author: GENOVESE, Judge.

text:
    Dave BEACH v. PETER SCALFANO ENTERPRISES, et al.
    No. 2006-1139.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.

      John G. McLure, McLure & Pickels, L.L.P., Alexandria, Louisiana, for Defendant/Appellant, ConAgra Foods Packaged Foods Company, Inc.
    Thomas D. Davenport, Jr., The Davenport Firm, A.P.L.C., Alexandria, Louisiana, for Plaintiff/Appellee, Dave Beach.
    Court composed of MARC T. AMY, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

11 Following a non-jury trial, the trial court found Defendant liable for the injuries Plaintiff sustained when he bit into a breakfast sandwich containing a solid object thought to be a foreign substance. The trial court also denied Defendant’s Exception of Prescription. Defendant appeals. For the following reasons, we reverse and render.

FACTS

On June 15, 2004, Plaintiff, Dave Beach (Beach), purchased a breakfast sandwich from a Burger King restaurant located in Pineville, Rapides Parish, Louisiana. Beach alleged that while eating the breakfast sandwich, he bit into a foreign object that caused damage to his tooth and gum.

On May 13, 2005, Beach filed a Petition for Damages naming Peter Scalfano Enterprises, Inc., Burger King Corporation, and ABC Insurance Company as defendants. Beach subsequently filed a First Supplemental and Amending Petition naming PSE Restaurants, L.L.C. (PSE Restaurants) as an additional defendant, which had been erroneously referred to in the original petition as Peter Scalfano Enterprises, Inc.

PSE Restaurants filed a Third Party Demand on November 3, 2005, naming as third party defendants several of its suppliers including Sara Lee Corporation, Schreiber Foods, Michael Foods, Inc., ConAgra Food Service, and ConAgra Refrigerated Foods, Co.

On November 29, 2005, Beach filed a Second Supplemental and Amending Petition adding Lexington Insurance Company (Lexington) as a defendant. On the same date, he filed a Motion for Partial Summary Judgment on the issue of the Inexistence of insurance coverage pursuant to the policy issued by Lexington to PSE Restaurants. A Stipulated Judgment was signed by the trial court on December 19, 2005, decreeing that the policy of insurance issued by Lexington did provide coverage to its insured, PSE Restaurants, thereby rendering Beach’s Motion for Partial Summary Judgment moot.

After testing on the alleged foreign object revealed that the object was actually gristle, on November 29, 2005, PSE Restaurants dismissed, without prejudice, its third party demands against Sara Lee Corporation, Schreiber Foods, and Michael Foods, Inc. The Order granting the Motion for Judgment of Dismissal expressly reserved the rights of PSE Restaurants, as third party plaintiff, against ConAgra Food Service and ConAgra Refrigerated Foods, Co.

On January 20, 2006, PSE Restaurants filed a Motion for Judgment of Dismissal wherein it moved to dismiss its third party demands against the remaining third party defendants, ConAgra Food Service and ConAgra Refrigerated Foods, Co. The Order dismissing the third party demands, without prejudice, was signed by the trial court on January 30, 2006.

On February 8, 2006, Beach filed a Third Supplemental and Amending Petition, naming as additional defendants Con-Agra Food Service and ConAgra Refrigerated Foods, Co. ConAgra Foods Packaged Foods Company, Inc. (ConAgra) was named as a defendant by Beach in a subsequent supplemental and amending petition filed March 15, 2006. Along with its answer, ConAgra pled the defense of prescription as a bar to Beach’s claims.

Following a bench trial on April 25, 2006, the trial court: (1) dismissed Beach’s claims against PSE Restaurants, L.L.C. and Lexington Insurance Company; (2) | rendered judgment in favor of Beach against ConAgra Foods Packaged Foods Company, Inc.; and (3) denied ConAgra’s Exception of Prescription. A written judgment was signed by the trial court on May 15, 2006. ConAgra appeals. For the following reasons, we reverse and render.

ISSUES

The issues raised by ConAgra for our review are summarized as follows:

1. whether the trial court erred in finding ConAgra liable for the injuries sustained by Beach; and
2. whether the trial court erred in denying ConAgra’s Exception of Prescription.

LAW AND ARGUMENT

ConAgra contends that the trial court erred in denying its Exception of Prescription. Because we find merit in this assertion, which renders the issue of liability moot, we will discuss the Exception of Prescription first.

Burden of Proof

“The burden of proof on the prescription issue lies with the party asserting it; however, where the petition shows on its face that the claim has prescribed, the .burden shifts to the plaintiff to prove that the prescriptive period has been interrupted or suspended.” Stevens v. Bruce, 04-133, p. 3 (La.App. 3 Cir. 6/2/04), 878 So.2d 734, 737 (citing Amoco Prod. Co. v. Texaco, Inc., 02-240, pp. 7-8 (La.App. 3 Cir. 1/29/03), 838 So.2d 821, 829, units denied, 03-1102, 03-1104 (La.6/6/03), 845 So.2d 1096).

In the instant matter, although Beach alleged a date of injury of June 15, 2004, he did not name ConAgra as a defendant until March 15, 2006. Since, on the face of the pleading the claim had prescribed, Beach bore the burden of proving that the prescriptive period was interrupted or suspended, which he failed to meet.

| ¿Standard of Review

In Leger v. Sonnier Exterminating Co., 05-1291, p. 4 (La.App. 3 Cir. 4/5/06), 926 So.2d 158, 161, writ denied, (La.6/23/06), 930 So.2d 982, this court discussed appellate review relative to an exception of prescription stating as follows:

Ordinarily, when an appeal involves a ruling on a peremptory exception with contested issues of fact and “[wjhen evidence is introduced and evaluated in the trial court on a peremptory exception, the appellate court must review the entire record to determine whether the trial court manifestly erred with its factual conclusions.” Egle v. Egle, 01-927, p. 4 (La.App. 3 Cir. 2/6/02), 817 So.2d 136, 139 (quoting Parker v. Buteau, 99-519, p. 3 (La.App. 3 Cir. 10/13/99), 746 So.2d 127, 129). However, in a case in which there are no contested issues of fact and the only issue is the application of the law to the undisputed facts, as in the case at bar, the appellate court must decide whether the lower court’s decision is legally correct or incorrect. Sieferman v. State Farm Mut. Auto. Ins. Co., 01-439 (La.App. 3 Cir. 10/3/01), 796 So.2d 833 (citing Huddleston v. Farmers Merchants Bank & Trust Co., 00-640 (La.App. 3 Cir. 11/1/00), 772 So.2d 356).

Prescription

A delictual (tort) action is subject to one-year liberative prescription. La.Civ.Code art. 3492. The incident giving rise to the present litigation occurred on June 15, 2004. ConAgra was not named as a defendant in the main demand until March 15, 2006, more than twenty-two months after the incident occurred. Thus, unless suspension or interruption of the one-year prescriptive period occurred, Beach’s claims against ConAgra were untimely.

We note that the trial court did not provide any reasons for denying ConA-gra’s Exception of Prescription. In his appellate brief, Beach relies on the theory of joint tortfeasor liability for the interruption of prescription. He cites the trial court’s treasons for judgment wherein the court, referring to “ConAgra and PSE [Restaurants,]” stated that “they failed to exercise the reasonable care to the consumer, Mr. Dave Beach.” Beach relies on this language for the following assertion to this court:

Thus, the [tjrial [c]ourt made a factual finding that both ConAgra and PSE [Restaurants] were solidarity liable for the damages sustained by the Appellee. The Louisiana Legislature enacted Louisiana Civil Code Article 2824(C) to provide that suit against one joint tortfeasor interrupts prescription against other joint tortfeasors. See generally, Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law, § 10.04[9] (2004).

However, a full review of the trial court’s oral reasons for judgment reveals an interchange between the trial court and counsel for ConAgra which evidences a contrary finding of the trial court relative to liability-

After the hereinabove referred to statements were made by the trial court, counsel for ConAgra reminded the trial court that “there was an issue of liability of PSE Restaurants, [L.L.C.], and the issue of the liability of ConAgra.” Counsel specifically inquired as to whether the trial court found that ConAgra had “sole liability” in this matter and that no liability was found on the part of PSE Restaurants. We find that the language of the trial court makes it clear that it found only ConAgra liable for the injuries sustained by Beach. The trial court engaged in the following exchange with counsel for ConAgra:

IfiMR. MCLURE:
Your Honor,—
THE COURT:
Yes?
MR. MCLURE:
—there was an issue of liability of PSE Restaurants, LLC, and the issue of the liability of ConAgra.
Do I understand you to find that the sole liability is ConAgra?
THE COURT:
ConAgra, yes. That is correct.
MR. MCLURE:
And no liability on the part of PSE Restaurants, LLC?
THE COURT:
No.

