text:
    In re Claud E. PHELPS, Jr.
    No. 2007-B-0286.
    Supreme Court of Louisiana.
    March 30, 2007.
   |,ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from two sets of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Claud E. Phelps, Jr., an attorney licensed to practice law in Louisiana but currently suspended.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1992. His first contact with the disciplinary system occurred in 1999, when he was admonished for neglect, failure to communicate with a client, failure to cooperate with the ODC in its investigation, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

In 2002, respondent filed a petition for consent discipline, in which he admitted to numerous instances of neglect, failure to expedite litigation, and failure to communicate with clients. We accepted the petition and suspended respondent from the practice of law for a period of one year and one day, but fully deferred the suspension subject to a twenty-four month period of supervised probation. In re: Phelps, 02—1837 (La.9/30/02), 827 So.2d 1140.

In 2003, we determined respondent violated the conditions of his probation due to his failure to cooperate with his probation monitor. Accordingly, we made the | ⅞previously deferred one-year-and-one-day suspension executory. In re: Phelps, OS-2778 (La.11/14/03), 860 So.2d 531. Respondent has not sought reinstatement from this suspension. Accordingly, he remains suspended from the practice of law.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The ODC filed two sets of formal charges against respondent, consisting of a total of twenty-seven counts of misconduct. The two sets of formal charges were considered by separate hearing committees but considered jointly by the disciplinary board, which then filed in this court a single recommendation of discipline encompassing both sets of formal charges.

03-DB-055

Count I — The Downey Matter

In August 2001, Thomas Downey hired respondent to assist him in obtaining a Louisiana driver’s license and to handle a child support matter. He paid respondent $750. Respondent neglected the matters, failed to complete the work, and failed to communicate with Mr. Downey. In November 2001, Mr. Downey terminated respondent’s representation and requested an accounting and a full refund. However, respondent would not participate in the Louisiana State Bar Association’s fee arbitration program.

The ODC alleged that respondent’s conduct violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client) and 1.4 (failure to communicate with a client) of the Rules of Professional Conduct.

| 3Count II — The Gregory Matter

Terry Gregory hired respondent to handle a child custody matter. Respondent failed to adequately communicate with Mr. Gregory regarding the status of his case. Respondent also informed Mr. Gregory that a court hearing had been continued when it had not. Consequently, respondent failed to appear at the hearing, and Mr. Gregory was forced to represent himself. Respondent also failed to fully cooperate with the ODC in its investigation of Mr. Gregory’s complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3,1.4, and 8.1(c) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct.

Count III — The Lowe Matter

In February 2002, Chad Lowe hired respondent to handle a child custody matter. Respondent failed to adequately communicate with Mr. Lowe regarding the status of his case. Respondent also neglected the matter. In May 2002, Mr. Lowe terminated respondent’s representation before respondent completed the matter. Respondent also failed to fully cooperate with the ODC in its investigation of Mr. Lowe’s complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, and 8.1(e) of the Rules of Professional Conduct.

Count IV — The Wells Matter

In August 2001, Walter Wells hired respondent to handle a child support matter. Mr. Wells paid respondent $500. However, respondent did no work on the Lmatter. He also failed to communicate with Mr. Wells. Furthermore, respondent failed to cooperate with the ODC in its investigation of Mr. Wells’ complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, and 8.1(c) of the Rules of Professional Conduct.

Count V — The Perez Matter

In September 2001, Omar and Angie Perez hired respondent to handle a child visitation matter. They paid him $1,350. Thereafter, respondent neglected the matter. He also failed to communicate with his clients. In June 2002, the Perezes terminated respondent’s representation and requested a full refund. The Perezes had to hire another attorney to handle the matter, paying an additional $750.

Respondent subsequently informed the ODC that he forwarded an accounting and a $93 refund to the Perezes. However, the Perezes indicated they never received an accounting nor a refund, and respondent was unable to provide copies of the accounting or refund check. He also failed to fully cooperate with the ODC in its investigation of the Perezes’ complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, and 8.1(c) of the Rules of Professional Conduct.

Count VI — The Foster Matter

In May 2002, Stephen Foster hired respondent to handle a child visitation matter. Mr. Foster paid respondent $750 to prepare the appropriate pleadings, with the agreement that Mr. Foster would pay the balance of the fee after the pleadings were ready. While respondent prepared the pleadings, he failed to move the matter forward because he failed to inform Mr. Foster the pleadings were ready for his | ¿review and filing. A few weeks later, after not receiving a follow-up call from respondent, Mr. Foster informed respondent’s secretary that he no longer wanted respondent to represent him and wanted a refund of the $750 fee. Respondent failed to respond to this message. Therefore, Mr. Foster sent respondent, a termination letter. In response, respondent instructed Mr. Foster to contact his office to sign the pleadings. Subsequently, an adverse judgment was rendered against Mr. Foster.

The ODC alleged that respondent’s conduct violated Rules 1.3 and 1.4 of the Rules of Professional Conduct.

Count VII — The Thomas Matter

In April 2002, Benjamin Thomas hired respondent to handle a child custody matter. Mr. Thomas paid respondent $750 to prepare the appropriate pleadings. Mr. Thomas reviewed the pleadings and made corrections. Thereafter, respondent neglected the matter and failed to communicate with Mr. Thomas.

In July 2002, Mr. Thomas terminated respondent’s representation and requested a refund. Respondent did not respond to this request. However, he informed the ODC that he did not have a calendar system to ensure matters were handled in a timely manner.

The ODC alleged that respondent’s conduct violated Rules 1.3 and 1.4 of the Rules of Professional Conduct.

Count VIII — The Jordan Matter

In April 2001, Troy Jordan hired respondent to handle a community property matter and to help Mr. Jordan with his credit issues. Mr. Jordan paid respondent a | Rtotal of $4,705 to handle both matters. Thereafter, respondent neglected the matters and failed to communicate with Mr. Jordan.

In July 2002, Mr. Jordan terminated respondent’s representation and requested an accounting and a full refund. Respondent failed to render an accounting or refund the fee. He also failed to cooperate with the ODC in its investigation of Mr. Jordan’s complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, 1.5 (fee arrangements) and 8.1(c) of the Rules of Professional Conduct.

Count IX — The Cox Matter

In April 2002, John Cox hired respondent to handle a child support matter. Mr. Cox gave respondent’s secretary $500 for the fee. Thereafter, respondent neglected the matter and failed to adequately communicate with Mr. Cox. He also denied receiving the $500 and indicated his secretary never told him about Mr. Cox’s legal matter. Nonetheless, in September 2002, respondent informed Mr. Cox he would refund the $500 and assist him in the matter free of charge. Thereafter, respondent failed to return Mr. Cox’s telephone calls and did not refund the money.

The ODC alleged that respondent’s conduct violated Rules 1.3 and 1.4 of the Rules of Professional Conduct.

Count X — The Menard Matter

Respondent represented Kevin Menard in a child visitation matter. Respondent failed to inform his client of court-ordered mediation. Neither he nor Mr. Menard were present at the -mediation scheduled for November 21, 2002. Opposing counsel called respondent on numerous occasions regarding the mediation, but he failed to 17answer his phone and did not have an answering service. Respondent also failed to respond to the complaint filed by opposing counsel.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, and 8.1(c) of the Rules of Professional Conduct.

Count XI — The Nelson Matter

In July 2002, Sydney Nelson hired respondent to represent him in a domestic matter involving several issues. Mr. Nelson paid respondent a $2,200 deposit. Thereafter, respondent failed to communicate with Mr. Nelson and failed to provide Mr. Nelson with copies of the pleadings he filed. He also failed to prepare for a court hearing and failed to inform his client of opposing counsel’s discovery requests.

In December 2002, Mr. Nelson terminated respondent’s representation and requested a full refund. Respondent refused to participate in the Louisiana State Bar Association’s fee arbitration program. Respondent also failed to cooperate with the ODC in its investigation of Mr. Nelson’s complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, and 8.1(c) of the Rules of Professional Conduct.

Count XII — The Talazac Matter

In August 2002, Michael Talazac hired respondent to represent him in a domestic matter. He paid respondent $3,000. Thereafter, respondent failed to appear at a mediation hearing and failed to communicate with Mr. Talazac.

In November 2002, Mr. Talazac terminated respondent’s representation and requested an accounting, a full refund, and return of his file. When respondent failed to do so, Mr. Talazac filed suit against him. In the civil litigation, respondent failed |sto appear in open court to provide a deposition. Respondent also failed to cooperate with the ODC in its investigation of Mr. Talazac’s complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, 1.5, 8.1(c), and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

Count XIII — The Miley Matter

In November 2001, Britt Miley hired respondent to represent him in divorce proceedings. Mr. Miley paid respondent $900. Respondent did not complete the matter and failed to communicate with Mr. Miley. Respondent filed a motion to withdraw as counsel. As a result, Mr. Miley was left unrepresented at a hearing, at which time the court rendered an adverse judgment against him. Respondent did not provide an accounting or refund any of the $900 fee. He also failed to cooperate with the ODC in its investigation of Mr. Miley’s complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, and 8.1(c) of the Rules of Professional Conduct.

