text:
    STRANAHAN HOUSE, INC., a Florida Not-For-Profit Corporation and Friends of the Park at Stranahan House, Inc., a Florida Not-For-Profit Corporation, Petitioners, v. CITY OF FORT LAUDERDALE, a Florida Municipal Corporation and Coolidge South Markets Equities, L.P., a Delaware Limited Partnership, Respondents.
    No. 4D06-4146.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.

      W. Tucker Gibbs of W. Tucker Gibbs, P.A., Coconut Grove, William Scherer and James Carroll of Conrad, Scherer, Fort Lauderdale, Kendall Coffey and Mark Journey of Coffey & Wright, L.L.P., Miami, for petitioners.
    Robert H. Schwartz and Alain E. Boi-leau of Adorno & Yoss LLP, Fort Lauder-dale, for respondent City of Fort Lauder-dale.
    Robert S. Hackleman and Helaina Bar-dunias of Gunster Yoakley & Stewart, P.A., Fort Lauderdale, for respondent Coolidge-South Markets Equities, L.P.
   WARNER, J.

This petition for certiorari seeks review of the circuit court’s denial of petitioner’s challenge to the decision of the City of Fort Lauderdale approving a site plan for a property next to the Stranahan House, a historical home in Fort Lauderdale. Petitioner claims that the court applied the incorrect law in denying its challenge to the two different decisions of the City. In the first, it challenged the City’s approval of a litigation settlement agreement which was incorporated into a final judgment. We conclude that petitioner, who failed to appeal the final judgment, cannot attack it by petitioning to review the settlement agreement. In the second, petitioner challenged the approval of an alternative site plan for the property. We conclude that the trial court did not depart from the essential requirements of law in denying relief on this petition.

This litigation involves the development of a downtown Fort Lauderdale property known as the Hyde Park Market site, which is adjacent to the Stranahan House and on the north bank of the New River. The Stranahan House is zoned as an H-l Historic Preservation District. Despite the history of the Stranahan House, the adjacent Hyde Park Market site was not categorized as a Historical Preservation District under the Unified Land Development Regulations (“ULDRs”). The Hyde Park Market site is zoned as a Downtown Regional Activity Center — City Center (RAC-CC), which permits an intense level of land use. Significantly, no rezoning has ever been requested for the Hyde Park Market site in these proceedings. Thus, no .change of use has ever been contemplated.

Coolidge-South Markets Equities, L.P. (“Coolidge”), the developer, purchased the Hyde Park Market site in 1998. In late 1999, Coolidge submitted the original site plan to the City for the proposed development of a 38-story condominium building-on the Hyde Park Market parcel. The City referred the original site plan to the Development Review Committee (“DRC”).

While the site plan was under consideration, the City filed an eminent domain action, seeking to condemn the Hyde Park Market site for purposes of building a park. Coolidge filed an answer and counterclaim against the City for damages. Stranahan House joined with the City in seeking to condemn the property and actually paid some of the City’s litigation costs.

Eventually, the circuit court granted summary judgment against the City on its eminent domain petition, concluding that there was no reasonable public necessity for condemning the site for use as a park. Coolidge’s counterclaim for damages due to delay remained pending.

Having disposed of the condemnation action, Coolidge filed amended counterclaims, which included a counterclaim seeking a judicial declaration that Coolidge’s original site plan was in compliance with all applicable City code requirements. The City unsuccessfully moved to dismiss Coolidge’s amended counterclaims. The circuit court ruled that the declaratory action was ripe. Thus, compliance of the site plan with City regulations became an issue in the case, as well as Coolidge’s claim for substantial damages.

After years of litigation, the parties agreed to a settlement just days before trial was to commence. The City Commission initially considered the settlement proposal in a non-public meeting and the next day publicly debated the issue at a noticed City Commission hearing. Following public comment from a number of residents, mostly opposing the settlement, a majority of the commission approved the settlement agreement.

The next day the circuit court approved a Consent Final Judgment, which embodied the terms of the settlement agreement. The Consent Final Judgment determined that the site plan submitted in March 2000 complied with all applicable ULDRs as they existed on September 8, 1999, and that the original site plan was consistent with the Comprehensive Plan of the City. It also found, in accordance with the settlement, that the development was compatible with the surrounding area, including the Stranahan House. If changes in the applicable building codes occurred after the submission of the original site plan, Coolidge agreed to revise the plans to comply with such regulations where economically feasible. The City agreed to cooperate in expediting all of the approvals necessary for the development.

However, the judgment also provided that Coolidge could complete and submit an alternative site plan reflecting a redesign of the building, and the 1999 ULDR standards were the “applicable regulations” which would govern the alternative site plan, including the procedure for approval of the alternative plan. The City agreed to “diligently expedite and cooperate” with Coolidge in obtaining all necessary approvals and permits to allow development of the alternative site plan. In return, Coolidge agreed to convey a portion of the property to the City for the purposes of developing a public plaza. The parties agreed that if, for any reason, Coolidge did not obtain all necessary approvals for the alternative site plan, the remainder of the Consent Final Judgment would be enforced with respect to the original site plan. Stranahan House did not attempt to intervene in the suit to challenge the judgment.

Instead of attacking the judgment, Stra-nahan timely filed its first petition for writ of certiorari in the circuit court, seeking to quash the City’s decision to approve the settlement agreement. That petition argued that the City departed from the essential requirements of law when it approved the original site plan through the settlement agreement and consent final judgment without a final vote of the City DRC as required by the City’s land development regulations.

While the petition was pending, Coolidge filed an application for the alternative site plan. The alternative site plan provided for a 42-story, mixed-use building, which would be larger than the structure called for in the original site plan. However, the alternative site plan would change the angle of the building to accommodate the proposed plaza. The alternative site plan was referred to the DRC for review.

The DRC held only one public meeting-on the alternative site plan. The staff presented comments, but the DRC did not vote on the proposal. Subsequently, the DRC issued its “review and comment” report.

Coolidge then submitted a development application for the alternative site plan to the City’s Planning and Zoning Board (“P & Z Board”). The P & Z Board reviewed the application, and was instructed that it could review and comment on the proposal. Coolidge’s attorney outlined the plan to board members. The meeting then proceeded with numerous comments from interested parties and members of the community. At the conclusion of the hearing, the P & Z Board debated issues and made comments, but did not take a vote.

Following the P & Z Board meeting, the City conducted a quasi-judicial hearing to consider the plan. Many people spoke, including various representatives of Stra-nahan House. All speakers were limited to three minutes of time. The commissioners debated the issues and ultimately voted to approve the alternative site plan. The mayor signed a resolution approving the plan and authorized the issuance of building and use permits.

Stranahan timely filed another petition for writ of certiorari in the circuit court challenging the decision to approve the site plan. In the petition, Stranahan sought to quash the resolution of approval, claiming, inter alia, that: 1) the City did not afford interested parties due process, 2) the City did not comply with the requirements for review and approval by the Historical Preservation Board, 3) the City improperly failed to apply the 2005 ULDRs instead of the 1999 ULDRs, and 4) the alternative site plan failed to meet the requirements of the 2005 ULDRs, particularly its neighborhood compatibility requirement.

The circuit court consolidated Strana-han’s two petitions for certiorari. In a lengthy opinion, the court denied both petitions. The court related the history of the litigation and the efforts of the parties to arrive at a settlement. The court noted that pursuant to the settlement agreement the City agreed to expedite the site plan review in accordance with all the City review processes.

While Stranahan House argued that the settlement agreement constituted invalid contract zoning because it contracted away the City’s review process, see Chung v. Sarasota County, 686 So.2d 1358, 1359 (Fla. 2d DCA 1996), the court concluded that the City had the authority to settle litigation when such settlement was made in good faith without evidence of collusion or jeopardy to the health or welfare of the citizens, and in the best interests of the citizens, citing Kruer v. Board of Trustees of the Internal Improvement Trust Fund, 647 So.2d 129 (Fla. 1st DCA 1994). The court found that the settlement agreement met those criteria. Further, it found that the settlement agreement expressly provided for compliance with applicable zoning laws and did not constitute improper contract zoning. The court also concluded that the City afforded all parties due process and the City’s decision was supported by competent substantial evidence. After the circuit court denied rehearing, Strana-han timely petitioned this court for second-tier certiorari review.

At the same time that Stranahan House filed its petition for review of the alternative site plan, it filed a declaratory judgment action pursuant to section 163.3215(3), seeking a declaration that the plan was inconsistent with the City’s comprehensive plan and an injunction to prevent further action on the site plan. The circuit court dismissed the suit on many of the same grounds as it denied the petition. Stranahan House appealed that order, and we have recently reversed the dismissal of the declaratory judgment action. See Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427 (Fla. 4th DCA 2007).

