text:
    In re Kerwin W. DOYLE.
    No. 2007-B-2015.
    Supreme Court of Louisiana.
    April 4, 2008.
   | ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

UNDERLYING FACTS AND PROCEDURAL HISTORY

By way of background, respondent has a long history of alcohol and drug abuse, which prompted this court to transfer him to disability inactive status on July 23, 1993. In re: K.W.D., 620 So.2d 1329 (La. 1993). At that time, the ODC’s investigation of the numerous complaints it had received against respondent was stayed. Thereafter, respondent entered substance abuse treatment and achieved sobriety. On December 8, 2000, as the result of a joint petition by respondent and the ODC, respondent was transferred from disability inactive status to interim suspension. In re: Doyle, 00-3022 (La.12/8/00), 774 So.2d 117. This action allowed the disciplinary proceeding against respondent to resume.

FORMAL CHARGES

Count I

In the early 1990’s, respondent settled personal injury cases on behalf of several clients who had been treated by Dr. Michael Taylor of North Market | ¡..Chiropractic Clinic. In each instance, respondent withheld funds from the settlement to pay his client’s medical expenses; however, respondent failed to promptly remit the funds to Dr. Taylor. Respondent also failed to cooperate with the ODC in its investigation of the complaints filed by Dr. Taylor.

Count II

In early 1991, Vicia McKinney retained respondent to represent her in a personal injury matter. Respondent filed suit on behalf of his client in July 1991. Thereafter, without Ms. McKinney’s knowledge or consent, respondent settled the claim with the Louisiana Insurance Guaranty Association (LIGA) for $10,000, minus a $100 deductible. On December 2, 1992, LIGA issued its check in the amount of $9,900 and forwarded the check to respondent with the settlement documents. Respondent forged Ms. McKinney’s endorsement on the settlement check and retained the proceeds for his own use. He also failed to return the settlement documents to LIGA, which in 1995 filed a motion to enforce the settlement against Ms. McKinney.

In January 1997, Ms. McKinney filed a complaint against respondent with the ODC. She also made a claim for restitution from the Louisiana State Bar Association’s Client Assistance Fund.

Count III

In 1991, respondent was retained to represent Joyce Walker and her guest passengers in a personal injury matter arising out of an automobile accident. In 1992, hState Farm Fire and Casualty Company issued checks to respondent on behalf of his clients totaling $10,774.90. Respondent did not disburse these funds to his clients or on their behalf. Respondent also failed to communicate with his clients concerning the status of the lawsuits he filed on their behalf, and he failed to take any action to move those matters forward.

Count IV

In 1991, respondent settled a personal injury claim on behalf of his client, Byron Palmer, and withheld $690 to pay the expenses of Mr. Palmer’s treatment at the Ebrahim Clinic. Respondent failed to promptly remit the funds to the clinic, and beginning in October 1991, the clinic added $6.90 each month to Mr. Palmer’s unpaid balance. In August 1994, the past due account was assigned to a collection agency with a balance of $765.90.

Count V

In 1993, respondent received a $7,500 settlement check for the benefit of his client, James Snowden. Respondent failed to disburse $3,500 to which Mr. Snowden was entitled as his portion of the settlement proceeds. Respondent also failed to return his client’s telephone calls requesting an explanation for the delay in the disbursement.

Count VI

In July 1990, Vivian Hayes retained respondent to handle a personal injury matter. On several occasions thereafter, respondent falsely assured Ms. Hayes that a settlement check was forthcoming. In early 1993, respondent requested that Ms. RHayes execute a power of attorney in his favor so that he could complete the settlement of her claim. Ms. Hayes declined to do so, and she heard nothing further from respondent.

Count VII

In 1993, respondent settled personal injury claims on behalf of his clients, Stephanie Jackson and Margaret Williams, who had been treated by Dr. James Burns of Jewella Chiropractic Clinic. In each instance, respondent withheld funds from the settlement to pay his client’s medical expenses, totaling $2,210 for Ms. Jackson and $1,870 for Ms. Williams; however, respondent failed to promptly remit these funds to Dr. Burns. Respondent subsequently mailed two checks to Dr. Burns in payment of the Jackson and Williams accounts. Both checks were returned for insufficient funds. After Dr. Burns advised respondent of his intent to turn over the worthless checks to the district attorney, respondent replaced the checks with bank cashier’s checks.

Count VIII

In 1989, Minnie Guitón retained respondent to represent her in a personal injury matter arising out of a slip and fall accident and in a claim for property damages arising out of an automobile accident. Respondent settled the personal injury claim and withheld $3,000 to pay Ms. Guiton’s medical expenses; however, he failed to promptly remit the funds to the medical provider and did not disburse any portion of the settlement proceeds to Ms. Guitón. Furthermore, respondent did not complete the representation relating to Ms. Guiton’s property damage claim.

| ñCount IX

In 1990, Carl Staples retained respondent to represent him in a personal injury matter arising out of an automobile accident. Respondent settled the personal injury claim in 1991 for $22,000, from which he withheld approximately $7,000 to pay Mr. Staples’ medical expenses; however, respondent failed to promptly remit the funds to the medical provider. Mr. Staples also requested that respondent pursue an uninsured motorist claim against LIGA arising out of the accident. Respondent undertook some efforts in this regard, but he did not complete the resolution of this claim and did not respond to Mr. Staples’ requests for information concerning the status of the matter.

Count X

In 1992, Samuel Morris retained respondent to represent him in two separate legal matters. Mr. Morris paid respondent $150.96 toward a $310 fee to handle both matters. Respondent did not complete either representation, and he did not respond to Mr. Morris’ requests for information concerning his cases.

Count XI

In 1991, Clinton and Cynthia Hudson retained respondent to represent them in an adoption matter. In April 1992, Mr. and Mrs. Hudson paid respondent’s full fee of $300. In October 1992, respondent prepared and filed a formal act of surrender for adoption, but it was subsequently determined that the document was not in compliance with Louisiana law. Respondent took no further action towards completion of the adoption, and he did not respond to his-clients’ requests for information concerning the matter. By letter dated February 2, 1993, Mr. and Mrs. | fiHudson terminated respondent’s representation and requested that he refund the $300 fee they paid. Respondent failed to comply with this request.