Count XIV — The Annina Matter

In 2000, Clint Annina hired respondent to represent him in divorce proceedings and related matters. Mr. Annina paid respondent $1,390. Respondent neglected the divorce matter and failed to communicate with Mr. Annina. The divorce proceedings led to Mr. Annina being sued by his father-in-law. Although respondent agreed to represent Mr. Annina in this suit, he failed to answer the suit. A default judgment in the amount of $1,150 plus interest was rendered against Mr. Annina, and his wages were garnished. Furthermore, Mr. Annina had to pay an additional $165 to another |9attorney to complete the divorce. Respondent also failed to cooperate with the ODC in its investigation of this matter.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, and 8.1(c) of the Rules of Professional Conduct.

Count XV— The DeGruy Matter

In January 2002, Michael DeGruy hired respondent to handle a child visitation matter. He paid respondent $1,500 and loaned him a book and CD about fathers’ rights. Thereafter, respondent neglected the matter and failed to communicate with Mr. DeGruy.

In June 2002, Mr. DeGruy terminated respondent’s representation and requested a full refund, return of his file, and return óf his book and CD. Respondent failed to respond to this request. He also failed to cooperate with the ODC in its investigation of Mr. DeGruy’s complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, 1.5, and 8.1(c) of the Rules of Professional Conduct.

Count XVI — The Penton Matter

In July 2001, Terry Penton hired respondent to represent him in divorce proceedings. Mr. Penton paid respondent $1,500. Thereafter, respondent failed to provide Mr. Penton with a copy of the pleadings he purportedly filed with the court. Mr. Penton searched the court records, but found no evidence of any filings by respondent.

Ms. Penton then requested an account and refund of any unearned fees. Respondent failed to provide an accounting, nor did he refund any portion of the fee |inpaid by Ms. Penton. Additionally, he failed to cooperate with the ODC during its investigation of Mr. Penton’s complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, 1.5, and 8.1(c) of the Rules of Professional Conduct.

Count XVII — The Goletz Matter

In September 2001, Andrew Goletz hired respondent to handle a child visitation matter. He paid respondent $2,300. Thereafter, respondent neglected the matter.

The ODC alleged that respondent’s conduct violated Rule 1.3 of the Rules of Professional Conduct.

Count XVIII — The Yargo Matter

In December 2002, Joseph Yargo hired respondent to handle a custody matter. Mr. Yargo paid respondent $1,500. Thereafter, respondent neglécted the matter. He failed to include a provision in the custody agreement to allow Mr. Yargo’s mother to have visitation with his daughter in his place in the event he were called to active military duty. Although he indicated he would correct the judgment, respondent failed to do so. He also failed to communicate with Mr. Yargo.

The ODC alleged that respondent’s conduct violated Rules 1.3 and 1.4 of the Rules of Professional Conduct.

Formal Charges

After investigation, the ODC filed formal charges against respondent. Respondent failed to answer or otherwise reply to the formal charges. Accordingly, |nthe factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3).

Thereafter, respondent requested that the deemed admitted order be recalled and he be allowed to answer the formal charges. The hearing committee chair granted this request. However, respondent again failed to file a timely answer to the formal charges, and the allegations were again deemed admitted.

For a second time, respondent requested that the deemed admitted order be recalled and/or he be allowed to be heard in mitigation. The hearing committee chair denied the motion to recall the deemed admitted order but granted the motion for a mitigation hearing. The parties were given.an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration and also failed to appear at the mitigation hearing.

Hearing Committee Recommendation

After considering the testimony presented at the hearing, the ODC’s submission, and the deemed admitted facts, the hearing committee found that the factual allegations as summarized in each count above were proven by clear and convincing evidence. Based on these facts, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee further determined that respondent violated duties owed to his clients, the public, and to the legal profession. The committee concluded he acted knowingly and caused harm to his clients in the form of delay, frustration, adverse or 112default judgments, and deprivation of funds by failing to refund unearned fees. It noted he accepted a total of at least $23,000 in fees from his clients, yet had not returned any fees to any of his clients or provided them with accountings. The committee also found he failed to take seriously the requests for information and subpoenas issued by the ODC. Relying upon the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that disbarment is the baseline sanction.

In aggravation, the committee recognized respondent’s prior disciplinary offenses, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency, and indifference to making restitution. The committee found no mitigating factors to be present.

Considering respondent’s history of similar misconduct, his clear pattern of misconduct, his apparent disregard for his duty to comply with disciplinary inquiries, the lack of mitigating factors, and this court’s prior jurisprudence, the committee recommended that respondent be disbarred. The committee further recommended that respondent provide account-ings to all of his clients, provide the appropriate restitution, and be charged with all costs and expenses of these proceedings.

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

05-DB-015

Count I — The Scazzafavo Matter

In September 2001, John Scazzafavo hired respondent to represent him in his community property settlement. Mr. Scazzafavo paid respondent $1,575. Thereafter, respondent neglected the matter and failed to communicate with Mr. Scazzafavo. | ^Respondent also failed to cooperate with the ODC in its investigation of Mr. Scazzafavo’s complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, and 8.1(c) of the Rules of Professional Conduct.

Count II — The Distefano Matter

In August 2001, James Distefano hired respondent to represent him in divorce proceedings and a child custody matter. Mr. Distefano paid respondent approximately $2,500. Thereafter, respondent neglected the matters and failed to communicate with Mr. Distefano. Respondent did not complete the divorce, and Mr. Distefano had to hire new counsel. Respondent also failed to cooperate with the ODC in its investigation of Mr. Distefano’s complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, and 8.1(c) of the Rules of Professional Conduct.

Count III — The Junker Matter

In 1999, Annette Junker hired respondent to represent her in divorce proceedings and a child custody/support matter. Thereafter, respondent neglected the matters and failed to communicate with Ms. Junker. Respondent also failed to cooperate with the ODC in its investigation of Ms. Junker’s complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, and 8.1(c) of the Rules of Professional Conduct.

Count IV — The Langhauser Matter

|uIn January 2002, Michael Langhauser hired respondent to represent him in divorce proceedings and related matters. Mr. Langhauser paid respondent $4,250. Thereafter, respondent neglected the matters and failed to communicate with Mr. Langhauser. Respondent also failed to cooperate with the ODC in its investigation of Mr. Langhauser’s complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, and 8.1(c) of the Rules of Professional Conduct.

Count V — The Fuller Matter

In June 2003, Derek Fuller hired respondent to represent him in a child support matter. Mr. Fuller paid respondent $900. Thereafter, respondent neglected the matter and failed to communicate with Mr. Fuller. Respondent also failed to appear at two hearings on Mr. Fuller’s behalf and failed to notify his client of the hearings. Consequently, an adverse ruling was entered against Mr. Fuller. Respondent also failed to cooperate with the ODC in its investigation of Mr. Fuller’s complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, and 8.1(c) of the Rules of Professional Conduct.

Count VI — The Boe Matter

In November 1999, Rose Boe hired respondent to represent her in divorce proceedings and a child custody/support matter. Respondent neglected the matters and failed to communicate with Ms. Boe. Respondent also failed to cooperate with the ODC in its investigation of Ms. Boe’s complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, and 8.1(c) of the Rules of Professional Conduct.

| KCount VII — The Coon Matter

In April 2003, Jeffery Coon hired respondent to represent him in divorce proceedings and related matters. Mr. Coon paid respondent $1,200. Thereafter, respondent neglected the matter and failed to communicate with Mr. Coon. Respondent also failed to cooperate with the ODC in its investigation of Mr. Coon’s complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, and 8.1(c) of the Rules of Professional Conduct.

Count VIII — The Etheridge Matter

In February 2003, Michael Etheridge hired respondent to handle a child support matter and a false imprisonment claim. Thereafter, respondent neglected the matters and failed to communicate with Mr. Etheridge. Respondent also failed to cooperate with the ODC in its investigation of Mr. Etheridge’s complaint.

The ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, and 8.1(c) of the Rules of Professional Conduct.

Count IX — The Wilkerson Matter

In August 2003, Jim Wilkerson hired respondent to handle a child custody matter. Mr. Wilkerson paid respondent $550. Thereafter, respondent neglected the matter and failed to communicate with Mr. Wilkerson.

In December 2003, Mr. Wilkerson requested a refund and the return of his file, However, respondent failed to respond. Respondent also failed to cooperate with the ODC in its investigation of Mr. Wilkerson’s complaint.

|1(iThe ODC alleged that respondent’s conduct violated Rules 1.3, 1.4, and 8.1(c) of the Rules of Professional Conduct.

Formal Charges

After investigation, the ODC filed formal charges against respondent. Respondent requested an extension of time to answer, which was granted. However, despite receiving this extension, respondent failed to file a timely answer. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Recommendation

After considering the ODC’s submission and the deemed admitted facts, the hearing committee determined that the factual allegations as summarized in each count above were deemed admitted and proven by clear and convincing evidence. Based on these facts, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee further determined that, according to case law, the baseline sanction is disbarment. The committee also found “multiple and substantial aggravating factors” and found no mitigating factors to be present.