I. Standard of Review

The scope of certiorari review is very limited, as second-tier certiorari review is not to be merely a second appeal. Pharmcore, Inc. v. City of Hallandale Beach, 946 So.2d 550, 552 (Fla. 4th DCA 2006). In second-tier certiorari review, a district court of appeal determines only whether the circuit court afforded procedural due process and applied the correct law. City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982). Applying the correct law incorrectly does not warrant certiorari review. See Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000). “[T]he departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error.” Id. at 682. District courts of appeal should exercise the discretion to grant certiorari “only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Combs v. State, 436 So.2d 93, 96 (Fla.1983).

II. Limitation of Issues

Although raised in the circuit court, issues of plan inconsistency are not appropriately brought in a petition for certiorari. In its second petition to the circuit court, Stranahan House included allegations of the alternative site plan’s inconsistency with the historical preservation provisions and neighborhood compatibility provisions of the comprehensive plan. Such claims must be filed as a declaratory judgment action pursuant to section 163.3215(3) and are not properly part of the petition for review. See Educ. Dev. Ctr., Inc. v. Palm Beach County, 721 So.2d 1240 (Fla. 4th DCA 1998); Cook v. City of Lynn Haven, 729 So.2d 545 (Fla. 1st DCA 1999). Those issues were raised in the declaratory judgment complaint and addressed in the appeal of that order of dismissal. Thus, our resolution of this case excludes those allegations of plan inconsistency.

III. Petition For Certiorari to Review Approval of Settlement

Although the circuit court considered together the petitions for review of the commission action approving the settlement agreement and for review of the approval of the alternative site plan, we separate the analysis of those two cases, because the petitions raised separate issues.

The first petition claimed that Strana-han had been denied procedural due process in the public notice of the commission meeting approving the plan, that the commission acted without a review of the original site plan by the DRC, and that there was no competent substantial evidence before the commission to support its result. The circuit court concluded that because the commission had the authority to settle litigation, it could approve this settlement, which it did through a public hearing. It found that the settlement agreement did not eliminate the requirements of approvals for the plan. Therefore, it denied the petition.

The City and Coolidge argue that Stranahan House cannot challenge the consent final judgment through a petition for certiorari because it did not intervene in the circuit court proceedings. We agree. The petition for certiorari to the circuit court did not challenge a development order. It challenged the City’s settlement of a lawsuit. That settlement resulted in a final judgment. No one appealed the final judgment. Stranahan House did not seek to intervene when Coolidge amended its counterclaim to request a declaratory judgment that the original site plan complied with the City ordinances, nor did it attempt to intervene post-judgment. Although post-judgment intervention is generally not allowed, “there are cases where in the interest of justice leave to intervene has been granted after final decree.” Wags Transp. Sys., Inc. v. City of Miami Beach, 88 So.2d 751, 752 (Fla.1956) (quoting People’s Bank of Jacksonville v. Va. Bridge & Iron Co., 94 Fla. 474, 113 So. 680, 682 (1927)). In Wags, our supreme court applied the exception to allow homeowners to intervene for purposes of appeal after the circuit court entered a decree enjoining the city from enforcing zoning restrictions on property adjacent to the homeowners. Stranahan House stands in the same position as the homeowners in Wags.

A similar case is Zoning Board of Monroe County v. Hood, 484 So.2d 1331 (Fla. 3d DCA 1986). A developer sought a zoning change, and when it was denied, it sought de novo review in the circuit court. After trial, the parties stipulated to the final judgment approving the change upon certain concessions from the developer. The final judgment required the zoning board to approve the zoning changes. Although the zoning board did so, a third party appealed the approval to the county commission which denied the zoning change. The developer sought to enforce the final judgment, and the trial court granted its motion, prompting an appeal of the order by the county commission. The district court held that the county could not reject the very final judgment to which it agreed, because the judgment was final. The court explained:

A final judgment is one which determines the rights of the parties and disposes of the cause on its merits leaving nothing else to be done but the execution of the judgment.
After expiration of the time for taking an appeal, the only vehicle for setting aside the final judgment would be by a proper motion made pursuant to Florida Rule of Civil Procedure 1.540....

Id. at 1332-33. In a footnote, the court noted that third party landowners could have filed a motion for relief, based on fraud, pursuant to rule 1.540 (presumably after they had intervened in the case), or they could have filed an independent collateral attack on the judgment. Id. at 1333 n. 4.

Here, Stranahan did not attack the judgment either directly or through a collateral proceeding. It filed a petition challenging the underlying settlement decision. This is insufficient to vacate a final judgment. The trial court did not depart from the essential requirements of law in denying the petition.

IY. The Petition to Review the Alternative Site Plan

The second petition challenged the resolution granting approval of the alternative site plan. The issues raised in this petition include (1) lack of due process; (2) lack of compliance with historical and neighborhood review procedures; and (3) failure to apply the correct ULDR procedures for review.

In disposing of the second petition, the circuit court determined that the consent final judgment did not eliminate the necessity of compliance with the relevant public hearings for the alternative site plan, and petitioner had received an opportunity to be heard at duly noticed meetings of the relevant review boards and commissions. Stranahan raises a due process issue in its petition to this court but its complaint involves the alleged lack of due process before the DRC and City Commission in refusing to hear extensive testimony from its witnesses. This argument is beyond the scope of the due process review available in second-tier certiorari proceedings. See Seminole Entm’t, Inc. v. City of Casselberry, 813 So.2d 186, 188 (Fla. 5th DCA 2002) (“Arguments as to the alleged lack of due process before the city commission were properly presented to the circuit court but are beyond the scope of the due process review available here.”). The circuit court applied the correct law in evaluating Stranahan’s due process claim, and this court may not now second-guess the circuit court’s conclusion at this stage.

Stranahan House also contends that the City failed to apply the 2005 ULDRs and used the 1999 ULDRs instead. The issue, however, is whether the circuit court applied the correct law. The court found that the consent final judgment provided for the application of the 1999 regulations. As in Hood, the City was required to follow the terms of the judgment that it had agreed to. Therefore, the court applied the correct law in determining which set of regulations should apply. Further, Stranahan House has not shown that even applying the 2005 regulations, the City did not abide by them.

Stranahan’s main complaint appears to be that the City did not obtain a certificate of appropriateness from the Historical Review Board. Yet it has failed to show that failing to obtain one was a departure from the essential requirements of law. It is not clear from our review of the relevant regulations that a certificate of appropriateness from the Historical Review Board was necessary for development of the Hyde Park Market site. Section 47-16.6 of the Fort Lauderdale ULDR provides that “[n]o person shall undertake any ... [new construction] ... affecting-property in an H-l district without first obtaining a certificate of appropriateness from the historic preservation board in accordance with Sec. 47-24.11.C-” Reading section 47-16.6 in conjunction with section 47-24.11.C, a certificate of appropriateness does not appear to be required in this case. Section 47-24.11.C.l.b states that “[wjhenever any ... new construction ... is undertaken on a property in a designated historic district without a certificate of appropriateness, the building official shall issue a stop work order.” (emphasis added). Because the Hyde Park Market site is not in a designated historic district, it is not clear that a certificate of appropriateness was required for construction. We cannot say that the circuit court departed from the essential requirements of law.

Stranahan House also points to the regulation requiring a transition from very dense to other uses in the City code. However, it has not shown that the circuit court ignored this provision. The court found that competent substantial evidence supported the City’s decision to approve the site plan. This would include the compliance with this regulation. Second-tier review does not include a determination of whether competent substantial evidence supported the circuit court’s decision.

Having carefully reviewed the arguments, and being mindful of our limited review, Stranahan has not shown that the court failed to apply the correct law. Thus, we deny the petition.

SHAHOOD, C.J., and STEVENSON, J., concur.

      . We have already noted that the issue of plan consistency with respect to historical preservation and neighborhood compatibility was properly brought to the court through the declaratory judgment action.


source: Caselaw Access Project

author: STRINGER, Judge.

license: Public Domain

text:
    J.D.H., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3974.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 2007.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee.
   STRINGER, Judge.

J.D.H. appeals from the withhold of adjudication and the sentence imposed after he pleaded guilty to possession of cocaine following the trial court’s denial of his dispositive motion to suppress. Because J.D.H. was arrested without probable cause and because the contraband was found in a search incident to that unlawful arrest, we reverse and remand for discharge.

The facts in this ease are essentially undisputed. For reasons not developed in the record, members of the Tampa Police Department decided to conduct a trespass investigation at a basketball court in the Robles Park public housing project at 11 p.m. on the night of February 6, 2006. Officer Nicholas Wilson testified that the basketball court was closed at that time of night, but the court is not fenced and there are no signs indicating the operating hours of the court. Instead, he testified that the operating hours for the basketball court are in the lease agreement signed by residents of Robles Park. The only signs in the area are “No Loitering” signs. Both Officer Wilson and Officer Felicia Pécora testified that Robles Park is known for marijuana sales after dark. Both officers also testified that their reason for going to this basketball court was to conduct trespass investigations which, in their experience, would inevitably lead to drug arrests.

Shortly after 11 p.m., Officer Wilson and Officer Mack Graham drove toward the basketball court in a marked patrol car. Officer Pécora waited a short distance away hidden between two buildings. As Officer Wilson approached the court in his car, he saw a group of teenage boys and young adult men congregating on the court. When someone in the group spotted the officers, the entire group fled, running in different directions.