Count XII

Ms. Maurice Locke retained respondent to represent her in a personal injury matter. Respondent filed suit on behalf of his client in the 26th Judicial District Court for the Parish of Bossier. Thereafter, without Ms. Locke’s knowledge or consent, respondent settled the claim for $7,204.50. Respondent forged Ms. Locke’s endorsement on the settlement check and retained the proceeds for his own use. He also failed to return the settlement documents to the defendant insurer, which subsequently filed a motion to enforce the settlement against Ms. Locke. In 1996, respondent paid the insurer $3,000 as full compromise of its action for recovery of the settlement proceeds.

DISCIPLINARY PROCEEDINGS

In January 2007, the ODC filed twelve counts of formal charges against respondent, alleging that his conduct as set forth above violated the following provisions of the Rules of Professional Conduct, as those rules were in effect on January 1, 1991 and September 1, 1992: Rules 1.1(a) (failure to provide competent representation to a client), 1.2(a) (scope of the representation), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.15 (safekeeping property of clients or third persons), 1.16(d) (obligations upon termination of the representation), 3.2 (failure to expedite litigation), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act |7reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(g) (failure to cooperate with the ODC in its investigation).

Respondent answered the formal charges and largely admitted the factual allegations and rule violations set forth therein. He also pointed out that the misconduct occurred “while he was in the throes of substance abuse from 1990 until 1993,” and that thereafter he entered a treatment facility, entered into a contract with the Lawyers Assistance Program (LAP), and was able to achieve sobriety.

Hearing Committee Report

This matter proceeded to a hearing in mitigation. Following the hearing, the hearing committee issued its report, finding that respondent was a very credible witness on his own behalf. He candidly admitted the charged violations, which he believes would not have occurred in the absence of his addiction to alcohol and drugs, including cocaine and marijuana. The committee found that respondent’s long-term residential substance abuse treatment was successful and that he has been free from alcohol and drugs since 1993. Respondent has made, and is still making, efforts to pay restitution to his former clients. The committee concluded that respondent “has become a sober, clean and contributing member of society, bearing little, if any, resemblance to the lawyer driven from practice by alcohol and drugs in 1993.”

The committee acknowledged respondent’s admission that he violated the Rules of Professional Conduct as charged in the formal charges. The committee determined that respondent violated duties owed to clients, the public, the legal Issystem, and the profession, and that his actions were both negligent and intentional. The committee found that the actual injury caused by respondent’s misconduct was substantial. Under the ABA’s Standards for Imposing Lawyer Sanctions, the applicable baseline sanction is disbarment.

In aggravation, the committee recognized the following factors: a pattern of misconduct, multiple offenses, and substantial experience in the practice of law (admitted 1981). However, the committee found there is “a considerably heavier weight of mitigating factors,” including the following: absence of a prior disciplinary record, personal or emotional problems, good faith efforts to make restitution or to rectify the consequences of the misconduct, full and free disclosure to the ODC in recent years and a cooperative attitude toward the disciplinary proceeding, good character and reputation, physical or mental disability or impairment, delay in the disciplinary proceeding, interim rehabilitation, and remorse.

Considering all the circumstances, and relying upon this court’s prior jurisprudence, the committee recommended that respondent be suspended from the practice of law for one year, retroactive to the date of his interim suspension, followed by a one-year period of probation with conditions.

The ODC filed an objection to the leniency of the sanction recommended by the hearing committee.

Disciplinary Board Recommendation

Noting that respondent has admitted the material factual allegations of the formal charges, the disciplinary board found that the hearing committee’s findings of fact are not manifestly erroneous and adopted same. Likewise, the board found respondent violated the Rules of Professional Conduct as alleged in the formal 19charges. Based upon respondent’s admissions and the evidence in the record, the board determined that respondent knowingly and intentionally violated duties owed to his clients and as a professional. He caused harm to clients and third-party medical providers by failing to turn over funds he withheld from settlements to pay the providers. At least twenty-one clients were affected by respondent’s misconduct, including clients who erroneously believed that their medical bills had been paid. The applicable baseline sanction in this matter is disbarment.

The board found that the record supports the following aggravating factors: dishonest or selfish motive, a pattern of misconduct, multiple offenses, vulnerability of the victims, and substantial experience in the practice of law (admitted 1981). The board determined that the mitigating factors present are absence of a prior disciplinary record, personal or emotional problems, timely good faith effort to make restitution, cooperative attitude toward the disciplinary proceeding, good character and reputation, chemical dependency, and remorse.

Turning to the issue of an appropriate sanction for respondent’s misconduct, the board considered two prior cases decided by this court which involved similar issues. In In re: Callahan, 00-3357 (La.3/23/01), 782 So.2d 624, the respondent had no prior disciplinary record and was considered an experienced attorney. He failed to distribute settlement funds to clients and third-party providers, harming over a dozen victims in the process. Callahan also neglected cases and refused to withdraw from the representation of some clients. He was disbarred.

In In re: LaHatte, 03-0437 (La.6/27/03), 851 So.2d 1024, the respondent commingled and converted funds owed to a third-party provider from thirteen Impersonal injury cases. When LaHatte attempted to pay the provider, the check was returned for insufficient funds. In two other matters, LaHatte failed to turn over funds to the third-party providers. Three years after one of the cases settled, LaHatte wrote a letter to the provider advising that the client’s case was still pending. Altogether, LaHatte commingled and converted about $20,000 and violated numerous provisions of the Rules of Professional Conduct. Aggravating factors recognized were a pattern of misconduct, multiple offenses, and substantial experience in the practice of law. In mitigation, the court noted that LaHatte suffered from alcoholism. He also had no prior disciplinary record, was remorseful, and had paid restitution. Finding that the fact of LaHatte’s alcoholism did not eliminate his culpability for his misconduct, but was rather a mitigating factor, this court suspended LaHatte for two years, with all but six months deferred, subject to probation.