This finding on the issue of liability is further evidenced by the written judgment signed by the trial court in favor of Beach only against “ConAgra Foods Packaged Foods Company, Inc.” Therefore, we find no merit to Beach’s assertion that the trial court made a factual finding that precludes the granting of the Exception of Prescription.

We likewise find no merit in Beach’s assertion that ConAgra did not timely raise the issue of prescription in the trial court proceedings. The record reveals that ConAgra filed an Answer to Petitions and Exception containing a paragraph wherein “ConAgra pleads the defense of prescription as a bar to plaintiffs claim because ConAgra was not made a defendant until more than a year after the alleged occurrence.” Although an exception of prescription “may be pleaded at any stage of the proceedings in the trial court prior to a submission of the case for a decision[,]”17in the instant matter, Con-Agra’s exception was pled with its answer. According to La.Code Civ.P. art. 929(B), the peremptory exception “shall be tried and disposed of either in advance of or on the trial of the case.”

At the end of trial, counsel for ConAgra inquired as to the court’s ruling on its Exception of Prescription. The record reveals the following exchange:

MR. MCLURE:
Your Honor, I had raised the issue of prescription on the part of ConA-gra. I assume that’s, that issue, that exception is denied.
THE COURT:
The exception is denied.

The trial court, therefore, considered Con-Agra’s Exception of Prescription and denied said exception “on the trial of the case.” Pertinent to ConAgra’s Exception of Prescription is the issue of joint tortfea-sor liability. Considering the facts in this case, and Beach’s reliance on joint tortfea-sor liability, the trial court was precluded from ruling on the prescription issue until it ruled on the liability, vel non, of PSE Restaurants. If the trial court had found PSE Restaurants and ConAgra jointly liable for Beach’s injuries, then the prescription issue would have been unfounded on the basis of joint tortfeasor liability, provided PSE Restaurants was timely named and served. This would have interrupted the running of prescription as to ConAgra, thereby defeating prescription. La.Civ. Code art. 2324(C); Renfroe v. State Through Dep’t of Transp. and Dev., 01-1646 (La.2/26/02), 809 So.2d 947. Such is not the case in this matter.

Additionally, we note that ConAgra likewise raised the issue of prescription on appeal, which was referred to the panel on the merits. As a result thereof, counsel for Beach seeks a remand in accordance with La.Code Civ.P. art. 2163.

Louisiana Code of Civil Procedure Article 2163 (emphasis added) states as Isfollows:

The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.
If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial of the exception.

Because ConAgra raised the issue of prescription with its answer in the trial court, it was not raised “for the first time” on appeal. Consequently, La.Code Civ.P. art. 2163 is inapplicable, and Beach’s request for a remand is denied.

For the foregoing reasons, we find that ConAgra timely raised the issue of prescription and that said issue was properly before this court. We also find that Beach failed to prove joint tortfeasor liability on the part of PSE Restaurants and ConAgra, that he did not file suit against ConAgra within the one-year prescriptive period, and that he failed to prove the suspension or interruption of prescription. Therefore, Beach’s claim against ConAgra has prescribed. Accordingly, we find that the trial court erred in denying the Exception of Prescription filed on behalf of Con-Agra. Given our findings herein, the judgment of the trial court relative to the issue of liability is rendered moot.

DECREE

The judgment of the trial court denying ConAgra Foods Packaged Foods Company, Inc.’s Exception of Prescription is reversed. Therefore, the trial court’s judgment in favor of Beach against ConAgra Foods Packaged Foods Company, Inc. in the amount of $26,380.00, plus interest from the date of judicial demand until paid, and all costs of the trial court proceeding, is likewise reversed.

Dave Beach is hereby assessed with all costs both at the trial level and on appeal.

REVERSED AND RENDERED.

      . On November 21, 2005, Burger King Corporation was dismissed, with prejudice, pursuant to a Motion for Summary Judgment.

      . ConAgra Foods Packaged Foods Company, Inc., is the successor corporation to ConAgra Food Service and ConAgra Refrigerated Foods, Co., which were erroneously named as defendants.

      . The predecessor corporations, ConAgra Food Service and ConAgra Refrigerated Foods Co., were named as defendants on February 8, 2006; however, this was still over twenty months after the date of injury.

      . Louisiana Civil Code Article 2324 provides as follows:
      A. He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.

        B. If liability is not solidary pursuant to Paragraph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tort-feasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person's insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity as provided in R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable.
      C. Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.

      . La.Code Civ.P. art. 928.


source: Caselaw Access Project

author: EZELL, JUDGE.

license: Public Domain

text:
    Fillmore WRIGHT, et al. v. ST. LANDRY PUBLIC HOUSING CORP., et al.
    No. CA 06-1241.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.
    Peter F. Caviness, Dauzat, Falgoust, Caviness & Bienvenu, Opelousas, LA, for Defendant/Appellee: St. Landry Public Housing Corporation.
    Brian K. Thompson, Attorney at Law, Alexandria, LA, for Plaintiffs/Appellants: Fillmore Wright Pearlie Wright.
    Court composed of OSWALD A. DECUIR, GLENN B. GREMILLION, and BILLY HOWARD EZELL, Judges.
   EZELL, JUDGE.

This appeal raises the issue of whether a facsimile filing pursuant to La.R.S. 13:850 is considered received by the clerk of court on a legal holiday or a regular business day if the courthouse has been closed pursuant to a court order for the New Year holiday. The trial court found that December 30, 2005, was a regular business day, not a legal holiday and that the Plaintiffs failed to file the required documents within five days after the fax transmission. The trial court dismissed the Plaintiffs’ case as prescribed. We affirm.

FACTS

Pearlie and Fillmore Wright filed a suit for damages for the wrongful death of their son. In their petition they allege that their son was stabbed by Christopher Edwards on December 30-31, 2004, while he was visiting at the LeBeau Housing Project in St. Landry Parish.

On December 30, 2005, at approximately 4:05 p.m., the Wrights filed suit by facsimile transmission. Subsequently, on January 10, 2006, a hard copy of the suit was filed. Two pauper affidavits and an order requesting to proceed in forma pauperis were attached. Pauper status was denied on January 11 for failing to provide additional paperwork as required by Rule 6 of the Twenty-Seventh Judicial District Court local rules.

On March 6, 2006, the St. Landry Public Housing Corporation filed an exception of prescription alleging that the original petition was not filed until more than five days after the facsimile filing in violation of La.R.S. 13:850. The trial court granted the exception finding that the facsimile transmission was received by the clerk’s office on December 30, 2005, and the original petition was filed more than five days later.

1 ¡.DISCUSSION

The Wrights claim that the clerk of court could not accept fax filings on December 30, 2005, since the chief judge had ordered the closure of the courthouse for the New Year holiday. The Wrights argue that due to the Chief Judge’s order, December 30 became a legal holiday and the effective date of filing is actually January 2, 2006. The Wrights further claim that pursuant to La.Code Civ.P. art. 288, which provides for the functions which a district court clerk may exercise on a legal holiday, the clerk of a district court could not accept a facsimile filing on that day. They argue further that if December 30 is considered a legal holiday, then the Wrights’ filing of the signed original and fees on January 10 would be timely. The evidence shows that December 30, 2005 was a Friday. December 31, January 1, and January 2 were legal holidays. January 3, 2006 was a Tuesday, and the following weekend, January 7 and 8, were legal holidays. Therefore, January 10 is the fifth day after January 3 for purposes of La.R.S. 13:850.

