text:
    In re Douglas M. SCHMIDT.
    No. 2007-B-1996.
    Supreme Court of Louisiana.
    March 7, 2008.
   |,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, Douglas M. Schmidt, an attorney licensed to practice law in the States of Louisiana and South Carolina, based upon discipline imposed by the Supreme Court of South Carolina.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Respondent is licensed to practice law in South Carolina and Louisiana. Until January 2005, respondent operated a law office in Louisiana only. However, following a train derailment in Graniteville, South Carolina in January 2005, respondent opened a law office in Graniteville.

In January 2005, respondent published several advertisements in the Aiken Standard newspaper in order to solicit clients as a result of the train accident. In two of these advertisements, respondent failed to disclose the location, by city or town, where he principally practiced law. Respondent also posted a billboard in Gran-iteville using a form of the word “specialist,” when in fact he is not a specialist certified by the South Carolina Supreme Court.

|2On February 8, 2005, respondent sent a solicitation letter (Letter # 1) to residents in and around Graniteville, in which he referred to himself as a “neighborhood attorney” and included his photograph. Letter # 1 stated that respondent’s staff “will review your claim to see if you are entitled to damages,” and stated he was able to “achieve the best legal results possible.” Respondent failed to disclose that he principally practiced law in Louisiana, did not disclose how he obtained the information prompting the communication, included a form of the word “expert,” and provided an incorrect address and telephone number for the Commission on Lawyer Conduct (the Commission). Respondent did not file a copy of Letter # 1 with the Commission, and did not pay the required filing fee within ten days of mailing the letter.

On February 18, 2005, respondent sent another solicitation letter (Letter # 2) to residents in and around Graniteville. Letter #2 was similar, but not identical to Letter # 1, in that respondent removed his photograph and the word “expertise.” Although respondent filed a copy of Letter # 2 with the Commission, he failed to provide a list of persons to whom the letter was sent.

On March 3, 2005, respondent sent a third solicitation letter (Letter # 3) to residents in and around Graniteville, in which he used the phrase “experts in law.” Respondent failed to file a copy with the Commission, pay the filing fee, or provide a list of persons to whom it was sent within ten days of mailing Letter # 3. On March 22, 2005, respondent attempted to file Letter # 3 with the Commission, but failed to include a list of persons to whom it was mailed.

On June 16, 2005, respondent sent a letter to his clients regarding a proposed settlement. In the letter, respondent stated he was “picking up an average of an additional 25 clients a day,” when in fact he was only adding between one and six | adients a day. Although respondent believed the statement to be true, he did not verify this statement before including it in the letter.

Following the institution of the disciplinary proceeding, respondent and the South Carolina Office of Disciplinary Counsel entered into an Agreement for Discipline by Consent. In the agreement, respondent admitted that his conduct as set forth above violated numerous provisions of the South Carolina Rules of Professional Conduct, principally those concerning lawyer advertising. Respondent also consented to the imposition of a letter of caution, a confidential admonition, or a public reprimand as a sanction for his misconduct. By judgment filed on July 9, 2007, the South Carolina Supreme Court accepted the agreement and issued a public reprimand. In the Matter of Douglas M. Schmidt, 374 S.C. 167, 648 S.E.2d 584 (2007).

After receiving the Order of Public Reprimand from the Supreme Court of South Carolina, the ODC filed a motion to initiate reciprocal discipline in Louisiana, pursuant to Supreme Court Rule XIX, § 21. Attached to the motion was a certified copy of the order of the Supreme Court of South Carolina. On October 9, 2007, this court rendered an order giving respondent 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. Respondent timely filed an opposition with this court in which he asserted that this court should elect not to impose reciprocal discipline against him because the violations charged in South Carolina were “technical violations or differences in |4semantics, many of which are not considered violations under the Louisiana Rules of Professional Conduct.”

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 inactivé 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
(5) The reason for the original transfer to disability inactive status no longer exists.

In the instant case, respondent has made no showing of infirmities in the South Carolina proceeding, nor do we discern any from our review of the record. Furthermore, we find no extraordinary circumstances which warrant deviation from [sthe sanction imposed by the Supreme Court of South Carolina. We have held that “only under extraordinary circumstances should there be a significant variance from the sanction imposed by the other jurisdiction.” In re: Aulston, 05-1546 (La. 1/13/06), 918 So.2d 461. Considering that we share authority over respondent with South Carolina, we will defer to that state’s determination of discipline. See, e.g., In re Zdravkovich, 831 A.2d 964, 968-69 (D.C.2003) (“there is merit in according deference, for its own sake, to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory authority”). Accordingly, we will impose reciprocal discipline of a public reprimand 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 Douglas M. Schmidt, Louisiana Bar Roll number 11789, be publicly reprimanded.

      . Respondent taped over the word upon discovery of the error.

      . Respondent’s conduct likewise constitutes a violation of the Louisiana Rules of Professional Conduct, specifically Rules 7.1 (a lawyer shall not make false, misleading, or deceptive communications about the lawyer or the lawyer's services) and 7.4 (a lawyer shall not state or imply that he is certified, a specialist, or an expert in a particular area of law).


source: Caselaw Access Project

author: JOHNSON, J.

license: Public Domain

text:
    Yvette ALEXANDER and Trudy M. White v. CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE and Lon Norris, Clerk/Judicial Administrator.
    No. 2007-C-2348.
    Supreme Court of Louisiana.
    March 7, 2008.
    KIMBALL, J., recused.
    JOHNSON, J., would grant and assigns reasons.
   JOHNSON, J.

Li would grant the writ application to consider the merits of the plaintiffs’ claims.

Plaintiff, Judge Yvette Alexander, was elected to Division “D” of the Baton Rouge City Court in 1995. Plaintiff, Judge Trudy White, was elected to Division “B” of the same court on December 6, 1999. The court consists of Judges Alexander, White and three other judges. In February of 2002, the three other judges voted for the appointment of Lon Norris as Clerk/Judicial Administrator of the Baton Rouge City Court. Plaintiffs opposed Norris’ appointment. This non-unanimous appointment resulted in a dispute regarding the appointing authority of the court. In January of 2005, the Judges of the Court decided by a 3-2 vote to reorganize the court, and delegated the Court’s appointing authority to Norris. Norris’ job description was subsequently amended to reflect this change, which included Norris’ responsibility for “appointments, training, evaluation, and disciplinary matters for all |2classified and unclassified positions with City Court.” This increased power apparently also allows Norris to select each Judge’s law clerks and personal staff.

Plaintiffs filed the present action for declaratory judgment and injunctive relief, asserting that the appointment of the Clerk/Judicial Administrator must be a unanimous mandate of the City Court, and that the majority’s actions stripped them of their appointing authority status. Defendants filed an exception of Lack of Subject Matter Jurisdiction alleging that the majority vote at the City Court administrative meeting mooted the issue of “appointing authority.”

I would grant this writ application to consider this important issue of whether a sitting judge may be divested of appointing authority by a majority vote of his/her colleagues on the Court. It has long been recognized that a Judge is the appointing authority, with authority to hire and fire employees to assist with the work of the court. In my view, three judges by majority rule cannot usurp the authority of the plaintiff judges to manage and control the hiring and firing of employees of the Plaintiffs’ divisions of Court.

In my view, the appointing power of an elected Judge to manage and control their division of court, and to properly exercise the duty of the court in general, arises out of the doctrine of inherent powers. In Konrad v. Jefferson Parish Council, 520 So.2d 393 (La.1988), this Court held that under the doctrine of inherent powers, courts have the power (other than those powers expressly enumerated in the constitution and the statutes) to do all things reasonably necessary for the exercise of their functions as courts. The doctrine is a corollary of the concepts of separation of powers and of judicial independence, in that other branches of government cannot, by denying resources or authority to the court, prevent the courts from carrying out |stheir constitutional responsibilities as an independent branch of government. The inherent power of the judiciary is a necessary concomitant to the judicial power, but pertains to the administration of the business of the court.

The doctrine of inherent powers has been utilized to require the appropriation or expenditure of funds reasonably necessary for the court’s functioning as a court. See: McCain v. Grant Parish Police Jury, 440 So.2d 1369 (La.App. 3rd Cir.1983). In McCain, the court noted that: “In the instant case the [Police] Jury is the Legislative body of the Parish of Grant. The Plaintiff [Judge McCain] is of the Judiciary Body of said Parish. In order for the Judiciary Body through the Judge’s Office to properly function free and untrammeled it cannot be directed, controlled or impeded in its functions by any of the other departments of government. The [Police] Jury by its failure to properly budget funds for the Judge’s Office will reduce the efficiency and independence of same. This is not to be permitted.”