The board concluded:

Like LaHatte, the instant matter lacks a definitive causal connection between Respondent’s chemical dependency and his misconduct. Nonetheless, the fact of the addiction may be taken into mitigation. In LaHatte, all converted money was repaid prior to formal charges but, in the instant matter, Respondent is still attempting to find clients to make restitution. Although Respondent’s cumulative misconduct is more in line with Callahan, Callahan lacked the mitigating factors of chemical dependency, character or reputation, remorse and restitution.
Although the baseline sanction is disbarment, the Board recognizes Respondent’s battle with chemical dependency and his efforts to rebuild his life. Respondent has various letters of recommendation in the record from former employers, a minister, and others who all attest to his extraordinary efforts to turn his life around and of the benefits that he can give back to society. These efforts along with the damaging effects of chemical dependency support a downward departure to a three year suspension.

In Based on this reasoning, a majority of the board recommended that respondent be suspended from the practice of law for three years, retroactive to the date of his interim suspension. The board also recommended that respondent continue his efforts at restitution, repay the Client Assistance Fund, and enter into a five-year recovery agreement with LAP. 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 come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343, 348; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444, 445 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

Respondent has admitted the material factual allegations of the formal charges, and based upon that admission, as well as the other evidence in the record, we find there is clear and convincing evidence of his violation of the Rules of Professional Conduct. Respondent converted client and third-party funds, settled cases without 112the approval of his clients, failed to communicate with clients, and neglected their legal matters. This conduct falls far below the high ethical standard expected of attorneys licensed to practice law in this state.

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

Respondent knowingly and intentionally violated duties owed to his clients and as a professional, causing actual harm. The baseline sanction for respondent’s misconduct is undoubtedly disbarment according to the ABA’s Standards for Imposing Lawyer Sanctions and our prior decisions. However, we agree with the hearing committee and the disciplinary board that the mitigating factors present warrant a downward deviation to a three-year suspension.

The record indicates that in 1993, respondent realized he was suffering from a grave disability in the form of an addiction to drugs and alcohol. Respondent requested that this court transfer him to disability inactive status and he thereafter admitted himself to a long-term substance abuse treatment facility. Since being admitted to treatment, respondent has achieved and maintained sobriety. He has demonstrated a cooperative attitude during these proceedings and is remorseful for the harm caused by his addiction. Respondent also has an excellent reputation in the |illegal community and in the community at large, as evidenced by the compelling character testimony offered on his behalf before the hearing committee.

Taken together, these mitigating circumstances clearly warrant a downward deviation from the baseline sanction. Accordingly, we conclude the appropriate sanction for respondent’s misconduct in this case is a three-year suspension from the practice of law.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Kerwin Wayne Doyle, Louisiana Bar Roll number 5062, be and he hereby is suspended from the practice of law for a period of three years, retroactive to his December 8, 2000 interim suspension. It is further ordered that respondent shall make restitution to his victims and repay the Louisiana State Bar Association’s Client Assistance Fund any amounts paid to claimants on his behalf. 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.

      . In 2007, Dr. Taylor sent a letter to the ODC in which he indicated that he had forgiven any debt owed to him by respondent in connection with these matters.

      . In December 2000, the Client Assistance Fund paid $2,222 to Ms. McKinney.

      . The board noted there was no medical testimony presented to prove (or disprove) a causal connection between respondent’s substance abuse and his misconduct; however, the committee accepted respondent’s belief that his chemical dependency was the cause in fact of the misconduct.

      . One board member dissented and would recommend disbarment.


source: Caselaw Access Project

author: WELCH, J.

license: Public Domain

text:
    Jason GREEN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Carla M. Fontenot, United States Fidelity and Guaranty Company.
    No. 2007 CA 0094.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2007.
    Writ Denied March 7, 2008.

      Vincent J. DeSalvo, Baton Rouge, LA, for Plaintiff-Appellant Jason Green.
    Howard B. Kaplan, Metairie, LA, for DefendanL-Appellee United States Fidelity & Guaranty Co.
    Julie N. Degeneres, Baton Rouge, LA, for Defendant-Appellee State Farm Mutual Automobile Ins. Co. and Carla M. Fon-tenot.
    Before CARTER, C.J., PETTIGREW, and WELCH, JJ.
   WELCH, J.

|?In this action for damages arising out of a motor vehicle accident, the plaintiff, Jason Green, appeals a summary judgment granted in favor of the defendant, United States Fidelity and Guaranty Company (“USF & G”), that dismissed the plaintiffs uninsured/underinsured motorist (“UM”) claims against USF & G. We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

On February 25, 2005, the plaintiff was operating a vehicle owned by his employer, Cintas Corporation, eastbound on Corporate Boulevard in East Baton Rouge Parish when a vehicle, owned and operated by the defendant, Carla M. Fontenot, made a left turn' directly into the path of the plaintiffs vehicle, resulting in an accident. On June 30, 2005, the plaintiff filed a petition for damages, naming as defendants: Carla Fontenot; State Farm Mutual Automobile Insurance Company (“State Farm”), Carla Fontenot’s liability insurer; and USF'& G, his employer’s liability insurer, which allegedly provided UM coverage to the Cin-tas Corporation on the vehicle driven by the plaintiff.

On August 25, 2006, USF & G filed a motion for summary judgment, contending that it was entitled to be dismissed from the plaintiffs lawsuit because its named insured, Cintas Corporation, had validly executed a rejection of UM coverage. After a hearing, the trial court granted the motion and dismissed the plaintiffs UM claims against USF & G. A judgment in conformity with the trial court’s ruling was signed on November 10, 2006, and it is from this judgment that the plaintiff has appealed.

On appeal, the plaintiff contends that the trial court erred in finding that UM ^coverage was validly rejected, since the authorized representative of the insured did not initial on the line providing for the rejection of UM coverage, but instead, placed an “X” on the line and placed his initials to the left of the “X,” and because the “alleged initials” were an “unidentifiable scribble.”