Legal holidays are provided for in La. R.S. 1:55. Section E specifically refers to the closure of the clerk of courts’ offices as follows:

(l)(a)(i) Each clerk of a district court, parish court, and city court shall close his office on the following days: New Year’s Day, January first; Washington’s Birthday, the third Monday in February; Good Friday; Memorial Day, the last Monday in May; the Fourth of July; Labor Day, the first Monday in September; All Saints’ Day, November first; Veterans’ Day, November eleventh; Thanksgiving Day, the fourth Thursday in November, and the next day, Friday; Christmas Eve Day; Christmas Day; and New Year’s Eve Day, December thirty-first.
(ii) Whenever New Year’s Day, the Fourth of July, or Christmas Day falls on a Saturday, the preceding Friday shall be a holiday. Whenever New Year’s Day, the Fourth of July, or Christmas Day falls on a Sunday, the following Monday shall be a holiday.
(iii) In addition, in the city courts of Hammond and Sulphur, Ward Four, Mardi Gras and the day on which the national observance of Martin Luther King, Jr.’s birthday is celebrated shall be legal holidays and the clerk of court shall close his office on those days. In addition, |sm the city court of Sulphur, the second Monday in October, Christopher Columbus Day shall be a legal holiday and the clerk of city court shall close his office on that day. Notwithstanding any other law to the contrary, Mardi Gras shall be a legal holiday for the clerks of court for the parishes of East and West Feliciana, East Baton Rouge, Iberville, Pointe Coupee, West Baton Rouge, St. John the Baptist, St. Charles, Lafourche, St. Mary, Assumption, Terrebonne, St. Martin, Ascension, St. James, St. Tammany, St. Bernard, Jefferson Davis, Livingston, Acadia, Vermilion, Calcasieu, Orleans, Allen, and Tangipahoa.
(b) In addition, each clerk of a district court, parish court, and city court shall close his office on all of the legal holidays provided in R.S. l:55(B)(l)(a) and on any day that the governor has proclaimed a legal holiday pursuant to R.S. 1:55(B)(3). Notwithstanding the provisions of Paragraph (2) of this Subsection, each clerk of a district court, parish court, and city court shall close his office on any day an emergency situation has been declared by the governor or the local governing authority and governmental entities, including the courthouse, have been ordered to close.
(c) In addition, each clerk of a city court or parish court, with the approval of the chief judge of the court, may close his office on the day proclaimed by the governor or the local governing authority as a holiday in honor of Dr. Martin Luther King, Jr.’s birthday.
(d) In addition, each clerk of court in the parishes of St. James and St. John the Baptist shall close his office on any day upon which the governor has proclaimed a legal holiday. The provisions of this Section shall not apply to Inauguration Day once every four years or General Election Day every two years.
(e)In addition, the clerk of court of the Fifteenth Judicial District Court and the clerk of court of the City Court of Abbeville, in the parish of Vermilion, shall close their offices on the Friday before the first weekend in October, in observance of the Cattle Festival in Ab-beville, unless there is an election on the first Saturday in October in Vermilion Parish.
(2) If an emergency situation develops which, in the judgment of the clerk of court, renders it hazardous or otherwise unsafe for employees of the office of the clerk to continue in the performance of their official duties or for the general public to conduct business with the clerk’s office, the clerk, with prior approval from the clerk’s chief judge or other person authorized to exercise his authority, may order the closing of his office for the duration of the hazardous or unsafe condition. No such closure shall be effective nor shall such period of closing be considered a legal holiday unless prior written approval or written confirmation from such chief judge or person acting on his behalf is received by the clerk of court. When the office is reopened, the clerk shall have published as soon as possible a legal notice in all of the | official parish journals of the parishes within the district setting forth the dates of closure, the hour of closure if applicable, the reasons for closure, and a statement that, pursuant to R.S. 1:55(E)(3), these days or parts of days were legal holidays. The clerk shall attach a similar statement to every document, petition, or pleading filed in the office of the clerk on the first day or part of a day his office is open after being closed under the provisions of this Paragraph, whenever the petition or document relates to a cause of action, right of appeal, or other matter against which prescription could have run or time periods imposed by law could have expired.
(3) Only the enumerated holidays in Paragraph (1) of this Subsection, days of closure under Paragraph (2) of this Subsection, Mardi Gras only in those parishes in which the governing authority of the parish declares a holiday under authority of Subsection A(3) of this Section, and all Saturdays and Sundays shall be considered as legal holidays for the purposes of Article 5059 of the Louisiana Code of Civil Procedure.
(4) The Municipal Court of New Orleans and the Traffic Court of New Orleans shall have the same legal holidays as the Civil District Court for the parish of Orleans and the Criminal District Court for the parish of Orleans.

Subsection b in this section does allow the governor to declare additional legal holidays and provides that the chief judge can declare a legal holiday when an emergency situation exists. However, there is no authority for the chief judge to simply declare a legal holiday for the clerk of court’s office.

Therefore, while the clerk of court’s office was closed, it was not a legal holiday. Granted, no party would have been able to physically file petitions, but the Wrights chose to file their petition by facsimile filing. Pursuant to Antoine v. McDonald’s Restaurant, 98-1736 (La.App. 3 Cir. 5/5/99), 734 So.2d 1257, this court has held that the facsimile transmission does not have to be received during the regular office hours of the clerk’s office. The court noted that “[t]he purpose of the statute is carried out by looking to the fax filing as complete for prescription purposes upon receipt of the transmission by the clerk’s office, while the filing of a receipt by the clerk of court serves only as an acknowledgment and proof of the time of the fax | .¡filing.” Id. at 1260.

Since the Wrights filed their petition by facsimile transmission, they were obligated to follow the mandates of La.R.S. 13:850(B), which required them to submit the original signed document and filing fees within five days, exclusive of legal holidays. Counting legal holidays, the fifth day fell on January 9, 2005, and the Wrights did not file their documents until January 10, 2005. Pursuant to La. R.S.13:850(C), the facsimile filing had no effect because the Wrights failed to submit the required documents within five days. The trial court was correct in granting the exception of prescription filed by the St. Landry Public Housing Corporation.

For these reasons, the judgment of trial court granting the exception of prescription filed by the St. Landry Public Housing Corporation is affirmed. All costs of this appeal are assessed to Pearlie and Fillmore Wright.

AFFIRMED.


text:
    Benita Smith Saucier CHAMBERS v. Eric Paul SAUCIER.
    No. CA 06-1290.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.

      Steven Patrick Mansour, Attorney at Law, Alexandria, LA, for Defendant/Appellant, Eric Paul Saucier.
    Randal Bryan Tannehill, Tannehill & Sylvester, Pineville, LA, for Plaintiff/Ap-pellee, Benita Smith Saucier Chambers.
    Court composed of OSWALD A. DECUIR, GLENN B. GREMILLION, and BILLY HOWARD EZELL, Judges.
   EZELL, JUDGE.

hln this matter, Eric Saucier appeals the decision of the trial court holding him in contempt of court for the failure to pay child support, ordering him to pay arrear-ages in the amount of $18,440.11, and ordering him to pay his former wife, Benita Chambers, $2,500.00 in attorney fees for the contempt order. For the following reasons, we affirm the decision of the trial court.

This case has a long and tedious procedural history which will be abbreviated as much as possible. Mr. Saucier and Ms. Chambers were married in 1981. Two children, Adam and Evan, were born of the marriage. The couple was divorced by judgment rendered May 22, 1990. In the divorce judgment, the trial court incorporated a joint custody agreement with Ms. Chambers as primary domiciliary parent. The judgment decreed that Mr. Saucier pay $300.00 per month per child in support, provide health insurance, and pay the first $600.00 in uncovered medical expenses. The parties were to split the cost of excess out-of-pocket medical expenses.

On June 11, 1993, Mr. Saucier filed a rule to change the joint custody plan and to terminate the payment of child support. Ms. Chambers filed a reconventional demand seeking an increase in child support. A judgment was signed on August 22, 1994, maintaining joint custody with Ms. Chambers as the primary domiciliary parent, but reducing Mr. Saucier’s child support obligation to $250.00 per month per child. Ms. Chambers appealed this judgment. The trial court signed an order of appeal on September 26, 1994. On January 11, 1995, the Rapides Parish Clerk of Court notified Ms. Chambers that the transcript of the hearing had been lost and no tape recording of the hearing could be found.

On June 12,1995, Ms. Chambers filed in the district court a motion to refix the Ucase for a hearing. Therein, she represented that Judge Metoyer, the presiding trial court judge at the time, was only hearing cases on the criminal docket since the judgment and could not issue a written narrative of facts for purposes of the appeal due to a lack of scheduling flexibility. Judge Metoyer signed an order referring the case to Judge Foote for a hearing to be scheduled by Judge Foote.

After a series of motions and counter-motions, Ms. Chambers filed in this court a motion to remand the case to the district court on November 9,1995. On December 20,1995, this court granted Ms. Chambers’ motion and, pursuant to La.Code Civ.P. art. 2161, remanded the case to the district court “for correction of the record, if possible, and in the alternative, a retrial of the hearing.” Saucier v. Saucier, 95-1501, p. 2 (La.App. 3 Cir. 12/20/95), 666 So.2d 1191, 1192.

Judge Foote determined that it would be impossible to correct the record because the tapes of the prior hearing were lost and Judge Metoyer could not accurately report his findings for purposes of the appeal. Judge Foote decided to have the parties relitigate the matter with Judge Metoyer’s August 22, 1994 order being treated as a provisional order.

On July 29, 1997, the trial court rendered written reasons for judgment maintaining joint custody with Ms. Chambers designated as the primary domiciliary parent. On the issue of child support, the trial judge ordered Mr. Saucier to pay $250.00 per month per child and one-half of school tuition and tutoring expenses. He also decreed that Mr. Saucier provide health insurance and pay one-half of the non-covered medical expenses. Mr. Saucier and Ms. Chambers both appealed this judgment.