Judges, as with all elected officials, are obligated to perform certain duties, and are entitled to exercise certain powers in order to fulfill these obligations. Neither the State, Parish, City, nor other governing authority can prevent such elected officials from performing their duties. In this case, the Plaintiffs were entrusted with certain duties and obligations when they were elected to office. Plaintiffs are accountable for the actions in their own courtrooms, as well as the operation of the court as a whole. Plaintiffs have been stripped of their authority to hire and fire their own | individual staffs, and stripped of their authority to control and manage the operation of their divisions of Court. The actions of the other three judges in usurping Plaintiffs’ appointing power, and in appointing Norris as Clerk/Judicial Administrator, over plaintiffs’ objections, have essentially prevented Plaintiffs from performing their official duties. In my view, this Court should grant the plaintiffs’ writ application to address the merits of these concerns.

In addition, I would grant the writ application to consider whether the plaintiffs were properly taxed with costs related to these proceedings. In my view, Plaintiffs, as elected judges, were acting in their official capacity in bringing the instant action to assert and protect their appointing authority. As such, they should not be required to pay the costs incurred in this case. See: La. R.S. 13:4521; Twenty-First Judicial Dist. Court v. State, Through Guste, 563 So.2d 1185 (La.App. 1st Cir.1990)[citing Sales Tax District No. 1 of Parish of Lafourche v. Express Boat Company, Inc., 500 So.2d 364 (La.1987); State in the Interest of BS v. PS, 542 So.2d 1163 (La.App. 2nd Cir.1989); State Department of Transportation and Development v. Keating, 541 So.2d 247 (La.App. 4th Cir.1989); State in the Interest of JML, 540 So.2d 1244 (La.App. 3rd Cir. 1989); State in the Interest of JKF, 481 So.2d 194 (La.App. 1st Cir.1985)].

For these reasons I would grant the writ application.

      . United States v. Hudson, 11 U.S. (7 Cranch) 32, 3 L.Ed. 259 (1812); McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 4 L.Ed. 579 (1819).

      . Also see: Carriere v. St. Landry Parish Police Jury, 97-1914, 97-1937 (La.3/4/98), 707 So.2d 979, in which this court recognized that the legislature determines the duties of state officials such as coroners, and delegates some of the responsibility for funding the coroner's office to parish governing bodies. This Court held that when the legislature places the burden of paying salaries or other expenses of a state official on parish governing authorities, those bodies are generally obliged to pay these mandated expenses. Carriere, pp. 4-5, 707 So.2d at 981 (citing Reed v. Washington Parish Police Jury, 518 So.2d 1044, 1049 (La.1988)).


text:
    Stacy Michael MEAUX v. Lucille GALTIER, et al.
    No. 2007-CA-2474.
    Supreme Court of Louisiana.
    March 19, 2008.
   ORDER

IT IS ORDERED that the disposition of this court dated March 14, 2008 denying the rehearing application filed by John Hammond and Geraldine Hammond be and hereby is recalled and vacated on this court’s own motion.

IT IS FURTHER ORDERED that the application for rehearing filed by John and Geraldine Hammond as well as the filing by Scott Hammond in this matter shall be considered on the merits by this court in regular course.

/s/ Bernette J. Johnson Justice, Supreme Court of Louisiana


author: PER CURIAM.

text:
    In re Alexander D. BATES.
    No. 2008-OB-0551.
    Supreme Court of Louisiana.
    March 19, 2008.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, Alexander D. Bates, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of three years. During this period, petitioner shall provide evidence to the Office of Disciplinary Counsel, on at least a quarterly basis, demonstrating that he has made a good faith effort to satisfy his financial obligations. Should petitioner fail to make a good faith effort to satisfy his financial obligations, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


text:
    In re David C. WILLARD.
    No. 2007-OB-1899.
    Supreme Court of Louisiana.
    March 19, 2008.
   ORDER

Considering the Petition for Reinstatement from Disability Inactive Status filed by respondent, David C. Willard, the response thereto filed by the Office of Disciplinary Counsel, and the findings and recommendation of the hearing committee,

IT IS ORDERED that David C. Willard, Louisiana Bar Roll number 20420, be reinstated to the practice of law, subject to the condition that he must execute a new five-year recovery agreement with the Lawyers Assistance Program. Respondent shall fully and completely adhere to all terms of the recovery agreement, and such other conditions as may be imposed upon him by the Lawyers Assistance Program. The Office of Disciplinary Counsel shall monitor respondent’s compliance with his recovery agreement and notify this court of any violation, which may be grounds for immediately returning respondent to disability inactive status.

/s/ Bernette J. Johnson Justice, Supreme Court of Louisiana

CALOGERO, C.J., and WEIMER, J., recused.


text:
    MEYER & ASSOCIATES, INC. v. COUSHATTA TRIBE OF LOUISIANA.
    No. 2007-CC-2256.
    Supreme Court of Louisiana.
    Feb. 15, 2008.
   In re Meyer & Associates Inc.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 2006-2683; to the Court of Appeal, Third Circuit, No. CW 06-1542.

Granted.


text:
    STATE of Louisiana in the Interest of the Minor Child L.D.
    No. 2008-CJ-0275.
    Supreme Court of Louisiana.
    Feb. 20, 2008.
   In re Domingo, Jody; Domingo, Darlene; — Other(s); Applying for Writ of Cer-tiorari and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. A, No. 18 — 841—J; to the Court of Appeal, Fourth Circuit, No. 2007-CA-1039.

Denied.


text:
    STATE of Louisiana v. Ronald J. MARTIN a/k/a Ronald James Martin a/k/a Michael Martin a/k/a Ryan J. Martin.
    No. 2008-KK-0404.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Martin, Ronald J. a/k/a; Martin, Ronald James a/k/a; Martin, Michael a/k/a; Martin, Ryan J.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 470-487; to the Court of Appeal, Fourth Circuit, No. 2008-K-193.

Writ denied.

CALOGERO, C.J., would grant the writ.

KIMBALL, J., would grant the writ.


text:
    James H. “Jim” BROWN, as Commissioner of Insurance for the State of Louisiana v. ANA INSURANCE GROUP, A Louisiana Partnership.
    No. 2007-C-2116.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Commissioner of Insurance;— Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 388,758; to the Court of Appeal, First Circuit, No. 2006 CA 0626.

Granted.


text:
    Parma Matthis HOWARD and Jane Matthis Smith v. ADMINISTRATORS OF the TULANE EDUCATIONAL FUND.
    No. 2007-C-2224.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Smith Jane Matthis; Howard, Par-ma Matthis et al.; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. B, No. 2006-04200; to the Court of Appeal, Fourth Circuit, No. 2006-CA-1276.

Granted.


text:
    A. Remy FRANSEN, Jr. and Allain F. Hardin v. CITY OF NEW ORLEANS, et al.
    No. 2008-C-0076.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re United Governmental Services of Louisiana Inc.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 2002-5170; to the Court of Appeal, Fourth Circuit, No. 2006-CA-1325.

Granted. Docket as appeal.


text:
    A. Remy FRANSEN, Jr. and Allain F. Hardin v. CITY OF NEW ORLEANS, et al.
    No. 2008-C-0087.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Bureau of Revenue Dept, of Finance; New Orleans, City of et al.; Line-barger Goggan Blair Pena & Sampson;— Defendant(s); Applying for Writ of Certio-rari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 2002-5170; to the Court of Appeal, Fourth Circuit, No. 2006-CA-1325.

Granted. Docket as appeal.


text:
    In re Appeal of DECISION OF the DISCIPLINARY BOARD NO. 07-PDB-024.
    No. 2007-OB-1635.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Banks, Tony M.; — Plaintiff; Applying for Appeal of Decision of the Disciplinary Board Office of the Disciplinary Board, No. 07-PDB-024.

Leave to appeal denied.


text:
    In re Appeal of DECISION OF the DISCIPLINARY BOARD NO. 07-PDB-045.
    No. 2007-OB-2167.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Swift, Gina; Lewis, Brian et al.;— Plaintiff(s); Applying for Appeal of Decision of the Disciplinary Board Office of the Disciplinary Board, No. 07-PDB-046.

Leave to appeal denied.


text:
    Dexter L. DAVIS v. DELTA BANK and Paul LeBeau.
    No. 2007-C-2473.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Davis, Dexter L.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of East Carroll, 6th Judicial District Court Div. B, No. 20276; to the Court of Appeal, Second Circuit, No. 42,-529-CA.

