419 So.2d 1219 (La.1982); Kem Search, supra; Belle Pass Terminal, Inc. v. Jolin, Inc., 01-0149 (La.10/16/01), 800 So.2d 762.

However, those cases also further defined the types of conduct required to establish those two elements depending on the type of fraud or ill practice alleged. This Court has held that “the article is not limited to cases of actual fraud or intentional wrongdoing, but is sufficiently broad to encompass all situations where a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable.” Power 13Marketing, supra at 671; Kem Search, supra at 1070 (citing Chauvin v. Nelkin Ins. Agency, Inc., 345 So.2d 132 (La.App. 1 Cir.), writ denied, 347 So.2d 256 (La.1977)); see also, Schoen v. Burns, 321 So.2d 908 (La.App. 1 Cir.1975); St. Mary v. St. Mary, 175 So.2d 893 (La.App. 3 Cir.1965); Tapp v. Guaranty Finance Co., 158 So.2d 228 (La.App. 1 Cir.1963), writ denied, 245 La. 640, 160 So.2d 228 (1964).

The Court in Kem Search further defined the required “deprivation of legal rights” as “[cjonduct which prevents an opposing party from having an opportunity to appear or to assert a defense.” Id. This definition was further expanded in Belle Pass, which held that “a right to a fair and impartial trial is a legal right entitled to all participants in a legal proceeding.” 800 So.2d at 767. The Court in Belle Pass also explained the purpose of a nullity action as follows:

It is imperative that courts review a petition for nullity closely as an action for nullity based on fraud or ill practices is not intended as a substitute for an appeal or as a second chance to prove a claim that was previously denied for failure of proof. The purpose of an action for nullity is to prevent injustice which cannot be corrected through new trials and appeals.

Id. at 766. Further, the Court held that:

... a logical interpretation of Article 2004 dictates that a judgment will not be annulled on account of fraud or ill practice in the course of a legal proceeding if the fraud or ill practice pertained to a matter irrelevant to the basis of the decision and the judgment therefore was not obtained by fraud or ill practice.

Id. at 767.

| uRegarding nullity actions such as this one where a party alleges the other party withheld information at trial, Gladstone held that “[discovery of evidence which could have been presented at the original trial usually cannot serve as the basis for an action for nullity.” 419 So.2d at 1223. As the Court explained:

... the mere failure to disclose information at a hearing does not necessarily constitute fraud or ill practice. That determination depends on the nature of the information and the circumstances surrounding the hearing. A party is not obliged to produce evidence favorable to the opponent or to present the opponent’s version of the case, and the failure to disclose all information on the issue is not ill practice unless concealment or deceit is involved. Moreover, a party may present only his version of the occurrence, as long as he does not use false or perjured testimony or forged documents.

Id. The Court found that the plaintiff “had every opportunity to support her defenses in the hearing before the appeals referee” and that she “simply did not exercise sufficient diligence in marshaling and presenting evidence of her version of the facts leading up to her termination.” Id. In reaching this holding, the Court in Gladstone relied on a nullity case dating back to 1932, which held that “an unsuccessful litigant may not aííacfc a judgment as fraudulent because the other party failed to disclose certain facts within his knowledge, when the plaintiff with reasonable diligence could have ascertained those facts himself.” Id. at p. 1223, n. 6 (citing First Nat’l Life Ins. Co. v. Bell, 174 La. 692, 141 So. 379 (1932) (emphasis added)).

With those precepts of Article 2004 in mind, we now turn to the exceptions and motions at issue, which were granted by the trial court. The criteria for deciding an exception of no cause of action are as follows:

A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238 (La.1993). The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. Id. at 1235. No evidence may be introduced to support or |1Bcontr overt an exception of no cause of action. La. C.C.P. art. 931. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as true. Jackson v. State ex rel. Dept. of Corrections, 00-2882, p. 3 (La.5/15/01), 785 So.2d 803, 806; Everything on Wheels Subaru, 616 So.2d at 1235. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131.
Louisiana has chosen a system of fact pleading. La. C.C.P. art. 854 cmt. (a); Montalvo at p. 6, 637 So.2d at 131. Therefore, it is not necessary for a plaintiff to plead the theory of his case in the petition. Kizer v. Lilly, 471 So.2d 716, 719 (La.1985). However, the mere conclusions of the plaintiff unsupported by facts does not set forth a cause of action. Montalvo at p. 6, 637 So.2d at 131.
The burden of demonstrating that the petition states no cause of action is upon the mover. City of New Orleans v. Board of Com’rs of Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253. In reviewing the judgment of the district court relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court’s decision is based solely on the sufficiency of the petition. Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349; City of New Orleans at p. 28, 640 So.2d at 253. The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief. City of New Orleans at p. 29, 640 So.2d at 253.

Ramey v. DeCaire, 03-1299 (La.3/19/04), 869 So.2d 114,118-19.

Applying that standard to the petition in this case, we find that allegations stated on the face of the petition state a valid cause of action under La. C.C.P. Art. 2004.

Next, we turn to the motion for summary judgment, in which lack of due diligence and defendant’s duty to disclose become relevant. This Court has stated hfithe parameters of a motion for summary judgment as follows:

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.C.C. P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action ... The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). In 1997, the legislature enacted La. C.C.P. art. 966(C)(2), which further clarified the burden of proof in summary judgment proceedings, providing:
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
This amendment, which closely parallels the language of Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), first places the burden of producing evidence at the hearing on the motion for summary judgment on the mover (normally the defendant), who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial. See MARAIST AND LEMMON, LOUISIANA CIVIL LAW TREATISE: CIVIL PROCEDURE, § 6.8 (1999). Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Hayes v. Autin, 96-287 (La.App. 3d Cir.12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41.

Babin v. Winn-Dixie Louisiana, Inc., 00-0078 (La.6/30/00), 764 So.3d 37, 39-40. 117Summary judgments are reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Power Marketing, supra at 669; Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750.

In this case, lack of due diligence and no duty to disclose are defendants’ defenses to the claim that the judgment was obtained by fraud or ill practices, of which defendants would have the burden at trial. Our jurisprudence and common logic dictate that if defendants had no duty to disclose to plaintiffs that they had purchased the car, and, if plaintiffs could have found the car during the 12 years prior to trial using due diligence, then plaintiffs cannot prevail in their attempt to have this judgment annulled under Art. 2004.

We first look to whether, as alleged by plaintiffs in their petition, defendants had a duty to supplement then-response to Request for Production No. 20 which asked for “[a]ny and all tangible evidence retrieved from the accident site involved herein or taken from the vehicle in question following the death of Ned D. Wright.” In a civil case, the duty to disclose to one’s adversary arises through specific discovery 11Rrequests. Pursuant to La. C.C.P. art. 1428, a party has a duty to supplement discovery requests as follows:

A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:
(2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which he knows that the response was incorrect when made, or he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.

La. C.C.P. art. 1428. The trial court found that the defendants had no duty to supplement their undisputedly correct original answer to Request No. 20 when they found and obtained possession of the vehicle in 1999. We agree and find that not only was the response still true even after they obtained the car, but also that the circumstances do not show a knowing concealment.

When the discovery request was first propounded in 1989, plaintiffs knew that defendants could not have retrieved the vehicle from the accident site, as plaintiffs are the ones that sold the vehicle shortly after the accident, without defendants ever having the chance to see it. Thus, clearly, in propounding this request, they were not seeking the vehicle, but instead seeking anything defendants may have “retrieved from the accident site involved.” To say now that this request could reasonably lead defendants to think it encompassed the vehicle is illogical. Further, as found by the trial court, “[njowhere was it pointed out ... that a more narrowly focused RFP or other discovery device was used by Plaintiff to learn of the subject vehicle’s whereabouts after 8 December 1999 until [this nullity action was filed].” Certainly, if plaintiffs wanted to request production of the car at any time, they would have just |iaplainly asked for production of the vehicle, especially after defendants told them in 1998 that the vehicle had been traced to Texas.