For reasons also not developed in the record, Officer Graham gave chase to a boy who turned out to be J.D.H. He yelled for J.D.H. to stop, but J.D.H. continued running. When J.D.H. ran between the buildings where Officer Pécora was waiting, she also ordered J.D.H. to stop. J.D.H. did not immediately stop, but ultimately stopped when Officer Pécora pointed her taser at J.D.H. When J.D.H. stopped, Officer Pécora immediately arrested him for “not obeying the order of Officer Graham, and my order, for him to stop.” A search incident to the arrest revealed the cocaine.

The trial court found that the officers had a reasonable suspicion to stop J.D.H. due to his flight from the officers in a high-crime area. The court recognized that while the flight would provide reasonable suspicion to stop J.D.H., it would not, standing alone, give the officers probable cause to arrest him for obstructing or opposing an officer without violence. However, despite this finding and the clear testimony of the officers that J.D.H. was immediately arrested rather than simply stopped, the trial court denied J.D.H.’s motion to suppress. This was error.

This court and others have repeatedly held that the simple act of fleeing from officers, without more, does not constitute the offense of resisting or obstructing an officer. See, e.g., Yarusso v. State, 942 So.2d 939, 943 (Fla. 2d DCA 2006); J.J.N. v. State, 696 So.2d 804, 805 (Fla. 2d DCA 1997); M.M.H. v. State, 929 So.2d 628, 629 (Fla. 3d DCA 2006); Baker v. State, 813 So.2d 1044, 1046 (Fla. 4th DCA 2002). Instead, an individual is guilty of resisting or obstructing an officer by flight only if he flees while knowing of the officer’s intent to detain him and if the officer is justified in detaining the individual before he flees. Yarusso, 942 So.2d at 943; J.J.N., 696 So.2d at 805; V.L. v. State, 790 So.2d 1140, 1142-43 (Fla. 5th DCA 2001) (holding that to use flight as a basis for an arrest for resisting or obstructing an officer, the State must prove that “(1) the officer had an articulable well-founded suspicion of criminal activity that justifies the officer’s detention of the defendant, and (2) the defendant fled with knowledge that the officer intended to detain him or her”). In this case, it appears that J.D.H. did flee while knowing of the officers’ intent to detain him. However, neither Officer Wilson nor Officer Pécora testified to any facts that would support a legal basis to detain J.D.H. before he fled. Accordingly, because J.D.H. fled from officers who had no legal right to detain him, he could not have been lawfully arrested for resisting an officer without violence.

The State argued before the trial court that the officers had a reasonable suspicion that J.D.H. was trespassing before he fled. According to the State, because the officers could lawfully detain J.D.H. on suspicion of trespassing, his flight did constitute resisting without violence. However, the facts do not support this argument.

The crime of trespass occurs when an individual, without being authorized, licensed, or invited, willfully enters or remains on property as to which notice •against entering or remaining has been given, either by actual communication to the offender or by posting or fencing. See § 810.09(l)(a), Fla. Stat. (2006). Here, there was no evidence that J.D.H. had been given a trespass notice or had other actual notice that the basketball court was closed and thus that his presence there was unlawful. Further, the evidence was undisputed that the basketball court was not posted or fenced. In the absence of such evidence, the officers had nothing other than a hunch that J.D.H. was trespassing at the basketball court. They possessed no articulable facts to reasonably suspect that J.D.H. had unlawfully entered or remained on the basketball court. Thus, they had no reasonable suspicion sufficient to detain J.D.H. for trespassing.

The State suggests that the notice to residents in their leases concerning the opening times of the basketball court was sufficient to constitute actual notice to J.D.H. that he was trespassing. However, the State presented no evidence that J.D.H. was a resident of the Robles Park housing project. Further, J.D.H., as a sixteen-year-old, would not have been a party to the lease agreement. Thus, this lease provision, even assuming that it exists, would not be sufficient to give the officers the reasonable suspicion necessary to support the detention of J.D.H.

The State also suggests that the officers had a reasonable suspicion that J.D.H. was “loitering” and thus could have detained him for that offense. However, the crime of loitering is not committed simply by standing under a “no loitering” sign. Instead, the crime of loitering occurs when the defendant is loitering and prowling in a manner not usual for law-abiding citizens and under circumstances that warrant a justifiable and reasonable concern for the safety of persons or property in the area. R.M. v. State, 754 So.2d 849, 850 (Fla. 2d DCA 2000); J.S.B. v. State, 729 So.2d 456, 457 (Fla. 2d DCA 1999). Further, the defendant’s actions must be so alarming as to create an imminent threat to public safety. R.M., 754 So.2d at 850.

Here, neither Officer Wilson nor Officer Pécora testified to any facts that would establish that J.D.H. was engaged in conduct that created a justifiable or reasonable concern for the safety of persons or property in the area. While both testified that marijuana was sometimes sold from this basketball court,- neither observed J.D.H. involved in any drug activity or any other activity that would raise a concern for public safety. In the absence of such evidence, the officers did not have a reasonable suspicion that J.D.H. was committing, had committed, or was about to commit the crime of loitering, and therefore they had no basis to detain him for this crime.

Moreover, the officers were not justified in detaining J.D.H. on suspicion of loitering based solely on the existence of the “no loitering” sign. In Slydell v. State, 792 So.2d 667 (Fla. 4th DCA 2001), the court rejected the State’s argument that the existence of a “no trespassing” sign coupled with the property owner’s agreement that the police could stop and investigate persons on their property was sufficient to support a investigatory detention. In doing so, the court stated,

A property owner’s grant of authority to police officers to investigate trespassing on the owner’s premises does not confer any greater authority upon law enforcement during police-citizen contact than do our Constitution and laws. Officers still need a reasonable and articulable suspicion that a person is engaged in criminal activity for a Terry stop.

Id. at 672 (footnote omitted). Thus, despite the presence of the “no loitering” sign, the officers still needed to have a reasonable and articulable suspicion that J.D.H. was committing the crime of loitering before they could lawfully detain him. Because they had no such suspicion, there was no lawful basis to detain J.D.H.

Finally, the State suggests that J.D.H.’s flight in a high-crime area gave the officers probable cause to arrest him under Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). The State starts with the premise that J.D.H.’s flight in a high-crime area gave the police reasonable suspicion to stop him under Wwrdlow. Then, according to the State, because the police now had the reasonable suspicion necessary to stop J.D.H. due to his flight, that same flight provided probable cause to believe that he had committed the offense of obstructing or opposing the officers without violence. However, Wardlow does not support this circular reasoning. As the Third District noted,

Wardlow did not criminalize running from the police. Wardlow only held that running from the police in a high crime area gave the police reasonable suspicion to allow “officers confronted with such flight to stop the fugitive and investigate.” Wardlow, 528 U.S. at 125, 120 S.Ct. 673. Under Wardlow, this creates a justification for the police to conduct nothing more than a Terry stop, a “minimal intrusion, simply allowing the office to briefly investigate further. If the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go his way.” Id. at 126, 120 S.Ct. 673.

D.T.B. v. State, 892 So.2d 522, 524 (Fla. 3d DCA 2004). Thus, the Third District rejected the State’s position that D.T.B.’s flight in a high-crime area, standing alone, created not only a reasonable suspicion to stop D.T.B., but also probable cause to arrest him for resisting or obstructing an officer without violence. Id.

In this case, the State likewise contends that J.D.H.’s flight, standing alone, created both the reasonable suspicion necessary to stop him under Wardlow and the probable cause needed to arrest him for resisting an officer without violence. Because such a holding would improperly criminalize the simple act of fleeing from an officer and expand the holding of Wardloiv beyond its plain language, we reject this argument.

Because neither Officer Wilson nor Officer Pécora testified to any facts that would support a reasonable suspicion that J.D.H. was committing, had committed, or was about to commit a crime before he fled, his resistance to their attempts to detain him did not create the probable cause necessary to arrest him for resisting or opposing an officer without violence. In the absence of such probable cause, J.D.H.’s arrest was illegal, and the items seized during the search incident to this unlawful arrest should have been suppressed. Accordingly, we reverse the withhold of adjudication and sentence and remand for discharge.

Reversed and remanded for discharge.

NORTHCUTT, C.J., and SILBERMAN, J., Concur.


author: CANADY, Judge.

text:
    Michael GRIMSLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 2D07-1948.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 2007.

      Michael Grimsley, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Respondent.
   CANADY, Judge.

Michael Grimsley, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), alleges that his appellate counsel was ineffective for failing to argue in the direct appeal of his aggravated battery conviction that the instruction on the justifiable use of force, which was given to the jury at trial, constituted fundamental error. We agree that appellate counsel rendered ineffective assistance when she neglected to raise this issue. Accordingly, we grant the petition, reverse Grimsley’s conviction, vacate the sentence imposed thereon, and remand for a new trial.