Not considered, not timely filed.


text:
    STATE of Louisiana v. Christian FONTAINE.
    No. 2008-KK-0212.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Fontaine, Christian; — -Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. D, No. 603-030; to the Court of Appeal, First Circuit, No. 2007 KW 2209.

Stay denied; Writ denied.


text:
    Elaine SMITH v. TOWN OF OLLA.
    No. 2007-C-2148.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Olla, Town of.; — Defendant; Applying for Reconsideration of this Court’s action dated, January 7, 2008; Parish of Lasalle, Office of Workers’ Comp. Dist. IE, No. 04-03927; to the Court of Appeal, Third Circuit, No. 07-384.

Reconsideration not considered. See Louisiana Supreme Court Rule IX, Section 6.


text:
    STATE ex rel. Wade P. JACKSON v. STATE of Louisiana.
    No. 2007-KH-0677.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Wade P. Jackson; — Plaintiff; Applying for Reconsideration of this Court’s action dated December 14, 2007, Parish of West Feliciana, 20th Judicial District Court, Div. B, No. 06-WCR-389; to the Court of Appeal, First Circuit No. 2006 KW 2521.

Reconsideration denied.


text:
    STATE of Louisiana v. Nathaniel PARISH.
    No. 2007-KO-1169.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Parish, Nathaniel; — Defendant; Applying for Reconsideration of this Court’s Action dated December 7, 2007; Parish of Washington, 22nd Judicial District Court, Div. A, No. 04-CR3-91325; to the Court of Appeal, First Circuit, No. 2006 KA 2271.

Reconsideration denied.


text:
    STATE ex rel. Marvin WALLACE v. STATE of Louisiana.
    No. 2007-KH-0029.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Wallace, Marvin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 99-2636; to the Court of Appeal, Fifth Circuit, No. 06-KH-896.

Denied.


text:
    STATE of Louisiana v. Derick P. PRICE.
    No. 2007-K-0130.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Price Derick P. a/k/a; Price, Derek P.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Ter-rebonne, 32nd Judicial District Court Div. B, No. 410,629; to the Court of Appeal, First Circuit, No. 2005 KA 2514.

Denied.


text:
    Rickey BARNES v. Burl CAIN, Warden, Louisiana State Penitentiary and Dora Rabalais, Legal Programs Department.
    No. 2007-CI-0230.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Barnes, Rickey; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 520088; to the Court of Appeal, First Circuit, No. 2005 CA 2128.

Denied.


text:
    STATE ex rel. Timothy ROBERTSON v. STATE of Louisiana.
    No. 2007-KH-0991.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Robertson, Timothy; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 05-01-0148; to the Court of Appeal, First Circuit, No. 2007 KW 0384.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Narleski WILLIAMS v. STATE of Louisiana.
    No. 2007-KH-1001.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Williams, Narleski; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. I, No. 03F2293; to the Court of Appeal, Second Circuit, No. 42419-KH.

Denied.


text:
    STATE ex rel. Claude WOODS and Joseph Woods v. STATE of Louisiana.
    No. 2007-KH-1002.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Woods, Joseph; Woods, Claude, et al.; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. A, No. 39,945.

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. Antonio WILLIAMS v. STATE of Louisiana.
    No. 2007-KH-1005.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Williams, Antonio; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of East Feliciana, 20th Judicial District Court Div. A, No. 03-CR-824; to the Court of Appeal, First Circuit, No. 2007 KW 0332.

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


text:
    STATE ex rel. Michael Terrell JOHNSON v. STATE of Louisiana.
    No. 2007-KH-1006.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Johnson, Michael Terrell; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. C, No. 102259; to the Court of Appeal, First Circuit, No. 2007 KW 0284.

Denied.


text:
    STATE ex rel. Tut SIMMONS v. STATE of Louisiana.
    No. 2007-KH-1038.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Simmons, Tut; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 02-3281; to the Court of Appeal, Fifth Circuit, No. 06-KH-345.

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


text:
    STATE ex rel. Clarence TUCKER v. STATE of Louisiana.
    No. 2007-KH-1039.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Tucker, Clarence; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. C, No. 149,984; to the Court of Appeal, Second Circuit, No. 42,-425-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Darrel JONES v. STATE of Louisiana.
    No. 2007-KH-1042.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Jones, Darrel; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 30-7501; to the Court of Appeal, Fifth Circuit, No. 07-KH-267.

Denied.


text:
    STATE ex rel. Steven BOZANT v. STATE of Louisiana.
    No. 2007-KH-1043.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Bozant, Steven; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. A, No. 177-231; to the Court of Appeal, Fourth Circuit, No. 2007-K-0183.

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. Francis D. WINCHESTER v. STATE of Louisiana.
    No. 2007-KH-1055.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Winchester, Francis D.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. C, No. 98-150349; to the Court of Appeal, First Circuit, No. 2007 KW 0524.

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

WEIMER, J., recused.


text:
    STATE ex rel. Robert E. TAYLOR v. STATE of Louisiana.
    No. 2007-KH-1056.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Taylor, Robert E.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 01-6200; to the Court of Appeal, Fifth Circuit, No. 06-KH-429.

Denied.


text:
    STATE ex rel. Adrian M. DUNN v. STATE of Louisiana.
    No. 2007-KH-1057.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Dunn, Adrian M.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. John, 40th Judicial District Court Div. B, No. 00-148(1); to the Court of Appeal, Fifth Circuit, No. 07-KH-246.

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. Desmond HOUSTON v. STATE of Louisiana.
    No. 2007-KH-1058.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Houston, Desmond; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 00-6157; to the Court of Appeal, Fifth Circuit, No. 07-KH-233.

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


text:
    STATE ex rel. Iddo BLACKWELL v. STATE of Louisiana.
    No. 2007-KH-1059.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Blackwell, Iddo; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 382629; to the Court of Appeal, First Circuit, No. 2006 KA 1812.

Denied.


text:
    STATE ex rel. Jewel SPOTVILLE v. STATE of Louisiana.
    No. 2007-KH-1097.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Spotville, Jewell; — -Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 233-945.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172; cf. La. C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Joseph D. SAMPY, Jr. v. STATE of Louisiana.
    No. 2007-KH-1098.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Sampy, Joseph D. Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. H, No. 03-1616; to the Court of Appeal, Third Circuit, No. KH 06-01437.

Denied.


text:
    BASS, LTD. v. Tim GERALD, et al.
    No. 2007-C-1225.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Triangle Venture Associates Inc.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. A, No. 04-C-2115; to the Court of Appeal, Third Circuit, No. 06-1125.

Denied.


text:
    STATE of Louisiana v. Toronzo THOMPKINS.
    No. 2007-KO-1264.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Thompkins, Toronzo; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. C, No. 399480; to the Court of Appeal, First Circuit, No. 2006 KA 1418.

Denied.

WEIMER, J., recused.


text:
    STATE of Louisiana v. Robert Earl GAGE.
    No. 2007-K-1910.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Gage, Robert Earl; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. B, No. 239,421; to the Court of Appeal, Second Circuit, No. 42,279-KA.

Denied.


text:
    STATE of Louisiana v. Woodson MCGUFFIE.
    No. 2007-K-2033.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re State of Louisiana; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. F, No. 03-F1339; to the Court of Appeal, Second Circuit, No. 42,-069-KA.

Denied.

TRAYLOR, J., would grant.


text:
    STATE of Louisiana v. Brandi BROWN.
    No. 2007-K-2044.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Brown, Brandi;' — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. E, No. 10190; to the Court of Appeal, First Circuit, No. 2007 KA 0368.

Denied.


text:
    Paul B. BURNETT, et ux. v. BFI WASTE SERVICES, LLC., et al.
    No. 2007-CC-2292.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re BFI Waste Services LLC et al.; American Home Assurance Company;— Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. D, No. 79.556; to the Court of Appeal, First Circuit, No. 2007 CW 1494.

Denied.


text:
    Donald BUDDIN v. CONAGRA POULTRY COMPANY.
    No. 2007-C-2313.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Conagra Poultry Company; — Defendant, Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District IE, No. 03-05841; to the Court of Appeal, Second Circuit, No. 42-535-WCA.

Denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


text:
    OIL INSURANCE LIMITED v. DOW CHEMICAL COMPANY, Dow Hydrocarbons and Resources, Inc., Frank’s Casing Crew & Rental Tools, Inc. and Grey Wolf Drilling Company.
    No. 2007-C-2319.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Oil Insurance Limited;' — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Assumption, 23rd Judicial District Court Div. B, No. 29,217; to the Court of Appeal, First Circuit, No. 2007 CA 0418.