In addition, the circumstances do not give rise to a “knowing concealment.” The defendants filed a Supplemental Exhibit List on November 23,1998, notifying plaintiffs that they intended to produce as evidence a “Registration Certificate from Texas showing that Ned Wright’s vehicle was sold to Mr. Hudson.” As found by the trial court, “[h]ow could ‘concealment’ be the main ingredient on the back end when ‘up front disclosure’ appeared on the front end? To ask the question may be to answer it.” In sum, we agree with the trial court that defendants had no duty to supplement Request for Production No. 20 with information that they had possession of the vehicle in 1999. That request did not encompass the vehicle, and defendants notified plaintiffs as early as 1998, although they had no obligation to do so, that they had traced the vehicle to Texas. Further, we do not find that arguing the previously filed second Spoliation Motion after they had acquired the vehicle constitutes fraud or ill practice, for that motion related only to the A-pillars, which undisputedly had been removed from the vehicle before defendants even became involved in the case.

The next issue is due diligence. Absent a specific discovery request or “knowing concealment,” where a party seeks to annul a judgment because the other party failed to disclose facts within his knowledge or things within his possession that would have been helpful to his case, that party cannot prevail when with reasonable diligence he could have ascertained those facts himself. Gladstone, supra; First Nat’l 20Life Ins. Co. v. Bell, supra. As we stated in Gladstone, “[t]he action for nullity based on fraud or ill practices is not intended as a substitute for an appeal or as a second chance to prove a claim which was previously denied for failure of proof.” Gladstone, supra at 1222. Plaintiffs claim now that an examination of the vehicle could have bolstered their case in chief from both a defective products standpoint and an accident mechanics standpoint, bolstered the credibility of their experts, and allowed them a fair opportunity to counter the accident mechanism claims of the defense experts by showing that the physical evidence remaining on the car was inconsistent with defendants’ contention of how the accident occurred. However, the time to do all this was at trial, and defendants’ conduct did not prevent the plaintiffs from doing any of that at trial. If plaintiffs felt the car was important to their case, they should have at least attempted to look for it before trial, and just as they did in 2003, they surely would have found it. To the extent they relied on defendants to find the car for them or to let them know if they found the car, that reliance was unreasonable. The defendants told them as early as 1998 that the car had been traced to Texas; all they had to then do was search the Texas DMV records using the vehicle’s VIN number. In fact they could have searched for the car using the VIN number at any time during the 12 years leading up to the trial, not to mention the fact that plaintiffs could have inspected the car before selling it to a third party with the consent of her attorneys, and could have inspected it at any time during the first year and one-half while it remained in Monroe. As stated by Judge Stewart in his dissent, “[i]t is the plaintiffs lack of diligence and deliberate decision to not seek the vehicle in question as part of its trial strategy that gave rise to the instant case.”

Plaintiffs also claim that the trial court erred in granting the motion for summary judgment because it refused to allow plaintiffs to conduct any discovery before |¾1 granting the motion. Article 966(C)(1) provides that “[a]fter adequate discovery or after a case has been set for trial, a motion which shows that there is no genuine issue as to any material fact and that the mover is entitled to judgment as a matter of law shall be granted.” However, the discovery sought by plaintiffs related only to defendants’ actions after they had purchased the vehicle, such as any inspections done, photographs, taken, etc. The information sought in the discovery plaintiffs claim they need in order to defend against the motion for summary judgment is irrelevant to the issue that plaintiffs needed to overcome in order to survive this motion for summary judgment, i.e., that they used due diligence in attempting to find the vehicle before trial. In fact, it is undisputed that plaintiffs did not exercise due diligence. The only evidence produced at the motion for summary judgment by plaintiffs on this issue was an affidavit of plaintiffs’ counsel, Michael J. Mestayer, who stated:

I was not consulted regarding a potential product liability claim against Mercedes or any other party until March, 1989;
At the time I was first consulted in this matter, I determined that the Mercedes vehicle had been sold;
I contacted several individuals during the course of the legal proceeding herein about the possibility of locating the car, but was informed that since there was no available documentation to reflect the broker to whom the car was sold at the Dallas Auto Auction, that the vehicle could be anywhere in the U.S., or elsewhere, and that there was no way to locate it without sales documentation.
That I made a specific request to Timothy C. Smith on 8 December 1999, immediately following the second day of Daubeti hearings, for information concerning the location of the car, at which time Mr. Smith denied that Mercedes had located the car;
That in the denial, Mr. Smith stated that they had tracked the car down as far as “some Hooter’s girl”, but lost it from there; and
That the only way that I was able to locate evidence that Mr. Smith had actually purchased the car was the fortuitous request to a previous woman owner of the car since the states of Louisiana, Texas, and | ^California reported that they had no title documents reflecting ownership by anyone known to be associated with Mercedes.

Mr. Smith filed a counter-affidavit that no such question was ever asked of him. However, although apparently in dispute, this is not a material factual issue, because even if Mr. Mestayer had asked Mr. Smith if he had found the car in an off-the-record conversation, and even if Mr. Smith had responded that they had tracked the car but then lost it, when in fact they had actually found it, this would not constitute due diligence on Mr. Mestayer’s part sufficient to overcome this motion for summary judgment. Mr. Mestayer should have at least taken steps after that to locate the car which he now claims was such critical evidence, either in the form of discovery to defendants seeking any information they had in locating the car, or in performing a DMV search for the car. While plaintiffs now claim the car was very important, and thus material, to their case, they obviously did not think it was material at or before trial, as they made no attempt to locate it then.

Plaintiffs also argue, as asserted in Mr. Mestayer’s affidavit, that even had they searched the DMV records after Mr. Smith purchased the car, they would not have found out that Mercedes had the car because the car was purchased in Mr. Smith’s name. However, they would have seen that Mr. Smith, who was well known to them, had purchased the car, or at the very least they would have learned that Meredith Misenhalter had purchased the car, which would have led them to Mr. Smith. In any event, it would have been irrelevant at that time whether Mr. Smith had it or Mercedes |s>3had it; either way, plaintiffs would have found the car and could have examined it, if that’s what they really wanted to do.

While the court of appeal ultimately held that the trial court erred in refusing any discovery prior to granting the motion for summary judgment because “[i]t is clear that there are genuine issues of material fact surrounding the Mercedes while it was in the custody of defendants,” the court of appeal and the trial court noted the following undisputed material facts:

Plaintiffs had full custody and access to the vehicle before they ever filed suit. Plaintiffs intentionally sold the vehicle knowing full well that it would be repaired. Plaintiffs twice argued against defendants’ spoliation motions, taking the position that the actual Mercedes and parts were irrelevant. Defendants informed plaintiffs that the Mercedes was in the Texas area in 1998; and plaintiffs made no effort to locate the vehicle until after the trial.

927 So.2d at 1277-78. Because plaintiffs failed to show, and in fact cannot show no matter how much discovery is allowed, a genuine factual dispute concerning their own lack of diligence in locating the vehicle, no further discover is necessary before granting the motion for summary judgment. Any issue concerning the vehicle’s condition, i.e., whether it might have been helpful to the plaintiffs in the underlying action, is immaterial to this summary judgment motion. See Hayes v. Autin, supra at 695 (on summary judgment, “a complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial.”)