II. LAW AND DISCUSSION

A. Summary Judgment Law

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. MSOF Corp. v. Exxon Corp., 2004-0988, p. 17 (La.App. 1st Cir.12/22/05), 934 So.2d 708, 720, writ denied, 2006-1669 (La.10/6/06), 938 So.2d 78.

The issue of whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be resolved properly within the framework of a motion for summary judgment. Johnson v. Allstate Ins. Co., 95-1953, p. 3 (La.App. 1st Cir.5/10/96), 673 So.2d 345, 347, writ denied, 96-1292 (La.6/28/96), 675 So.2d 1126. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183.

B. Rejection of UM Coverage

In all automobile liability insurance policies delivered in this state covering vehicles registered in this state, Louisiana law requires UM coverage in the same | ¿amount as the bodily injury liability coverage, unless “any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage.” La. R.S. 22:680(l)(a)(i). “Such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance” for that purpose, be “signed by the named insurfed or his legal representative” and “shall be conclusively presumed to become part of the policy.” La. R.S. 22:680(l)(a)(ii). “A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage.” Id.

The object of UM insurance is to provide full recovery for automobile accident victims who suffer damages caused by a tortfeasor who is not covered by adequate liability insurance. Duncan v. U.S.A.A. Ins. Co., 2006-0363, p. 4 (La.11/29/06), 950 So.2d 544, 547. The UM statute is to be liberally construed, and thus the exceptions to coverage are to be interpreted strictly. Any exclusion from coverage in an insurance policy must be clear and unmistakable, and the insurer bears the burden of proving any insured named in the policy rejected in writing the coverage equal to bodily injury coverage or selected lower limits. Duncan, 2006-0363 at pp. 4-5, 950 So.2d at 547.

According to the evidence submitted by USF & G in support of its motion for summary judgment, a UM selection form for the policy at issue was executed by Kevin Ryan on June 30, 2004. On the UM selection form, a hand-written “X” with a circle around it was placed by option “5,” which reads: “I do not want [UM] Coverage. I understand that I will not be compensated through [UM] coverage for losses arising from an accident caused by an uninsured/underinsured [motorist].” Illegible hand-written initials were placed to the left of the “X” just above the “5.” “Cintas Corporation” was typed into the blank for “Named Insured or Legal Representative,” the form was signed (by Kevin Ryan), it was dated “6/30/04” and Ispolicy numbers “D002A00280,” “D002A00281,” “D002A00282,” and “D002A00283” were typed in the blank above “Policy Number.”

USF & G also submitted the affidavit of Kevin Ryan executed on July 20, 2006. According to Kevin Ryan’s affidavit, on June 30, 2004, he was the Director of Administration for Cintas Corporation, and as the Director of Administration, his duties included obtaining insurance for Cintas Corporation. Kevin Ryan also stated that on June 30, 2004, he was the legal representative of the Cintas Corporation who was responsible for rejecting UM coverage, that he expressly rejected UM coverage by inscribing his initials beside the “X,” that by placing his initials next to the “X,” he specifically intended to reject UM coverage on behalf of the Cintas Corporation, and that the initials next to the “X” were his initials.

The plaintiff contends the rejection of UM coverage signed by Kevin Ryan on behalf of the Cintas Corporation was invalid because it was not properly initialed to indicate a clear, unmistakable waiver of UM coverage on the form itself, and therefore, USF & G’s motion for summary judgment should have been denied. In support of this contention, the plaintiff cites this court’s decision in Dyess v. American National Property and Casualty Company, 2003-1971 (La.App. 1st Cir.6/25/04), 886 So.2d 448, writ denied, 2004-1858 (La.10/29/04), 885 So.2d 592.

In Dyess, the plaintiffs, Mr. and Ms. Dyess, filed suit against their alleged UM insurer seeking to recover damages for bodily injuries sustained by Ms. Dyess as the result of a motor vehicle accident, which occurred two days after Ms. Dyess signed the UM form. The plaintiffs and the insurer filed cross-motions for summary judgment on the issue whether the insurer’s policy provided UM benefits at the time of the accident. The trial court granted the summary judgment in favor of the plaintiffs and imputed UM coverage to the insurer’s policy in limits equal to the policy’s liability limits. The insurer appealed, contending that the trial court | fierred, as a matter of law, in finding that the rejection of UM coverage by the use of an “X” rather than the initials of the person who signed the form was legally insufficient. This court agreed with the trial court and concluded that “a designation with only an X’ is insufficient to constitute a valid rejection of UM coverage.... Requiring the insured or his representative affix initials serves the valid purpose of mandating an affirmative act, and ... the initials provide a selection that is susceptible of being identified as a mark made by the insured or his representative.” (Emphasis added.) Dyess, 2003-1971 at p. 10, 886 So.2d at 454. In reaching this decision, this court noted that according to the evidence submitted by the parties, it was unclear whether Ms. Dyess or someone else marked the “X” on the UM form. Ms. Dyess submitted an affidavit stating that she signed and dated a blank UM form, she did not put an “X” on the form, and that she did not know who put an “X” on the form. In Ms. Dyess’ deposition testimony, she testified that she specifically recalled not placing an “X” on the form, that she would not have affixed an “X” because the form directed the use of initials for making a selection, and that at the time she signed the form, she was unsure whether she wanted UM coverage and had not made a decision because she wanted to discuss the matter with her husband. Thus, because the named insured had not taken an affirmative act to “clearly and unmistakably” reject UM coverage, the purported UM rejection was invalid.

Dyess, while instructive, is factually distinguishable from this case. In this case, although Kevin Ryan, the legal representative of the named insured, placed an “X” (with a circle around it) by his selection of rejection of UM coverage, he also placed his initials to the left of the “X.” The affidavit of Kevin Ryan further established that he personally placed the “X” on the line to reject UM coverage, that he personally placed his initials next to the “X,” and that he specifically intended to reject UM coverage on behalf of the Cintas Corporation.

|7Based upon our de novo review of the record in this matter, we find that USF & G met its burden of proving there were no genuine issues of material fact that the legal representative of the Cintas Corporation, the named insured under the policy, clearly and unmistakably rejected UM coverage by the affirmative act of placing an “X” and his initials to the left of the “X” on the form prescribed by the commissioner of insurance and that this rejection was valid. Therefore, summary judgment was appropriate as a matter of law.