Denied.

JOHNSON, J., would grant.


text:
    Peggy M. ROBINSON & Metropolitan Mutual Mortgage, Inc. v. STATE of Louisiana Through the OFFICE OF FINANCIAL INSTITUTIONS.
    No. 2007-C-2360.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Robinson, Peggy M. H.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 515,456; to the Court of Appeal, First Circuit, No. 2007 CA 0467.

Denied.


text:
    Ernest R. GREMILLION, Jr., et al. v. KANSAS CITY SOUTHERN RAILWAY COMPANY, et al.
    No. 2007-CC-2422.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Kansas City Southern Railway Company et al.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 2004-5970; to the Court of Appeal, Third Circuit, No. CW 07-00970.

Denied.

KIMBALL, J., recused.

KNOLL, J., recused.

VICTORY, J., would grant.


text:
    Gina SWIFT, et al. v. Keshia TEMPLE, et al.
    No. 2007-CC-2425.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Swift, Gina et al.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 542,774; to the Court of Appeal, First Circuit, No. 2007 CW 2036.

Denied on showing made.


text:
    Joe W. KING, et al. v. I.E. MILLER OF EUNICE, INC., et al.
    No. 2007-C-2460.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Grey Wolf Drilling Company L.P.; — Other; Applying for Writ of Certio-rari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 2001-3459; to the Court of Appeal, Third Circuit, No. 07-167.

Denied.

TRAYLOR, J., would grant.


text:
    Rose DETILLIER, Individually and on Behalf of Her Minor Children, Sally E. Detillier and Tyler M. Detillier, Cory M. Detillier, Heidi T. Detillier, Joby J. Detillier and Dain P. Detillier v. KENNER REGIONAL MEDICAL CENTER, et al.
    No. 2007-CC-2472.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Louisiana State of; Dehne, Robert Dr.; Borne, David Dr.; Louisiana State University Brd. of Sup.; Fergerson, Chris Dr.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, No. 589-787; to the Court of Appeal, Fifth Circuit, No. 07-C-732.

Denied.


text:
    Kerry Jude LEBLANC and Annette St. Pierre Leblanc v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT and Ronald Hayes Warren St. Pierre and Carole St. Pierre v. State of Louisiana, Through the Department of Transportation and Development and Ronald Hayes.
    No. 2007-C-2478.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Louisiana, State of et al.; Transportation and Development, Department of; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of St. Charles, 29th Judicial District Court Div. C, Nos. 59-388, 62,539; to the Court of Appeal, Fifth Circuit, No(s). 07-CA-162, 07-CA-139.

Denied.


text:
    Jill Marie RICHARD, et al. v. STATE FARM FIRE & CASUALTY COMPANY, et al. Kelly Myers, on Behalf of Her Minor Child Kyle Anthony Mallett v. State Farm Fire & Casualty Company, et al.
    No. 2007-CC-2487.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Northland Insurance Company;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Calca-sieu, 14th Judicial District Court Div. G, Nos. 2003-2417, 2003-3560; to the Court of Appeal, Third Circuit, No. CW 07-01309.

Denied.


text:
    Joseph A. ALMERICO v. HARAHAN MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD.
    No. 2007-C-2494.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Almerico, Joseph A.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. G, No. 622-353; to the Court of Appeal, Fifth Circuit, No. 07-CA-502.

Denied.


text:
    Joy LEE v. MEMORIAL MEDICAL CENTER, et al.
    No. 2007-C-2495.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Lee, Joy; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 2005-10984; to the Court of Appeal, Fourth Circuit, No. 2007-CA-0091.

Denied.


text:
    STATE of Louisiana v. Louis Earl BENNETT.
    No. 2008-KK-0008.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Bennett, Louis Earl; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. B, No. 601314; to the Court of Appeal, First Circuit, No. 2007 KW 2125.

Denied.


text:
    Heidi Finley HARPER and Heath Finley v. Dr. Roger SMITH and Dr. Russell Cummings.
    No. 2008-C-0010.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Finley, Heath; Harper, Heidi Finley; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Franklin, 5th Judicial District Court Div. A, No. 36,645C; to the Court of Appeal, Second Circuit, No. 42,586-CA.

Denied.


text:
    Lisa Montgomery PITTMAN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Ken Moore.
    No. 2008-CC-0011.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re State Farm Mutual Automobile Insurance Company; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 577-433; to the Court of Appeal, Fifth Circuit, No. 07-C-788.

Denied.


text:
    STATE of Louisiana v. Patrick WILSON.
    No. 2008-KK-0012.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Wilson, Patrick; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 10-06-0244; to the Court of Appeal, First Circuit, No. 2007 KW 1759.

Denied.

CALOGERO, C.J., recused.


text:
    Robert L. LUCIEN, Jr., et al. v. AUTOMOTIVE CASUALTY INSURANCE CO., et al.
    No. 2008-CC-0014.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Hattier, Craig;- — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, Nos. 90-20001, 00-9294; to the Court of Appeal, Fourth Circuit, No. 2007-C-1312.

Denied.

KNOLL, J., would grant.


text:
    Lionel E. TURNER, Sr. v. DELTA BEVERAGE GROUP/PEPSI AMERICA.
    No. 2008-C-0015.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Delta Beverage Group/Pepsi America; — Defendant; Applying for Writ of Certiorari and/or Review Office of Workers’ Comp. Dist. 6, No. 05-00705; to the Court of Appeal, Fifth Circuit, No. 07-CA-529.

Denied.

VICTORY, J., would grant.


text:
    LAKELAND MEDICAL CENTER v. Ladonna TAYLOR Ladonna Taylor Wife of and Tommy Taylor v. Daniel Mensah, M.D., William H. Robichaux, M.D., Jacqueline Hope, R.N. and Lakeland Medical Center, LLC Ladonna Taylor, Wife of and Tommy Taylor v. Daniel Mensah, M.D., William H. Robichaux, M.D., Jacqueline Hope, R.N. and Lakeland Medical Center, LLC.
    No. 2008-C-0018.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Mensah, Daniel M.D. et al.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. E, Nos. 1999-14716, 2001-2988, 2003-14152; to the Court of Appeal, Fourth Circuit, No(s). 2007-CA-0644, 2007-CA-0643.

Denied.


text:
    In re EDC CONTRACTOR INSURANCE LITIGATION.
    No. 2008-CC-0019.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re ConocoPhillips Company; — Other; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. F, No. 98-1984; to the Court of Appeal, Third Circuit, No. CW 07-00622.

Denied.


text:
    Christine EASTMAN v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION.
    No. 2008-CC-0022.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Louisiana Citizens Property Ins. Corp.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Cal-casieu, 14th Judicial District Court Div. B, No. 2006-6296; to the Court of Appeal, Third Circuit, No. CW 07-01079.

Denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


text:
    Craig RYAN v. Ioannin J. OLYMPIOU, et al.
    No. 2008-CC-0025.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Progressive Paloverde Insurance Co.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Calca-sieu, 14th Judicial District Court Div. E, No. 2005-4334; to the Court of Appeal, Third Circuit, No. CW 07-00371.

Denied.


text:
    Robert L. LUCIEN, Jr., et al. v. AUTOMOTIVE CASUALTY INSURANCE CO., et al.
    No. 2008-CC-0027.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Hattier, Craig; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. G, Nos. 1990-20001, 2000-09294; to the Court of Appeal, Fourth Circuit, No. 2007-C-1428.

Denied.

KNOLL, J., would grant.


text:
    Mr. and Mrs. Leon RICHARD v. DESIGNER CUSTOM HOMES, INC., et al.
    No. 2008-CC-0039.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Figueroa, Felix; Designer Custom Homes Inc. et al.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 03-17574; to the Court of Appeal, Fourth Circuit, No. 2007-C-1410.

Denied.


text:
    Mr. and Mrs. Leon RICHARD v. DESIGNER CUSTOM HOMES, INC., et al.
    No. 2008-CC-0040.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Figueroa, Felix; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. G, No. 03-18535; to the Court of Appeal, Fourth Circuit, No. 2007-C-1439.

Denied.


text:
    STATE ex rel. Kendall LINDSEY v. STATE of Louisiana.
    No. 2008-KH-0251.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Lindsey, Kendall; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 462-235; to the Court of Appeal, Fourth Circuit, No. 2007-K-1334.