I ^CONCLUSION

A nullity action based on fraud or ill practice is not intended as a substitute for an appeal or as a second chance to prove a claim that was previously denied for failure of proof. The mere failure to disclose information does not necessarily constitute fraud or ill practice. That determination depends upon the nature of the information and the circumstances surrounding the proceeding. Absent a specific discovery request or “knowing concealment,” failing to disclose information that might have been helpful to the opposing party’s case does not constitute fraud or ill practice if with, reasonable diligence, the party could have ascertained the information himself. In this case, there was no fraud or ill practice relating to defendants’ failure to supplement their response to Request for Production No. 20, because the vehicle was not “retrieved from the accident site” or “taken from the vehicle in question following the death of Ned D. Wright.”

While defendants’ conduct in purchasing the vehicle unbeknownst to plaintiffs and not disclosing the purchase to the plaintiffs concerns us, we do not find that it deprived plaintiffs of a legal right or render the enforcement of the judgment unconscionable or inequitable. Simply put, nothing defendants did prevented the plaintiffs from locating the car in the 12 years before trial.

DECREE

For the reasons stated herein, the judgment of the court of appeal is reversed, and the judgment of the trial court granting defendants’ motion for summary judgment is reinstated.

REVERSED.

KNOLL, J., dissents and assigns reasons.

KNOLL, J.,

dissenting.

I,For the following reasons, I respectfully dissent. In my view, the court of appeal correctly found the defendants’ argument that they had no duty to disclose they had obtained possession and ownership of the subject vehicle to be specious. The defendants’ actions show they consciously hid the fact that they had the car.

Although “[djiscovery of evidence which could have been presented at the original trial usually cannot-serve as the basis for an action for nullity,” this court further explained that “the failure to disclose all information on the issue is not ill practice unless concealment or deceit is involved.” Gladstone v. American Auto. Ass’n, Inc., 419 So.2d 1219, 1223 (La.1982)(emphasis added). Pursuant to La.Code Civ. Pro. art. 1428(2), a party has a duty to supplement responses to discovery requests when “he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.” (Emphasis added).

The defendants filed a second spoliation motion on July 31,1998. After this motion was filed, defendants’ attorney purchased the vehicle on March 1, 1999. Defendants did not inform the plaintiffs or the court of their purchase of the vehicle; indeed, they proceeded to argue their spoliation motion on August 23, 1999 without telling the court or the plaintiffs they had purchased the car. Moreover, the[2defendants filed a motion on August 13, 1999 to limit plaintiffs’ expert witness testimony, arguing that plaintiffs’ expert admitted he never saw Mr. Wright’s vehicle. Significantly, defendants sought a writ from the denial of their motion, after they had obtained the vehicle.

Although “[tjhere are persuasive considerations against disturbing the integrity of final judgments obtained without artifice,” Johnson v. Jones-Journet, 320 So.2d 533, 537 (La.1975)(emphasis added), where, as here, a litigant employs deceit by omission (ie., judgment obtained by fraud or ill practices), enforcement of such a judgment would be unconscionable and inequitable. In discussing “ill practices” under Code of Practice article 607, the source of La.Code Civ. Pro. art. 2004, this court stated:

Under the jurisprudence any improper practice or procedure which enables a party to obtain a definitive judgment comes within the meaning of this article. The courts have looked at each case from a purely equitable viewpoint to ascertain whether allowing the judgment to stand would be inequitable or unconscionable in view of the practice or procedure which enabled the party to obtain such judgment.
Alonso v. Bowers, 222 La. 1093, 1097, 64 So.2d 443, 444 (1953).

I find the actions of the defendants, in arguing a spoliation motion and seeking to limit the expert’s testimony after they obtained the vehicle, was an improper practice that possibly enabled them to obtain the definitive judgment. Under these circumstances, the failure to supplement the discovery request was a knowing concealment that could serve as the basis for an action for nullity. The right to a fair and impartial trial is a legal right entitled to all participants in a legal proceeding. Belle Pass Terminal, Inc. v. Jolin, Inc., 01-0149, p. 7 (L.a 10/16/01), 800 So.2d 762, 767.

In support, I find the defendants’ action of filing a Supplemental Exhibit List notifying the plaintiffs that they intended to produce as evidence a “Registration | sCertificate from Texas showing that Ned Wright’s vehicle was sold to Mr. Hudson” does give rise to a knowing concealment, rather than the opposite, as found by the majority. In my view, it is disingenuous for the defendants to arbitrarily decide that they must provide partial information, but then decline to further reveal that they have obtained possession and ownership of the vehicle. If they truly believed there was no duty to supplement their response to Request For Production No. 20, there was no purpose in their disclosure that a Texas registration certificate showed the vehicle was sold to Mr. Hudson. Once the defendants disclosed the point to which the search for the vehicle had led, it was incumbent upon them to further reveal their additional knowledge, particularly where their counsel purchased the vehicle on their behalf.

In holding that the attorney-client privilege is waived where a client elects to partially disclose privileged communication, this court stated:

The rationale of a waiver based on partial disclosure is that permitting a party to make such an incomplete disclosure, without losing his privilege with respect to the remainder of the communication or communications on that subject would be unfair to the adversary because it would give the privilege-holder unchecked editorial control over the available evidence to a degree that would practically ensure a distorted presentation of the communication or communications .... A partial disclosure creates the additional risk of distorting or garbling the communication by allowing partial introduction without providing the opponent an opportunity to establish its true content and context.
Succession of Smith v. Kavanaugh, Pierson & Talley, 513 So.2d 1138, 1144 (La.1987).

Although not directly on point, I find this court’s rationale in permitting privilege to be waived where the privileged material is partially disclosed significant in this matter, where the defendants’ partial disclosure of relevant evidence gave them unchecked editorial control and ensured a distorted presentation.

Although it is tempting, because of the time span of this litigation, to grant the defendants’ motion for summary judgment to achieve finality in this matter, I find to do so would countenance the fraud and ill practices committed by defendants. 14Notwithstanding the lack of due diligence on the plaintiffs’ part, the defendants’ fraud and ill practices mitigates against a grant of summary judgment, as correctly found by the court of appeal. Thus, I would affirm the appellate court’s decision to reverse the trial court’s grant of summary judgment, remanding this matter for further proceedings consistent with that ruling.

      . "Plaintiffs” are the spouse and children of the deceased.

      . LP & L was dismissed before trial.

      . MBNA is now known as Mercedes-Benz USA, LLC, ("MBUSA”).

      . In Paragraph XIII of the original Petition, plaintiffs alleged that the Mercedes was unreasonably dangerous for the following reasons:
      a. The vehicle was unreasonably dangerous in construction or composition in that it failed to meet minimum rollover protection standards of defendant or of otherwise identical vehicle marketed elsewhere;
      b. The vehicle was unreasonably dangerous in design and alternative feasible designs existed at the time which were capable of preventing the damage claimed;
      c. The vehicle was unreasonably dangerous because of the failure to warn of dangers associated with rollover and the lack of occupant protection; and,
      d. The vehicle was unreasonably dangerous because of non-conformity to the representations of the vehicle as a safe, stable, and extensively tested "sports car.”
      Daimler Benz Aktiengesellschaft (now known as DaimlerChrysler Aktiengesellschaft) was added as a defendant in the First Supplemental and Amending Petition and all allegations against MBNA were alleged against Daimler. Daimler was the parent corporation of MBNA, now known as MBUSA. In a Second Supplemental and Amending Petition, plaintiffs added the following allegations:
      a. Failure to properly design, engineer, and/or manufacture the aforesaid 1982 Mercedes-Benz 380 SL;
      b. Failure to equip the aforesaid 1982 Mercedes-Benz 380 SL with occupant crash safety equipment, including but not limited to a rollover bar, headache bar, bulkhead and/or windshield of sufficient strength to withstand a foreseeable rollover event;
      c. Failure to provide proper and safe guidelines and/or warnings for the use of said vehicle.