In Saucier v. Saucier, 98-659 (La.App. 3 Cir. 10/7/98), 719 So.2d 702, this court found that the trial court failed to properly calculate the child support award ^according to the guidelines established by La.R.S. 9:315-315.47. Using the worksheet found in La.R.S. 9:315.15, we ruled that Mr. Saucier:

[M]ust pay $824.56 per month for the support of his children, Adam and Evan. He must continue to pay their health insurance premium, but is no longer obligated to pay Adam’s private school tuition on his own. Additionally, the parties are to share in the payment of any out-of-pocket medical expenses and tutoring costs in accordance with their relative income percentages. This judgment is made retroactive to the date of our prior remand order, December 20, 1995. Any and all amounts paid by Eric to support his children from that date to the date of this judgment shall be credited to him pursuant to La.R.S. 9:315.21(D).

719 So.2d at 709.

On September 20, 2004, Ms. Chambers filed a rule for contempt alleging that Mr. Saucier made only partial payments on his monthly obligation as set out by this court and was in arrears in the amount of $11,760.67. She further alleged that since January of 2004, Mr. Saucier has stopped making any child support payments and was in arrears in the amount of $6,679.44. She also sought attorney fees for the prosecution of this matter. Mr. Saucier sought adjustments to his child support obligation for all amounts paid to third parties during the period between the December, 1995 and October, 1998, and for the period wherein Adam did not live with his mother and became legally emancipated.

The trial court, the third district court judge to hear this matter, ruled that Mr. Saucier was not entitled to any credit for payments made during the 1995 to 1998 period in question and that Mr. Saucier was not entitled to any reduction concerning the oldest child, as the award made by this court was an in globo award of support. The trial court held Mr. Saucier in contempt of court and awarded Ms. Chambers $18,440.11 in arrearages and $2,500.00 in attorney fees. From this decision, Mr. Saucier appeals.

On appeal, Mr. Saucier asserts five assignments of error. He claims that the 14trial court erred in failing to credit any and all amounts paid to support his children from December 1995 until October 1998; he claims that the trial court erred in holding his child support obligation was not reduced when his eldest child turned eighteen; that the trial court erred in failing to credit him for excess payments of medical bills above his obligation; that the trial court erred in failing to credit him for excess payments of school tuition and tutoring; and that the trial court erred in holding he committed a willful contempt of court warranting attorney fees. For the following reasons, we disagree with Mr. Saucier.

Mr. Saucier first claims that the trial court erred in failing to credit him for every payment he made on behalf of his children between the date of the remand in 1995 and the October 1998 judgment. We disagree. Except under a few exceptional circumstances, child support is satisfied only by payment to the parent to whom it is due. Casey v. Casey, 02-246 (La.App. 4 Cir. 5/22/02), 819 So.2d 1108. Payment to third parties will not satisfy that obligation, although the obligor is entitled to credit for payments made directly on behalf of the children and at the request of the obligee. New v. New, 93-702 (La.App. 5 Cir. 1/25/94), 631 So.2d 1183, writ denied, 94-470 (La.4/4/94), 635 So.2d 1113. “The jurisprudence has established beyond doubt that justice or equity does not operate to nullify or reduce an accumulated support award until the judgment is altered by subsequent judgment or operation of law.” Casey, 819 So.2d at 1112-13.

Mr. Saucier did not dispute the $11,760.67 in arrears that was created by our 1998 ruling. Furthermore, he freely admits that he never paid anything toward this amount. He did, however, claim that he was entitled to credits over and above child support based on our prior ruling in this matter. We find that this court, in its earlier decision, meant that Mr. Saucier should be credited only for the actual child support | ¡¡payments he was making to Ms. Chambers, $500.00 per month; not that Mr. Saucier is entitled to a credit for every penny he spent on his children during the time period involved. Simply put, amounts spent on school pictures and birthday parties may not be deducted at will from court-ordered child support payments. The trial court committed no error in its ruling.

Mr. Saucier next claims that the trial court erred in holding his child support obligation was not reduced when his oldest child reached eighteen or was legally emancipated. We disagree. While the first two, incorrect child support awards were made on a per child basis, the award issued by this court in October 1998 was clearly an in globo award. An in globo support award for two or more children “shall terminate automatically and without any action by the obligor when the youngest child for whose benefit the award was made attains the age of majority or is emancipated relieving the child of the disabilities attached to minority.” La. R.S. 9:315.22(B)(emphasis added). “A reduction in child support is not automatic each time one of several children reaches the age of majority, nor even when all minor children for whom support has been ordered reach the age of majority.” Hester v. Hester, 01-380, p. 9 (La.App. 4 Cir. 12/12/01), 804 So.2d 783, 789, writ denied, 02-92 (La.3/22/02), 811 So.2d 934. “The amount of child support remains the same even after the oldest child reaches majority until such time as the obligor moves the court for and is granted a judgment reducing the in globo amount.” Id. Mr. Saucier’s only remedy was to move the court for a reduction at the time his son was emancipated. However, since he failed to do so, he is not entitled to any reduction at this time.

Mr. Saucier next claims that he should have been credited for excess medical payments beyond his obligation. His evidence consisted mostly of cancelled checks with no indication that the payments were made in favor of the children. Although |fithe trial court did not address this issue specifically in its reasons for judgment, it is clear that the trial court found that Mr. Saucier failed to meet his burden of proof as to this claim. There is nothing in the record to indicate that this finding was in error.

Mr. Saucier next claims that he is entitled to a credit for payments for tuition and tutoring above that which he was obligated to pay. This claim as to tuition is, at best, disingenuous. In this court’s previous ruling, we calculated the amount of child support including private school tuition, which was $160.00 per month at that time. Mr. Saucier’s part of that came to $82.40. Following that judgment, the parties entered into a consent agreement whereby they each agreed to pay half the amount of the children’s education, payable by each directly to the school, in order to prevent the need for any relitigation any time there was an increase or decrease in the cost of tuition. In order to facilitate this, Mr. Saucier’s monthly child support obligation was reduced by his original share of tuition, $82.40, to $742.16. Mr. Saucier is now seeking to claim a credit for any amount paid above the original $82.40 he was obligated to pay. In no way is he entitled to any such credit. Despite Mr. Saucier’s apparent inability to understand why he is obligated to pay half the cost of his children’s education, under the clear, unmistakable terms of the consent agreement, Mr. Saucier is obligated to “share equally” the amount of tuition, whatever that amount may be. To claim he owes only $82.40 is absurd and borders on being frivolous. This assignment of error is completely devoid of any merit whatsoever.

As for his claims for tutoring, Mr. Saucier offered only canceled checks to unknown individuals without any other documentation that the expenses were for tutoring. The trial court committed no error in denying his claims for an offset based on this evidence.

Mr. Saucier finally claims that the trial court erred in finding he committed, a Dwillful contempt of court and ordering him to pay attorney fees to Ms. Chambers. Again, we disagree. He admitted at trial that he never paid on the arrearages owed between 1995 and 1998. Nor did he ever seek relief from any court for the credits he claimed, he simply did not pay. Furthermore, Mr. Saucier completely stopped paying child support in January 2004 because he alleges he believed “the figure was in dispute.” However, when asked why he did not pay any undisputed amount, he simply replied that he did not know. He never sought legal advice on the matter, nor did he file any attempt to change or reduce the award. He unilaterally decided to disobey an order of the court when he decided to stop making child support payments. This resulted in arrearages of $11,874.56 from January of 2004 until the time of trial. We can find no error in the trial court’s determination that he was in contempt of court.

For the above reasons, the decision of the trial court is affirmed. Costs of this appeal are assessed against Mr. Saucier.

AFFIRMED.

      . Although the amount owed by Mr. Saucier for arrearages since 2004 was $11,874.56 at the time of trial, the trial court, awarded only $6,679.44, the amount owed at the time Ms. Chambers filed her rule. ' However, since she failed to answer Mr. Saucier’s appeal to challenge this amount, we may not address this discrepancy. Likewise, Ms. Chambers asks in brief for additional attorney fees for work done on appeal, but again, we may not award her any, as she did not answer the appeal.


author: DECUIR, Judge.

text:
    Connie MOUHOT v. TWELFTH STREET BAPTIST CHURCH, et al.
    No. CA 2006-1283.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.