Denied.


text:
    Ronald WARREN v. Linda EASTER, R.N., Sgt. Al Barnett, Dr. Larry Caldwell, Sgt. Nathanial Daniel, C.M. Lensing & John Doe.
    No. 2008-CC-0290.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   In re Easter, Linda R.N. et al.; Barnett, Al Sgt.; Caldwell, Larry Dr.; Lensing, C.M.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. B, No. 58,808; to the Court of Appeal, First Circuit, No. 2007 CW 2310.

Denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


text:
    STATE of Louisiana v. Josh BAUMAN.
    No. 2008-KK-0402.
    Supreme Court of Louisiana.
    Feb. 25, 2008.
   In re Bauman, Josh; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 04-7266; to the Court of Appeal, Fifth Circuit, No. 08-K-98.

Denied.


author: GUIDRY, J. HUGHES, J.,

text:
    In re C.E.F. Applying For Intrafamily adoption of T.W.W.

    No. 2007 CJ 0992.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2007.
    Opinion on Appeal after Remand Feb. 8, 2008.

      C. Jerome DÁquila, New Roads, Counsel for Plaintiffs-Appellees C.E.F. and B.L.S.F.
    Andrew J. DÁquilla, Toby Aucoin, Jackson, Counsel for Defendanb-Appellant B.W.W.
    Before: WHIPPLE, GUIDRY, and HUGHES, JJ.

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules — Courts of Appeal, the initials of the parties involved will be used to protect the minor’s identity.

   GUIDRY, J.

11A biological father appeals a judgment in a proceeding for intrafamily adoption of his minor child by the spouse of the child’s biological mother; however, in reviewing this matter, we find the judgment appealed is defective, and we hereby remand this matter to the trial court for the limited purpose of signing a valid written judgment that includes appropriate decre-tal language.

The January 5, 2007 judgment appealed herein contains the following rulings:

IT IS ORDERED, ADJUDGED AND DECREED that the consent of [B.W.W.] is not necessary for the final decree of adoption.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that it is in the child’s best interest that he be adopted by [C.E.F.].

Thereafter, except for a statement as to where and when the judgment was read, rendered, and signed, the judgment contains no other decretal language. Notably, the judgment contains no language terminating the biological father’s parental rights, nor decreeing that the child be deemed the child of the adoptive parent. Absent such language, the judgment is defective. Accordingly, we remand this matter to the trial court to reform the judgment to include appropriate decretal language and further order the trial court to supplement the record on appeal with the reformed judgment within 30 days of the date of this action. Assessment of appeal costs is to await a final determination of this appeal.

REMANDED WITH INSTRUCTIONS.

GUIDRY, J.

|2A biological father appeals a judgment in a proceeding for intrafamily adoption of his minor child by the spouse of the child’s biological mother. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 27, 1998, B.L.S. gave birth to T.W.W., whose father was B.W.W. B.L.S. was still in high school at the time T.W.W. was born. B.L.S. and B.W.W. were not married. After completing high school, B.L.S. and T.W.W. moved in with B.W.W. and his parents in Denham Springs, Louisiana, and B.L.S. began attending Louisiana State University in Baton Rouge. B.L.S., B.W.W. and T.W.W. lived with B.W.W.’s parents until 2001, when they moved to Livonia where they leased a home.

While residing in Denham Springs, B.L.S. and B.W.W.’s relationship was hostile and characterized by frequent arguments. The relationship further deteriorated once the couple moved to Livonia. Particularly, B.W.W., who was known to have a bad temper, would throw or hit things, thereby damaging the object, when angry. The couple finally separated in March or April 2002, after B.W.W. became so angry that he damaged and destroyed several items of furniture and furnishings in the home the couple was leasing, including a door, walls, a television, and B.L.S.’s computer. B.W.W. was arrested as a result of that incident.

Although initially there was some attempt to reconcile, when B.W.W. exhibited another display of his violent temper while B.L.S. and T.W.W. were visiting with him and his parents at his parents’ home in St. Francisville following the separation, attempts at reconciliation were terminated, and B.L.S. filed a petition for joint custody and to establish visitation rights in July 2002. Following a hearing on the petition, the couple was granted joint custody of T.W.W., with B.L.S. being designated the domiciliary parent, in a judgment dated October 22, |s2002. That judgment also ordered B.W.W. to pay $344.00 per month in child support.

In the meantime, around Easter 2002, B.L.S. began dating C.E.F. and C.E.F. also developed a close and loving relationship with T.W.W. during the course of their dating. In November 2003, C.E.F. married B.L.S. (hereinafter “B.L.S.F.”).

On March 17, 2004, B.L.S.F. filed a rule for contempt and to modify custody, alleging that B.W.W. had only paid the sum of $980.00 in child support since February 2003. B.L.S.F. also alleged that B.W.W. had been terminated from his job for testing positive for illegal drug use and that he was in an abusive relationship with his girlfriend, and as such, that the custody rights granted B.W.W. should be modified to grant him restricted visitation supervised by his parents. The parties later entered into a stipulated judgment on May 5, 2004, wherein the child support award was reduced to $344.00 per month, payable on the first, and arrearages were set at $4,180.00, to be paid at the rate of $100.00 per month. The parties also agreed that B.W.W. would submit to random drug testing and that he would not exercise visitation with T.W.W. in the presence of his then girlfriend. The hearing officer deferred sentencing B.W.W. on the rule for contempt and reset the matter for review on August 25, 2004.

The August 25, 2004 hearing date was continued to September 22, 2004, on which date counsel for B.L.S.F. agreed to present the hearing officer with an income assignment order, and B.W.W.’s sentencing for contempt was continued until January 5, 2005. On January 5, 2005, an income assignment order was signed by the hearing officer and B.W.W., and thereafter the hearing officer recommended that B.W.W. be sentenced to six months in jail for failure to pay |4child support. Sentencing by the trial court was scheduled for February 11, 2005, but B.W.W. did not appear in court because he was working out of state. Thus, a bench warrant was issued for his arrest. B.W.W. returned to the state two weeks after the February 11, 2005 hearing date.

In April 2005, B.W.W. was arrested on the charge of second offense driving while intoxicated and was sentenced to serve six months in prison on that charge and on a prior probated first offense charge. B.W.W. completed the combined sentences in September 2005. After getting out of prison, B.W.W. obtained employment and also sought to re-establish visitation with T.W.W.

In 2006, C.E.F. and B.L.S.F. allowed B.W.W. to exercise unsupervised visitation with T.W.W. on only two occasions, one being a short visit in a local park and the other visit being an overnight stay. Beginning in mid-2006, B.W.W. also began remitting lump sum child support payments to B.L.S.F., but she would not accept the payments. Instead, she advised B.W.W. to seek legal counsel. In August 2006, B.W.W. filed a rule to show cause why the custody judgment should not be enforced and why B.L.S.F. should not accept the child support payments and ar-rearages tendered by him.

On September 1, 2006, C.E.F. filed a petition for the intrafamily adoption of T.W.W. B.L.S.F. later joined in the petition as a party plaintiff as required by Title 12 of the Louisiana Children’s Code. See La. Ch.C. art. 1243. B.W.W. filed an answer opposing the petition for intrafamily adoption, and later filed a motion seeking to have the intrafamily adoption matter consolidated with the rule filed by him in August 2006. The trial court initially granted the motion by ex parte order, but later set aside the order after B.L.S.F. filed a motion opposing the order. Thus, the matter proceeded to trial on November 2, 2006, solely on the petition for intrafamily adoption.

Is After taking the matter under advisement, the trial court determined that the provisions of La. Ch.C. art. 1245 had been met so that B.W.W.’s consent to the adoption was not necessary. The trial court then found that it was in the best interest of the child to terminate B.W.W.’s parental rights and grant the petition for adoption. It is from this adverse judgment that B.W.W. appeals.

ASSIGNMENTS OF ERROR

B.W.W. contests the trial court’s ruling in this matter in the following respects:

1. The trial court [committed] manifest error in determining that it was in the best interest of T.W.W. to be adopted by [C.E.F.] and the trial court further [committed] manifest error by denying visitation of his biological father [who] has maintained a continuous and meaningful relationship with the minor child his entire life.
2. Non support of T.W.W. in and of [itself] is not enough to allow the adoption of the minor child.