III. CONCLUSION

For the above and foregoing reasons, the November 10, 2006 judgment of the trial court granting summary judgment in favor of USF & G and dismissing the plaintiffs uninsured/underinsured motorist claims against USF & G is hereby affirmed. All costs of this appeal are assessed to the plaintiffiappellant, Jason Green.

AFFIRMED.

      . The November 10, 2006 judgment was designated as a final judgment for the purpose of an immediate appeal after an express determination that there was no just reason for delay. See La. C.C.P. art. 1915(B). However, as the judgment dismissed USF & G from this suit, certification of the judgment as final under La. C.C.P. art. 1915(B) was unnecessary. See La. C.C.P. art. 1915(A)(1); La. C.C.P. art.1911; Motorola, Inc. v. Associated Indemnity Corporation, 2002-0716, pp. 10-11 (La.App. 1st Cir.4/30/03), 867 So.2d 715, 721.


author: GUIDRY, J. WHIPPLE, J.,

text:
    Karen Harris STEVENS v. Michael Paul STEVENS.
    No. 2007 CU 1138.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2007.
    Rehearing Denied Dec. 28, 2007.

      Joseph L. Waitz, Houma, LA, for Plaintiff-Appellant Karen Harris Stevens and Intervenors-Appellants Elsie Hathorn and Don Harris.
    Joan M. Malbrough, Houma, LA, for Appellee-Defendant Michael Paul Stevens.
    Before WHIPPLE, GUIDRY, and HUGHES, JJ.
   GUIDRY, J.

|2The maternal grandparents of a minor child seek review of a custody decree. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Michael Paul Stevens married Karen Harris in Terrebonne Parish, Louisiana, on February 19, 2000. Three years later, Karen gave birth to a son that was not Michael’s biological child, of which fact Michael was aware. In October 2003, Michael moved to Arkansas and the couple was thereafter divorced by a judgment signed October 15, 2004. In a separate consent decree signed on October 26, 2004, Michael and Karen were awarded joint custody of the minor child, with Karen being designated the domiciliary custodial parent.

In March 2005, Michael filed a rule seeking sole custody of the minor child and an ex parte order of provisional custody, alleging that he had gone to the former matrimonial domicile in Terrebonne Parish and discovered that Karen and the child were living in the home without any running water or electricity, Michael further alleged that Karen was allowing her boyfriend, who was a drug addict, to reside in the home with her and the minor child, that Karen was abusing alcohol and drugs, and that the house was unclean and disorderly. Thus, Michael asserted that due to Karen’s “reckless ... and unhealthy lifestyle,” she was unable to provide a wholesome environment for the minor child or to care for the child without supervision.

Despite the serious allegations raised in the rule, following a hearing, the parties entered into a consent decree that was signed by the trial court on May 25, 2005, agreeing that they would continue to share joint custody of the child under the following pertinent conditions:

la* That Karen reside with one or both of her parents in Jackson, Mississippi at all times when she had physical custody of the minor child.
• That Michael not take the minor child with him when he was away from his home in Fayetteville, Arkansas working in his family carnival business until the child reaches a mutually agreeable age.
• That the judgment shall be effective for a period of three (3) months pending further discovery, then after three (3) months, a new hearing would be set unless the parties agreed to continue the custody arrangement outlined in the consent decree indefinitely.

Scarcely a month later, Karen filed a petition seeking sole custody of the minor child and also requesting that Michael’s name be removed from the child’s birth certificate and that the child’s last name be changed to “Harris.” In response, Michael filed an exception raising the objection of no cause of action and a motion to reset the hearing on his rule for sole custody. A hearing on the cross pleadings was held on September 30, 2005, following which the parties again entered into a consent judgment that provided for dismissal of Karen’s petition for sole custody; for continuance without date of Michael’s rule for sole custody; for continued joint custody of the child, with Michael being designated the domiciliary parent; for Karen’s enrollment in a drug rehabilitation/substance abuse treatment program; and for Karen to receive reasonable visitation with the child supervised by Michael or a person designated by Michael. The judgment was signed November 7, 2005.

The parties functioned under the November 7, 2005 consent decree without dispute until June 2006, when Elsie Hat-horn, Karen’s mother, filed a rule for contempt, or alternatively, for temporary care and custody, against Michael. In the pleading, Elsie alleged that Michael was in contempt of the May 25, 2005 consent decree by virtue of his taking the minor child with him on his travels with his carnival business. She further alleged that such conduct was not conducive to providing a stable home for the minor child. Although alternatively Elsie alleged that she was seeking only temporary care, custody and control of the minor child until “further hearings, or at least until Michael Stevens returns to the Arkansas |4area from his summer route,” she further indicated that ultimately she was seeking to be granted permanent care, custody and control of the minor child. Thereafter, Karen filed a “First Supplemental and Amended Petition,” reasserting her request for sole custody of the minor child and joining in her mother’s request for temporary care, custody and control of the minor child to be shared with Elsie.

Michael responded to the pleadings by filing an exception urging the objection of no right of action against Elsie’s request for custody. He further requested that sanctions be assessed against Elsie and Karen based on the accusations made in their pleadings, that an order of contempt be issued against Karen for failure to pay child support, and that a continuance of the hearing on Karen and Elsie’s claims be granted. Michael’s motion for a continuance was granted, and the trial court reset the hearing on the claims raised by Karen and Elsie for July 21, 2006, to be heard along with the requests submitted by Michael. On the day before the hearing, Don Harris, Karen’s father, intervened in the proceedings requesting that he be granted an order of visitation with the minor child.