      . At oral argument on the motion in the trial court, defense counsel stated that the actual Texas title history referred to in the Supplemental Exhibit List was in the courtroom at trial in defendants' Exhibit Book.

      . Plaintiffs also filed a "Rule to Show Cause Why the Court Should Not Grant Action Seeking Equitable Remedies Declaring Judgments Null and Ordering a New Trial Based Upon Fraud or Ill Practices.” These actions were consolidated and transferred to the trial judge in the original case, Judge Alvin R. Sharp.

      . Specifically, the court found:
      Looking to the principle pleading at hand, this Court finds it difficult to discern where Plaintiff stated facts relating to "diligence” or how "diligence” was showed. Looking to the applicable pleading at hand, this Court finds it difficult to discern where Plaintiff stated facts relating to how the subject vehicle would have been helpful to their original cause of action. Looking to the applicable pleading at hand, this Court finds it difficult to discern where Plaintiff stated facts relating to either of these, and— together with that mentioned above — the exception should be, and is hereby, SUSTAINED.

      . In Johnson, Justice Marcus explained that Article 2004 was drawn from Article 607 of the Code of Practice, which, in addition to stating the general rules, set forth as illustrations of fraud or ill practice the following: bribery of the judge or witnesses, production of forged documents, and perjury by the party obtaining the judgment. 320 So.2d at 537. Justice Marcus noted that these illustrations were not considered an exhaustive list, and that although the illustrations were deleted with the adoption of Art. 2004, there was no intention to change the law. Id.

      . Kem Search, as well as Power Marketing, supra, and Russell v. Illinois Central Gulf Railroad, 96-2649 (La.1/10/97), 686 So.2d 817, involved default judgments taken without notice to the opposing parties. This line of cases hold that a judgment of default may be annulled in certain circumstances when a party fails to defend a suit because of the failure of the opposing party to warn it that a default would be taken.

      . In Belle Pass, one of the defendants was secretly aligned with the plaintiffs, and the Court found that his testimony at trial, including material misrepresentations, influenced the jury’s finding in favor of the plaintiffs, denying the other defendant of his legal right to a fair and impartial trial. Id.

      . We note plaintiffs' argument that the trial court erred in considering the exception of no cause of action together with the motion for summary judgment. In Gladstone, supra, this Court noted that "the combined pleading, urging an exception of no cause of action and a motion for summary judgment, is a much more useful procedural device than the exception alone.” 419 So.2d at 1222, n. 3. Further, in this case we have just held that it was legal error for the trial court to grant the exception of no cause of action because the face of the petition was sufficient to overcome that exception. At the hearing on the exceptions and motion, the plaintiffs argued that the two could not be considered together and the trial court acknowledged that only the petition could be considered in ruling on the exception. In addition, while the trial court granted the exception of no cause of action, perhaps using facts outside the face of the pleadings, it also separately granted the motion for summary judgment as follows: "for the same and/or similar reasons [as it granted the exception of no cause of action], this Court finds the absence of any genuine issue as to any material fact and the moving party, in the alternative, is entitled to judgment as a matter of law.” Thus, even if the trial judge did err in considering matters outside the face of the pleadings in considering the exception of no cause of action, that error does not affect his ruling on the motion for summary judgment.

      . While plaintiffs now argue in brief and at oral argument the judgment should be nullified because defendants also had a duty to supplement Request for Production of Documents No. 5, requesting any photographs or videotapes of the vehicle, with photographs taken after defendants had possession of the vehicle, this was not alleged in the petition, and was not considered by the trial court or the court of appeal. Further, we fail to see how photographs of the repaired car would have assisted plaintiffs' case under their theory of the case, i.e., design defect, any more than the actual car would have assisted them. See also, p. 1074, n. 15, infra.

      . In addition, while defendants questioned the plaintiffs’ expert's qualifications because he did not examine the vehicle, this did not prevent plaintiffs from having a fair trial as the trial court denied defendants’ disqualification motion and allowed him to testify. Further, while plaintiffs complain of defendants' use of an exemplar vehicle when they in fact had the actual vehicle, we find that based on plaintiffs’ design defect and failure to warn claims, and the fact that plaintiffs asserted the A-pillars had bent above the belt line and these A-pillars had undisputedly been replaced, the actual vehicle would not have served as well as the exemplar vehicle in defending against plaintiffs’ claims.

      . Mr. Mestayer's affidavit does allege a violation of the Rules of Professional Conduct. Rule 4.1 states: "In the course of representing a client a lawyer shall not knowingly: (a) Make a false statement of material fact or law to a third person ...” Whether this conversation took place is an issue in dispute because of Mr. Smith’s counter affidavit. However, this is not an attorney disciplinary proceeding, it is a nullity action, and even if Mr. Smith did make this false statement, it did not prevent plaintiffs from presenting their case or having a fair trial because it did not prevent them from finding the car if they had tried to do so.

      . Although we do not have the record of the original trial before us, we presume plaintiffs attempted to prove the allegations contained in their petition and supplemental petitions by expert testimony. The ability of plaintiffs to prove the vehicle and its parts were defectively designed was not dependant on the actual vehicle. Further, if claiming Wright's vehicle was defectively built, there was no way the actual vehicle was going to prove it because Mrs. Wright had sold the vehicle and all relevant parts had been replaced.


source: Caselaw Access Project

license: Public Domain

text:
    In re Darryl D. SICARELLI.
    No. 2007-OB-0449.
    Supreme Court of Louisiana.
    March 14, 2007.
   ORDER

Considering the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that Darryl D. Sicar-elli, Louisiana Bar Roll number 12058, be and he hereby is transferred to disability inactive status. All disciplinary proceedings against respondent shall be deferred until such time as he resumes active status.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

/a/ Jeannette T. Knoll Justice, Supreme Court of Louisiana


author: PER CURIAM.

text:
    In re Freeman W. RAMSEY.
    No. 2007-B-0006.
    Supreme Court of Louisiana.
    March 16, 2007.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| ^his disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Freeman W. Ramsey, an attorney licensed to practice law in Louisiana. For the reasons that follow, we suspend respondent from the practice of law for a period of one year and one day.

UNDERLYING FACTS

The ODC filed three separate sets of formal charges against respondent. The formal charges, consisting of a total of six counts, were consolidated by order of the hearing committee chair. The charges and alleged rule violations may be summarized as follows:

05-DB-017

Count I — The Thompson Matter

In January 2000, Georgia Thompson and her family paid respondent a $2,500 fee to handle a social security and immigration matter. Respondent’s work did not produce his clients’ desired results. He also did not adequately communicate with them and failed to properly account for and refund the unearned portion of the fee.

The ODC alleged that respondent violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to | ^communicate with a client), and 1.5(f)(6) (failure to account for and refund an unearned fee) of the Rules of Professional Conduct.

Count II — The Love Matter

In March 1999, Willie Love paid respondent $1,500 to handle an appeal in a criminal matter. In April 2000, Mr. Love terminated respondent’s representation. In August 2000, Mr. Love filed a complaint against respondent with the ODC, indicating that respondent had not done any work on his case and failed to communicate with him. Several notices of the complaint sent to respondent via certified mail were returned unclaimed.