      David J. Calogero, Philip Andre Fonte-not, Davidson, Meaux, Sonnier & McElli-gott, Lafayette, LA, for Plaintiff/Appellant, Connie Mouhot.
    Earl G. Pitre, Lake Charles, LA, for Defendants/Appellees, Twelfth Street Baptist Church, GuideOne Mutual Insurance Company.
    Court composed of OSWALD A. DECUIR, GLENN B. GREMILLION, and BILLY HOWARD EZELL, Judges.
   DECUIR, Judge.

hln this lawsuit stemming from a trip and fall incident at the Twelfth Street Baptist Church in Lake Charles, the plaintiff,' Connie Mouhot, was assessed with 45% comparative fault and was awarded $55,000.00 in general damages, plus special damages, following a jury verdict. Named as defendants were the church and its insurer, GuideOne Mutual Insurance Company. Mouhot’s motion for judgment notwithstanding the verdict was denied. She now appeals the ruling of the trial court. For the reasons which follow, we reverse the assessment of comparative fault and affirm the award of damages.

On May 5, 2002, Mouhot, seventy-one years old, was at the Twelfth Street Baptist Church for Sunday services. The accident occurred when she was walking from the Sunday school building to the main auditorium. As Mouhot stepped through the threshold of the double doors leading out of the school building, she placed her foot on a mat located just outside the doorway. Mouhot testified that the heel of her shoe became stuck in a hole in the mat, causing her to fall to the ground. As a result of the fall, Mouhot sustained a broken hip and a blow to the head. She was brought to Lake Charles Memorial Hospital where surgery was performed to repair the broken hip.

Mouhot was discharged from the hospital four days after surgery. Home health personnel, as well as friends and neighbors, cared for her initially. The medical evidence indicates that she made a quick and full recovery, but Mouhot testified that she still had pain and weakness at the time of trial in 2006. She also explained how she suffered when she was unable to care for her son, who was dying of cancer, in the months following the accident. The evidence showed that Mouhot had a preexisting lower back condition which caused pain both before and after the hip injury.

| ⅞Conflicting expert testimony regarding the safety of the mat in question was presented at trial. The plaintiffs expert considered the mat unreasonably dangerous in normal use because it presented a hazard to people wearing high heels, as is common for women attending church services. He testified that the mat would be more appropriate for industrial use where footwear can be controlled. The expert analyzed the size of the holes in the mat and Mouhot’s shoe and determined that the heel of the shoe wedged perfectly in the hole, causing Mouhot’s fall.

Conversely, the defense expert testified that the mat was not unreasonably dangerous. He described the mat as a debris mat, one that automatically cleans particles of grit off the bottom of the shoe and necessarily has holes in it for drainage purposes. He testified that Mouhot must have stepped through the threshold sideways in order for her heel to fit the shape and direction of the drainage holes in the mat. The defense expert, however, did not attribute any negligence to Mouhot’s conduct.

The evidence also shows that the mat was a commonly used doormat and had been in place for perhaps as long as twenty years without incident. Nevertheless, at least one church employee viewed the mat as dangerous and had removed it from the doorway more than once. He testified that someone always came behind him and put the mat back where Mouhot fell.

In comparing the actions of both Mouhot and church personnel, the jury chose to assess fault almost evenly, finding the church 55% negligent and Mouhot 45% negligent. While the record supports the finding of the church’s negligence in using a mat with holes in it while knowing that women with high heels will walk over it, we find no evidence to support the conclusion that Mouhot was also negligent. Therefore, we reverse the finding of comparative fault and assess the defendants with 100% fault.

| -¡“A trial court can grant a JNOV only when a jury’s verdict is one which reasonable people could not have rendered; if reasonable persons could have arrived at the same verdict given the evidence presented to the jury, then a JNOV is improper. The standard to be applied by the appellate courts in reviewing the grant or the denial of a JNOV is whether the trial court’s findings in rendering the JNOV were manifestly erroneous.” Bertrand v. Air Logistics, Inc., 01-1655, p. 13 (La.App. 8 Cir. 6/19/02), 820 So.2d 1228, 1237.

Likewise, in reviewing the jury’s allocation of fault, we are guided by the following standard of review:

The applicable standard of review regarding the factual consideration of respective degrees of fault is the manifest error or clearly wrong standard. Clement v. Frey, 95-1119, 95-1163 (La.1/16/96), 666 So.2d 607. This well-known standard prohibits an appellate court from altering a fact finder’s determinations, unless those determinations and findings have been found to be clearly wrong upon review of the trial court record. While applying this standard, great deference must be given to the fact finder’s results; however, the appellate court is required to simultaneously remain mindful of its constitutional duty to review the facts. La. Const, art. 5, §§ 5(C), 10(B); Clement, 666 So.2d 607; Ambrose v. New Orleans Police Dept. Ambulance Serv., 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So.2d 216.

Yellott v. Underwriters Ins. Co., 04-1342, p. 12 (La.App. 3 Cir. 8/31/05), 915 So.2d 917, 926, unit denied, 05-2439 (La.4/24/06), 926 So.2d 540.

Our review of the facts reveals error in the conclusion that Mouhot was comparatively at fault in this accident. There is no evidence to support this finding, even from the defendants’ expert witness, and it represents a verdict “which reasonable people could not have rendered.” Bertrand, 820 So.2d at 1237. Accordingly, we must reverse that portion of the judgment whereby Mouhot is assessed with 45% comparative fault.

We turn now to the plaintiffs second issue raised on appeal, the award of damages. The assessment of damages is a determination of fact and, upon review, is |4entitled to great deference. Consequently, “the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact.” Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70, 74 (quoting Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059,127 L.Ed.2d 379 (1994)).

We have reviewed the medical evidence as well as the testimony of Mouhot as to the effects of her injuries. While the amount of general damages awarded in this case is certainly modest, we do not find the award to be inadequate or an abuse of the fact finder’s great discretion. Accordingly, we affirm the $55,000.00 general damage award.

For the foregoing reasons, the judgment of the trial court is affirmed in part and reversed in part. Costs of this appeal are assessed to the defendants, Twelfth Street Baptist Church and GuideOne Mutual Insurance Company.

AFFIRMED IN PART AND REVERSED IN PART.


author: DICKINSON, Justice,

text:
    In re the PETITION OF Joe Price COLEMAN for Reinstatement in the Mississippi Bar.
    No. 2005-BR-02344-SCT.
    Supreme Court of Mississippi.
    June 15, 2006.
    Alex A. Alston, Jr., David Dogan, III, Jackson, attorneys for petitioner.
    Adam Kilgore, Jackson, attorney for respondent.
   DICKINSON, Justice,

for the Court.

¶ 1. Petitioner, Joe Price Coleman, seeks reinstatement'in the Mississippi Bar pursuant to Rule 12 of the Mississippi Rules of Discipline. On December 12, 2002, Coleman was suspended for a period of three years from the practice of law for violating Rules 1.15 and 8.4 of the Mississippi Rules of Professional Conduct by commingling client funds in his personal bank account.

FACTS AND PROCEEDINGS

¶ 2. The pertinent facts of this case arose while Coleman was changing employment from the law firm of Daniel Coker Horton & Bell, P.A. (“Daniel Coker”) to the law firm of Baker, Donelson, Bearman & Caldwell, P.C. (“Baker Donelson”). On March 24, 2000, Coleman, as administrator of the Arkansas Shared Counsel Defense Fund, signed a check in the amount of $14,904.94 payable to the Fund. He then deposited the check into his personal checking account. Coleman stated the purpose of the draft was to transfer the proceeds of that account to the Mississippi Hearing Loss Joint Defense Fund, of which Raymond Brown was administrator. Coleman claims that while he intended to deliver the funds to Brown the following week, other responsibilities, deadlines, travel, and the process of changing firms caused him to delay completing the transfer of funds. The funds were eventually delivered to Brown approximately one month later.

¶ 3. Daniel Coker mailed a letter to Coleman regarding the money, requesting he contact the firm. Coleman called Daniel Coker and reported the money had been transferred to his personal account and then to Brown. Daniel Coker then informed Coleman it felt a responsibility to report the matter to the Mississippi Bar. Coleman expressed his desire to act jointly with Daniel Coker in reporting the matter to the Bar.

¶4. Subsequently, the Bar brought a complaint against Coleman alleging violation of Rules 1.15 and 8.4(a), (c), and (d) of the Rules of Professional Conduct. The Complaint Committee found Coleman had violated Rule 1.15, but not Rules 8.4(a), (c), and (d), and it ordered Coleman be suspended from the practice of law for thirty days and receive a public reprimand.

¶ 5. While the Complaint Tribunal found “there was no clear showing” that Coleman’s actions demonstrated an intent to misappropriate or convert the funds for his own use, this Court did not agree. We concluded in The Mississippi Bar v. Joe Price Coleman, 849 So.2d 867, 877 (Miss. 2002), that Coleman violated not only Rule 1.15 but also Rules 8.4(a), (c), and (d), and we ordered Coleman be suspended from the practice of law for three years.