This court, in Grimsley v. State, 939 So.2d 123 (Fla. 2d DCA 2006), affirmed Grimsley’s aggravated battery conviction and ensuing sentence. In so doing, we stated:

Our review of the record revealed that the trial court erroneously gave the standard jury instruction regarding the forcible felony exception to self-defense. See York v. State, 932 So.2d 413, 415-16 (Fla. 2d DCA 2006); Houston v. State, 919 So.2d 489, 490 (Fla. 2d DCA 2005); Zuniga v. State, 869 So.2d 1239, 1240 (Fla. 2d DCA 2004). Although this court has determined that the giving of this instruction constitutes fundamental error under similar circumstances, see id., we are precluded from reviewing the issue because it was not raised on appeal. Our affirmance is therefore without prejudice to any right Grimsley might have to file a motion for appropriate postconviction relief.

Id. at 125. In response to the above language, Grimsley filed the present petition.

This court’s opinion in York v. State, 932 So.2d 413 (Fla. 2d DCA 2006), issued during the pendency of the direct appeal in this case. York was convicted after jury trial of aggravated battery and shooting into a vehicle. The trial court instructed the jury that “ ‘the use of force likely to cause death or great bodily harm is not justifiable if you find ... [York] was attempting to commit, or committing, or escaping after the commission of aggravated battery.’ ” Id. at 415. In York, we listed a catalogue of cases wherein a similar “circular” self-defense instruction was determined to be fundamental error in each case. Id. at 415-16. We concluded that appellate counsel was ineffective for not arguing that the instruction in York constituted fundamental error because York’s self-defense claim, which was supported by the testimony, was the crux of the case and the effect of the erroneous instruction was to negate York’s only defense. Id. at 416.

In the present case, Grimsley testified that he punched the victim approximately six times in self-defense after the victim physically attacked him. Grimsley presented no other defense to the charge, and his self-defense claim was the crux of the case. The jury was instructed that the “use of force not likely to cause death or great bodily harm is not justifiable if you find ... Michael Grimsley was attempting to commit, committing or escaping after the commission of aggravated battery.” We conclude, therefore, that appellate counsel rendered ineffective assistance in not arguing that this “circular” self-defense instruction constituted fundamental error. Because a new appeal would be redundant in this case, we reverse the conviction, vacate the sentence, and direct that Grimsley be retried. See Brewer v. State, 954 So.2d 110, 111-12 (Fla. 2d DCA 2007).

Petition granted.

DAVIS and WALLACE, JJ., Concur.


author: DAVIS, Judge.

text:
    Douglas WALKER, Petitioner, v. James R. McDONOUGH, Secretary, Department of Corrections, Respondent.
    No. 2D06-4310.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 2007.

      Douglas Walker, pro se.
    Charles J. Crist, Jr., Attorney General, and Carrie R. McNair, Assistant Attorney General, Tallahassee, for Respondent.
   DAVIS, Judge.

Douglas Walker challenges the trial court’s dismissal of his petition for a writ of mandamus for failure to pay the filing fee. Although we affirm, we write for purposes of clarification.

These proceedings began when Walker, an inmate housed in Charlotte County, filed a petition for a writ of mandamus along with an affidavit of indigency in the circuit court in Charlotte County. In his petition, Walker challenged the loss of gain time as the result of a disciplinary report. Because such petitions are considered collateral criminal proceedings, Walker was required to file an application for determination for civil indigent status. See Schmidt v. Crusoe, 878 So.2d 361, 367 n. 7 (Fla.2003).

The application for civil indigent status that Walker presented to the court contained a notice in bold type that stated: “NOTICE: If the applicant is determined by the clerk to be Not Indigent, you may seek judicial review by filing a petition with the court.” After Walker submitted this application, the circuit court clerk made a determination that Walker was not indigent. The trial court entered an order directing Walker to pay the filing fee or face dismissal. Rather than seek judicial review of the clerk’s determination, Walker sought a petition for certiorari from this court and then moved the trial court to enter final judgment, which the court did on September 5, 2006, for failure to pay the filing fee.

Section 57.082(2)(e), Florida Statutes (2006), specifically provides:

The applicant may seek review of the clerk’s determination that the applicant is not indigent ... by filing a petition to review the clerk’s determination of non-indigent status, for which a filing fee may not be charged. If the applicant seeks review of the clerk’s determination of indigent status, the court shall make a final determination as provided in subsection (4).

In addition to the statute, the application for determination of civil indigency also explicitly advised Walker of his right to seek judicial review. However, Walker never sought such judicial review, and there is no indication that the trial court ever undertook the review envisioned by section 57.082(4). Rather, Walker sought a petition for certiorari in this court and a motion for final judgment of dismissal in Charlotte County. As a result, the question of Walker’s indigency has not been ruled on by the trial court and has not been preserved for review. See Farinas v. State, 569 So.2d 425, 429 (Fla.1990). Because this issue has not been properly preserved for review, we cannot reach the merits of this issue and must affirm the trial court’s final judgment of dismissal.

Additionally, we are unable to discern from the record on appeal whether Walker filed his petition for a writ of mandamus in the correct venue. “[T]he proper venue for a prisoner’s challenge to a sentence-reducing credit determination by the Department, where the prisoner has exhausted administrative remedies and is not alleging entitlement to immediate release, continues to be in circuit court in Leon County, where the Department is located.” Bush v. State, 945 So.2d 1207, 1213-14 (Fla.2006). In the event that Walker has exhausted his administrative remedies and is not alleging entitlement to immediate release, he may elect, if he is not time-barred, to file his petition for a writ of mandamus in Leon County, rather than pursuing this action in Charlotte County.

We affirm the trial court’s dismissal of Walker’s petition for a writ of mandamus without prejudice to Walker refiling this action in the event that it is not time-barred.

Affirmed.

ALTENBERND, J, and DANAHY, PAUL W., Senior Judge, J., Concur.

      . Although this case was initially filed as a petition for a writ of certiorari, this court has decided that it be considered as a direct appeal.


author: TRAYLOR, Justice.

text:
    Carlene T. KINCHEN v. The LIVINGSTON PARISH COUNCIL, et al.
    No. 2007-C-0478.
    Supreme Court of Louisiana.
    Oct. 16, 2007.
    Harrison Law Firm, Robert H. Harrison, Jr., Denham Springs, for Applicant.
    Fayard & Honeycutt, D. Blayne Honey-cutt, New Orleans, for Respondent.
   TRAYLOR, Justice.

1 ,We granted this writ application in order to determine whether the courts below properly sustained an exception of no cause of action. For the reasons which follow, we reverse the decisions of the courts below.

FACTS and PROCEDURAL HISTORY

On July 22, 2004, the Livingston Parish Council (the Parish) passed an ordinance which purported to require the payment of a documentary transaction tax upon execution by parties of any instrument affecting immovable property located in the parish. On May 26, 2005, after the Louisiana Department of Justice issued Opinion No. 04-0381, which concluded that the ordinance violated the Louisiana Constitution, the Parish suspended enforcement of the ordinance.

On April 29, 2005, Carlene T. Hinchen (Hinchen) filed a class action petition for declaratory judgment and damages, alleging that the ordinance was unconstitutional, that the assessment and collection of the tax was unlawful, and demanding unspecified damages on behalf of a putative class consisting of aggrieved taxpayers. On July 21, 2005, the Parish filed exceptions of no cause of action and 12prescription, seeking dismissal of the recovery portion of the action. After hearing the arguments of the parties, the District Court sustained the Parish’s exceptions of no cause of action and prescription and dismissed the recovery portion of the suit. Thereafter, Kinchen filed a timely devolutive appeal with the Court of Appeal, which affirmed the decision of the trial court with respect to the exception of no cause of action on February 9, 2007. This Court then granted the plaintiffs writ.

STANDARD OF REVIEW

This Court explained the standard of review of the sustainment or denial of a peremptory exception of no cause of action in Fink v. Bryant, 2001-0987, (La.11/29/01), 801 So.2d 346:

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether [the] plaintiff is afforded a remedy in law based on the facts alleged in the pleading. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. In reviewing a trial court’s ruling sustaining an exception of no cause of action, the appellate court and this Court should subject the case to de novo review because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. (Citations omitted).

Fink, 801 So.2d at 348-9.

DISCUSSION

The courts below determined that, because La. R.S. 47:2110 contains the exclusive remedy for testing the validity of the documentary transfer tax and because | nthe appellant’s petition failed to allege that she had followed the procedures contained in that statute, the petition failed to state a cause of action and the Parish’s exception of no cause of action would lie.

Kinchen argues, however, that La. R.S. 47:2110 does not control, as it is applies only to ad valorem taxes and not to other taxes such as the tax at issue. If the statute does indeed apply only to ad valo-rem taxes, and does not, then, provide the exclusive remedy for protesting other types of taxes such as the documentary transfer tax at issue, then Kinchen need not have pled in her petition the procedures contained within the statute, and the courts below erred in sustaining the Parish’s exception of no cause of action.