At the July 21, 2006 hearing, the trial court considered the testimony of the parties, Karen’s parents, and Michael’s current wife, as well as exhibits introduced by the parties. After taking the matter under advisement, the trial court rendered judgment awarding Michael sole custody of the minor child; denying Karen any visitation until such time as she “appears before this Honorable Court and convinces the Court that she is drug free;” and awarding the maternal grandparents two weeks of visitation with the minor child in the summer of 2006 and monthly visitation thereafter to take place “in any state other than Mississippi to ensure that Karen Harris Stevens is not exposed to the minor child.” It is from this judgment, signed August 14, 2006, that the maternal grandparents appeal.

[.ASSIGNMENTS OF ERROR

By this appeal, the maternal grandparents (intervenors) seek review of the trial court’s decree in the following respects:

1. The Trial Court erred in granting to and unto the appellee, in essence, total and complete custody of the minor child;
2. The Trial Court erred in its ruling, relative to the visitation rights of the grandparents, which was tantamount to no visitation at all; and
3. The Trial Court erred in tacitly overruling the Consent Judgment of May 25, 2005, agreed to by the parties hereto, and their then attorneys.

DISCUSSION

In their first assignment of error, the intervenors allege that the trial court erred in granting sole custody of the minor child to Michael. We find no merit in this assignment of error.

In a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child. La. C.C. art. 131. If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment. La. C.C. art. 133 (emphasis added). However, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent. La. C.C. art. 132. According to article 134 of the Louisiana Civil Code, the following are the relevant factors that should be considered by a court in making a best interest of the child determination:

(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
Is(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child 'has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12)The responsibility for the care and rearing of the child previously exercised by each party.

Intervenors assert that because Michael has a large family, has an annual income of approximately $17,000 a year, and lives with his family in a recreational vehicle (RV) part of the year while operating his carnival business during the carnival season, it is not in the best interest of the minor child for Michael to be granted sole custody. Other than recounting these facts, and that Michael is not the minor child’s biological father, the intervenors presented no evidence proving or even indicating that the minor child has been substantially harmed while living with Michael under these circumstances.

On the other hand, Michael presented the trial court with plenty of evidence to indicate that living with him has been beneficial to the child. In his testimony, Michael explained that although the carnival season lasts from approximately May |7to October, he only travels on the road with his family in an RV for approximately two and a half months of the season. During the rest of the season, Michael said he commutes from his home in Arkansas. As for housing, Michael testified that at the time of the hearing, he and his wife were negotiating to purchase some property with two homes on it, since they had decided not to renew their lease on a home that they had been leasing.

While traveling in the RV, Michael explained that his wife’s two oldest children, girls ages 17 and 19, did not stay with them, but would come for short visits. Instead, the daughters stayed with the wife’s parents in Missouri to complete their education (the oldest was in college) and to receive some necessary medical treatment. The wife’s other two children from a previous relationship, boys ages 8 and 10, resided with them when his wife exercised her time of joint custody. Finally, in addition to the minor child at issue, who was approximately three and a half years old at the time of trial, Michael and his wife had a 9-week-old baby and an 18-month-old toddler. The pictures of the RV introduced into evidence showed a two-bedroom dwelling, comfortably furnished and neatly maintained.

Michael and his wife both testified that when Michael gained physical custody of the minor child, the child had many health and developmental problems that were not being addressed when the child was in the mother’s care. Since gaining physical custody of the child, the minor child maintained regular visits with his pediatrician and a physical therapist, resulting in marked improvement of the child’s health and development. Michael’s wife, who testified that she has a degree in special education and was three classes shy of a master’s degree, also assisted the minor child in attaining the noted improvement in his health and development.

| ^Finally, according to the testimony presented at trial, despite the knowledge that the minor child was not his biological son, the evidence shows Michael always loved, cared and had affection for the child and accepted him as his own. The pictures presented by Michael show the minor child as being happily merged in with Michael’s new family. Further, although he opposed allowing the minor child to stay with the intervenors for the entire summer, Michael testified that he was more than willing to allow the intervenors to come visit the minor child in his home at any time and that he would be willing to bring the child for visits with them and Karen as often as he could, as long as he supervised such visits. Michael explained that he did not trust the intervenors’ because of their prior actions of leaving the minor child alone in Karen’s care, in failing to notify him when the child was sick while in their care, and in failing to allow him to supervise visits between the minor child and Karen.

Considering the factors outlined in La. C.C. art. 134 and the evidence presented, we find the evidence presented supports the trial court’s determination that it was in the best interest of the child to award sole custody to Michael.

Likewise, we find no merit in the intervenors’ second assignment of error contesting the visitation award granted them. By the pleadings filed and the evidence presented at trial, it is clear that the intervenors are hostile to recognizing Michael’s parental rights. Elsie testified almost defiantly at the hearing that she would rather have no visitation than to be prohibited from allowing Karen to see the child should visitation be granted her under such conditions. Further, evidence that the intervenors’ breached an informal agreement with Michael not to leave the child alone in Karen’s care in September 2005, and that they later breached a provision in the November 7, 2005 judgment mandating that the intervenors not allow Karen to visit with the minor child without Michael’s supervision or the ^supervision of someone he designated, support the trial court’s decree. We, accordingly, reject this assignment of error.

As for the intervenors’ final assignment of error regarding the May 25, 2005 consent decree, we reject this assignment as meritless. By the plain language of the judgment itself, the judgment was only effective for three months, “unless the parties agreed to continue the custody arrangement indefinitely.” This did not occur. Scarcely a month later, Karen filed a petition seeking to nullify the decree, following which Michael filed a pleading seeking to reurge his request for sole custody. Thus, by operation of the decree itself, the parties were not bound by its provisions following the expiration of the term outlined therein. This assignment of error is thus rejected.

CONCLUSION

For the foregoing reasons, the custody decree is affirmed. All costs of this appeal are to be borne by Elsie Hathorn and Don Harris.

AFFIRMED.

WHIPPLE, J.,

concurs in part and dissents in part:

bln my view, the trial court erred in granting the grandparents such restricted visitation and in imposing the condition that such visitation occur outside their state of residence. The record does not support such punitive measures.