DISCUSSION

At the outset, we note our agreement with the assertion made by B.W.W. in his second assignment of error that nonsupport alone is an insufficient basis for terminating a natural parent’s parental rights and granting a decree of adoption. In the petition for adoption, C.E.F. alleged that B.W.W. had failed to support and failed to visit, communicate, or attempt to communicate with T.W.W. for a period in excess of six months after the October 22, 2002 judgment. Louisiana Children’s Code article 1245 provides:

A. The consent of the parent as required by Article 1193 may be dispensed with upon proof of the required elements of either Paragraph B or C of this Article.
C. When the spouse of a stepparent petitioner has been granted sole or joint custody of the child by a court of competent jurisdiction |fior is otherwise exercising lawful custody of the child and any one of the following conditions exists:
(1) The other parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
(2) The other parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.

At trial, counsel for C.E.F. and B.L.S.F. acknowledged that although they had alleged both grounds of La. Ch.C. art. 1245(C) for dispensing with B.W.W.’s consent, they were mainly asserting “the support angle.” Thereafter, counsel for B.W.W. stipulated that a six month time period had elapsed in which B.W.W. had failed to comply with the court order of support. Moreover, the evidence presented established that in addition to not having paid support for the entire year of 2005, even prior to that he had several periods of at least three months or more in which he failed to pay any amount in child support.

Yet, irrespective of a parent’s failure to pay a court-ordered child support obligation, there still must be a showing that terminating the natural parent’s parental rights and granting the intrafamily adoption is in the best interest of the child. In re Miller, 95-1051, p. 6 (La. App 1st Cir. 12/15/95), 665 So.2d 774, 777, writ denied, 96-0166 (La.2/9/96), 667 So.2d 541. Whether an adoption is in a child’s best interests must be decided on the unique facts of each case, and the trial judge is vested with vast discretion in making that determination. However, the trial judge’s discretion is not absolute, as the court’s decision is subject to reversal if found to be manifestly erroneous or clearly wrong. In re Morris, 39,523, p. 8 (La.App.2d Cir.1/26/05), 892 So.2d 739, 744. Thus, in considering B.W.W.’s first assignment of error, we must consider whether the trial court was clearly wrong in finding that it was in the best interests of T.W.W. to terminate B.W.W.’s parental rights and to decree T.W.W.’s adoption by C.E.F.

|7This court has held that the most important factors in determining whether the granting or denying of the petition for adoption would be in the best interest of the child are the child’s relationships with the stepparent and the natural parent not married to the stepparent. It is not enough to examine the love and home environment provided by the petitioner/stepparent. The court must also examine the depth of closeness of the child’s ties with the noncustodial natural parent, and the effect which the loss of this relationship would have on the child. Further, the court must consider the seriousness and finality of the severing of the relationship between the parent and child, as well as the importance and benefit to the child of a continued relationship with the parent. In re J.A.B., 04-1160, p. 9 (La.App. 1st Cir.9/17/04), 884 So.2d 678, 684, writ denied, 04-2963 (La.12/14/04), 888 So.2d 848.

There were several significant circumstances in this matter that influenced the trial court’s determination of whether it was in the best interests of T.W.W. to grant the petition for intrafamily adoption and to terminate B.W.W.’s parental rights. B.W.W. had a history of violent and destructive behavior, which on several occasions he had displayed before the minor child, with the last episode of such behavior having occurred sometime in 2005. The trial court also looked critically at the fact that B.W.W. was living with his girlfriend at the time of trial and that he had not exercised unsupervised visitation with T.W.W. since February 2006 and only limited supervised visitation in May 2006.

The trial court also interviewed T.W.W. outside of the presence of any of the parties or counsel for the parties. During that interview, T.W.W. disclosed that he Jsloved C.E.F., B.L.S.F., B.W.W. and his paternal grandparents. T.W.W. was asked to rate his relationship with each of the aforementioned persons on a scale of one to ten, with “ten” being the best, and “one” being not too good. T.W.W. rated his relationship with everyone but B.W.W., as a “ten.” He rated his relationship with B.W.W. as a “four,” stating that B.W.W. used to do such “bad stuff’ as “holler, and scream and cuss in front of me.” T.W.W. further recalled the incident when B.W.W. broke a door at his grandmother’s house and stated that he spent very little time with B.W.W.

C.E.F., on the other hand, had been a constant presence in T.W.W.’s life since he first began dating B.L.S.F. in 2002. T.W.W. acknowledged how C.E.F. helped to take care of him and even helped him with his homework. T.W.W. also told the trial court that he loves C.E.F. because he “does nice things” and described how C.E.F. took him hunting, fishing, and to the movies and had purchased a four-wheeler for him at Easter.

To reverse a fact finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. In re J.A.B., 04-1160 at 13, 884 So.2d at 686. Although we might not have reached the same determination, we cannot say that a reasonable factual basis does not exist in the record for the trial court’s finding that it would be in the best interest of T.W.W. to allow the intrafamily adoption by C.E.F. and to terminate B.W.W.’s parental rights.

The record does reveal that C.E.F. and B.L.S.F. placed restrictions on .B.W.W.’s visitation that were clearly beyond what was authorized by the joint custody, decree in effect. However, the fact that B.W.W. elected not to take any steps to legally enforce his rights under the joint custody decree because of the | ^substantial arrear-ages he owed, and his repeated failure to make any meaningful payment of his child support obligation, even after B.L.S.F. had filed the rule for contempt, which he knew could affect his custody rights, weaken his assertion that his failure to have any meaningful- and consistent visitation with T.W.W. was largely the fault of C.E.F. and B.L.S.F. See In re T.A.S., 04-1612, p. 8 (La.App. 1st Cir.10/29/04), 897 So.2d 136, 141. We therefore reject the arguments raised by B.W.W. in this appeal.

CONCLUSION

Thus, based on the evidence presented, we cannot say the trial court was manifestly erroneous in finding that it was in the best interest of T.W.W. to allow the intra-family adoption by C.E..F. and to terminate B.W.W.’s parental rights. Accordingly, we affirm the judgment of the trial court. All costs of this appeal are assessed to the appellant, B.W.W.

AFFIRMED.

Hughes, J., dissents and assigns reasons.

HUGHES, J.,

dissenting.

hi respectfully dissent. This is not a custody case.- It is a termination of parental rights, the legal severance of the biological relationship of a father and a son.

The majority opinion acknowledges that the petitioners restricted the father’s visitation and refused his attempts to pay child support. The mother has a duty to foster the relationship between father and child. While we cannot ignore the fact that the father was incarcerated in 2005 on a DWI charge, it also appears that he has never ceased trying to do the right thing toward his child.

Buying a kid a four wheeler does not make one -the' “real dad.” Love from an imperfect source need not be rejected if the child is otherwise protected. The proposed adoption is not in the child’s best long-term interest. Who really “benefits” here?

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules — Courts of Appeal, the initials of the parties involved will be used to protect the minor's identity.

      . Because there was a delay between when the hearing officer's rendition of the award for child support in open court and the signing of a written judgment by the trial court, B.L.S. appealed the ruling of the hearing officer and sought to have an award of child support set by the trial court on October 14, 2002. A hearing on that appeal of the hearing officer’s judgment was held in December 2002, and a second judgment for child support was rendered on January 16, 2003, ordering B.W.W. to pay the sum $701.00 a month as child support beginning February 15, 2003.

      . Consequently, the actions of the trial court in regard to the rule filed by B.W.W. are not pertinent to the matter before us and will not be further discussed herein.

      . On initial presentation, the original judgment for adoption signed by the trial court on January 5, 2007, was found to be defective based on a lack of proper decretal language, and the case was remanded to trial court to reform the judgment and to supplement the record on appeal with the reformed judgment, which judgment we now consider.

      . According to the record, even when B.W.W. would remit payment, it would be in amounts far less than what was ordered.

      . In that incident, B.W.W. and his mother, D.W., testified that he was angered by his mother’s refusal to allow him to take T.W.W. on a last-minute trip to Baton Rouge that he had proposed. D.W. testified that she did not allow B.W.W. to take T.W.W. because she had made arrangements with C.E.F. to return T.W.W. by a certain time. During that confrontation, B.W.W. grabbed D.W. roughly by her upper arms when she questioned whether he was "on drugs" in the presence of T.W.W. and ordered her not to make such claims in front of his son, which D.W. acknowledged as a mistake. The two further testified that in his anger, B.W.W. "tore up” the screen door as he was exiting the house, and caused gravel to "fly” and shatter the rear window of D.W.'s Suburban when he "peeled out” of the driveway.

      . While not determinative of the issues herein, we note that when asked did he want C.E.F. to be his real dad, even though B.W.W. was his real dad, T.W.W. replied "[y]es, sir.” On a scale of one to ten, with "ten” meaning that it was what, he really desired, T.W.W. stated that he rated his desire for C.E.F. to be his real dad a “ten.” T.W.W. was two months' shy of his ninth birthday at the time of trial.


author: GAIDRY, J.

text:
    James L. DENDY, Executor of the Succession of Bernard R. Kannon, Sr. v. CITY NATIONAL BANK and Jimmy Johnston.
    No. 2006 CA 2436.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 2007.