The version of La. R.S. 47:2110 which was in force at the time the documentary transfer tax was promulgated and the suit was filed reads as follows:

A. (1) No court of this state shall issue any process whatsoever to restrain or render any decision that shall have the effect of impeding the collection of an ad valorem tax imposed by the state, or by any political subdivision thereof, under authority granted to it by the legislature or by the constitution.
(2)(a)(i) Any public service property taxpayer resisting the payment of any amount of tax due or the enforcement of any provision of the tax law in relation thereto, shall timely pay the amount due to the officer designated by law for the collection of such tax and shall give him, the parish or district assessor, and the Louisiana Tax Commission written notice at the time of payment of his intention to file suit for the recovery of such tax. If a suit is timely filed contesting the correctness of the assessment pursuant to R.S. 47:1856 and seeking the recovery of the tax, then that portion of the taxes paid that are in dispute shall be deemed as paid under protest.
(ii) Prior to any disbursement to a governing authority by the officer designated for its collection, he shall first give written notice to such governing authority that the law requires any credit granted to a person to be deducted from the assessment of the year subsequent to a final determination by a court and that, if a company chooses a refund, that the refund must be paid by such tax collector no later than March thirty-first of the year subsequent to the final determination by the court.
|4(iii) Any funds received as payment of taxes under the provisions of this Subsection may be used by the governing authority only for nonrecurring expenses. The governing authority of any jurisdiction shall not use any such funds for nonrecurring expenses in a manner which will displace, replace, or supplant funds which were otherwise available for such nonrecurring expenses. That portion of the taxes paid by the taxpayer to the officer which is neither in dispute nor the subject of a suit contesting the correctness pursuant to R.S. 47:1998, shall not be made subject to the protest,
(b)The parish or district assessor or the tax commission may have adjudicated or file a rule to show cause compelling a public service property taxpayer who has paid taxes under protest to specify the amount of taxes that the taxpayer deems to be in dispute. The court shall then order the release of any monies that are not shown by the taxpayer to be in dispute.
(c) If the taxpayer which is a public service property taxpayer prevails, the amount shall be credited or refunded in the manner . provided for in R.S.47:1856(F). If the taxpayer does not prevail, the taxpayer shall be liable for the additional taxes together with interest as provided for in such Subsection.
(d) The term “any amount of tax due” shall include but not be limited to any amount related to the enforcement of any provision of law related to such tax. (3) (a) Any other taxpayer which is not a public service property taxpayer resisting the payment of any amount of tax due shall pay the amount due to the officer designated by law for the collection of such tax and shall give him written notice at the time of payment of his intention to file suit for the recovery of such tax. Upon receipt of such notice, the amount so paid shall be segregated and held by the officer for a period of thirty days. If a suit is timely filed seeking recovery of the tax, then that portion of the taxes paid that are in dispute shall be deemed as paid under protest and such amount shall be segregated and shall be further held pending the outcome of the suit. That portion of the taxes paid by the taxpayer to the officer which is not in dispute shall not be made subject to the protest.
(b) If the taxpayer which is not a public service property taxpayer prevails, the officer shall refund the amount to the taxpayer with interest at the actual rate earned on the money paid under protest in the escrow account during the period from the date such funds were received by the officer to the date of such refund. If the taxpayer does not prevail, the taxpayer shall be liable for the additional taxes together with interest at the rate set forth above during the period from the date the notice of intention to file suit for recovery of taxes was given to the officer until the date such taxes are paid.

JsLa. R.S. 47:2110 (West 2004).

This Court recently discussed the rules of statutory interpretation in the case of State v. Dick, 2006-2223 (La.1/26/07), 951 So.2d 124:

The function of statutory interpretation and the construction to be given to legislative acts rests with the judicial branch of the government. The rules of statutory construction are designed to ascertain and enforce the intent of the legislature., Legislation is the solemn expression of legislative will and, thus, the interpretation of legislation is primarily the search for the legislative intent. We have often noted the paramount consideration in statutory interpretation is ascertainment of the legislative intent and the reason or reasons which prompted the legislature to enact the law.
The starting point in the interpretation of any statute is the language of the statute itself. “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” However, “when the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law.” Moreover, “when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole.” (Citations omitted).

Dick, 951 So.2d at 130.

Further:

The meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter and by placing a construction on the law that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting the law.
⅝ * *
Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.

Colvin v. Louisiana Patients Compensation Fund Oversight Board, 2006-1104 (La.1/17/07), 947 So.2d 15.

Here, the statute in question is ambiguous. In its first sentence, R.S. 47:2110 refers to “ad valorem taxes,” only. In its remainder, the statute refers repeatedly to “taxes,” without qualification as to whether these taxes are “ad valorem” or otherwise. As written, the statute could be read to explain either the exclusive means of recovering only ad valorem taxes paid under protest, or the exclusive means to recover all taxes paid under protest. Therefore, because the statute is ambiguous and susceptible of different meanings, we must interpret the statute to ascertain the intent of the legislature.

The first reference to “taxes” in La. R.S. 47:2110 is to “ad valorem taxes,” providing some evidence that in the context of the statute, the term “taxes” refers to ad valo-rem taxes. Further, throughout the balance of the statute, the legislature made repeated references to “property taxpayer[s].” The documentary transfer tax is neither a “property tax” nor an ad valorem tax, and thus, the statute does not apply in this matter.

Because we find that the legislature did not intend for La. R.S. 47:2110 to provide the exclusive remedy for protesting taxes such as the documentary transfer tax at issue, Kinehen need not have pled in her petition the procedures contained within the statute, and the courts below erred in sustaining the Parish’s exception of no cause of action.

Further, because the Parish’s exception of prescription likewise depended upon the applicability of La. R.S. 47:2110 to the instant suit, that exception also fails. Although the court of appeal did not discuss the exception of prescription, based upon our finding that La. R.S. 47:2110 is inapplicable in this matter and in the interest of >Jjudicial economy, this Court finds it unnecessary to remand that issue to the court of appeal.

DECREE

For the foregoing reasons, the decisions of the lower courts are reversed. The matter is remanded to the trial court for disposition in accordance with this decision.

REVERSED AND REMANDED.

KIMBALL and JOHNSON, JJ., concur in result.

      . The validity of the taxing ordinance is not before the Court.

      . Because the court of appeal found no error in the grant of defendant's exception of no cause of action, the court did not discuss the propriety of defendant's exception of prescription.


author: PER CURIAM.

text:
    In re Dwayne V. WILLIAMS.
    No. 2007-B-0504.
    Supreme Court of Louisiana.
    Oct. 26, 2007.
   |,ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Dwayne V. Williams, a disbarred attorney.

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 1987. In June 2001, the disciplinary board publicly reprimanded respondent for failing to properly supervise a non-lawyer assistant, and for failing to cooperate with the ODC in its investigation. One month later, in July 2001, the disciplinary board admonished respondent for failing to cooperate with the ODC.

In 2004, the ODC filed three counts of formal charges against respondent alleging he disobeyed court orders regarding his child support obligation, tampered with an accident report, failed to cooperate with the ODC’s investigation, and practiced law while ineligible to do so. We determined that these charges were proven by clear and convincing evidence. Based on our finding that respondent committed “egregious and persistent misconduct,” we disbarred respondent. In re: Williams, 04-1364 (La.10/15/04), 885 So.2d 519 (“Williams /”). He has remained disbarred since that time.

| ¿Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The instant proceeding consists of three separate sets of formal charges (04-DB-070, 05-DB-066 and 06-DB-005) filed by the ODC against respondent. These charges, encompassing a total of ten counts of misconduct, are summarized as follows:

0b.-Dtí-070

Count I — The Washington Matter

In March 2002, Terry Washington paid respondent $300 to represent him on several misdemeanor charges and to clear up a detainer at the corrections facility where he was incarcerated. Respondent completed no work on Mr. Washington’s behalf. Despite numerous attempts, neither Mr. Washington nor his family members were able to communicate with respondent. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Washington.

The ODC alleges that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(f)(6) (failure to refund an unearned fee), 1.16(d) (obligations upon termination of the representation), and 8.4(g) (failure to cooperate with the ODC in its investigation).

_J«Count II — The Banks Matter

In April 2000, Robert Lee Banks paid respondent $1,300 to represent him in a criminal matter. Respondent appeared at the courthouse to advise Mr. Banks to plead guilty, then left his client alone in the courtroom. Respondent performed no other work for his client. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Banks.

The ODC alleges that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3,1.4, and 8.4(g).

05-DB-066

Count I — The Thomas Matter

In June 2004, Pamela Thomas paid respondent $500 to secure the release of her son, Stephen Thomas, from jail. Respondent made several unfulfilled promises to Ms. Thomas about her son’s release date, then appeared at a scheduled court date one hour late, again promising her son’s release that day. Stephen Thomas was not released from jail, and advised his mother he had never seen or spoken to respondent before the court date. Despite several attempts, Ms. Thomas was unable to contact respondent, and respondent did not comply with her written request for a refund and copy of her contract. The ODC learned that Stephen Thomas remained in jail for six months. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Thomas.