      . In the same rule, Michael also sought an order partitioning the parties' community property, which demand is not at issue in this appeal.

      . It is observed that the original petition for custody was dismissed in the November 7, 2005 consent decree.

      . Michael described the RV as a "5th Wheel Travel Trailer ... type of trailer that hooks up to a truck in the bed, and it has — it is forty-eight (48') feet in length; and it has three (3) slide-outs and as much square footage when it opens up. as a travel trailer — or rather a trailer — you know a regular trailer in a trailer park.”


author: HUGHES, J.

text:
    STATE of Louisiana v. Julian Christopher JACKS.
    No. 2007 KA 0805.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2007.
    Rehearing Denied Jan. 17, 2008.

      Doug Moreau, District Attorney, Kory J. Tauzin, Assistant District Attorney, Baton Rouge, LA, for Appellee, State of Louisiana.
    Marci Blaize, Baton Rouge, LA, for Defendant/Appellant, Julian Christopher Jacks.
    Before WHIPPLE, GUIDRY, and HUGHES, JJ.
   HUGHES, J.

^Defendant, Julian Christopher Jacks, was charged by bill of information with one count of stalking, second offense, a violation of LSA-R.S. 14:40.2. Defendant originally entered a plea of not guilty. Defendant filed a motion to quash the indictment on the basis that the State was using conduct that was the subject of a previous conviction to satisfy the elements of the present charge, thereby creating a double-jeopardy violation. The trial court denied the motion to quash and defendant sought supervisory writs to this court. In State v. Jacks, 2006-2267 (La.App. 1 Cir. 1/11/07) (unpublished), this court denied defendant’s writ application. The Louisiana Supreme Court also denied defendant’s writ application in State v. Jacks, 2007-0066 (La.1/12/07), 948 So.2d 155.

Following the denial of his writ application, defendant entered a plea of guilty pursuant to a plea agreement, and specifically reserved his right to appeal the denial of the motion to quash under State v. Crosby, 338 So.2d 584 (La.1976).

The trial court sentenced defendant to three years imprisonment and suspended all but four hundred twenty-nine days of the sentence. The trial court also ordered that upon defendant’s release from incarceration, he would be placed on five years probation, with special conditions.

FACTUAL BACKGROUND

In the fall of 2002, Tracy Rogillio became acquainted with defendant when the two attended Southeastern Louisiana University. The two did not date, nor did they cultivate a friendship, but on one occasion they shared a ride from Hammond to Baton Rouge. Following this event, defendant obtained Tracy Rogillio’s telephone number (from a source other than Tracy) and began Lmaking harassing phone calls, including threats, which were directed at both Tracy and her roommate.

Defendant’s harassing behavior also included an incident where he approached Tracy on the Southeastern campus and directed multiple expletives at her in the presence of other students. Defendant’s behavior caused Tracy to become fearful of attending classes and she eventually moved out of her apartment. The State asserts that defendant also directed such behavior toward Tracy’s brothers, Trey and Brandon Rogillio.

As a result of his actions toward Tracy Rogillio and her family, defendant was charged in 2003 by bill of information with two counts of stalking, violations of LSA-R.S. 14:40.2, and one count of improper telephone communications, a violation of LSA-R.S. 14:28s.

On December 12, 2003, defendant entered a guilty plea in docket number 9-03-152, in the Nineteenth Judicial District Court for East Baton Rouge Parish, to Count 1 of the stalking charges and the State dismissed the remainder of the charges. Defendant was sentenced to serve one year in parish prison, given credit for time served with the remainder of the sentence suspended, and placed on probation. One of the specific conditions of probation was that defendant was prohibited from any contact with the Rogillio family.

Thereafter, on July 17, 2006, Brandon Rogillio was leaving his workplace, a family-operated business in Baton Rouge, shortly after 5:00 p.m. As Rogillio was in his vehicle driving toward the exit of the parking lot, he ^noticed a white Ford pickup truck approach from behind his office building. The driver of the truck pulled out onto Wooddale Boulevard in such a manner as to block both lanes of traffic. Rogillio stopped his vehicle and waited. The truck reversed its position and Rogil-lio was able to proceed forward.

As Rogillio drove forward, the truck moved toward his vehicle. When Rogillio pulled his vehicle onto the curb to get away from the truck, he observed that the driver was defendant. Defendant stated to Rogillio that, “My name is Julian f- Jacks and I’m back.” Rogillio tried to get away from defendant, but defendant continued to follow him. According to Rogillio, defendant pulled up beside him on Airline Highway and told him he was making it worse by trying to run and that he was going to kill Rogillio’s entire family. Defendant then listed members of Rogillio’s family and described what he was going to do to them. After asking Rogillio where his brother was, defendant told him that he was going to “gut [Rogil-lio’s brother] like a f-pig.” Defendant continued making threats to Rogillio’s family members until defendant noticed a police officer on a nearby service road at which point he left the scene.

ASSIGNMENT OF ERROR

In defendant’s sole assignment of error, he contends that the trial court erred in denying his motion to quash his indictment. Defendant argues that he should not have been billed with violating LSA-R.S. 14:40.2, because the underlying facts used to prove the instant offense were the same facts under which he pled guilty at a previous proceeding, and further prosecution on these facts is contrary to the laws regarding double jeopardy.

Louisiana Revised Statute 14:40.2(A) provides:

Stalking is the intentional and repeated following or harassing of another person that would cause a reasonable person to feel alarmed or to suffer emotional distress. Stalking shall include but |snot be limited to the intentional and repeated uninvited presence of the perpetrator at another person’s home, workplace, school, or any place which would cause a reasonable person to be alarmed, or to suffer emotional distress as a result of verbal or behaviorally implied threats of death, bodily injury, sexual assault, kidnapping, or any other statutory criminal act to himself or any member of his family or any person with whom he is acquainted. [Emphasis added.]