The ODC alleged that respondent violated Rules 1.3, 1.4, 1.5(f)(6), and 8.4(g) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct. The ODC also alleged that respondent violated Supreme Court Rule XIX, § 9(c) (failure to respond to a lawful demand for information from a disciplinary authority).

Count III — The Miller Matter

In March 1998, Patricia Miller hired respondent to represent her in a social security matter. The fee agreement was $4,000 or 25% of past due benefits, whichever was less. Respondent represented Ms. Miller at the hearing in April 1999, the result of which was in her favor. She paid respondent $1,500, which was 25% of her $6,000 past due benefits check. Respondent also received an additional $4,000 directly from the Social Security Administration (“SSA”) as his fee. Thereafter, the SSA informed Ms. Miller that the $4,000 fee was the most respondent should have received. Respondent failed to respond to Ms. Miller’s February 2000 letter l£equesting a refund of the $1,500 she paid. Therefore, she filed a lawsuit and obtained a judgment against respondent. However, respondent has failed to pay the judgment. Respondent also failed to respond to the ODC’s numerous requests for an accounting of the $1,500, which he claimed was for expenses and not his fee.

The ODC alleged that respondent violated Rules 1.4, 1.5 (charging an excessive fee), 1.5(f)(6), and 8.4(g) of the Rules of Professional Conduct. The ODC also alleged that respondent violated Supreme Court Rule XIX, § 9(c).

05-DB-022

The Ineligibility Matter

On May 22, 2002, respondent was declared ineligible to practice law due to his failure to pay court-ordered child support. In re: Ramsey, 02-1120 (La.5/22/02), 819 So.2d 1017. Respondent remained ineligible until April 23, 2003. Nevertheless, on June 17, 2002, respondent filed a pleading in the matter of Sims v. Sims, No.2001-003375 on the docket of the 21st Judicial District Court for the Parish of Tangipa-hoa.

The ODC alleged that respondent violated Rules 5.5(a) (engaging in the unauthorized practice of law) and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

05-DB-0Í3

Count I — The Jacks Matter

Richard Jacks hired respondent to handle a social security matter. Mr. Jacks eventually became dissatisfied with respondent’s services and terminated the representation in October 2003. At that time, he requested respondent return his file. | ¿Respondent failed to do so. He also failed to fully cooperate with the ODC in its investigation of Mr. Jacks’ complaint.

The ODC alleged that respondent violated Rules 1.3, 1.4, 1.16(d) (obligations upon termination of the representation), and 8.1(c) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct.

Count II — The Dufrene Matter

Jolie Dufrene hired respondent to handle two social security matters. For one matter, she paid him $400. For the other, respondent accepted a contingency fee. Ms. Dufrene became dissatisfied with respondent’s services and requested the return of her file and a refund of the $400. Although respondent agreed to refund the fee, Ms. Dufrene never received same. She also did not receive her file. Respondent failed to claim the certified letter from the ODC notifying him of Ms. Du-frene’s complaint. He also failed to respond to the complaint after being personally served with same.

The ODC alleged that respondent violated Rules 1.3, 1.4, 1.5(f)(5) (failure to refund an unearned fee), 1.16(d), and 8.1(c) of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS

After investigation, the ODC filed formal charges against respondent. Respondent answered the formal charges and denied any misconduct. This matter then proceeded to a formal hearing on the merits.

Hearing Committee Recommendation

After considering the evidence and testimony presented at the hearing, the hearing committee made the following findings:

| ñThe Thompson matter — Respondent performed some work in the matter but failed to properly communicate with his clients. He also failed to properly account for and refund the unearned fee. Based on these findings, the committee determined that respondent violated Rules 1.4 and 1.5(f)(6) of the Rules of Professional Conduct. The committee found no violation of Rule 1.3.

The Love matter — Respondent performed some work in the matter. The testimony of Mr. Love and his mother conflicted with the testimony respondent gave during his sworn statement. Therefore, the committee determined that the ODC failed to prove by clear and convincing evidence that respondent violated Rules 1.3, 1.4, and 1.5(f)(6). However, respondent failed to respond to the ODC’s notice of Mr. Love’s complaint in violation of Rule 8.4(g) and Supreme Court Rule XIX, § 9(c).

The Miller matter — Ms. Miller believed the $1,500 was respondent’s fee. Respondent claimed the $1,500 was for expenses but failed to provide an accounting of the expenses. Furthermore, Ms. Miller obtained a judgment against respondent for the $1,500 plus legal interest. Respondent has never refunded the money despite repeated demands and letters from Ms. Miller. Based on these findings, the committee determined that respondent violated Rules 1.4, 1.5, 1.5(f)(6), 8.4(g), and Supreme Court Rule XIX, § 9(c).

The Ineligibility matter — Respondent was declared ineligible to practice law for his failure to pay child support. During the period of ineligibility, he filed pleadings in court. Respondent claimed he was not aware of his ineligibility despite the fact that notice of his ineligibility was mailed to him. Accordingly, the committee determined that respondent violated Rules 5.5(a) and 8.4(d).

The Jacks matter — Based upon the testimony, the committee determined that the ODC failed to prove by clear and convincing evidence that respondent violated | sRules 1.3 and 1.4. However, respondent failed to return Mr. Jacks’ file, in violation of Rule 1.16(d), and failed to cooperate with the ODC, in violation of Rule 8.1(c).

The Dufrene matter — While Ms. Du-frene may not have been given the status of the matter each time she requested it, respondent advised her that he appeared before the Social Security Administration. Therefore, the committee determined that the ODC failed to prove by clear and convincing evidence that respondent violated Rules 1.3, 1.4, and 1.5(f)(5). However, respondent did not return Ms. Dufrene’s file, in violation of Rule 1.16(d), and failed to cooperate with the ODC, in violation of Rule 8.1(c).

Based' on these findings, the committee determined that respondent knowingly violated duties owed to his clients and as a professional. However, none of the violations resulted in serious harm to his clients. Applying the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that suspension is the baseline sanction.

As aggravating factors, the committee found multiple offenses, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, and “[r]e-spondent’s demeanor and lack of zeal to defend the charges against him.” In mitigation, the committee noted respondent’s personal problems, both psychological and physical.

Under these circumstances, the committee recommended that respondent be suspended for one year and one day and attend the Louisiana State Bar Association’s Ethics School prior to seeking reinstatement.

17rf he ODC objected to some of the hearing committee’s findings but did not object to the recommended sanction.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the record supports the hearing committee’s findings in the Thompson matter, the Miller matter, the Ineligibility matter, and the Jacks matter. However, in both the Love matter and the Dufrene matter, the board found the record supports a finding that respondent violated Rule 1.5(f)(5)/!.5(f)(6) by failing to provide his clients with accountings. The board agreed with the committee’s other findings relative to these two matters.

The board agreed with the committee that respondent knowingly violated duties owed to his clients and as a professional, but that he did not cause serious harm to his clients. The board further determined that respondent violated duties owed to the legal system by engaging in conduct prejudicial to the administration of justice and harmed the disciplinary system by failing to cooperate with the ODC. The board also agreed that the baseline sanction is suspension. The board adopted the aggravating and mitigating factors found by the committee and also recognized the absence of a prior disciplinary record as an additional mitigating factor.

Based on the above findings and this court’s prior jurisprudence, the board recommended that respondent be suspended for one year and one day. The board also recommended that respondent make restitution to his clients and return his clients’ files.