¶ 6. The three-year suspension has now expired, and Coleman seeks reinstatement in the Mississippi Bar. Coleman filed a Petition for Reinstatement on December 21, 2005, and the Bar responded to the petition on February 3, 2005, by stating that Coleman’s petition presents the necessary factual evidence to clearly and convincingly demonstrate rehabilitation. The Bar also supports Coleman’s reinstatement to the practice of law.

DISCUSSION AND ANALYSIS

¶ 7. This Court in In re Benson, 890 So.2d 888, 890 (Miss.2004), stated the requirements under Rule 12 of the Mississippi Rules of Discipline for reinstatement after suspension. In accordance with that decision, the petitioner must (1) state the cause for suspension; (2) give the names and current addresses of all persons, parties, firms, or legal entities who suffered pecuniary loss due to the improper conduct; (3) make full amends and restitution; (4) show the necessary moral character for the practice of law; and (5) demonstrate the requisite legal education to be reinstated to the practice of law. Id.

Cause for suspension

¶ 8. To fulfill the first requirement, Coleman must state the cause for suspension. Coleman states the cause for his suspension was the placing of trust funds in his own personal account and leaving such funds in his personal account for over a month in violation of Rules 1.15 and 8.4(a), (c), and (d) of the Rules of Professional Conduct, as discussed in this Court’s opinion in Coleman, 849 So.2d at 869-70. We find Coleman has adequately set forth the facts to satisfy the first requirement for reinstatement.

Parties suffering pecuniary loss due to the improper conduct

¶ 9. To fulfill the second requirement, Coleman must give the names and addresses of all persons, parties, firms, or legal entities who suffered pecuniary loss due to his misconduct. In his petition, Coleman states that no persons, parties, firms, or legal entities suffered any pecuniary loss as a result of his misconduct. Additionally, Coleman states the Mississippi Bar has been reimbursed for its costs. We find Coleman has satisfied the second condition.

Full amends and restitution

¶ 10. To fulfill the third requirement, Coleman must make full amends and restitution. Coleman asserts there are no amends to be made as a result of his misconduct, and the Bar agrees with this assertion. Accordingly, Coleman has satisfied the third requirement.

Showing of the necessary moral character for the practice of law

¶ 11. To fulfill the fourth requirement, Coleman must demonstrate he has the necessary moral character for the practice of law. Coleman’s petition addresses his civic and charitable involvement prior to his suspension, including service on the board of the Eudora Welty Library, service as a mentor for the Jackson Public Schools, and service to his local church. During his suspension, Coleman donated time and money to the Salvation Army and to “Christmas Angels,” a Christmas fund for children on the Mississippi Coast. Also during his suspension, Coleman served as president of the homeowners association in Seaside, Florida, where he volunteered with the recent hurricane relief efforts. Coleman is an active member in both his church in Florida and Christ United Methodist Church in Jackson.

¶ 12. Coleman’s petition includes thirty-six letters of recommendation from members of the Mississippi Bar, out-of-state attorneys, and several non-attorneys. These letters praise Coleman’s civic and charitable work. The letters consistently refer to Coleman’s sincere remorse regarding his actions that led to his suspension. The recommendations also speak highly of Coleman’s character, integrity, and moral fitness to practice law. It is evident from the content of the numerous letters of recommendation that Coleman is regarded as a skilled, competent, and respected lawyer, despite his recent disciplinary suspension.

¶ 13. Furthermore, Coleman states in his petition that during the last three years he has had the opportunity to evaluate why he wanted to become a lawyer. He says the time away from the pressures of managing a law practice enabled him to remember the sacred relationship of trust between attorney and client. He recognizes that he failed to follow the rules of professional responsibility and was appropriately punished for such failure. He accepts full responsibility and is deeply remorseful for his actions and the embarrassment he caused. Coleman prays to have the opportunity and privilege to be a member of the Bar again.

¶ 14. The Bar asserts Coleman has adequately demonstrated that he possesses the requisite moral character for the practice of law. We agree and find Coleman has satisfied the fourth requirement for reinstatement.

Requisite legal education

¶ 15. To fulfill the fifth requirement, Coleman must demonstrate the requisite legal education to be reinstated to the privilege of practicing law. Coleman’s petition includes a summary of his legal practice since law school through his recent three-year suspension.

¶ 16. Coleman graduated with honors from the University of Mississippi School of Law in 1975. After law school, Coleman practiced general law with a small firm for seven years in Corinth, Mississippi. In 1983, Coleman moved to Jackson and joined the Daniel Coker law firm, where he worked for the next 17 years developing the firm’s environmental mass tort litigation division. During his time in Corinth and then with Daniel Coker, Coleman was an “AV” rated lawyer and was never accused of an ethical violation. Also, during the mid-1980’s, Coleman served on the Bar committee that facilitated the transfer from the Code of Professional Responsibility to the Rules of Professional Conduct.

¶ 17. In 2000, Bill Reed, managing partner of the Baker Donelson law firm, approached Coleman about leaving Daniel Coker to join Baker Donelson as a partner. Coleman left Daniel Coker and entered the Baker Donelson firm as a partner, where he served until his suspension on December 12, 2002.

¶ 18. Upon his suspension from the practice of law, Coleman states he dedicated himself to reestablishing his legal career and reputation. Coleman assisted an attorney from California who worked with under-privileged consumers on commercial matters. Coleman also worked as a paralegal for attorneys in New York, California, Arkansas, Florida, and Mississippi. Coleman states his work included “document organization,” whereby he would obtain loan information and organize the documents for review by the attorney. He also provided summaries of documents for use during hearings and trials. Throughout his suspension, Coleman asserts he was sensitive to the requirement that he not engage in the practice of law or have contact with his former clients. Coleman also maintains he never held himself out to be a lawyer and did not render any legal advice during the time of his suspension.

¶ 19. Additionally, Coleman testified he routinely read the decisions handed down by this Court and the Court of Appeals during his suspension. Coleman states he attended a continuing legal education seminar in Atlanta regarding Silica mass tort litigation. Coleman also took and passed the Multi-State Professional Responsibility portion of the Bar Exam and achieved a scaled score of 142, which exceeds the minimum required score of 80.

¶20. The Bar believes that Coleman did not engage in the unauthorized practice of law during his suspension and that Coleman possesses the requisite legal learning for the practice of law. We agree and find Coleman has satisfied the fifth requirement for reinstatement.

CONCLUSION

¶ 21. Coleman bears the burden of proving to this Court, by clear and convincing evidence, that he is rehabilitated and possesses the requisite moral character for reinstatement to the practice of law. Coleman’s petition and testimony indicate his genuine remorse for his misconduct as well as his sincere desire to return to the practice of law. The letters of recommendation acknowledge the severity of Coleman’s misconduct, address Coleman’s rehabilitation efforts, and advocate for Coleman’s reinstatement. Further, it is the Bar’s position that Coleman’s petition presents the necessary clear and convincing factual evidence to demonstrate rehabilitation. We agree and hereby grant Coleman’s Petition for Reinstatement in the Mississippi Bar.

¶ 22. JOE PRICE COLEMAN’S PETITION FOR REINSTATEMENT IN THE MISSISSIPPI BAR IS GRANTED.

SMITH, C.J., COBB, P.J., CARLSON, GRAVES AND RANDOLPH, JJ., CONCUR. DIAZ, J., CONCURS IN RESULT ONLY. EASLEY, J. DISSENTS WITHOUT SEPARATE WRITTEN OPINION. WALLER, P.J., NOT PARTICIPATING.


author: COBB, Presiding Justice,

text:
    THE MISSISSIPPI BAR v. Warner HODGES, III.
    No. 2005-BD-01917-SCT.
    Supreme Court of Mississippi.
    July 27, 2006.

      Adam Kilgore, Jackson, attorney for appellant.
    Warner Hodges, III, appellee, pro se.
   COBB, Presiding Justice,

for the Court.

¶ 1. Warner Hodges, III, was charged court costs and suspended from the practice of law in the State of Tennessee for a period of one year for the violation of Rules 5.5(a) and 8.4(a)(c)(d)(g) of the Tennessee Rules of Professional Conduct. Subsequently, the Mississippi Bar filed a Formal Complaint with this Court pursuant to Rule 13 of the Mississippi Rules of Discipline, which provides for reciprocal discipline.

FACTS AND PROCEDURAL HISTORY

¶ 2. Hodges tendered a Conditional Guilty Plea to the Board of Professional Responsibility of the Supreme Court of Tennessee, after a bar complaint was filed against him for consuming alcohol in violation of his monitoring agreement with the Tennessee Lawyers Assistance Program (TLAP). As a result, the Supreme Court of Tennessee suspended Hodges for the period of one year and assessed court costs against him. Pursuant to that action, the Mississippi Bar filed a formal complaint against Hodges recommending that he be suspended from practicing law in Mississippi in accordance with Rule 13 of the Mississippi Rules of Discipline. No specific length of time for the suspension was recommended.