      Dennis R. Whalen, Baton Rouge, Louisiana, for Plaintiff/Appellant, James L. Den-dy, Executor.
    Rebecca Kittok Wisbar, Baton Rouge, Louisiana, for Defendant/Appellee, JPMor-gan Chase Bank, N.A.
    Stephen F. Chieearelli, Baton Rouge, Louisiana, for Defendant/Appellee, Regions Bank.
    Before GAIDRY, McDONALD, and McClendon, jj.
   GAIDRY, J.

| qA succession executor appeals a judgment recognizing his civil action against a bank as abandoned and formally dismissing the action as of the date of abandonment. For the following reasons, we" reverse the judgment.

FACTS AND PROCEDURAL HISTORY

The plaintiff, James L. Dendy, is the executor of the succession of Bernard R. Kannon, Sr. In that capacity, he filed two separate lawsuits in the 19th Judicial District Court for the Parish of East Baton Rouge on January 5, 1999, seeking reimbursement of the amounts of checks cashed by Jimmy Johnston, who allegedly forged the payees’ endorsements. The two actions relate to the negotiation of different checks through different banks. The first action, assigned civil case number 956,915, named as defendants Jimmy Johnston and Bank One, Louisiana, N.A. (formerly City National Bank and now JPMorgan Chase Bank, N.A.). Bank One, Louisiana, N.A. (Bank One) 'answered -the petition in the first action, denying its liability. Mr. Johnston did not answer the petition, and a preliminary judgment by default was entered against him in the first action on July 6,1999.

The second action, assigned civil case number 956,916, also named Mr. Johnston as a defendant, as well as Regions Bank (Regions). Regions filed a combined answer, cross-claim, and third-party demand. One third-party defendant, Bank of West Baton Rouge, filed its answer to the third-party demand on May 19,1999.

On October 11, 2000, plaintiff filed a motion to consolidate his two actions for trial. The motion bore the captions of both actions. The trial court ordered a contradictory hearing on the motion for December 4, 2000. In the meantime, on November 16, 2000, the other third-party defendant in the second action, Snapy’s, Inc., filed its answer to Regions’s third-party Rdemand, combined with its own third-party demand against plaintiff. That pleading bore the captions of both actions, but' was filed only in the record of the first action. On December 4, 2000, plaintiff filed his answer to the third-party demand of Snapy’s, Inc. in the record of the second action. Although the trial court’s minute entry for December 4, 2000, reflects that plaintiffs motion to consolidate the actions was granted that day, no order was signed, and for some reason, plaintiff filed a second motion to consolidate the actions on June 11, 2002. That motion was heard on August 12, 2002 and granted, and the trial court finally signed a judgment of consolidation on August 21, 2002.

Subsequent to the order of consolidation, on September 9, 2002, Bank One filed an amended answer in the first action, combined with a cross-claim against Mr. Johnston and a third-party demand against the Bank of West Baton Rouge and Snapy’s. The record shows, and the parties concede, that Bank One’s filing of that combined pleading was the last formal step taken in the prosecution of the first action until November 23, 2005.

On August 29, 2005, southeastern Louisiana was struck by Hurricane Katrina, which devastated the New Orleans area. On September 6, 2005, Governor Kathleen Babineaux Blanco issued Executive Order KBB 2005-32, following her earlier proclamation of a state of emergency for the entire state. Executive Order KBB 2005-32 ordered that “[a]ll deadlines in legal proceedings, including liberative prescriptive and peremptive periods in all courts” were suspended “until at least September 25, 2005,” and that the order applied retroactively from August 29, 2005. By Executive Order KBB 2005-48, issued on September 23, 2005, Governor Blanco extended the suspension of all deadlines in legal proceedings until October 25, 2005, again applicable statewide.

|/The disastrous effects of Hurricane Katrina were followed by those of Hurricane Rita, which made landfall on September 24, 2005, devastating the southwestern area of the state. On October 19, 2005, Governor Blanco issued Executive Order KBB 2005-67, extending the suspension of “[ljiberative prescriptive and peremptive periods” statewide until November 25, 2005. However, the suspension of all other deadlines in legal proceedings was to end on October 25, 2005, as provided in Executive Order KBB 2005-48, except for those parishes affected by Hurricane Rita.

The legislature was called into special session from November 6 to November 18, 2005, and enacted legislation ratifying the governor’s action in issuing the executive orders and further extending the suspension of prescriptive and peremptive periods from August 26, 2005 through January 3, 2006.

On November 23, 2005, plaintiff filed a request for “a status conference in these consolidated cases” in the first action, for the express purposes of “settling pleadings, fixing discovery deadlines, fixing a pre-trial conference, and setting a trial date.” The request bore the suit captions of both consolidated cases, named the parties in both cases and their respective counsel, but no order was submitted with the request. There is no indication in the record that the trial court took any action in response to the request.

On February 9, 2006, Bank One filed an ex parte motion in the first action, seeking an order of dismissal on the grounds of abandonment. In its motion, Bank One contended that no action was taken in the prosecution or ^defense of the first action from September 9, 2002 through November 28, 2005. On February 17, 2006, the trial court assigned the motion for hearing on April 3, 2006, on a contradictory basis.

On March 15, 2006, Regions filed an ex parte motion to dismiss both consolidated actions, contending that no steps in the prosecution or defense had been taken since November 27, 2002, when plaintiff served responses to discovery propounded by Regions in the second action. On March 21, 2006, the trial court signed an order denying Regions’s motion, reciting the fact that plaintiff filed his request for a status conference on November 23, 2005.

On April 3, 2006, the trial court heard Bank One’s motion to recognize abandonment in the first action. It ruled in favor of Bank One, assigning oral reasons. Its judgment granting Bank One’s motion was signed May 1, 2006.

Plaintiff instituted a devolutive appeal. This court issued a show cause order on January 25, 2007, ordering the parties to show cause by briefs why the appeal should not be dismissed, on the grounds that the judgment did not contain appropriate decretal language of formal dismissal, as required by La. C.C.P. art. 561(A)(2). On March 6, 2007, we issued an interim order, ordering the remand of the case for the limited purpose of having the trial court sign a corrected judgment dismissing the first action as of the date of abandonment. The corrected judgment was signed on April 23, 2007, dismissing the first action as of November 22, 2005. Written findings of fact and reasons for judgment were issued on May 1, 2007.

ASSIGNMENTS OF ERROR

Plaintiff contends that the trial court erred in finding that the filing of his request for a status conference was not a step in the prosecution of the [¿first action, sufficient to interrupt abandonment, and in failing to apply the doctrine of contra non valentem to defeat the claim of abandonment.

PRELIMINARY PROCEDURAL CONSIDERATIONS

Consolidation of actions pursuant to La. C.C.P. art. 1561 is a procedural convenience designed to avoid multiplicity of actions and does not cause a case to lose its status as a procedural entity. Howard v. Hercules-Gallion Co., 417 So.2d 508, 511 (La.App. 1st Cir.1982). Procedural rights peculiar to one case are not rendered applicable to a companion case by the mere fact of consolidation; each case must stand on its own merits. Id. The filing of a pleading or motion in one of several consolidated cases does not procedurally affect the others. In re Miller, 95-1051, p. 5 (La.App. 1st Cir.12/15/95), 665 So.2d 774, 776, writ denied, 96-0166 (La.2/9/96), 667 So.2d 541.

Because consolidation of actions for trial does not procedurally merge the actions for all purposes, the mere fact that a pleading, a discovery response, or correspondence bears the suit captions of the consolidated actions does not render the pleading or document applicable to all of the consolidated actions. The substance and purpose of such a pleading, the cause of action to which it relates, the parties actually affected, and the particular suit record or records in which .it was filed must be considered to determine if it applies to only one or more of the consolidated actions. This issue is particularly significant as it relates to abandonment under La. C.C.P. art. 561. In some circumstances, a pleading or procedural step may clearly apply to all of several actions consolidated for trial, if it was intended to hasten all of those actions to judgment in a common trial. See Reed v. Pittman, 257 La. 389, 398-99, 242 So.2d 554, 557-58 (La.1970).