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

14Count II — The Arevalo Matter

In October 2003, Deyla Arevalo paid Collier Bonding (“Collier”) to bond her husband, Jesus Garza, out of a Baton Rouge jail on a marijuana possession charge. Without the knowledge of Ms. Arevalo or Mr. Garza, Collier paid $500 to respondent to represent Mr. Garza at a bond reduction hearing. Mr. Garza was released a month later, and he and his wife returned to their home in Texas. Three months later, Ms. Arevalo received notice from the court that Mr. Garza failed to appear at a scheduled court date. Ms. Arevalo complained to Collier, which blamed respondent. Mr. Garza was subsequently arrested when he went to Baton Rouge to obtain a new court date. In answering the disciplinary complaint, respondent admitted being paid by Collier to represent Mr. Garza, but claimed Mr. Garza had received notice of the hearing date when he appeared for the bond reduction hearing. Despite numerous requests by the ODC, respondent failed to provide the evidence of this notice.

The ODC alleges that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.8(f)(1) (prohibited transactions/compensation from a third party without the informed consent of the client), and 8.1(c).

Count III — The Boyd Matter

On October 8, 2004, Térrica Boyd paid respondent $500 to represent her boyfriend, Ben Hawkins, at a bond reduction hearing. Ms. Boyd paid an additional $250 to respondent on October 18, 2004, but respondent failed to appear for the scheduled hearing on October 19, 2004. Respondent did not return Ms. Boyd’s telephone calls. After the disciplinary complaint was filed, respondent claimed that the bond reduction was denied by the judge, and that he provided Ms. Boyd with a | ¿refund. Respondent failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Boyd.

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

Count IV — The Travis Matter

In September 2004, Patricia Travis paid respondent $400 to represent her son, Christopher Moore, in a criminal matter. After paying the fee, Ms. Travis stated she was never able to contact respondent, who failed to appear for a scheduled court date. Eventually a public defender was appointed, and Ms. Travis was able to obtain a refund of the $400 from Collier Bonding, who referred her to respondent. Respondent failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Travis.

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

Count V — The Wells Matter

Respondent’s disbarment in Williams I became effective on October 29, 2004. Nevertheless, on November 12, 2004, respondent accepted a $500 legal fee from Michael Wells for the purpose of filing a bankruptcy proceeding on Mr. Wells’ behalf. Upon learning that nothing had been filed with the bankruptcy court on his behalf, and that respondent had been disbarred, Mr. Wells made many unsuccessful attempts to contact respondent. Mr. Wells was forced to hire and pay another attorney to handle the case. In a sworn statement, respondent had no explanation for accepting the money while disbarred, but agreed to refund the fees within twenty | fidays. Despite respondent’s statement, there is no evidence that Mr. Wells ever received a refund. Respondent took no steps to resolve or respond to the disciplinary complaint.

The ODC alleges that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 5.5(a) (engaging in the unauthorized practice of law), 8.1(c), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Count VI — The Stirgus Matter

In December 2004, long after the effective date of his disbarment in Williams I, respondent accepted a $150 legal fee from Aneatra Stirgus for the purpose of drafting legal documents to access her deceased mother’s safe deposit box. As of February 2005, neither Ms. Stirgus nor the bank has been able to contact respondent, despite numerous attempts. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Stirgus.

The ODC alleges that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 5.5(a), 8.1(c), 8.4(c), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

06-DB-005

Count I — The Chaney Matter

In September 2004, Chantal Chaney paid respondent $500 to represent her in a child support matter. Despite numerous attempts, Ms. Chaney was unsuccessful in contacting respondent for the status of her case, and she subsequently learned that respondent was disbarred. Ms. Chaney did not receive any legal services for the |7money paid. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Ms. Chaney.

The ODC alleges that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3,1.4,1.5(f)(5), 1.16(d), and 8.1(c).

Count II — The Payton Matter

In July 2004, George Payton paid respondent $500 to represent him in a criminal matter. Respondent advised Mr. Pay-ton that he would secure an agreement with the District Attorney’s office to drop or reduce the charges. Two days prior to the scheduled trial, respondent told Mr. Payton the charges would not be dropped, but for an additional $500 he would beat the charges at trial. Mr. Payton was unsuccessful in his attempts to contact respondent for trial preparation; as a result, no witnesses were called to testify on Mr. Payton’s behalf at trial. Respondent also failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Payton.

The ODC alleges that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3,1.4,1.5(f)(5), and 8.1(c).

DISCIPLINARY PROCEEDINGS

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

Hearing Committee Reports

Ok-DB-070

The hearing committee considering this set of charges determined that the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). The committee also determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges. As a sanction, the committee recommended that respondent be suspended from the practice of law for a period of two years.

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

05-DB-066 & 06-DB-005

After considering the ODC’s submission and the deemed admitted factual allegations, the hearing committee considering these consolidated charges found that respondent violated the Rules of Professional Conduct as alleged in the formal charges. In light of the seriousness of respondent’s conduct in practicing law after his disbarment in Williams I, the committee recommended that respondent be permanently disbarred.

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

| flDisciplinary Board Recommendation

The recommendations of the hearing committees were consolidated for review before the disciplinary board. After review of the consolidated matters, the disciplinary board concurred in the findings of the hearing committees that respondent violated the Rules of Professional Conduct as charged, and that the charges were deemed admitted and proven by clear and convincing evidence.

The board found that respondent violated duties owed to his clients, the public, and the profession. It determined respondent knowingly failed to communicate with and neglected eight clients, and intentionally accepted money from a third party without the client’s consent. It further found that respondent failed ' to refund money to three clients, failed to respond to complaints or cooperate with the ODC’s investigation in ten cases, and engaged in the unauthorized practice of law when he accepted the representation of two clients following his disbarment in Williams I. The board noted respondent’s clients suffered actual harm as a result of being deprived of fees they paid, having resolution of them cases delayed, and being deprived of representation by a licensed lawyer. It also recognized the disciplinary system was harmed by respondent’s failure to cooperate, because the ODC was required to expend additional resources to personally serve respondent with formal charges and subpoenas. Considering these findings, the board concluded the baseline sanction for respondent’s misconduct is disbarment.

The board found that the record supports the aggravating factors, of prior disciplinary offenses, dishonest or selfish motive, 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 hnvictims, substantial experience in the practice of law (admitted 1987), and indifference to making restitution. The board found no mitigating factors.

Under these circumstances, the board determined that the appropriate sanction for respondent’s misconduct is permanent disbarment. The board further recommended that respondent be ordered to provide an accounting and/or make appropriate restitution to his clients, and that he 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, 348; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 688 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

We find the record supports the factual findings of the hearing committees. The uncontroverted evidence in the record is replete with professional violations by respondent, including his failure to act with reasonable diligence and promptness in representing clients, his failure to communicate with his clients, his failure to comply with his obligations upon the termination of the representation, and his failure to |nreturn unearned fees. Even more egregious are respondent’s actions involving the unauthorized practice of law, accepting compensation for representing a client without the client’s consent, engaging in dishonest and deceitful conduct, and failing to cooperate with the investigation of disciplinary matters.

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).

The record demonstrates in a clear and convincing fashion that respondent knowingly and intentionally violated duties owed, and caused harm to clients, the public, the legal system, and the profession. Numerous aggravating factors are present: prior disciplinary offenses, dishonest or selfish motive, 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. We are unable to discern any mitigating factors from the record. Under these circumstances, we must conclude the appropriate sanction for respondent’s misconduct is disbarment.

The sole remaining issue presented for our consideration is whether respondent’s conduct is so egregious that he should be prohibited from seeking readmission to the practice of law. In Appendix E to Supreme Court Rule XIX, we 112set forth guidelines illustrating the types of conduct which might warrant permanent disbarment. While these guidelines are not intended to bind this court in its decision-making process, they present useful information concerning the types of conduct we might consider worthy of permanent disbarment. See In re: Yaeger, 05-0035 (La.3/18/05), 897 So.2d 571.

Applying the guidelines to the instant case, we find respondent’s misconduct falls within the scope of Guideline 8, which involves “engaging in the unauthorized practice of law ... during the period of time in which the lawyer is suspended from the practice of law or disbarred.” Additionally, we find the serious misconduct at issue in the instant case was preceded by the serious misconduct which formed the basis of Williams I. Accordingly, Guideline 9, which addresses “instances of serious attorney misconduct ... preceded by suspension or disbarment for prior instances of serious attorney misconduct ...,” is applicable.

In sum, the nature of the misconduct, coupled with respondent’s obvious indifference to legal ethics and the welfare of his clients, convincingly establishes that he does not possess the moral fitness to practice law, and that he poses a threat of danger to the public in the event he is permitted to resume practicing law. Accordingly, we must permanently disbar respondent.