Under these circumstances, the committee recommended that respondent be disbarred and that he be ordered to refund unearned fees, participate in the Louisiana Instate Bar Association’s fee arbitration program, or reimburse the Client Protection Fund where appropriate. The committee further recommended that respondent be assessed with all costs of these proceedings.

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

08-DB-055 & 05-DB-015

Disciplinary Board Recommendation

As noted earlier, the disciplinary board considered the hearing committee’s recommendations in 03-DB-055 and 05-DB-015 together. After reviewing these matters, the disciplinary board determined that the deemed admitted facts are not manifestly erroneous. Based on these facts, the board determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The board determined that respondent knowingly violated duties owed to his clients and to the legal profession. It found his misconduct caused his clients harm by delaying resolution of their legal matters. In addition, the board explained that respondent harmed his clients by failing to refund their unearned fees, and noted one client, Mr. Annina, had his wages garnished because of respondent’s neglect. The board also found respondent repeatedly ignored the ODC’s efforts to contact him. Relying upon the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction, is disbarment.

The board found the following aggravating factors to be present: prior disciplinary offenses, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency, substantial experience in the practice of law (admitted | 1S1992), and indifference to making restitution. In mitigation, the board noted respondent’s personal and emotional problems due to the death of his child in October 2003, although it observed this loss would not have affected respondent’s conduct prior to October 2003.

Considering this court’s prior jurisprudence and the numerous clients who have been harmed by respondent, the board recommended that respondent be disbarred. The board further recommended that respondent be ordered to provide ac-countings to his clients and refund any unearned fees. Finally, the board recommended that respondent be assessed with all costs of these proceedings.

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

DISCUSSION

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

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, | ^additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.

The deemed admitted facts in this matter indicate that respondent neglected numerous legal matters, failed to communicate with numerous clients, failed to account for and refund unearned fees, engaged in conduct prejudicial to the administration of justice, and failed to cooperate with the ODC in numerous investigations. The record supports a finding that respondent violated the Rules of Professional Conduct as alleged in both sets of formal charges. Accordingly, having found professional misconduct, the sole issue presented for our consideration is the appropriate sanction.

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

The common thread running through the twenty-seven counts of misconduct in this matter is respondent’s complete and utter disregard for the welfare of his clients. In virtually every instance, respondent took fees from clients, performed little or no work on their cases, and refused to refund the unearned fees. He has refused to cooperate with the ODC’s investigations, and he has made no effort to participate in these disciplinary-proceedings, despite receiving several opportunities to present his evidence in mitigation. The baseline sanction for multiple instances of neglect, | ¡failure to refund unearned fees and failure to cooperate is disbarment. See, e.g., In re: Brancato, 06-0124 (La.5/26/06), 932 So.2d 651; In re: Laque, 03-3539 (La.6/25/04), 876 So.2d 753.

Numerous aggravating factors are present, including a history of prior disciplinary offenses, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, vulnerability of the victims, substantial experience in the practice of law, and indifference to making restitution. The sole mitigating factor is respondent’s personal or emotional problems during part of the time frame at issue.

Considering the record as a whole, we conclude it clearly demonstrates respondent lacks the ethical qualities demanded of lawyers in Louisiana. His actions reveal he is a danger to the citizens of this state. Under these circumstances, he must be disbarred.

Accordingly, we will accept the board’s recommendation and disbar respondent. We will also order respondent to provide accountings to his clients and make restitution by refunding any unearned fees.

DECREE

|aiUpon review of the findings and recommendations of the hearing committees and the disciplinary board, and considering the record, it is ordered that Claud E. Phelps, Jr., Louisiana Bar Roll number 21811, be and he hereby is disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. It is further ordered that respondent shall provide accountings to his clients and make restitution by refunding any unearned fees. 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 two sets of formal charges were never formally consolidated by order of the board.

      . The day before the hearing, respondent filed an emergency motion to continue, claiming that he was not served with notice of the hearing. The ODC informed the hearing committee chair that notice had been mailed to respondent at both his primary and secondary registration addresses. Therefore, the committee chair denied the continuance.

      . We give particular weight to this factor. In In re: Phelps, 02-1837 (La.9/30/02), 827 So.2d 1140, we concluded respondent’s misconduct, which was similar to the instant misconduct, was the product of inexperience. In giving respondent a fully-deferred suspension, we sought to give him an opportunity to correct the problems which caused the misconduct. Through his failure to avail himself of this opportunity, respondent has convincingly demonstrated he lacks the fitness to practice law in this state.

      . We recognize respondent suffered a personal loss in October 2003 when his son died. However, this mitigating factor is of limited impact under the instant facts because the majority of the misconduct occurred before this date. See, e.g., In re: Norris, 06-0671 (La.10/17/06), 939 So.2d 1221.


source: Caselaw Access Project

license: Public Domain

text:
    In re Mark H. TOMPKINS.
    No. 2007-OB-0659.
    Supreme Court of Louisiana.
    April 4, 2007.
   ORDER

Considering the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that Mark H. Tompkins, Louisiana Bar Roll number 12856, be and he hereby is transferred to disability inactive status.

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

/s/ Chet D. Traylor Justice, Supreme Court of Louisiana


author: PER CURIAM.

text:
    STATE of Louisiana v. James CALDWELL and Mitchell Alford.
    No. 2007-KK-2202.
    Supreme Court of Louisiana.
    April 5, 2007.
   PER CURIAM.

Granted. The order of the court of appeal is vacated and the defendants’ convictions and periods of inactive probation subject to special conditions are reinstated. We agree with Judge Kuhn, see State v. Caldwell, 06—0310 (La.App. 1st Cir.8/2/06)(Kuhn, J., dissenting) that the state and defense began the proceedings conducted on October 11, 2005, with the understanding that the testimony previously adduced on May 18, 2005, and accepted by the trial court as the basis for denying defendants’ motion to suppress, would serve as the context trial facts for the testimony of the criminalist who performed the laboratory analysis of the substance recovered by the police at the time of the defendants’ arrest. We also agree with Judge Kuhn that the entirety of the evidence adduced in both proceedings was sufficient to support the verdicts returned by the court.

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


text:
    Rickey Prince BOUTON, on behalf of Erickah Prince BOUTON v. The STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2007-CC-0422.
    Supreme Court of Louisiana.
    April 5, 2007.
   PER CURIAM.

Granted. Although the court of appeal found the trial court determined the insurer’s duty to defend based on the allegations of relator’s third-party demand, the trial court’s reasons for judgment indicate it relied on the allegations of both plaintiffs’ petition and the third party demand. Because it is unclear whether the trial court could have concluded the insurer had a duty to defend relator based on the allegations of plaintiffs’ petition alone, we will remand the case to the trial court to clarify its ruling. See Steptore v. Masco Construction Company, Inc., 93-2064 (La.8/1894), 643 So.2d 1213.

We further find the court of appeal erred in dismissing relator’s third-party demand insofar as it sought indemnity against Gilchrist Construction Company, LLC. There is no indication this issue was designated as an assignment of error or briefed in the application for supervisory writs filed in the court of appeal by the Gray Insurance Co.

Accordingly, the judgment of the court of appeal dismissing relator’s third-party demand is vacated and set aside. The case is remanded to the trial court for further proceedings consistent with this opinion.


text:
    Terrell PARFAIT v. TRANSOCEAN OFFSHORE, INC., and Shell Oil Products Co.
    No. 2007-C-0220.
    Supreme Court of Louisiana.
    April 5, 2007.
   PER CURIAM.

La. Const, art. V, § 8(B) provides that a “majority of the judges sitting in a case must concur to render judgment.” Under its constitutional authority to review cases, the court of appeal must consider and decide each case. In the instant case, the court of appeal did not reach a majority judgment on all issues. Accordingly, the court of appeal’s judgment is vacated in full and this case is remanded to the court of appeal to be considered en banc, for briefing, argument, and full opinion. See Guillot v. Munn, 99—0273 (La.4/23/99), 734 So.2d 613.


text:
    Terrell PARFAIT v. TRANSOCEAN OFFSHORE, INC., and Shell Oil Products Co.
    No. 2007-C-0225.
    Supreme Court of Louisiana.
    April 5, 2007.
   PER CURIAM.

La. Const, art. V, § 8(B) provides that a “majority of the judges sitting in a case must concur to render judgment.” Under its constitutional authority to review cases, the court of appeal must consider and decide each case. In the instant case, the court of appeal did not reach a majority judgment on all issues. Accordingly, the court of appeal’s judgment is vacated in full and this case is remanded to the court of appeal to be considered en banc, for briefing, argument, and full opinion. See Guillot v. Munn, 99—0273 (La.4/23/99), 734 So.2d 613.


text:
    In re Robert A. LIPTAK.
    No. 2007-B-0712.
    Supreme Court of Louisiana.
    April 5, 2007.
   ORDER

Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that Robert A. Lip-tak, Louisiana Bar Roll number 17696, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

/s/ Pascal F. Calogero, Jr. Justice, Supreme Court of Louisiana


text:
    Karen DARBY v. SENTRY INSURANCE AUTOMOBILE MUTUAL CO., Bruce J. Amond, and Lakeshore Chrysler, Dodge, Jeep, Inc.
    No. 2007-CC-0638.
    Supreme Court of Louisiana.
    March 28, 2007.
   Prior report: La.App., — So.2d-, 2007 WL 881387.