Harassing is defined as “the repeated pattern of verbal communications or nonverbal behavior without invitation which includes but is not limited to making telephone calls, transmitting electronic mail, sending messages via a third party, or sending letters or pictures.” LSA-R.S. 14:40.2(0(1).

The penalty provision for second offense stalking is found in LSA-R.S. 14:40.2(B)(4), which at all pertinent times provided that “[u]pon a second conviction occurring within seven years of a prior conviction for stalking, the offender shall be imprisoned with or without hard labor for not less than one hundred eighty days and not more than three years, and may be fined not more than five thousand dollars, or both.”

Defendant asserts that the State cannot use his prior conduct that was the subject of his 2003 guilty plea to support the “repeated” element of the present stalking charge because such would be a violation of the Double Jeopardy Clause. Defendant argues that there was no repeated act because the July 17, 2006 incident was a single incident and because his prior acts of stalking were the subject of his 2003 plea bargain, they cannot be considered relative to the current charge, under principles of double jeopardy.

In State v. Rico, 99-158, p. 5 (La.App. 3 Cir. 6/2/99), 741 So.2d 774, 777, writ denied, 99-1883 (La.12/10/99), 751 So.2d 244, the Third Circuit defined “repeated” as used in LSA-R.S. 14:40.2(A) as meaning “renewed or | firecurring[.]” The Rico court determined that, in that instance, defendant’s actions were not sufficient to satisfy the elements of stalking. Rico was charged with a “repeated following” of the victim as opposed to a “repeated harassing” of the victim and in that case, Rico had no prior history with the victim. Rico had encountered the victim only that once and had followed her on only that day. The court determined that because “repeated”, as defined by Webster’s Dictionary, is “renewed or recurring again and again,” and Rico had encountered the victim only once, the facts did not support a stalking offense. That is not the case here. Jacks has previously been convicted of stalking the Rogillio family and “renewed” that harassment on July 17, 2006.

The Double-Jeopardy Clause protects defendants from being punished or prosecuted twice for the same offense. U.S. Const, amend. V; LSA-Const. art. I, § 15; LSA-C.Cr.P. art. 591. Under LSA-C.Cr.P. art. 596, double jeopardy exists in a second trial only when the charge brought is: (1) identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, or (2) based on a part of a continuous offense for which the defendant was in jeopardy in the first trial. The United States Supreme Court applies the “additional fact” test to resolve double jeopardy issues and states are constitutionally required to do the same. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). See also United States v. Dixon, 509 U.S. 688, 696-97, 113 S.Ct. 2849, 2856, 125 L.Ed.2d 556 (1993); Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225-26, 53 L.Ed.2d 187 (1977); State v. Knowles, 392 So.2d 651, 654 (La.1980). The “additional fact” test requires that, when conduct constitutes a violation of two or more distinct statutory provisions, the provisions must be scrutinized to confirm that each demands proof of an additional fact. State v. Sandifer, 95-2226, pp. 4-5 (La.9/5/96), 679 So.2d 1324, 1328-29.

|7In addition, Louisiana courts utilize the “same evidence” test, which focuses upon the actual physical evidence and testimony necessary to secure a conviction. This test depends upon the proof required to convict, not the evidence actually introduced at trial. Thus, under the “same evidence” test, the court’s concern is with the “evidential focus” of the facts adduced at trial in light of the verdict rendered, i.e., how the evidence presented goes to satisfy the prosecution’s burden of proof. Therefore, if the evidence required to support a finding of guilt would also support a conviction for another offense, the defendant can be placed in jeopardy for only one of the two. State v. Sandifer, 95-2226 at p. 5, 679 So.2d at 1329.

As stated by the Georgia Court cf. Appeals in Daker v. State, 248 Ga.App. 657, 660, 548 S.E.2d 354, 356 (Ga.App.2001), cert. denied, 535 U.S. 1085, 122 S.Ct. 1977, 152 L.Ed.2d 1035 (2002), “stalking is, by its very nature, a cumulative crime.” The Louisiana Legislature’s inclusion of specified types of “repeated” behavior to define the offense of stalking is consistent with the idea that stalking is a cumulative crime.

Clearly, the Legislature sought to criminalize certain behaviors because of the impact on a victim of not only causing fear or emotional distress directly arising from the complained of acts, but the idea that if unpunished, this behavior would be likely to escalate.

We conclude that the facts in this case do not present a double jeopardy issue. By definition, stalking cannot consist of a single incident The behavior must, by definition, be recurring or renewed. However, once a pattern of behavior has been established, any subsequent act will be of a recurring or renewed nature; whether the prior acts were prosecuted or not is of no moment. It is only the subsequent act, if prosecuted, for which a defendant is placed in jeopardy.

laThe Fifth Amendment provides that “[no person shall be] subject for the same offence to be twice put in jeopardy of life or limb.” Each successive act of harassment creates a new offense for which a perpetrator could not possibly be in jeopardy until the new offense has been committed. One “new” act is enough; the statute does not require two or more new acts in order to prosecute a new offense. If the new offense is prosecuted, new facts and new evidence will necessarily be required in order to convict. Thus the prohibition against “double jeopardy” is not applicable.

CONVICTION AND SENTENCE AFFIRMED.

GUIDRY, J., dissents.

      . Count 1 alleged defendant stalked the victim on or about August 1, 2002 through December 31, 2002. Count 2 alleged defendant stalked the victim on or about January 1, 2003 through June 27, 2003. Count 3 alleged that on or about January 1, 2003 through June 27, 2003 defendant engaged in and instituted a telephone call or calls with the victim and therein used obscene, profane, vulgar, lewd, lascivious, and indecent language, aid threatened illegal and immoral acts with the intent to coerce, intimidate, and harass the victim, and made repeated telephone communications in a manner reasonably expected to annoy, abuse, torment, harass, embarrass, and offend the victim.

      . While not applicable to the instant appeal, we note that LSA-R.S. 14:40.2(B)(4) was amended by 2007 La. Acts, No. 62, § 1, to raise the sentencing parameters to, "five years nor more than twenty years, without benefit of probation, parole, or suspension of sentence.”