DECREE

Upon review of the findings and recommendations of the hearing committees and the disciplinary board, and considering the record, it is ordered that the name of Dwayne V. Williams, Louisiana Bar Roll number 18044, be stricken from the roll of | ^attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. Respondent is ordered to furnish complete accountings and full restitution to all persons subject of the formal charges. All costs and expenses in this 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.

      . "Serious attorney misconduct" is defined for purposes of the guideline as “any misconduct which results in a suspension of more than one year.” Respondent's misconduct in Williams I, which resulted in disbarment, falls within this definition.


text:
    In re Arden WELLS.
    No. 2007-B-1071.
    Supreme Court of Louisiana.
    Nov. 7, 2007.
   In re Disciplinary Counsel; — Other; Applying for Petition for Immediate Interim Suspension for Threat of Harm Pursuant to Rule XIX § 19.2.

ORDER

Considering the recommendation of the hearing committee in this matter, and the responses thereto filed by respondent and the Office of Disciplinary Counsel,

IT IS ORDERED that Arden Wells, Louisiana Bar Roll number 17900, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending-further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that necessary disciplinary proceedings be instituted in an expeditious fashion in accordance with the recommendation of the hearing-committee.

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


text:
    In re Barrett B. DALY.
    No. 2007-B-1053.
    Supreme Court of Louisiana.
    Nov. 9, 2007.
   | j ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

Pursuant to Supreme Court Rule XIX, § 21(A), the Office of Disciplinary Counsel (“ODC”) filed this reciprocal discipline proceeding against respondent, Barrett B. Daly, based upon discipline imposed by the Supreme Court of Mississippi.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The underlying facts of this matter are set forth in detail in the opinion of the Supreme Court of Mississippi, which is reported as The Mississippi Bar v. Barrett B. Daly, Docket No. 2005-B-2168 (March 2, 2007). Based on the evidence developed in that proceeding, the Supreme Court of Mississippi concluded that respondent failed to abide by the client’s decisions concerning objectives of representation, failed to act with reasonable diligence and promptness, failed to communicate with his client, knowingly made a false statement of material fact to a tribunal, ignored the disciplinary process, and engaged in conduct prejudicial to the administration of justice, all in violation of numerous rules of the Mississippi Rules of Professional Conduct. As a sanction, the Supreme Court of Mississippi suspended respondent for a period of three years, effective March 2, 2007.

After receiving notice of the order of the Supreme Court of Mississippi, the ODC filed a motion to initiate reciprocal discipline in Louisiana, pursuant to Supreme Court Rule XIX, § 21. On May 23, 2007, this court rendered an order giving [¿respondent and the ODC thirty days to raise any claim, predicated upon the grounds set forth in Supreme Court Rule XIX, § 21(D), that the imposition of identical discipline in Louisiana would be unwarranted, and the reasons for that claim. After we granted several motions for additional time to file pleadings, respondent filed a response to the ODC’s motion on October 5, 2007. The ODC filed a reply to that response on October 9, 2007.

DISCUSSION

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

Discipline to be Imposed. Upon the expiration of thirty days from service of the notice pursuant to the provisions of paragraph B, this court shall impose the identical discipline or disability inactive status unless disciplinary counsel or the lawyer demonstrates, or this court finds that it clearly appears upon the face of the record from which the discipline is predicated, that:
(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) Based on the record created by the jurisdiction that imposed the discipline, there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) The imposition of the same discipline by the court would- result in grave injustice or be offensive to the public policy of the jurisdiction; or
(4) The misconduct established warrants substantially different discipline in this state; or
|⅞(5) The reason for the original transfer to disability inactive status no longer exists.

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

Upon review of respondent’s brief and other evidence, and applying the factors set forth in Supreme Court Rule XIX, § 21(D), we see no reason to deviate from the sanction imposed by the Supreme Court of Mississippi. Rather, we find it appropriate to defer to the determination made by Mississippi, with which we share authority over respondent. See, e.g., In re Zdravkovich, 831 A.2d 964, 968-69 (D.C. 2003) (“there is merit in according deference, for its own sake, to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory authority”). Accordingly, we will suspend respondent from the practice of law in Louisiana for a period of three years as reciprocal discipline pursuant to Supreme Court Rule XIX, § 21.

DECREE

Considering the motion for reciprocal discipline filed by the Office of Disciplinary Counsel and the record filed herein, it is ordered that Barrett B. Daly, Louisiana Bar Roll number 4474, be suspended from the practice of law for a period of three years.


text:
    Hunter HARRIS, III v. Elizabeth STOGNER, et al.
    No. 2007-CC-1451.
    Supreme Court of Louisiana.
    Nov. 9, 2007.
   PER CURIAM.

| jOn October 14, 2002, plaintiff, Hunter Harris, filed the instant suit against defendants. Defendants filed their answer on December 20, 2002. Thereafter, nothing took place on the record of the suit until June 13, 2006, when plaintiff filed discovery requests.

Thereafter, defendants filed an ex parte motion pursuant to La.Code Civ. P. art. 561. Defendants sought to dismiss the action on grounds of abandonment, arguing no action took place in the case for more than three years. The district court signed the judgment of dismissal.

Plaintiff filed a motion to vacate/set aside the order of dismissal, which the district court denied. Plaintiff then filed a motion to reconsider the ruling on the motion to vacate/set aside the order of dismissal, apparently arguing that his failure to file any pleadings prior to the running of the three-year abandonment period was due to circumstances beyond his control as a result of Hurricane Katrina. The district court granted plaintiffs motion to vacate and set aside the order of dismissal, finding that plaintiffs failure to prosecute was caused by “circumstances beyond his control.”

Defendants applied for supervisory review. The Court of Appeal, Fourth Circuit, denied the writ in a split decision. The majority found that plaintiff did not intend to abandon his case, noting that “Hurricane Katrina was beyond everyone’s control.” The majority also found that plaintiff “met his burden of proof’ under La. |,R.S. 9:5822 and La. R.S. 9:5824. The concurring judge would have denied the writ on the showing made, finding defendants had an adequate remedy on appeal. This application followed.

At the outset, we find it is undisputed that no formal action took place in this case for more than three years between December 20, 2002 (the date defendants filed their answer) and June 13, 2006 (the date plaintiff filed discovery requests). Nonetheless, plaintiff argues that he was unable to prosecute the suit based on circumstances beyond his control.

The jurisprudence has recognized a general exception to abandonment, based on the doctrine of contra non valentem, in cases where a party is affected by circumstances beyond his control. See Clark v. State Farm Mut. Auto. Ins. Co., 00—3010 (La.5/15/01), 785 So.2d 779. However, in cases where the exceptional circumstances arise as a result of Hurricanes Katrina or Rita, we find the specific legislation in La. R.S. 9:5822 and La. R.S. 9:5824 supercedes the general jurisprudential exception.

Pursuant to La. R.S. 9:5822, the abandonment period in this case, which ordinarily would have expired on December 20, 2005, is extended until January 4, 2006. Thereafter, La. R.S. 9:5824 provides that a party, by contradictory motion, may seek a further extension until June 1, 2006.

As defendants point out, there is no indication plaintiff filed a contradictory motion requesting an extension, as mandated by La. R.S. 9:5824. However, even assuming for sake of argument that he did, any extension granted under that statute would have expired on June 1, 2006. Plaintiff took no action in the suit until nearly two weeks later, on June 13, 2006.

Under these circumstances, we find plaintiffs suit is abandoned. The district court erred in finding otherwise.

Accordingly, the writ is granted. The judgment of the district court is reversed, and the case is remanded to the district court, which is instructed to render judgment dismissing plaintiffs suit as abandoned pursuant to La.Code Civ. P. art. 561.

      . La. R.S. 9:5822 provides, in pertinent part: All prescriptions, including liberative, acquisitive, and the prescription of non-use, and all peremptive periods shall be subject to a limited suspension and/or extension during the time period of August 26, 2005, through January 3, 2006; however, the suspension and/or extension of these periods shall be limited and shall apply only if these periods would have otherwise lapsed during the time period of August 26, 2005, through January 3, 2006, shall lapse on January 4, 2006.

      . La. R.S. 9:5824 provides, in pertinent part:
      A party who is domiciled within the parishes of Cameron, Orleans, Plaquemines, St. Bernard, Jefferson, or Vermilion, or whose cause of action arose within such parishes, or whose attorney is domiciled within or has a law office within such parishes, may seek in any court of competent jurisdiction in this state a limited suspension and/or extension of prescription or peremption periods or other legal deadlines, beyond the termination dates provided in R.S. 9:5822 and 5823, by contradictory motion or declaratory judgment. The party seeking an additional suspension and/or extension of prescription, in accordance with the provisions of this Section, shall bear the burden of proving by a preponderance of the evidence that the motion was filed at the earliest time practicable and but for the catastrophic effects of Hurricane Katrina or Rita, the legal deadline would have been timely met. If the court grants the motion, the prescription or peremptive period or other legal deadline shall be suspended or extended for a period not to exceed thirty days from the date of the granting of the motion. This limited suspension or extension shall terminate on June 1, 2006, and any right, claim, or action which would have expired during the time period of January 4, 2006, through May 31, 2006, shall lapse on June 1, 2006.


text:
    Jan Decker CALLAGHAN, et al. v. COLONIAL LIVING CENTER, L.L.C.
    No. 2007-CC-1755.
    Supreme Court of Louisiana.
    Nov. 9, 2007.
   In re Callaghan, Jan Decker et al.;— Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 635-887; to the Court of Appeal, Fifth Circuit, No. 07-C-516.