In re Darby, Karen; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 2002-14753; to the Court of Appeal, First Circuit, No. 2007 CW 0407.

Denied.


text:
    STATE of Louisiana v. Dexter Leon DAVIS.
    No. 2006-K-1984.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Davis, Dexter Leon; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of East Carroll, 6th Judicial District Court Div. B, No. 69,927; to the Court of Appeal, Second Circuit, No. 41,-565-KH.

Granted.


text:
    STATE of Louisiana v. Burt S. STOCKSTILL.
    No. 2006-K-1725.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Stockstill, Burt S.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. J, Nos. 380162, 393929; to the Court of Appeal, First Circuit, No. 2005 KA 2438.

Denied.


text:
    STATE of Louisiana v. Tobie GILLESPIE.
    No. 2006-K-1930.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Gillespie, Tobie; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 364872; to the Court of Appeal, First Circuit, No. 2005 KA 1337.

Denied.

5.


text:
    STATE of Louisiana v. Beatriz Elena BUFORD.
    No. 2006-K-1987.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Buford, Beatriz Elena; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. A, No. 159,863; to the Court of Appeal, First Circuit, No. 2005 KA 2174.

Denied.


text:
    STATE of Louisiana v. Brian Keith CARROLL.
    No. 2006-K-2101.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Brian Keith Carroll; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. G, Nos. 383703, 383702; to the Court of Appeal, First Circuit, No. 2005 KA 1705.

Denied.


text:
    STATE of Louisiana v. Jonathon L. SMITH.
    No. 2006-KO-2113.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Smith, Jonathon L.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. H, No. 238,578; to the Court of Appeal, Second Circuit, No. 40,894-KA.

Denied.


text:
    STATE of Louisiana v. Ben SCOTT.
    No. 2006-KO-2133.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Scott, Ben; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. I, No. 04-1277; to the Court of Appeal, Fifth Circuit, No. 06—KA—134.

Denied.


text:
    STATE of Louisiana v. Marcus Tyler SAUCIER.
    No. 2007-KK-0075.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Saucier, Marcus Tyler; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. A, No. 70660FA; to the Court of Appeal, Third Circuit, No. KW 06—01415.

Denied.


text:
    STATE of Louisiana v. Sean VANKERKHOVE.
    No. 2007-KK-0306.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Vankerkhove, Sean; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. E, No. 20413; to the Court of Appeal, First Circuit, No. 2007 KW 0125.

Denied.


text:
    STATE of Louisiana v. Antoine DUPLESSIS.
    No. 2007-KK-0309.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Duplessis, Antoine C.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, Nos. 467—433, 467—420; to the Court of Appeal, Fourth Circuit, No. 2007-K-0117.

Denied.


text:
    STATE of Louisiana v. Anthony ACKERMAN.
    No. 2007-KK-0343.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Ackerman, Anthony; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, First Parish Court, Parish of Jefferson, No. F—1634584; to the Court of Appeal, Fifth Circuit, No. 06—K—951.

Denied.


text:
    STATE of Louisiana v. Owen REA.
    No. 2007-KK-0372.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Rea, Owen; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 04-06-0013; to the Court of Appeal, First Circuit, No. 2006 KW 2453.

Denied.


text:
    STATE of La., ex rel. Charles C. FOTI, Jr., Attorney General v. JANSSEN PHARMACEUTICA, INC.
    No. 2007-CC-0280.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Janssen Pharmaceutica, Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. D, Nos. 04-C—3967—D, 04—C—3977—D; to the Court of Appeal, Third Circuit, No. CW 06-01148.

Denied.

VICTORY, J., would grant.


text:
    STATE ex rel. Cedric Lynn SIAS v. STATE of Louisiana.
    No. 2006-KH-1742.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Sias, Cedric Lynn; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. C, No. 265,913; to the Court of Appeal, Third Circuit, No. KH 05-01620.

Denied.


text:
    STATE ex rel. Larry HAMILTON v. STATE of Louisiana.
    No. 2006-KH-1561.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Hamilton, Larry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. C, No. 72,792; to the Court of Appeal, First Circuit, No. 2006 KW 186.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Darrel Grant LEDEE v. STATE of Louisiana.
    No. 2006-KH-1568.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re LeDee, Darrel Grant; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. L, No. 92621; to the Court of Appeal, Third Circuit, No. KH 05-01516.

Denied.


text:
    STATE ex rel. Moses MAYER v. STATE of Louisiana.
    No. 2006-KH-1599.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Mayer, Moses; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 89-754; to the Court of Appeal, Fifth Circuit, No(s). 06—KH—242, 06—KH—292.

Denied.


text:
    STATE ex rel. Darren WILLIAMS v. STATE of Louisiana.
    No. 2006-KH-1603.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Williams, Darren;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. J, Nos. 02—CR10 84016; to the Court of Appeal, First Circuit, No. 2006 KW 0163.

Denied.

JOHNSON, J., would grant.


text:
    STATE ex rel. Rodney SANDERS v. STATE of Louisiana.
    No. 2006-KH-1604.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Sanders, Rodney; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 1-03-178; to the Court of Appeal, First Circuit, No. 2006 KW 0220.

Denied.


text:
    STATE ex rel. Chad BOUDREAUX v. STATE of Louisiana.
    No. 2006-KH-1610.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Boudreaux, Chad; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. D, No. 97CR75601; to the Court of Appeal, Third Circuit, No. KH 04-00638.

Denied.


text:
    STATE ex rel. Darryl CASIMIER v. STATE of Louisiana.
    No. 2006-KH-1611.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Casimier, Darryl; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Allen, 33th Judicial District Court Div. A, No. CR 06 0323; to the Court of Appeal, Third Circuit, No. KH 06-00230.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93—1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Danny BARKSDALE v. STATE of Louisiana.
    No. 2006-KH-1639.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Barksdale, Danny; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 8—97—33; to the Court of Appeal, First Circuit, No. 2005 KW 1992.

Denied.


text:
    STATE ex rel. Joseph GLAVIANA v. STATE of Louisiana.
    No. 2006-KH-1641.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Glaviana, Joseph; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Assumption, 23rd Judicial District Court Div. A, Nos. 7470, 7472.

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


text:
    STATE ex rel. Eric PETRY v. STATE of Louisiana.
    No. 2006-KH-1651.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Petry, Eric; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. J, Nos. 25914, 26759; to the Court of Appeal, Third Circuit, No. KH 06—00296.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93—2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98—0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE ex rel. Lyle Raheem JONES V. STATE of Louisiana.
    No. 2006-KH-1652.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Jones, Lyle Raheem; — -Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. D, No. 97—K—2327; to the Court of Appeal, Third Circuit, No. KH 06—00107.

Denied. Untimely and repetitive. La. C.Cr.P. art.. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.4(A).


text:
    STATE ex rel. Elliot MONTANA v. STATE of Louisiana.
    No. 2006-KH-1655.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Montana, Elliot; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 372-000; to the Court of Appeal, Fourth Circuit, No. 2006-K-0513.

Denied.


text:
    STATE ex rel. Stafford STARKS v. STATE of Louisiana.
    No. 2006-KH-1656.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Starks, Stafford; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. D, No. 04—165,290; to the Court of Appeal, First Circuit, No. 2006 KW 0428.

Denied.


text:
    STATE ex rel. Richard LAY v. STATE of Louisiana.
    No. 2006-KH-1657.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Lay, Richard; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. 0, Nos. 131,275, 215,530, 130,364, 197,086, 130,364, 383,759; to the Court of Appeal, First Circuit, No(s). 2006 KW 0456, 2006 KW 0486, 2006 KW 0487.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Benjamin CLARK v. Russell BUTLER, Warden, Concordia Parish Correctional Facility.
    No. 2006-KH-1677.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Clark, Benjamin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 02-5545; to the Court of Appeal, Fifth Circuit, No. 06—KH—415.

Denied.


text:
    STATE ex rel. Robert SMITH v. STATE of Louisiana.
    No. 2006-KH-1682.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Smith, Robert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. E, No. 23,721.

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


text:
    STATE ex rel. Sylvester Lee WILLIAMS v. STATE of Louisiana.
    No. 2006-KH-1684.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Williams, Sylvester Lee; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. E, Nos. 96F0886, 05F002796, 000160; to the Court of Appeal, Second Circuit, No. 41411-KH.

Denied.


text:
    STATE ex rel. Willie JACKSON v. STATE of Louisiana.
    No. 2006-KH-1685.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Jackson, Willie; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 00-3549; to the Court of Appeal, Fifth Circuit, No(s). 06-KH-275, 06-KH-326.

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


text:
    STATE ex rel. Derrick CHAIRS v. STATE of Louisiana.
    No. 2006-KH-1711.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Chairs, Derrick; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 98-3724; to the Court of Appeal, Fifth Circuit, No. 06-KH-369.