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

1 «DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). 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 record in this matter supports the factual findings of the hearing committee, as modified by the disciplinary board. Although respondent worked on the legal matters he was hired to handle, he failed to communicate with clients, failed to refund an excessive fee, failed to provide accountings and/or refund unearned fees, failed to return client files, practiced law while ineligible, and failed to cooperate with the ODC in its investigations. This conduct violates Rules 1.4, 1.5, 1.5(f)(5)/ 1.5(f)(6), 1.16(d), 5.5(a), 8.1(c), and 8.4(g), as well as Supreme Court Rule XIX, § 9(c).

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

Respondent knowingly violated duties to his clients, the legal system and to the profession, resulting in harm. The baseline sanction for this misconduct is a period of suspension.

The record supports the following aggravating factors: a pattern of misconduct, multiple offenses, refusal 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 sole mitigating factor supported by the record is the absence of a prior disciplinary record.

Considering the record as a whole, we conclude a suspension from the practice of law for a period of one year and one day, which will necessitate a formal application for reinstatement, is the appropriate sanction for respondent’s misconduct. See, e.g., In re: Randolph, 05-0125 (La.6/3/05), 905 So.2d 1069 (imposing one year and one day suspension on an attorney who failed to communicate with clients, failed to account for and/or refund unearned fees, failed to return client files, and failed to cooperate with the ODC); In re: Szuba, 04-1571 (La.2/4/05), 896 So.2d 976 (imposing one year and one day suspension on an attorney practicing law while ineligible to do so). Accordingly, we will adopt the disciplinary board’s recommendation and suspend respondent for a period of one year and one day.

|inDECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, it is ordered that Freeman W. Ramsey, Louisiana Bar Roll number 11096, be and he hereby is suspended from the practice of law for a period of one year and one day. Respondent is ordered to furnish complete accountings and full restitution of all unearned legal fees to his clients subject of the formal charges, and to return any client property in his possession. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . The committee noted that, during the hearing, respondent stated he was suffering from physical injuries at the time of some of the misconduct and was on medication, which required others to transport him and assist him with his practice of law.

      . Although respondent testified to personal problems, this evidence was uncorroborated, and we do not believe his difficulties were so severe or atypical that they may be considered in mitigation. See Louisiana State Bar Ass'n v. Amberg, 553 So.2d 448, 452 (La.1989).


text:
    In re Mark R. LADD.
    No. 2007-OB-0340.
    Supreme Court of Louisiana.
    March 16, 2007.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

11 After reviewing the evidence and considering the law, we conclude petitioner, Mark R. Ladd, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to the following conditions:

1. The term of this conditional admission shall be for three years from the date of admission.

2. During the period of this conditional admission, petitioner shall participate in a counseling program approved by the Office of Disciplinary Counsel.

3. Petitioner shall be responsible for ensuring that monthly reports of his progress and participation in the counseling program are forwarded to the Office of Disciplinary Counsel.

4. Within thirty days prior to the expiration of the conditional admission, the Office of Disciplinary Counsel shall file a report in this court in which it shall recommend whether the conditional admission be allowed to terminate or be extended.

5. Petitioner shall cooperate with the Office of Disciplinary Counsel, and shall comply with any and all requirements imposed upon him by the Office of Disciplinary Counsel.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional fright to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


author: JOHNSON, J.,

text:
    In re C.F.
    No. 2007-CK-425.
    Supreme Court of Louisiana.
    March 21, 2007.
   JOHNSON, J.,

would grant the writ and assigns reasons.

1 JOHNSON, Justice, would grant the writ application to consider whether Louisiana Children’s Code Article 897.1 precludes a court with juvenile jurisdiction from terminating a disposition.

Article 897.1 provides, in pertinent part:

B. After adjudication of a felony-grade delinquent act based upon a violation of R.S. 14:64, armed robbery, the court shall commit the child who is fourteen years of age or older at the time of the commission of the offense to the custody of the Department of Public Safety and Corrections to be confined in secure placement for the length of the term imposed by the court at the disposition hearing without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence. (Emphasis added).

Although the court’s authority to modify an order of disposition in this case is prohibited by La. Ch. C. art. 897.1, I believe that the court retained the authority to terminate an order of disposition pursuant to Louisiana Children’s Code Article 909. Article 909 provides:

Except as provided for in Article 897.1, after the entry of any order of disposition, the court retains the power to modify it, including changing the child’s legal custody, suspending all or part of any order of commitment, discharging conditions of probation, or adding any further condition authorized by Article 897(B) or 899(B). It may also ^terminate an order of disposition at any time while it is still in force. (Emphasis added).

In my opinion, the Louisiana Children’s Code has never prohibited the termination of disposition pursuant to Article 897.1. The amendments to the Children’s Code have actually expanded the discretion of courts exercising juvenile jurisdiction. Article 897.1 originally precluded parole, probation, suspension of sentence, modification of sentence and furlough. The 2004 amendments to the Children’s Code removed this prohibition, allowing for furloughs to be granted where deemed appropriate. Moreover, the legislature has failed to include a prohibition of termination in Article 897.1, even though Article 909 clearly gave courts the power to grant termination. In my mind, it is inconsistent to hold that Articles 897.1 and 909 should be read to provide absolutely no discretion to the courts, when the legislature has actually increased the courts’ discretion by expressly allowing for furloughs, and when it has not specifically added “termination” in the list of Article 897.1 prohibitions. In my view, it appears that the Legislature has chosen to restore discretion to courts and the judges who have first-hand knowledge of each individual child.

Further, I do not believe that the court’s ability to terminate a disposition in this case is in conflict with the stated public policy of the juvenile justice system. The purpose of the juvenile system is to provide a way to nurture and rehabilitate youths. In this case, it is clear that C.F. has been fully rehabilitated during his time at the Jetson Center for Youth. The trial judge stated in his Reasons for Judgment:

It is undisputed that the youth has transformed himself remarkably since his original detention, academically and socially. From the testimony, it appears that the youth has successfully completed the regimen of rehabilitative programs available to him in the juvenile correctional system. In essence, the testimony was that any further ^programs for him while in detention would be a repetition of what he has already completed. Further, that continued detention would be counter-productive to the progress he has made.

In my opinion, further incarceration of C.F. would serve no useful purpose.

For these reasons I would grant the writ application.

      . 2004 La. Sess. Law. Serv. Act 484 (H.B. 194).


text:
    In re Willie J. NUNNERY.
    No. 2007-B-0175.
    Supreme Court of Louisiana.
    March 23, 2007.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| pursuant to Supreme Court Rule XIX, § 21(A), the Office of Disciplinary Counsel (“ODC”) filed this reciprocal discipline proceeding against respondent, Willie J. Nunnery, an attorney licensed to practice law in the States of Louisiana and Wisconsin, based upon discipline imposed by the Supreme Court of Wisconsin.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The underlying facts of this matter are set forth in detail in the opinion of the Supreme Court of Wisconsin, which is reported as In the Matter of Disciplinary Proceedings Against Nunnery, 2007 WI 1, 725 N.W.2d 613 (January 4, 2007). Based on the evidence developed in that proceeding, the Supreme Court of Wisconsin concluded that respondent failed to reduce a contingent fee to writing, neglected legal matters, failed to communicate with clients, and failed to provide competent representations in violation of numerous Rules of the Wisconsin Rules of Professional Conduct for Attorneys. As a sanction, the Supreme Court of Wisconsin suspended respondent’s license to practice law for two months, effective February 6, 2007, with reinstatement conditioned upon respondent’s payment of the disciplinary proceeding costs and the sanctions imposed upon him by the trial court in one of the underlying matters.

| ¡.After receiving notice of the order of the Supreme Court of Wisconsin, the ODC filed a motion to initiate reciprocal discipline in Louisiana, pursuant to Supreme Court Rule XIX, § 21. Attached to the motion was a certified copy of the order of the Supreme Court of Wisconsin. On January 30, 2007, this court rendered an order giving respondent and the ODC thirty days to raise any claim, predicated upon the grounds set forth in Supreme Court Rule XIX, § 21(D), that the imposition of identical discipline in Louisiana would be unwarranted and the reasons for that claim. Neither respondent nor the ODC filed a response to the court’s order.