ANALYSIS

¶ 3. This Court retains exclusive jurisdiction and is the ultimate judge of attorney discipline matters, pursuant to Rule 1(a) of the Rules of Discipline for the Mississippi State Bar. Miss. Bar v. Inserra, 855 So.2d 447, 450 (Miss.2003). We review matters of attorney discipline de novo, including those arising out of reciprocal discipline. Id. We also apply a proportionality requirement to Bar discipline cases. Miss. Bar v. Drungole, 913 So.2d 963, 967 (Miss.2005). This Court is free to modify the punishment as needed to best serve the interests of the Bar and the public. Parrish v. Miss. Bar, 691 So.2d 904, 907 (Miss.1996); Miss. State Bar v. Blackmon, 600 So.2d 166, 173 (Miss.1992).

¶ 4. Rule 13 of the Mississippi Rules of Discipline (MRD) provides that disciplinary sanctions in another jurisdiction shall be grounds for disciplinary action in this state. The rule further states that the sanction of the sister state shall be conclusive proof of guilt, and the sole issue to be determined in our state’s disciplinary proceedings is the extent of the final discipline to be imposed on the attorney, which may be more or less severe than the discipline imposed by the sister state.

¶ 5. This is a case of first impression before this Court and arises from the imposition of disciplinary sanctions for violations of a monitoring agreement required through a lawyers’ assistance program of a state bar. The standards and requirements which we apply in other reciprocal disciplinary actions shall apply.

¶ 6. In his Response to Formal Complaint filed with this Court in November, 2005, Hodges states that he has been alco-hoi free since his relapse in the summer of 2004 and regularly attends Alcoholics Anonymous meetings. Hodges, then a resident of Germantown, Tennessee, points out that he rarely practiced in Mississippi, has no pending Mississippi cases nor any intention of taking on any in the future, and has been a resident of Georgia since July of 2005. Further, Hodges states that he has not engaged in unprofessional or unethical conduct in Mississippi. He also clearly acknowledges that his suspension in Tennessee is sufficient grounds for suspension in Mississippi, under the provisions of MRD Rule 13. Finally, Hodges asks that we take into consideration that his one year suspension in Tennessee expired on October 1, 2005, prior to the filing of the Formal Complaint by the Mississippi Bar on October 11, 2005.

¶ 7. In this Court’s application of the reciprocity doctrine, the sanction imposed in this State generally mirrors the sanction imposed in the sister state, absent extraordinary circumstances which compel, justify or support variance from the foreign jurisdiction’s sanction. Drungole, 913 So.2d at 970. We may impose sanctions less than or greater than those imposed by another jurisdiction. Miss. Bar v. Gardner, 730 So.2d 546, 547 (Miss.1998). An attorney “who is subject to reciprocal discipline may ... offer any mitigating factors which he thinks serve to diminish his culpability and therefore diminish the necessity for, or severity of, sanctions to be imposed by this Court.” Miss. Bar v. Strauss, 601 So.2d 840, 844 (Miss.1992).

¶ 8. The following nine criteria are applied when determining the appropriate sanctions for an attorney: (1) the nature of the misconduct involved; (2) the need to deter similar misconduct; (3) the preservation of the dignity and reputation of the profession; (4) protection of the public; (5) the sanctions imposed in similar cases; (6) the duty violated; (7) the lawyer’s mental state; (8) the actual or potential injury resulting from the misconduct; and (9) the existence of aggravating and/or mitigating factors. Inserra, 855 So.2d at 450. It is logical that the same criteria should also be considered when determining reciprocal discipline, although all may not apply. There is no need for this Court to address separately each criterion, so long as each is taken into consideration.

¶ 9. Upon consideration of factors one through four, as well as six, it is evident that the actions of TLAP have addressed and dealt not only with Hodges’s noncompliance with the monitoring agreement, but also with the duty violated, and his underlying misconduct (excessive drinking) and deterred it, thus preserving the dignity and reputation of the profession and protecting the public. The fact that TLAP is monitoring Hodges for five years provides additional assurance that he has stabilized, and the potential injury resulting from his misconduct is alleviated.

¶ 10. We thus need only to address the two remaining factors, beginning with the following mitigating circumstances presented by Hodges:

(1) The original infraction did not involve an act of moral turpitude like dishonesty, corruption, fraud, etc. Rather, Hodges relapsed by drinking alcohol in violation of the TLAP monitoring agreement.
(2) He is a regular attendant at Alcoholics Anonymous with a sponsor who has a lengthy sobriety, and, at the time of filing his Response with this Court, was halfway through the 12-step program.
(3) He has reentered the Tennessee Lawyers Assistance Program and is in compliance with the monitoring program, including weekly review and peer groups.
(4) He has completed serving his one-year suspension in Tennessee and was assessed costs of $1,843.30.
(5) There is no evidence of any prior infractions or that any client has been significantly harmed by Hodges’s violation of the monitoring agreement.

¶ 11. The last of the nine criteria is the sanction imposed in similar cases. A review of reciprocal discipline from other states, as well as from other courts within our state, reveals a wide range of infractions resulting in a wide range of sanctions. All of them have been scrutinized on a case-by-case basis.

¶ 12. In Mathes v. Miss. Bar, 637 So.2d 840 (Miss.1994), which involved an attorney suspended in the bankruptcy courts, this Court said suspensions from the practice of law have been reserved for instances where some form of dishonesty has significantly harmed the client, or constituted a fraud on a court, or both. We only suspended Mathes for six months rather than the one year suspension he received in the bankruptcy court. There is no evidence before us that Hodges engaged in dishonesty or misrepresentation.

¶ 13. In Miss. Bar v. Pels, 708 So.2d 1372, 1373 (Miss.1998), this Court imposed a 30-day suspension, instead of disbarment which was the sanction imposed by the District of Columbia, because there was no evidence that Pels engaged in dishonesty or misrepresentations, and he was taking steps to better educate himself on the matter so the problem did not arise again in the future. Pels had commingled personal funds with those of a client, and allowed the balance in the account to drop below that required to satisfy third-party claims against the client’s funds. Id. at 1375-77. In the present case, Hodges is also trying to rehabilitate himself by attending Alcoholics Anonymous regularly, and he has been in full compliance with the TLAP the monitoring agreement.

¶ 14. In Miss. Bar v. Walls, 797 So.2d 217, 222 (Miss.2001), this Court determined that a public reprimand was a sufficient sanction where the attorney failed to keep his client properly informed and failed to properly prepare for appeal. In the present case, there is no indication of direct harm to any clients in Mississippi, unlike the infraction in Walls.

¶ 15. Another legitimate concern in the present case warrants additional consideration. Tennessee’s retroactive application of its one year suspension, to October 1, 2004, resulted in Hodges’s Tennessee suspension being completed ten days prior to the filing of the formal complaint against him in Mississippi. To now enter an additional year of suspension here, in light of the nature of the violation and the surrounding facts and circumstances, seems impractical, if not illogical.

¶ 16. This Court has long held that the purpose of lawyer discipline is not so much to punish the errant attorney as it is to maintain appropriate standards of professional conduct necessary to protect the public and the administration of justice. Miss. Bar v. Carter, 678 So.2d 981, 982 (Miss.1996). That said, we can see no just reason to suspend Hodges prospectively for his professed wrongdoing which occurred in 2004. He has availed himself of the TLAP process, and there is no evidence before us that he has violated the conditions of his Tennessee suspension.

¶ 17. The unusual circumstances in the present case do not fit “squarely” within the procedures set forth in MRD Rule 11, to be followed when an attorney is suspended. However, after due consideration of the facts before us, we determine that the following discipline is appropriate under the Rules of Discipline and practical in its application:

1. Hodges’s license to practice law in the State of Mississippi is hereby suspended for a period of one year, retroactive to July 11, 2005, the date that the Tennessee Supreme Court entered its Order of Enforcement which suspended Hodges for one year.
2. Hodges shall continue to comply with his monitoring agreement with TLAP for the period of time remaining on the five year commitment required by the Tennessee order and shall provide this Court with confirmation of compliance on an annual basis.
3. Hodges shall, within 14 days of the date of this opinion, file an Affidavit with this Court stating either that he has not practiced law in the State of Mississippi since July 11, 2005, and thus no notices are required, or that he has given the following notices required under MRD 11(c): (1) notice to all Mississippi clients of his suspension and his consequent inability to act as an attorney from and after the effective date of his suspension; (2) notice to each client involved in pending litigation or administrative proceedings and the attorney or attorneys for each adverse party in such proceedings, of his suspension and consequent inability to act as an attorney after the effective date of his suspension; (3) advise each client promptly to substitute another attorney or attorneys in his place or to seek legal advice elsewhere; (4) notify all affected courts and agencies of his disbarment, suspension or resignation and consequent inability to act as an attorney after July 11, 2005; and (5) give such other notice as the disciplinary agency last having jurisdiction may direct in the public interest.