Denied.


text:
    STATE ex rel. Michael LEBLANC v. STATE of Louisiana.
    No. 2006-KH-1712.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re LeBlanc, Michael; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 437-138; to the Court of Appeal, Fourth Circuit, No. 2006-K-0534.

Denied.


text:
    Maureen SAXBY v. DENTON-JAMES, L.L.C. and the Gray Insurance Company.
    No. 2007-CC-0370.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Pettifield, Jeannie; Saxby, Maureen et al.; Elswick, Anna-Jean; Petti-field, David; — Plaintiff(s); Applying for

Supervisory and/or Remedial Writs Office of Workers’ Compensation District 03, No. 05-02842; to the Court of Appeal, Third Circuit, No. WWC 06-01586.

Denied.


text:
    Vincent Mark CASTILLO v. CLERK OF COURT FOR THE 29TH JUDICIAL DISTRICT COURT OF ST. CHARLES PARISH, in Louisiana, et al. Vincent Mark Castillo v. Greg Champaigne, St. Charles Parish Sheriffs Office, et al.
    No. 2007-C-0359.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Castillo, Vincent Mark; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Charles, 29th Judicial District Court Div. E, Nos. 61,285, 59,373; to the Court of Appeal, Fifth Circuit, No(s). 06—CA—662, 06—CA—663.

Denied.


text:
    Janean CLARK v. LEGION INSURANCE COMPANY, Coleman CAB Company, Rolins CAB Service and Shahid ABBASI.
    No. 2007-C-0368.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Clark, Janean; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 99-11446; to the Court of Appeal, Fourth Circuit, No. 2006-CA-0320.

Denied.


text:
    Richard J. HEATH v. Carliss MCCARTHY, Sr., Rhal J. Martin and Weyerhaeuser Co.
    No. 2007-C-0358.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Heath, Richard J.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Winn, 8th Judicial District Court Div. 0, No. 38,329-04; to the Court of Appeal, Second Circuit, No. 41,853-CA.

Denied.


text:
    Robert Miles BANKSTON v. LIPSTIX, et al.
    No. 2007-CC-0355.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re St. Paul Reinsurance Company, Ltd.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. J, No. 20034858; to the Court of Appeal, Third Circuit, No. CW 06-01508.

. Denied.


text:
    Thomas Hartman PALMER, II v. AMERIQUEST MORTGAGE COMPANY, True Title, Inc., and John Christian Shidler.
    No. 2007-C-0353.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Smith, Shuey L.L.C.; Hiller, Richard E.; Plamer, Thomas Hartman II;— Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. D, No. 112,-699-D; to the Court of Appeal, Second Circuit, No. 41,576-CA.

Denied.


text:
    Patrick J. KEARNEY v. LEE MEDICAL INTERNATIONAL, INC.
    No. 2007-C-0344.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Kearney, Patrick J.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. C, No. 619-700; to the Court of Appeal, Fifth Circuit, No. 06-CA-597.

Denied.


text:
    Ruby D’ANTONI v. Walter H. EVERSMEYER, M.D. and Hanover Insurance Company (Walter H. Eversmeyer, M.D.)
    No. 2007-CC-0308.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Hanover Insurance Co.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 634-597; to the Court of Appeal, Fifth Circuit, No. 06—C—909.

Denied.


text:
    Rita H. Holzenthal Wife of/and Henry HOLZENTHAL, III, Gretel Holzen-thal, Cecelia M. Holzenthal Wife of/and Henry W. Holzenthal, Patricia A. Stanley Wife of/and George E. Thomas, and Monica S. Espinel Wife of/and Luis F. Espinel v. SEWERAGE & WATER BOARD OF NEW ORLEANS Carlo R. Galan, M.D., Gwendolyn D. Redus, Billye B. Ber and Maxine Miller v. Sewerage & Water Board of New Orleans Jean Feran Wife of/and Fred Feran, Mary Susan Hunt, Mary Sharett Wife of/and Freddie Sharett, Penelope Sheffield, Elise A. Boyer and Cheryl L. Squire v. Sewerage & Water Board of New Orleans.
    No. 2007-C-0294.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Sewerage & Water Board of New Orleans; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. A, Nos. 2001-16972, 2001-16969, 2001-16984; to the Court of Appeal, Fourth Circuit, No(s). 2006-CA-0796, 2006-CA-0797, 2006-CA-0798.

Denied.


text:
    Ronald J. CARTER v. D P & L TIMBER.
    No. 2007-C-0302.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Carter, Ronald J.; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District 2, No. 03-01368; to the Court of Appeal, Third Circuit, No. 06-714.

Denied.


text:
    Roy PETERS, et al. v. RAPIDES PARISH SCHOOL BOARD, et al.
    No. 2007-CC-0305.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Peters, Roy et ah; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. F, No. 222,047; to the Court of Appeal, Third Circuit, No. CW 07-00103.

Denied.


text:
    Yvette M. FAIRCHILD, et al. v. Randy WESTER, et al.
    No. 2007-CC-0299.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Graves, Michael; Wester, Randy et al.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 606-657; to the Court of Appeal, Fifth Circuit, No. 06-C-836.

Denied. Adequate remedy on appeal.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


text:
    Monique Guy, Wife of/and Barry GUY v. Dr. Brian BOURGEOIS, Dr. Kenneth Coignet.
    No. 2007-C-0249.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Guy, Monique; Guy, Barry;— Plaintiffs); Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. G, No. 595-015; to the Court of Appeal, Fifth Circuit, No. 06-CA-513.

Denied.

CALOGERO, C.J., would grant.

JOHNSON, J., would grant.


text:
    DISPLAY SOUTH, INC., et al. v. GRAPHICS HOUSE SPORTS PROMOTIONS, INC., d/b/a GH Imaging and GHimaging.com.
    No. 2007-CC-0197.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Farm Bureau Mutual Insurance Company of Michigan; — Other; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 505,446; to the Court of Appeal, First Circuit, No. 2006 CW 1778. '

Denied.

CALOGERO, C.J., would grant.

VICTORY, J., would grant.

WEIMER, J., would grant.


text:
    David HAYES and Tammy Hayes v. GALLAGHER BASSETT SERVICES, INC. and Columbus Insurance Company.
    No. 2007-C-0085.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Hayes, David et al.; Hayes, Tammy; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Union, 3rd Judicial District Court Div. B, No. 40,153; to the Court of Appeal, Second Circuit, No. 41,579-CA.

Denied.

CALOGERO, C.J., would grant.

JOHNSON, J., would grant.


text:
    William POWELL v. Richard STALDER, et al.
    No. 2006-CI-1508.
    Supreme Court of Louisiana.
    March 30, 2007.
   In re Powell, William; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 520,968; to the Court of Appeal, First Circuit, No. 2005 CA 0486.

Denied.


author: LEON A. CANNIZZARO, JR., Judge.

text:
    Mildred MITCHELL, George Davis, Shirley Davis Williams and Leola M. Cotton, Individually and on Behalf of Their Deceased Sister, Delores James v. REHABILITATION INSTITUTE OF NEW ORLEANS, INC. and Crescent City Health Care Center, Inc.
    No. 2006-CA-0910.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 2007.
    Gregory P. Di Leo, New Orleans, LA, for Plaintiffs/Appellants, Mildred Mitchell, George Davis, Shirley Davis Williams, Leola M. Cotton, Delores James.
    Charles C. Foti, Jr., Attorney General, J. Marc Vezina, Special Assistant Attorney General, Kelli M. Khalaf, Special Assistant Attorney General, Vezina and Gattuso, L.L.C., Gretna, LA, for Appellees, Crescent City Health Care Center, Inc., and Dr. Daniel Rodriquez.

      (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

11 This case involves prescription in a medical malpractice action. The particular issue presented is whether a timely filed suit against a non-qualified health care provider in a court of competent jurisdiction interrupts and/or suspends prescription against a qualified health care provider who is alleged to be a solidary obligor with the non-qualified health care provider. We find that it does not.

FACTS AND PROCEDURAL HISTORY

On March 2, 2001, while a resident of Crescent City Health Care Center, Inc., (“Crescent City”), a nursing home, Ms. Delores James became ill and was admitted to Tenet Health System Memorial Medical Center (Memorial). While a patient at Memorial, Ms. James was transferred to a specialized care facility located within Memorial known as the Rehabilitation Institute of New Orleans (“RINO”). During her stay at Memorial and/or RINO, Ms. James developed decubitus ulcers (bedsores) on her body, and on March 19, 2001, while under the Lcare of Dr. Daniel Rodriquez, she was transferred from RINO back to the nursing home. After returning to Crescent City, she developed several more bedsores, gastrointestinal bleeding, pneumonia and an infection in her right foot. Eventually, sepsis invaded Ms. James’ bloodstream, resulting in her death on October 1, 2001.

On February 20, 2002, the plaintiffs, the brother and sisters of Ms. James, filed wrongful death and survival actions, individually and on behalf of their deceased sister, in the Civil District Court for the Parish of Orleans, naming as defendants Crescent City and RINO. The original petition alleged that the defendants were negligent in treating Ms. James, had breached the standard of care required of nursing homes, and violated the nursing home residents’ bill of rights set forth in La. R.S. 40:2010.8 et seq.