DISCUSSION

The standard for imposition of discipline on a reciprocal basis is set forth in Supreme Court Rule XIX, § 21(D), which provides:

D. Discipline to be Imposed. Upon the expiration of thirty days from service of the notice pursuant to the provisions of paragraph B, this court shall impose the identical discipline or disability inactive status unless disciplinary counsel or the lawyer demonstrates, or this court finds that it clearly appears upon the face of the record from which the discipline is predicated, that:
(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) Based on the record created by the jurisdiction that imposed the discipline, there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) The imposition of the same discipline by the court would result in grave injustice or be offensive to the public policy of the jurisdiction; or
|s(4) The misconduct established warrants substantially different discipline in this state; or
(5) The reason for the original transfer to disability inactive status no longer exists.

In determining the appropriate measure of reciprocal discipline, we are not required to impose the same sanction as that imposed by the state in which the misconduct occurred. Nevertheless, only under extraordinary circumstances should there be a significant variance from the sanction imposed by the other jurisdiction. In re: Aulston, 05-1546 (La.1/13/06), 918 So.2d 461.

Applying the factors set forth in Supreme Court Rule XIX, § 21(D), we see no reason to deviate from the sanction imposed by the Supreme Court of Wisconsin. Although we may well have imposed greater discipline if this misconduct had occurred in Louisiana, we find it appropriate to defer to the determination made by Wisconsin, with which we share authority over respondent. See, e.g., In re Zdravkovich, 831 A.2d 964, 968-69 (D.C.2003) (“there is merit in according deference, for its own sake, to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory authority”). Accordingly, we will impose a two-month suspension as reciprocal discipline pursuant to Supreme Court Rule XIX, § 21.

DECREE

Considering the motion for reciprocal discipline filed by the Office of Disciplinary Counsel and the record filed herein, it is ordered that Willie J. Nunnery, Louisiana Bar Roll number 15027, be suspended from the practice of law for a period of two months.

      . The trial court assessed $16,473 in attorney fees as a sanction against respondent based on his filing of a frivolous employment discrimination claim.


text:
    STATE of Louisiana v. Paul A. LeBLANC.
    No. 2006-K-1714.
    Supreme Court of Louisiana.
    March 23, 2007.
    CALOGERO, C.J., and KNOLL, J., would grant.
    JOHNSON, J., would grant and assigns reasons.
   JOHNSON, J.,

would grant and assigns reasons.

hThe Defendant was convicted by a jury of possession of cocaine based on evidence that an officer recovered a crack pipe with cocaine residue on his person when responding to an unrelated complaint. The trial court adjudicated defendant a fourth felony offender and sentenced him to life imprisonment at hard labor. On appeal, the First Circuit affirmed defendant’s conviction, but amended the habitual offender adjudication (concluding that one conviction was invalid for enhancement purposes, but nonetheless finding a different conviction sufficed to prove him a fourth felony offender), and affirmed the adjudication as amended.

Regarding defendant’s claim of exces-siveness, the First Circuit determined that the trial court failed to mention the sentencing guidelines under LSA-C.Cr.P. art. 894.1 before imposing the sentence of life imprisonment at hard labor. Accordingly, the First Circuit vacated defendant’s sentence and remanded the case to the trial court for resentencing in conjunction with consideration of the sentencing guidelines. State 2v. Leblanc, 04-1032 (La.App. 1st Cir.12/17/04), 897 So.2d 736. This Court denied writs. State v. Leblanc, 05-0150 (4/29/05), 901 So.2d 1063 (Calogero, C.J., Johnson, J., and Knoll, J., voting to grant). On remand, the court resentenced defendant to life imprisonment at hard labor. The court of appeal affirmed the resen-tence, State v. LeBlanc, 05-2344 (La.App. 1st Cir.6/9/06), 931 So.2d 563.

In State v. Johnson, 03-2993 (La.10/19/04), 884 So.2d 568, this Court overruled State ex rel. Mims v. Butler, 601 So.2d 649 (La.1992), and held that multiple guilty pleas entered the same day, may each be used to enhance a subsequent conviction, so long as the convictions stemmed from wholly separate criminal episodes. Relying on Johnson, the court of appeal found that, notwithstanding the constitutional failure of one of the predicate convictions relied on by the district court, the defendant nevertheless could be adjudicated a fourth felony offender based on his single guilty plea to four separate offenses on June 22, 1993, in St. Tammany Parish. State v. Leblanc, 04-1032 (La. App. 1st Cir.12/17/04), 897 So.2d 736. This Court denied defendant’s writ application challenging the appellate court’s retroactive application of the new rule of judicial interpretation. State v. LeBlanc, 05-0150 (4/29/05), 931 So.2d 563.

LSA-R.S. 15:529.1(B), as amended by Acts 2005, No. 218, § 1, now provides in pertinent part that:

... Multiple convictions obtained on the same day prior to October 19, 2004, shall be counted as one conviction for the purpose of this Section.

Notably, the 2005 amendment precludes retroactive application of Johnson not only to cases in which the predicate crime is committed before October 19, 2004, but also to cases in which the offender committed the predicate crime after October 19, 2004, (ie., at a time he had notice that the rule had changed) but the prior [sconvictions used to calculate offender status upon commission of a subsequent felony offense occurred before October 19, 2004. The amendment thus responds directly to defendant’s complaint in his initial application to this Court in 05-K-0150 that at the time he entered his 1993 guilty pleas, which later formed part of the habitual offender status ladder, he had no notice that they would constitute anything more than a single conviction if he were convicted again of a felony offense and adjudicated an habitual offender under LSA-R.S. 15:529.1. Defendant argued that the lack of notice undercut the voluntariness of the pleas, entered at a time when the law considered them a single conviction for habitual offender proceedings, and required either setting aside the convictions, or prospective application only, of Johnson.

In State v. Williams, 40,866 (La.App. 2nd Cir.4/26/06), 930 So.2d 203 (Brown, C.J., dissenting), writ denied, 06-1590 (La.1/8/07), 948 So.2d 121, the Second Circuit recently created a split in the circuits over the question by declining to apply Johnson retroactively in a case in which the defendant committed the predicate crime before Johnson but (unlike the present case) was sentenced as an habitual offender after this Court decided Johnson. The majority in Williams thus applied the controlling jurisprudence of this Court (i.e. Mims) in effect on the date of the commission of the predicate offense, although supplanted by the time of his habitual offender adjudication and sentence.

In the present case, the argument against retroactive application of Johnson appears stronger than in Williams because both the commission of the predicate offense (September 23, 2002) and the defendant’s initial sentencing as an habitual offender (January 12, 2004) occurred before the date of decision in Johnson. However, the defendants in both LeBlanc and Williams occupied the same position |4with respect to their prior convictions used in the habitual offender ladder, all of which occurred well before October 19, 2004. In fact, while the legislature did not specifically provide for retroactive application of 2005 La. Acts 218, and in the absence of such express provision statutory enactments are ordinarily prospective only, (LSA-C.C. art. 6; LSA-R.S. 1:2), the recent act may be fairly described as interpretative of existing law in direct response to an aspect of Johnson not expressly addressed by the Court when it rendered the decision. The act may thus preempt the debate over Johnson’s retro-activity. See Sudwischer v. Estate of Hoffpauir, 97-0785, p. 9 (La.12/12/97), 705 So.2d 724, 729 (“Interpretive laws are those which clarify the meaning of a statute and are deemed to relate back to the time that the law was originally enacted.”).