Denied.

KIMBALL, J., would grant.

TRAYLOR, J., recused.


text:
    STATE ex rel. Patrick THOMAS v. STATE of Louisiana.
    No. 2007-KH-0464.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Thomas, Patrick B.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 03-6457; to the Court of Appeal, Fifth Circuit, No. 06-KA-654.

Denied.


text:
    STATE ex rel. Riley I. BRANTLEY, Jr. v. STATE of Louisiana.
    No. 2007-KH-0528.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Brantley, Riley I. Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson Davis, 31st Judicial District Court Div. O, No. CR4542-01; to the Court of Appeal, Third Circuit, No. KH 06-01471.

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. Tony WILLIAMS v. STATE of Louisiana.
    No. 2007-KH-0529.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Williams, Tony; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Grant, 35th Judicial District Court Div. 0, No. 2000 CR-793; to the Court of Appeal, Third Circuit, No. KH 06-00419.

Denied.


text:
    STATE of Louisiana v. Christopher B. JAMES.
    No. 2007-KP-0543.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re James, Christopher B.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 374-038; to the Court of Appeal, Fourth Circuit, No. 2007-K-0044.

Denied.


text:
    STATE of Louisiana v. Wayne DELAGARDELLE.
    No. 2007-KO-1067.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Delagardelle, Wayne; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. C, No. 04-8168; to the Court of Appeal, Fifth Circuit, No. 06-KA-898.

Denied.


text:
    STATE of Louisiana v. Derrick Dwayne TOMLINSON.
    No. 2007-KO-1068.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Tomlinson, Derrick Dwayne; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. L, No. 03-4031; to the Court of Appeal, Fifth Circuit, No. 06-KA-892.

Denied.


text:
    STATE of Louisiana v. Terry THOMPSON.
    No. 2007-KO-1069.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Thompson, Terry; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 09-04-0720; to the Court of Appeal, First Circuit, No. 2006 KA 1681.

Denied.


text:
    STATE of Louisiana v. Mervin LATIGUE.
    No. 2007-KO-1070.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Latigue, Mervin; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. D, No. 15761-04; to the Court of Appeal, Third Circuit, No. 06-1403.

Denied.


text:
    STATE of Louisiana v. Delmar COX.
    No. 2007-KO-1073.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Cox, Delmar; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. B, No. 111667; to the Court of Appeal, First Circuit, No. 06 KA 1685.

Denied.


text:
    STATE of Louisiana v. Henrietta WILLIAMS.
    No. 2007-K-1088.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Williams, Henrietta; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Concordia, 7th Judicial District Court Div. A, No. 06-021MH; to the Court of Appeal, Third Circuit, No. 06-1247.

Denied.


text:
    STATE of Louisiana v. Benny YOSSETT, Jr.
    No. 2007-K-1110.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Yossett, Benny Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Webster, 26th Judicial District Court Div. B, No. 71024; to the Court of Appeal, Second Circuit, No. 41,926-KA.

Denied.


text:
    Michael GLASS v. Patricia M. GLASS.
    No. 2007-C-1797.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Glass, Patricia M.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. G, No. 213,870; to the Court of Appeal, Third Circuit, No. 07-124.

Denied.


text:
    Larica Gail James FAIR and Robin Lewis Fair, Individually and as Natural Tutrix of/and on Behalf of Their Minor Children, Grayson Lewis Fair and Connor James Fair v. John Travis ABLES, III and Raeford Farms of Louisiana, LLC.
    No. 2007-CC-1844.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Fair, Larica Gail James et al.; Fair, Robin Lewis; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Jackson, 2nd Judicial District Court Div. A, No. 30,784; to the Court of Appeal, Second Circuit, No. 42,749-CW.

Denied.

VICTORY, J, would grant.


text:
    MOON VENTURES, L.L.C., et al. v. KPMG, L.L.P., et al.
    No. 2007-C-1862.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re KPMG L.L.P. et al.; Garrett, J. Mark; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. D, No. 992,037; to the Court of Appeal, Third Circuit, No. 06-1520.

Denied.

KIMBALL, J., would grant.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


text:
    Michael GLASS v. Patricia M. GLASS.
    No. 2007-C-1883.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Glass, Michael; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. G, No. 213,870; to the Court of Appeal, Third Circuit, No. 07-124.

Denied.


text:
    Julie HUTH v. Gordon PICKERING, C & L Picks Auto Parts 2, Inc. and American Casualty Company of Reading, PA.
    No. 2007-C-1889.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Pickering, Gordon et al.; American Casualty Company of Reading PA; C & L Picks Auto Parts 2 Inc.; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. B, No. 626-902; to the Court of Appeal, Fifth Circuit, No. 07-CA-181.

Denied.

VICTORY, J., would grant.


text:
    STATE of Louisiana v. Christopher Thomas GRAS.
    No. 2007-KK-1897.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Gras, Christopher Thomas; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, No. 244,140; to the Court of Appeal, Second Circuit, No. 42556-KW.

Denied.

CALOGERO, C.J., would grant.


text:
    METAIRIE PJ’S, INC. v. RICHARDS CLEARVIEW, LLC.
    No. 2007-C-1906.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Metairie PJ’s Inc.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. H, No. 638-017; to the Court of Appeal, Fifth Circuit, No. 07-CA-188.

Denied.


text:
    David MILLET, Sr. and M5, L.L.C. v. STEIB’S CONSTRUCTION, INC.
    No. 2007-CC-1912.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Carlisle Engineered Metals Inc.;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. John, 40th Judicial District Court Div. A, No. 52871; to the Court of Appeal, Fifth Circuit, No. 07-C-592.

Denied.


text:
    John POULLARD v. M. PITTMAN, M.D., et al.
    No. 2007-CP-1924.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Poullard, John; — -Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. I, No. 04-0796; to the Court of Appeal, Second Circuit, No. 42,-807-CA.

Denied.


text:
    STATE of Louisiana v. Lynn CAMPBELL.
    No. 2007-KK-1935.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Campbell, Lynn; — -Defendant; Applying for Supervisory -and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. E, No. 19693; to the Court of Appeal, First Circuit, No. 2007 KW 1584.

Denied.


text:
    Germaine WINN, as Personal Representative of the Estate of Ross Edwin Winn v. SABINE TOWING AND TRANSPORTATION COMPANY, INC., et al.
    No. 2007-CC-1951.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Sequa Corporation; Sabine Towing and Transportation Co. Inc. et al.;— Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Calca-sieu, 14th Judicial District Court Div. A, No. 2003-2656; to the Court of Appeal, Third Circuit, No. CW 07-00844.

Denied.

TRAYLOR, J., would grant.


text:
    Deborah L. Spence, Wife of/and David A. SPENCE v. Gustavo A. GUTNISKY, M.D., and St. Tammany Parish Hospital Service District No. 2, d/b/a Slidell Memorial Hospital and Medical Center.
    No. 2007-CC-1952.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Spence, Deborah L. et al.; Spence, David A.; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 2002-15069; to the Court of Appeal, First Circuit, No. 2007 CW 1058.

Denied.

CALOGERO, C.J., would grant.


text:
    Deborah L. Spence, Wife of/and David A. SPENCE v. Gustavo A. GUTNISKY, M.D., and St. Tammany Parish Hospital Service District No. 2, d/b/a Slidell Memorial Hospital and Medical Center.
    No. 2007-CC-1953.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Spence, Deborah L. et ah; Spence, David A.; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 2002-15069; to the Court of Appeal, First Circuit, No. 2007 CW 1013.

Denied.


text:
    STATE of Louisiana v. Raymond ROBIN, Jr.
    No. 2007-KK-1960.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Robin, Raymond Jr.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, First Parish Court, Parish of Jefferson, No. F1602174; to the Court of Appeal, Fifth Circuit, No. 07-K-483.

Denied.


text:
    STATE ex rel. Frank ALLEN, Jr. v. STATE of Louisiana.
    No. 2007-KH-2002.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Allen, Frank Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. A, No. 260,502; to the Court of Appeal, Third Circuit, No. KH 07-00883.

Denied.


text:
    Sheila MARTIN-CREECH and Charles A. Creech v. Deidra ARMSTRONG and J.D. Lester.
    No. 2007-C-2120.
    Supreme Court of Louisiana.
    Nov. 21, 2007.
   In re Creech, Carles A.; Martin-Creech, Shelia et al.; — Plaintiffs); Applying for Writ of Certiorari and/or Review, Parish of West Carroll, 5th Judicial District Court Div. C, No. 27,506; to the Court of Appeal, Second Circuit, No. 42,-649-CA.

Denied.