On March 18, 2002, RINO filed an exception of prematurity arguing that it was a qualified health care provider under the Louisiana Medical Malpractice Act (MMA), La. R.S. 40:1299.41 et seq., and, thus, the plaintiffs first had to request a review of their claim by a medical review panel with the Patient’s Compensation Fund Oversight Board pursuant to La. R.S. 40:1299.47(B)(l)(a)(i). On June 4, 2002, on a joint motion of the parties, RINO was dismissed from the suit. On that same day, the plaintiffs amended their original petition, naming Dr. Rodriquez as a |sdefendant and alleging he was jointly liable with Crescent City for the damages resulting from Ms. James’ death.

On August 7, 2003, Dr. Rodriquez filed an exception of prematurity arguing that he was a state health care provider under La. R.S. 40:1299.39 et seq., the Malpractice Liability for State Services Act (MLSSA), and, thus, the plaintiffs had to first request a review of their medical malpractice claim by a state medical review panel with the Division of Administration pursuant to La. R.S. 40:1299.39.1. On October 29, 2003, the plaintiffs filed their request for a review of their complaint by a state medical review panel. Shortly thereafter, the plaintiffs settled and dismissed their claims against Crescent City.

On November 21, 2005, the plaintiffs filed a second supplemental and amending petition naming the State of Louisiana, through the Board of Supervisors of Louisiana State University (LSU) Agricultural and Mechanical College and LSU Medical Center, as a defendant. The plaintiffs alleged that Dr. Rodriquez was an employee of LSU Medical Center when he treated Ms. James at Memorial and Crescent City. They further alleged that LSU Medical Center failed to properly train and supervise its physicians in the care of nursing home patients and that it breached the standard of care owed to Ms. James.

The State and Dr. Rodriquez filed an exception of prescription, arguing that the plaintiffs’ original suit against Dr. Rodriquez was premature and did not interrupt prescription because it was filed before the plaintiffs’ filed their request for a review by a state medical review panel. They also contend that the plaintiffs’ | ¿request for a review by a state medical review panel did not suspend prescription because the request was not filed with the Division of Administration within one year of the date of the alleged malpractice or Ms. James’ death. In opposition, the plaintiffs argued that pursuant to La. C.C. arts. 3462 and 2324(C), their timely filed suit against Crescent City interrupted prescription on their medical malpractice claims against Dr. Rodriquez and the State because the three defendants were alleged to be joint tortfeasors.

Following a hearing, the trial court sustained the exception of prescription, finding that the plaintiffs had filed their request for a review by a state medical review panel more than two years after the date of the alleged malpractice and Ms. James’ death. Citing the Louisiana Supreme Court’s decision in LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, the trial court concluded that La. R.S. 40:1299.47(A)(2)(a), the specific statute providing for the suspension of prescription in the context of medical malpractice, applied alone rather than complementary to the more general Louisiana Civil Code articles on prescription.

I ¡ASSIGNMENTS OF ERROR

In their first assignment of error, the plaintiffs argue that the trial court erred in relying on the Louisiana Supreme Court’s decision in LeBreton, supra, to determine that the claims against Dr. Rodriquez and the State had prescribed. They distinguish LeBreton by emphasizing that the plaintiff therein never timely filed a suit against a defendant not covered under the medical malpractice act, who was alleged to be a solidary obligor with the defendant health care provider covered under the act, as was done in the present case. Instead, the plaintiffs contend, the trial court should have relied on this court’s decision in Pickard v. Baugh, 565 So.2d 1102 (La. App. 4th Cir.1990), which held that a plaintiffs timely filed suit against his employer interrupted prescription on the plaintiffs medical malpractice claim against his treating physician even though his request for a medical review panel was filed more than three years after the alleged malpractice because the employer and physician were alleged to be solidary obligors under La. C.C. art. 1799.

In the second assignment of error, the plaintiffs contend the trial court erred in failing to recognize that under Taylor v. Giddens, 618 So.2d 834 (La.1993), the prescriptive period applicable to the plaintiffs’ wrongful death claims is the one-year period found in La. C.C. art. 3492 rather than the one-year period set forth in La. R.S. 9:5628 for medical malpractice claims.

|,LAW AND DISCUSSION Pursuant to La. R.S. 40:1299.39.1(A)(1), all malpractice claims against the state, its agencies, or other persons covered by the MLSSA must be reviewed by a state medical review panel. The prescriptive period for a medical malpractice claim is one year, La. R.S. 9:5628; the prescriptive period for a delictual action is also one year, La. C.C. art. 3492. La. R.S. 40:1299.39.1(B)(l)(a)(i) provides:

No action against the state, its agencies, or a person covered by [the MLSSA], or his insurer, may be commenced in any court before the claimant’s complaint has been presented to a state medical review panel established pursuant to this Section.

La. R.S. 40:1299.39.1(A)(2)(a) provides, in part,

The filing of the request for a review of a claim shall suspend the time within which suit must be instituted, in accordance with this Part, until ninety days following notification ... to the claimant or his attorney of the issuance of the opinion by the state medical review panel, in the case of the state or persons covered by this Part, ...

In LeBreton, the plaintiffs father died on August 20, 1991, while a patient at Pendleton Memorial Hospital in New Orleans. The plaintiff filed a wrongful death claim in the district court on August 18, 1992. Although the plaintiff alleged that her claim did not fall under the MMA because the defendant physicians acted intentionally, she also filed a request for a review of the claim by a medical review panel with the Patient’s Compensation Fund Oversight Board on August 19, 1992. The defendant physicians excepted to this suit on the grounds of prematurity because it was filed prior to the plaintiffs filing of a request for a review by a medical review panel. The trial court sustained the defendants’ exceptions and dismissed the suit without prejudice.

|70n August 12,1996, the medical review panel issued its opinion, finding no medical malpractice on the part of the defendant physicians. Although the medical review panel notified the plaintiffs attorney on August 14, 1996 of its decision, the plaintiff did not re-file her law suit until February 3, 1997, well beyond the ninety-day sus-pensive period provided by La. R.S. 40:1299.47(A)(2)(a). In response, the defendants filed exceptions of prescription alleging the plaintiffs wrongful death claim was prescribed on its face. The trial court overruled the exceptions, finding that because of the interruption caused by the filing of the plaintiffs suit as provided by La. C.C. art. 3462 and its later dismissal without prejudice, the plaintiff had one year after the expiration of the suspensive period set forth in La. 40:1299.47(A)(2)(a) within which to file suit or until August 14, 1997. On review, this Court denied the defendant physicians’ supervisory writ.

The Supreme Court granted the defendant physicians’ writ application to consider whether the trial court erred in applying the general provision on interruption of prescription found in La. C.C. art. 3462 simultaneously with the specific provision on suspension of prescription contained in La. R.S. 40:1299.47(A)(2)(a) of the MMAto defeat the defendants’ exception of prescription. The Court reiterated its decision in Everett v. Goldman, 359 So.2d 1256 (La.1978), stating that a claimant “ ‘must provoke a medical review panel and receive an opinion from it before he can file suit in a court of law.’ ” LeBreton, supra, 97-2221 at p. 8, 714 So.2d at 1230 (citation omitted). The Court held that the filing of a medical malpractice claim with a medical review panel triggered the suspension of prescription specially provided by the MMA, rather than the ^interruption of the liberative prescriptive period provided in the Civil Code. The Court concluded that a medical malpractice plaintiff could not simultaneously take advantage of an interruption of prescription caused by the filing of suit in a court of competent jurisdiction under La. C.C. art. 3462 and a suspension of prescription caused by the subsequent filing of a request for a medical review panel under La. R.S. 40:1299.47(A)(2)(a). Thus, the Court held that the “specific” statute providing for the suspension of prescription found in the medical malpractice act should be applied alone and not with the more general Civil Code article which addresses the interruption of prescription. Id. at 1277.

Applying the LeBreton holding to this ease, the plaintiffs’ medical malpractice suit against Dr. Rodriquez was premature because it was filed prior to their request for a review of their malpractice claims by a state medical review panel. Also, the plaintiffs’ medical malpractice claims against Dr. Rodriquez and the State had prescribed because their request for a state medical review panel was filed with the Division of Administration more than a year from the date of the alleged malpractice and Ms. James’ death.

The fact that the plaintiffs in this case first filed a suit against a defendant not covered by the medical malpractice act alleging solidary liability between that defendant and the defendants covered under the medical malpractice act, as was done in the Pickard case, is of no consequence considering the Supreme Court’s recent decision in Bush v. National Health Care of Leesville, 2005-2477 (La.10/17/06), 939 So.2d 1216.