The Williams majority apparently endorsed that view, albeit without explicit discussion, in the face of the state’s argument that the 2005 Act was not interpretive in nature, and that Johnson controlled review of cases in the direct appeal pipeline during the period of time from the date of decision to the effective date of 2005 La. Acts 218, or August 15, 2005, in effect singling out for uniquely harsher treatment a narrow class of offenders sandwiched between two much larger classes of offenders who were sentenced while the Mims rule prevailed and who will be sentenced under the current law as amended by 2005 La. Acts 218 to reincor-pórate the Mims rule. The arbitrariness of that result suggests why the court of appeal in Williams chose a different path.

In my mind, the First Circuit should have done no more than affirm the district court’s finding that defendant qualified as a third felony offender, in which case he would have been subject to a maximum sentence of 10 years imprisonment at hard labor. LSA-R.S. 15:529.1(A)(b)(I). This Court should grant defendant’s application |Bfor reconsideration, vacate his adjudication as a fourth felony offender and remand the case to the district court for a new habitual offender hearing.

Reconsideration of a writ following a denial of a writ application is rare, but not unprecedented, and appears justified by the extreme circumstances in the present case. The uncorrected error in this case, a life sentence rather than a ten-year(lO) maximum sentence. See State v. Hammons, 565 So.2d 542 (La.App. 1st Cir.1990), writ denied, 572 So.2d 61 (La.1991); reconsideration granted, 575 So.2d 382 (La.1991), rev’d, 597 So.2d 990 (La.1992),

Therefore, for the foregoing reasons, I would have granted this application.


author: JOHNSON, Justice,

text:
    In re TRANSIT MANAGEMENT OF SOUTHEAST LA., INC. Stephens Schweitzer and Sandra Miller, Individually and as Natural Tutors and custodians of the Minor Child, Shannon Schweitzer v. Transit Management of Southeast Louisiana, Inc. d/b/a Regional Transit Authority and Michael J. Metoyer.
    No. 2006-C-2934.
    Supreme Court of Louisiana.
    March 23, 2007.

      KIMBALL and TRAYLOR., recused.
    JOHNSON, J., would deny the writ and assigns reasons.
   JOHNSON, Justice,

would deny the writ application.

It Originally, I was of the opinion that this case should be remanded to the court of appeal for a review of the merits, mainly because the district court may have contributed to the procedural confusion with the expansive language in the Order for Suspensive Appeal.

The Order for Suspensive Appeal signed by Judge Gerald Federoff (pro tempore) on November 12, 2003, stated:

IT IS ORDERED that a suspensive appeal is hereby granted to Lexington Insurance Company from all post-trial, post-verdict judgments, including the judgments entered on September 5, 2003, October 9, 2003, October 13, 2003 and any judgment that may be entered following the determination of Lexington’s pending Motion for New Trial, upon the posting of security in the form of the Supplemental Suspensive Appeal Bond, attached to Lexington’s motion, in the full amount of $13,789,545.21 as the security required to be furnished pursuant to provision of Code of Civil Procedure Article 2124.

Two years ago, I joined the majority in remanding this matter for consideration of the merits because our law favors appeals, and because of the unique procedural facts in this case.

LThe long procedural delays apparently have impacted the parties to this litigation, who now suggest, in their pleadings in this Court, that we should act on the writ application (or stay action on the writ application) in order to facilitate (or delay) consumation of a settlement agreement pending in the U.S. Bankruptcy Court for the Eastern District of Louisiana. Since it is not our role to facilitate (or delay) the settlement of litigation, I would deny this present writ application.


text:
    M. Claudia GAROFALO v. ATLANTA CASUALTY INSURANCE COMPANY.
    No. 2007-CC-0104.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Atlanta Casualty Ins. Co.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. K, No. 2004-12685; to the Court of Appeal, Fourth Circuit, No. 2006-C-1372.

Denied.


text:
    GULF SOUTH SCAFFOLDING, INC. v. GULF ISLAND, L.L.C.
    No. 2007-C-0169.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Gulf South Scaffolding Inc.;— Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. A, No. 142080; to the Court of Appeal, First Circuit, No(s). 2005 CW 2522, 2006 CA 0298.

Denied.


text:
    STATE of Louisiana v. Kendall WASHINGTON.
    No. 2007-KK-0554.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 468-697; to the Court of Appeal, Fourth Circuit, No. 2007-KM-325.

Stay recalled. Denied on the Showing made.


text:
    STATE of Louisiana In re C.F.
    No. 2007-CK-0425.
    Supreme Court of Louisiana.
    March 21, 2007.
   In re Confidential Party; — Defendant; Applying for Supervisory and/or Remedial Writs Juvenile Court Orleans Parish, No. 01-113-09-DQ-F; to the Court of Appeal, Fourth Circuit, No. 2007-C-0027.

Denied.

JOHNSON, J., would grant the writ.


text:
    Mark and Margaret SHAW v. Tonya Renee Shaw DUPUY.
    No. 2007-C-0505.
    Supreme Court of Louisiana.
    March 21, 2007.
   In re Shaw, Margaret; Shaw, Mark;— Plaintiffs); Applying for Writ of Certiora-ri and/or Review, Parish of Livingston, 21st Judicial District Court Div. H, No. 105176; to the Court of Appeal, First Circuit, No. 2006 CU 0546.

Denied.


text:
    STATE of Louisiana v. Manuel DUQUE, III.
    No. 2007-KK-0237.
    Supreme Court of Louisiana.
    March 23, 2007.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. B,. No. 143,813; to the Court of Appeal, Second Circuit, No. 42,-074-KW.

Denied.


text:
    STATE of Louisiana v. Nicholas D. PITREE.
    No. 2006-KO-1897.
    Supreme Court of Louisiana.
    March 23, 2007.
   In re Pitree, Nicholas D.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 8879-04; to the Court of Appeal, Third Circuit, No. 05-1513.

Denied.


text:
    STATE of Louisiana v. Alton BELL.
    No. 2006-KO-1935.
    Supreme Court of Louisiana.
    March 23, 2007.
   In re Bell, Alton; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. D, No. 110,541; to the Court of Appeal, First Circuit, No. 2005 KA 2261.

Denied.


text:
    STATE of Louisiana v. John PRIEST.
    No. 2006-KO-1979.
    Supreme Court of Louisiana.
    March 23, 2007.
   In re Priest, John; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. G, No. 16299; to the Court of Appeal, First Circuit, No. 2005 KA 1489.

Denied.


text:
    STATE of Louisiana v. Nicholas Demond PITREE.
    No. 2006-KO-2138.
    Supreme Court of Louisiana.
    March 23, 2007.
   In re Pitree, Nicholas Demond; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 8879-04; to the Court of Appeal, Third Circuit, No. 05-1513.

Denied.


text:
    STATE of Louisiana v. Brandon BLOUNT.
    No. 2007-KK-0079.
    Supreme Court of Louisiana.
    March 23, 2007.
   In re Blount, Brandon; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 444-161; to the Court of Appeal, Fourth Circuit, No. 2006-K-1430.

Denied.