¶ 18. Should Hodges seek reinstatement to the practice of law in the State of Mississippi, he shall be required not only to comply with all the requirements of MRD Rule 12, but also to present proof to the Mississippi Bar that he has completed, or is continuing in compliance with, the conditions of his TLAP monitoring agreement, as required by the Tennessee Supreme Court.

CONCLUSION

¶ 19. Warner Hodges, III, is hereby suspended from the practice of law in the State of Mississippi for a period of one year, retroactive to July 11, 2005. He shall pay all costs associated with this disciplinary action and shall timely provide the notices and affidavit as set forth above.

¶ 20. WARNER HODGES, III, IS SUSPENDED FROM THE PRACTICE OF LAW IN THE STATE OF MISSISSIPPI FOR ONE YEAR FROM AND AFTER JULY 11, 2005, AND SHALL PAY ALL COSTS OF THIS APPEAL.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ„ CONCUR. DIAZ, J., CONCURS IN RESULT ONLY. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Both Tennessee and Mississippi have initiated lawyer assistance programs to provide immediate and continuing assistance to lawyers, judges, and law students who suffer from afflictions such as alcoholism, drug addiction, and mental health problems. Compliance with the monitoring agreements established under these assistance programs is a critical component to the successful completion of the program and the recovery.

      . Apparently the TLAP process provides for immediate suspension upon violation of their monitoring agreement, because the July 11, 2005, Supreme Court of Tennessee Order of Enforcement stated that Hodges "shall be suspended from the practice of law for a period of one (1) year retroactive to October 1, 2004, the date upon which he was first suspended.” The Order further provided that Hodges "shall continue in his monitoring agreement with Tennessee Lawyers Assistance Program (TLAP) upon terms and conditions recommended by TLAP, for a period of five (5) years, with any reported incidence of non-compliance constituting immediate grounds for summaiy suspension.”

      . A good compilation of these cases is set forth in Inserra, 855 So.2d at 451.


text:
    THE MISSISSIPPI BAR v. Michael E. GILMER.
    No. 2006-BD-00752-SCT.
    Supreme Court of Mississippi.
    Oct. 25, 2006.
   ORDER

¶ 1. This matter is before the en banc Court on the complaint of the Mississippi Bar seeking disciplinary action against attorney Michael E. Gilmer, Post Office Box 384, Columbia, Tennessee 38402-0382, based on the Supreme Court of Tennessee’s imposition of a five-year suspension from the practice of law.

¶2. On April 17, 2006, the Supreme Court of Tennessee suspended Gilmer from the practice of law in the State of Tennessee for five years. Attached to the Bar’s complaint is a certified copy of the Supreme Court of Tennessee’s order of suspension, as well as certified copies of other pleadings in that matter.

¶ 3. The Tennessee Supreme Court took action against Gilmer after eight individuals filed complaints against him with the Tennessee Bar Association. The complaints were based on Gilmer’s alleged unprofessional conduct in 2004. The complainants each paid Gilmer a retainer for his legal services ranging from $400 to $1200. Gilmer was hired to represent the complainants in a variety of issues including custody disputes, divorce proceedings and collection matters. He either failed to file the required action or failed to follow through with the cases for which he was retained. He did not return the complainants’ money or respond to any of the complainants repeated phone calls and requests for information.

¶ 4. Gilmer did not respond to any of the complaints and a default judgment was entered by the Board of Professional Responsibility of the Supreme Court of Tennessee.

¶ 5. This judgment constitutes conclusive proof of guilt under the Mississippi Rules of Evidence 13; therefore it is unnecessary for this Court to pursue any further fact-finding.

¶ 6. The Mississippi Bar attempted to serve process on Gilmer by certified mail. Gilmer refused to accept the certified copies of the notice, summons, formal complaint and acknowledgment of receipt of summons and formal complaint. We find that Gilmer’s inaction demonstrates his intent not to contest any discipline which may be imposed on him.

¶ 7. Gilmer is currently suspended from the Mississippi Bar for non-payment of annual dues.

¶ 8. In this Court’s application of the reciprocity doctrine, the sanction imposed in this State generally mirrors the sanction imposed in the sister state, absent extraordinary circumstances which compel, justify or support variance from the foreign jurisdiction’s sanction. Miss. Bar v. Drungole, 913 So.2d 963, 970 (Miss.2005). We may impose sanctions less than or greater than those imposed by another jurisdiction. Miss. Bar v. Gardner, 730 So.2d 546, 547 (Miss.1998). An attorney “who is subject to reciprocal discipline may ... offer any mitigating factors which he thinks serve to diminish his culpability and therefore diminish the necessity for, or severity of, sanctions to be imposed by this Court.” Miss. Bar v. Strauss, 601 So.2d 840, 844 (Miss.1992). Because Gilmer has not responded to the formal complaint either before the Complaint Tribunal or before this Court, there are no mitigating factors to consider.

¶ 9. In Miss. Bar v. Daniels, 890 So.2d 872 (Miss.2004), in a reciprocal disciplinary case from Connecticut, we suspended an attorney for two years for failing to defend a client’s contempt case, to communicate with his clients, to provide timely refunds and accountings of his fees, and to pay a client’s outstanding medical bills in a timely manner after he settled her personal injury ease.

¶ 10. In Miss. Bar v. Caldwell, 890 So.2d 855 (Miss.2004), in a reciprocal disciplinary case from Tennessee, we suspended an attorney for 90 days for neglecting the legal affairs of six clients. This case is distinguished from the facts at hand because Caldwell fully cooperated with the Complaint Tribunal and voluntarily withdrew from the practice of law in Mississippi while the disciplinary proceedings were pending.

¶ 11. In Miss. Bar v. Pels, 708 So.2d 1372, 1373 (Miss.1998), we imposed a 30-day suspension, instead of disbarment which was the sanction imposed by the District of Columbia, because there was no evidence that Pels engaged in dishonesty or misrepresentations, and he was taking steps to better educate himself on the matter so the problem did not arise again in the future.

¶ 12. Finally, in Parrish v. Mississippi Bar, 691 So.2d 904 (Miss.1996), we suspended an attorney for two years for failing to notify his client of a court-ordered physical examination.

¶ 13. Having considered the facts here, we find that a five-year suspension from the practice of law in the State of Mississippi is appropriate.

¶ 14. IT IS, THEREFORE, ORDERED that, based on Rule 13 of the Mississippi Rules of Discipline, Michael E. Gilmer is hereby suspended from the practice of law in the State of Mississippi for a period of five years from the date of entry of this order.

¶ 15. IT IS FURTHER ORDERED that Michael E. Gilmer may be reinstated to the privilege of practicing law only upon petition to and order of this Court, pursuant to Rule 12 of the Mississippi Rules of Discipline. After the expiration of the five-year suspension and prior to petitioning for reinstatement, Gilmer shall take the Multi-State Professional Responsibility Exam as prepared by the National Conference of Bar Examiners, and achieve a scaled score of not less than 80.

¶ 16. IT IS FURTHER ORDERED that the Bar is entitled to recover from Michael E. Gilmer all costs of these proceedings, as well as all previously assessed sums. The Bar shall file its motion for costs and expenses with the Court within ten days of the filing of this Order.

¶ 17. IT IS FURTHER ORDERED that the Clerk of the Court shall mail a certified copy of this order to the Mississippi Bar, and shall mail a certified copy of this order via certified mail, return receipt requested, to Michael E. Gilmer, Post Office Box 384, Columbia, Tennessee 38402-0382.

¶ 18. SO ORDERED.

/s/ William L. Waller, Jr. WILLIAM L. WALLER, JR., Presiding Justice

      . Rule 13 provides as follows:
      When an attorney should be subjected to disciplinary sanctions in another jurisdiction, such sanction shall be grounds for disciplinary action in this state, and certification of such sanction by the appropriate authority of such jurisdiction to the Executive Director of the Bar or to the Court, shall be conclusive evidence of the guilt of the offense or unprofessional conduct on which said sanction was ordered, and it will not be necessary to prove the grounds for such offense in the disciplinary proceeding in this state. The sole issue to be determined in the disciplinary proceeding in this state shall be the extent of the final discipline to be imposed on the attorney, which may be less or more severe than the discipline imposed by the other jurisdiction.