In Bush, supra, the plaintiffs went to the emergency room at Byrd Regional Hospital in Leesville, Louisiana, on July 8, 1996, where Dr. Lujan-Baez treated their minor son. On July 8, 1997, the plaintiffs filed a medical malpractice suit in |flthe district court against Byrd Regional Hospital and Dr. Lujan-Baez. On September 23, 1997, more than a year after the alleged malpractice, the plaintiffs filed a complaint with the PCF and requested a review by a medical review panel. Dr. Lujan-Baez filed an exception of prematurity in the district court proceedings, contending the suit was premature until the proceedings before the medical review panel were concluded. The plaintiffs voluntarily dismissed their suit against Dr. Lu-jan-Baez without prejudice, but maintained their action against the hospital, which was not a qualified health care provider under either the MMA or MLSSA. After the medical review panel issued its decision on January 10, 2000, the plaintiffs re-filed their suit against Dr. Lujan-Baez in the district court on February 24, 2000. Dr. Lujan-Baez filed an exception of prescription arguing that the suit against her had prescribed because the plaintiffs filed their complaint with the PCF and request for a medical review panel more than one year from the date of the alleged malpractice. The trial court overruled the exception reasoning that the plaintiffs’ initial suit against Byrd Regional Hospital interrupted prescription on the malpractice claim against Dr. Lujan-Baez because she was alleged to be solidarity liable with the hospital. The Third Circuit Court of Appeal upheld the district court.

The Supreme Court granted certiorari , reversed the lower courts and held that its decision in LeBreton applied retroactively to bar the plaintiffs’ 1996 medical malpractice claim against Dr. Lujan-Baez. Although the retroactive application of Le-Breton is not at issue in this case, the facts in Bush are on point with the facts herein. Furthermore, it is clear from the decision in Bush that even if |10a medical malpractice plaintiff initially filed a timely suit in a court of competent jurisdiction against a defendant not qualified under the medical malpractice act, alleging solidary liability between that defendant and a defendant healthcare provider covered by the act, the specific statutory provision providing for the suspension of prescription found in the medical malpractice act is to be applied alone and not with the more general Civil Code article which addresses the interruption of prescription.

Finally, we find no merit to the plaintiffs’ second assignment of error. The Supreme Court in Taylor v. Giddens, supra, found that although a wrongful death action may have its genesis in an act of medical malpractice, it is not controlled by La. R.S. 9:5628, the prescriptive period for medical malpractice, but rather by La. C.C. art. 3492, the one-year liberative period applicable to delictual actions. The Court stated:

The determination that the prescriptive period for wrongful death actions arising from acts of medical malpractice are not within the scope of LSA-R.S. 9:5628, does not alter the affect (sic) that the Medical Malpractice Act, LSA-R.S. 40:1299.41 et seq, has on wrongful death actions. The actions continue to be governed and procedurally controlled by the provisions of the Act.

Taylor v. Giddens, 92-3054 (La.5/24/93), 618 So.2d 834, 841. Thus, the plaintiffs’ wrongful death claims arising from Ms. James’ death as the result of the alleged malpractice of Dr. Rodriquez and the State had to be filed within one year of the date of her death, ie., the plaintiffs had to file their request for a review of their malpractice claims by a state medical review panel on or before October 1, 2002. The plaintiffs filed their complaint and request for a state medical review panel on October 29, 2003, which was more than two years after Ms. James’ death. |nThus, the plaintiffs’ wrongful death and survival actions against Dr. Rodriquez and the State have prescribed.

DECREE

Accordingly, for the reasons stated herein the judgment of the trial court sustaining the exception of prescription in favor of the State of Louisiana and Dr. Daniel Rodriquez is affirmed.

AFFIRMED.

      . According to the pleadings filed in the record, RINO was a division of Tenet Health System Memorial Medical Center.

      . Sepsis is defined as a toxic condition resulting from the spread of bacteria from a region of infection into the bloodstream.

      .The plaintiffs allege in their original petition and appeal brief that Ms. James died on October 1, 2001. The trial court’s judgment, however, states October 15, 2001 as the date of death.

      . La. C.C. art. 3462 provides, in part, "[prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the ob-ligor, in a court of competent jurisdiction and venue.”

      . La. C.C. art. 2324(C) provides, “[i]nterraption of prescription against one joint tortfea-sor is effective against all joint tortfeasors.”

      . La. R.S. 40:1299.47, which was at issue in LeBreton, deals with medical malpractice against private health care providers as defined in La. R.S. 40:1299.41. The plaintiffs’ claims in this case, however, allege medical malpractice relating to state services and, thus, fall under La. R.S. 40:1299.39. Nonetheless, this Court previously held that the Supreme Court’s decision in LeBreton was applicable for the purpose of determining whether medical malpractice claims against the State of Louisiana and its agencies were prescribed. See Metropolitan Development Center v. Liner, 2004-0654 (La.App. 4 Cir. 12/8/04), 891 So.2d 62.

      . La. C.C. art. 1799 provides, "[t]he interruption of prescription against one solidary obli-gor is effective against all solidary obligors and their heirs.”

      . LeBreton v. Rabilo, 97-2221 (La. 11/26/97), 703 So.2d 652.

      . Bush v. National Health Care of Leesville, 2005-337 (La.App. 3 Cir. 11/2/05), 923 So.2d 150.

      . Bush v. National Health Care of Leesville, 2005-2477 (La.4/24/06), 926 So.2d 528.


author: TERRI F. LOVE, Judge.

text:
    Nathaniel DOWL v. Richard ARIAS.
    No. 2006-CA-0874.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 2007.
    Rehearing Denied March 15, 2007.

      Nathaniel Dowl, In Proper Person.
    Richard A. Arias, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

[Nathaniel Dowl (hereinafter “appellant” or “Mr. Dowl”), appeals the trial court’s dismissal of claims against Richard Arias (hereinafter “appellee” or “Mr. Arias”). We find that the trial court properly dismissed claims against the appellee. Mr. Dowl failed to substantiate claims that he was the owner and/or agent of the property, while Mr. Arias established his ownership of the property. We therefore affirm the decision of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Dowl created and recorded a lien on the property located at 8631 Zimple Street, New Orleans, Louisiana, claiming that he did certain things with regard to the property-mowed the grass, performed some maintenance and boarded it up. Thereafter, the appellant transferred this lien via quit-claim to Ms. Barbara Dowl (hereinafter “Ms. Dowl”). He later filed to evict Richard Arias from 8631 Zimpel Street, claiming that he was the agent for Harold Niemann, the Succession of Elizabeth Niemann and Ms. Dowl. The trial court denied the eviction, dismissed | ^claims against Mr. Arias, and ordered that all liens and inscriptions on the property be cancelled. This appeal follows.

STANDARD OF REVIEW

The standard of appellate review of factual findings in a civil action is a two-part test: (1) the appellate court must find from the record there is a reasonable factual basis for the finding of the factfinder, and (2) the appellate court must further determine the record establishes the finding is not manifestly erroneous (clearly wrong). Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Factual findings should not be reversed on appeal absent manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). If the trial court’s or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990).

ASSIGNMENT OF ERROR AS TO EVICTION

The appellant asserts that the trial court improperly denied the eviction of the ap-pellee. However, while the appellant claims to have ownership through a lien privilege, which he equates to an act of sale, he has failed to substantiate his claim of an ownership interest in the subject property. We find that the trial court correctly denied the eviction of Mr. Arias, who established ownership of the subject property.

Eviction is a proper remedy for use by an owner of immovable property who wishes to evict the occupant after the purpose of the occupancy has ceased. | sChampagne v. Broussard, 401 So.2d 1060, 1064 (La.App. 3d Cir.1981). When an owner of immovable property wishes to evict the occupant, after the purpose of the occupancy has ceased, the owner, or his agent, shall first cause a written notice to vacate the property to be delivered to the occupant. La. C.C.P. art. 4702. In Miller v. Borne, an eviction proceeding was brought against an occupant of a building who claimed he was a co-owner. 496 So.2d 1084, 1084 (La.App. 4th Cir.1986). This Court upheld the summary eviction where the plaintiffs presented a prima facie case that they were the owners of the property and that notice to vacate had been served on the occupants, notwithstanding the occupant’s claim that he was a one-fourth owner of the property. Id.

In Miller, this Court held that the eviction was properly granted where the occupant failed to present any evidence of his alleged ownership. 496 So.2d at 1086. This Court further recognized that while it is true that an eviction proceeding is not a proper or appropriate place to determine title where the defendant has a semblance of title, eviction is proper where the defendant fails to present any evidence of his alleged ownership. Id.

In the instant case, Mr. Arias established ownership of the subject property, and presented evidence and testimony of the former owners, who transferred ownership to him. The appellant, however, failed to substantiate claims that he was the agent of Elizabeth Niemann or that he had an ownership interest in the property.

|4The former owner of the property and the brother of Elizabeth Niemann, Harold Niemann, testified that he inherited the property located at 8631 Zimple Street along with his siblings and permitted his niece to sell it to Mr. Arias. Jeanine Bernard, Harold Niemann’s niece and the administratrix of the estate of Elizabeth Niemann, also testified that she was the agent for all family members and that she sold the property to Mr. Arias. Ms. Bernard also testified that to her knowledge, no one in the family ever authorized Mr. Dowl to cut the grass at 8631 Zimple Street. Ms. Bernard stated that a few weeks before testifying, she was approached by Mr. Dowl with an offer to purchase the property. Mr. Dowl told Ms. Bernard that he felt the option to purchase the property should have been offered to him since he had cut the grass and performed some maintenance of the property. She stated that she explained to Mr. Dowl that the property was already sold.

ASSIGNMENT OF ERROR AS TO LIEN AND QUIT CLAIM

The appellant argues that the trial court erred in dismissing his claim for eviction, finding that a lien is not an act of sale and that the quit claim is invalid. The appellant has failed to provide sufficient evidence to establish an ownership interest in the subject property. The appellant claims to have bought ownership through a hen privilege that he contends is an “act of sale” and quit claimed this to Ms. Barbara Dowl. However, the record does not establish that an act of sale or other transfer took place, giving Mr. Dowl an ownership interest in the subject | ^property. We find the appellant’s attempt to put ownership at issue was properly rejected and that the trial court’s findings were correct.

Mr. Dowl failed to produce evidence of an ownership interest; he asserts grounds for his recorded lien as his cutting he grass and performing some maintenance of the property located at 8631 Zimple Street. Alternatively, the appellee, Mr. Arias, produced evidence in support of his ownership of the property.

Guided by the manifest error standard of review, we find a reasonable factual basis in the record for the trial court’s decision to render a judgment in favor of the appellee and to cancel the inscription of liens and inscriptions on the property. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990).

DECREE

Accordingly, we affirm the decision of the trial court.

AFFIRMED


author: PATRICIA RIVET MURRAY, Judge.

text:
    STATE of Louisiana v. Devairr SHANKLIN, Jr.
    No. 2006-KA-1151.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 2007.

      Eddie J. Jordan, Jr., District Attorney— Parish of Orleans, David S. Pipes, Assistant District Attorney — Parish of Orleans, New Orleans, LA, for Plaintiff/Appellant.
    Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY.
   PATRICIA RIVET MURRAY, Judge.

| T This is a criminal case. The State is the appellant. The sole issue presented is whether the district court erred in granting the motion to quash the bill of information filed by the defendant, Devairr Shank-lin, Jr., after the State entered a nolle prosequi on the day of trial and five months later reinstated the charge. Answering that question in the affirmative, we reverse and remand.

STATEMENT OF CASE

On November 8, 2004, Mr. Shanklin was charged by bill of information under case number 453-522 with purse snatching, a violation of La. R.S. 14:65.1. On November 22, 2004, the case was transferred to Section K to follow case number 446-967. On November 30, 2004, he was arraigned and pled not guilty. On December 21, 2004, a motion hearing was continued because Mr. Shanklin was not transported to court. On December 28, 2004, a motions hearing was held. The police officer did not appear at the hearing, and the district court found no probable cause. On January 27, 2005, Mr. Shanklin appeared for trial. On the trial date, the State entered a nolle prosequi

12Five months later, on June 1, 2005, the State reinstituted the charge under case number 459-913. Although the case was originally allotted to Section G, it was transferred on June 13, 2005 to Section K to follow case number 453-522. On June 17, 2005, Mr. Shanklin entered a plea of not guilty. On July 8, 2005, a motion hearing was continued because Mr. Shank-lin was not transported to court. On August 12, 2005, Mr. Shanklin filed a motion to quash the bill of information. The district court granted the motion to quash. This appeal followed.

STATEMENT OF FACT

The facts of this case are irrelevant.

DISCUSSION

The only issue the State raises in this appeal is whether the trial court erred when it granted Mr. Shanklin’s motion to quash the bill of information. The district court gave no reasons for granting the motion to quash. The sole ground raised in Mr. Shanklin’s motion to quash was the denial of his constitutional right to a speedy trial. The State argues that the district court erred in granting the motion to quash because Mr. Shanklin’s right to a speedy trial was not violated.

Both the Louisiana Supreme Court and this court have recognized that the State has the authority to enter a nolle prosequi and to reinstitute the charge. The | ¡¿jurisprudence, however, has recognized that this authority may be overborne under the circumstances of any given case by the defendant’s constitutional right to a speedy trial. State v. Love, 00-3347 (La.5/23/03), 847 So.2d 1198; State v. Scott, 04-1142 (La.App. 4 Cir. 7/27/05), 913 So.2d 843, writ denied, 06-0822 (La. 10/13/06), 939 So.2d 356.

A defendant challenging the State’s nolle prosequi and reinstitution of charges has the burden of showing a violation of his constitutional right to a speedy trial. State v. Henderson, 00-0511, p. 7 (La.App. 4 Cir. 12/13/00), 775 So.2d 1138, 1142. The proper procedural mechanism for challenging the State’s nolle prosequi and reinstitution of charges is a motion to quash. State v. Reaves, 376 So.2d 136, 137-38 (La.1979). A court’s resolution of a motion to quash in cases where the district attorney entered a nolle prosequi and later reinstituted charges should be decided on a case-by-case basis. State v. Batiste, 05-1571, p. 5 (La.10/17/06), 939 So.2d 1245, 1249 (citing Love, 00-3347 at p. 14, 847 So.2d at 1209).

The standard for analyzing a defendant’s claim that his constitutional right to a speedy trial has been violated is the four factor test enunciated in Barker v. Wingo, 407 U.S. 514, 530, 531-32, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972), which is as follows: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the prejudice to the defendant. Batiste, 05-1571 at p. 7, 939 So.2d at 1250. The circumstances of each individual case will determine the weight to be ascribed to the length of and the reason for the delay. Id. “[T]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Reaves, 376 So.2d at 138 (quoting Barker, 407 U.S. at 531, 92 S.Ct. at 2192).

| .Applying those principles, the Louisiana Supreme Court in Batiste found no speedy trial violation under the facts of that case. The defendant in Batiste was charged with video voyeurism. Nineteen months elapsed between the filing of the original bill and the quashing of the reinst-ituted charges. The Court found the reasons for the delay could not be attributed solely to the State and that there was no intentional delay on the State’s part to gain a tactical advantage. The Court further found that there was no suggestion that the defendant’s defense was impaired by the delay. The Court noted that the defendant was not in jail during the delay and that there was no indication that any evidence was lost due to the delay. The Court emphasized that the State had a legitimate reason for its nolle prosequi— the victim was not present for trial and was wavering in her commitment to going forward with the case. Given these circumstances, the Supreme Court reversed this court’s decision, which affirmed the trial court’s ruling granting the defendant’s motion to quash.

Analyzing Mr. Shanklin’s alleged speedy trial violation under the Barker factors, the delay in this case was nine months. Motion hearings were continued in both cases because of the failure to bring Mr. Shanklin to court. The delay attributable to the State is its five-month delay in reinstituting the charge. Mr. Shanklin did not assert his right to a speedy trial until he filed his motion to quash. Mr. Shanklin has not alleged, nor does the record support, a finding of prejudice | r,caused by the delay. Mr. Shanklin was released when the case was dismissed. There is no indication that he has lost any witnesses or evidence due to the delay. Given these circumstances, we find no violation of Mr. Shanklin’s constitutional right to a speedy trial. We thus find the district court erred in granting the motion to quash.

DECREE

For the forgoing reasons, the judgment of the district court is reversed, and the matter is remanded to the district court for further proceedings.

REVERSED AND REMANDED

      . In case number 446-967, Mr. Shanklin was charged with an unrelated purse snatching charge. On October 26, 2004, he was convicted by a jury on that charge, and on November 12, 2004, he was sentenced to serve three years at hard labor.

      . Due to Hurricane Katrina, the record for case number 453-522 is unavailable. We granted the State’s motion to supplement the record with a certified copy of the docket master.

      . The State’s authority to dismiss any prosecution without the consent of the court is recognized in La.C.Cr. P. art. 691. Under La.C.Cr.P. art. 576, the State is authorized to reinstitute the charges within six months of dismissal. In this case, the State reinstituted the charges against Mr. Shanklin five months " after the dismissal. The State, however, is required to show that the dismissal of the original prosecution was not for the purpose of avoiding the time limitations set by Article 578. Given that the charge at issue in this case is a non-capital felony (purse snatching), Article 578 required the State to bring Mr. Shanklin to trial within two years from the date of the bill of information. La.C.Cr. P. art. 578. The original bill of information was filed on November 8, 2004, and the motion to quash was granted on August 12, 2005, only nine months later. The State did not dismiss the first case in order to avoid the time limitations of Article 578. Thus, Mr. Shanklin’s statutory right to a speedy trial had not been violated at that point. The sole issue is whether the constitutional speedy trial requirement was satisfied.

      . Considering the factors in the case at hand, the nine month delay is not presumptively prejudicial. This court has found more lengthy delays non-violative of the right to a speedy trial. See State v. DeRouen, 96-0725 (La.App. 4 Cir. 6/26/96), 678 So.2d 39 (fifteen months elapsed between institution of prosecution and motion to quash two counts of possession with intent to distribute cocaine and one count of possession of 28 to 200 grams of cocaine not violative).

      . As the State points out, Mr. Shanklin was incarcerated for the majority of time this case was pending; however, his incarceration was due to his conviction and sentence for purse snatching in the unrelated case noted earlier in this opinion.