17This appeal was taken from the judgment in the first action only. Regions has submitted briefs in its purported capacity as an appellee in this appeal, but Regions is not a party to the first action. As plaintiff correctly emphasizes, Regions did not seek review of the order denying its ex parte motion to dismiss the consolidated second action, so that order is not properly before us. Accordingly, we will not indulge in discussion of the merits of that order or the procedural status of the second action.

ANALYSIS

Louisiana Code of Civil Procedure article 561(A) provides, in pertinent part:

A. (1) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years—
(2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment—
(3) A motion to set aside a dismissal may be made only within thirty days of the date of the sheriffs service of the order of dismissal. If the trial court denies a timely motion to set aside the dismissal, the clerk of court shall give notice of the order of denial pursuant to Article 1913(A) and shall file a certificate pursuant to Article 1913(D).
(4) An appeal of an order of dismissal may be taken only within sixty days of the date of the sheriffs service of the order of dismissal. An appeal of an order of denial may be taken only within sixty days of the date of the clerk’s mailing of the order of denial.

IsA “step” in the prosecution or defense of an action has been defined as “taking formal action before the court,” appearing in the record of the suit, that “is intended to hasten the suit toward judgment,” with the exception of formal discovery that need not appear in the record. Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 6 (La.5/15/01), 785 So.2d 779, 784. Louisiana Code of Civil Procedure article 561 is to be liberally construed in favor of maintaining a plaintiffs suit. Id., 00-3010 at p. 8, 785 So.2d at 784.

The trial court’s written reasons for judgment of May 1, 2007 essentially track its earlier oral reasons for judgment issued on April 3, 2006. The trial court accepted Bank One’s position that the suspension of the abandonment period began on August 29, 2005, the effective date of the suspension of all deadlines in legal proceedings in Executive Order KBB 2005-32, and ended on October 25, 2005, as provided for all deadlines other than liberative prescription and peremption in Executive Order KBB 2005-67. Bank One contended that the last step taken in the first action occurred on September 9, 2002, and that discovery propounded by plaintiff on September 26, 2002 was not properly served, making it informal discovery insufficient to constitute a step in the action’s prosecution. It further contended that even if the latter date was accepted as the commencement date of the abandonment period, the suspension of the deadline only served to give plaintiff twenty-nine additional days from October 25, 2005, or until November 22, 2005, to interrupt the accrual of abandonment. In its oral reasons, the trial court found that plaintiffs request for a status conference did not constitute a step in the prosecution of the action, without expressly stating its finding as to the commencement date of abandonment. In its corrected judgment and later written reasons, however, the trial court 19additionally held that abandonment accrued on November 22, 2005, one day prior to the filing, of plaintiffs request.

That the requested conference was referred to as a “status conference” in the request is not determinative of the issue of its character for purposes of abandonment. In determining the issue of abandonment, “the intent and substance of a party’s actions matter far more than technical compliance.” Thibaut Oil Co., Inc. v. Holly, 06-0313, p. 5 (La.App. 1st Cir.2/14/07), 961 So.2d 1170, 1172-73. Form or caption should not prevail over substance. See Clark, 00-3010 at p. 9, 785 So.2d at 786. By means of his request filed in the record of the first action, plaintiffs counsel sought a conference with the court and other counsel in both consolidated actions for the purposes of “settling pleadings, fixing discovery deadlines, fixing a pretrial conference, and setting a trial date.” The first three listed items clearly fall within the purposes of a scheduling conference authorized by La. C.C.P. art. 1551(A). Bank One argues that a “status conference” would “not require the court to implement any sort of scheduling order requiring the parties to do certain things before trial as would a pre-trial conference/order.” (Emphasis supplied.) While this may technically be true, plaintiffs intent and the substantive purpose of the requested conference are more relevant than subtle distinctions in .the nomenclature or finality of the conference.

This court was recently confronted with the issue of “whether a proper request for a status and/or scheduling conference is ... sufficient to interrupt the three-year period for abandonment.” Hidalgo v. Catfish Queen P’ship in Commendam, 06-1531, p. 5 (La.App. 1st Cir.5/4/07), 961 So.2d 434, 437. The case arose in the same trial court as that of the present action. We held that the filing of requests by letter for “scheduling conferences” were “procedurally proper and timely,” and comported with La. C.C.P. art. 1551 and Rule 9.14 of the Louisiana Rules for District Courts. That the trial court’s local rule technically requires a formal pretrial conference to actually set a trial date, as opposed to a motion to set for trial or a “scheduling” or “status” conference, is not determinative on this point. Here, as in Hidalgo, “the ultimate purpose of the conference was to hasten the matter to judgment by selecting deadlines for the parties to conclude all pretrial matters.” Id., 06-1531 at p. 6, 961 So.2d at 438. The trial court erred in ruling that plaintiffs request for a status conference was not a step in the prosecution of his action. The remaining question is whether that step was timely.

Louisiana Revised Statutes 9:5822(A) provides:

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 S, 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. This limited suspension and/or extension shall terminate on January 3, 2006, and any right, claim, or action which would have expired during the time period of August 26, 2005, through January 3, 2006, shall lapse on January J, 2006. (Emphasis supplied.)

This statute operated to extend prescriptive and peremptive periods only. Other legal deadlines affected by Hurricanes Katrina and Rita are governed by La. R.S. 9:5823, which provides:

A. All deadlines in legal proceedings, which were suspended by Executive Orders KBB 2005-32, ⅛8, and 67, shall be subject to a limited suspension and/or extension during the time period of November 25, 2005, through January 3, 2006; |nhowever, the suspension and/or extension of these deadlines shall be limited and shall apply only if these deadlines would have otherwise lapsed during the time period of November 25, 2005, through January 3, 2006. This limited suspension and/or extension shall terminate on January 3, 2006, and any deadline in legal proceedings which would have expired during the time period of November 25, 2005, through January 3, 2006, shall lapse on January 4, 2006.
B. Notwithstanding the provisions of Subsection A and to the extent that deadlines in legal proceedings were not suspended by Executive Orders KBB 2005-48 and 67, if a deadline in a legal proceeding lapsed during the time period of October 25, 2005, through November 25, 2005, a party shall have the right to seek an extension or suspension of that deadline by contradictory motion or declaratory judgment. The party seeking the extension shall bear the burden of proving that either the party or his attorney was adversely affected by Hurricane Katrina or Rita and but for the catastrophic effects of Hurricane Katrina or Rita, the legal deadline would have been timely met. For good cause shown, the court shall extend the deadline in the legal proceeding, but in no instance shall the extension be later than January 3, 2006. (Emphasis supplied.)

The resolution of this matter ultimately hinges upon whether the governor’s executive orders and the corresponding legislation extending prescriptive and peremptive periods apply to abandonment, or whether the three-year abandonment period is properly considered a legal deadline other than a prescriptive or peremptive period. If the former, abandonment was interrupted by the filing of the request for a status conference. If the latter, abandonment accrued during the one-month suspension “gap” of October 25 through November 25, 2005. See La. R.S. 9:5823(B) and Executive Order KBB 2005-67, § 1(B).

Because the Louisiana Civil Code does not provide guidance on how to determine whether a particular time limitation is prescriptive or peremptive, the supreme court “has resorted to an exploration of the legislative intent and public policy underlying a particular time limitation.” State of La., Div. of Admin. v. McInnis Bros. Constr., 97-0742, p. 4 (La.10/21/97), 701 So.2d 937, 940. Thus, courts look to the language of the | ^statute, the purpose behind the statute, and the public policy mitigating for or against suspension, interruption, or renunciation of that time limit to determine its nature as prescriptive or peremptive. State Bd. of Ethics v. Ourso, 02-1978, p. 5 (La.4/9/03), 842 So.2d 346, 349. The same rationale should apply in determining whether abandonment falls into either category, or neither.

Abandonment is essentially self-operative; it occurs automatically upon the passing of three years without a step being taken by either party, and it is effective without court order. La. C.C.P. art. 561(A)(2). In those respects, it more closely resembles peremption rather than prescription, which must be affirmatively pleaded as a defense and cannot be noticed by a court on its own motion. See La. C.C.P. arts. 927(B) and 1005. But unlike peremption, the right to plead abandonment can be waived by a defendant, as the defense of prescription can be waived by the failure to affirmatively plead it or through acknowledgment. It has also been held that the doctrine of contra non valentem may apply to defeat a claim of abandonment, as it may also defeat a claim of prescription. See Clark, 00-3010 at p. 7, 785 So.2d at 784-85; Akyar v. Lee, 99-806, p. 4 (La.App. 5th Cir.1/25/00), 751 So.2d 411, 413, unit denied, 00-0616 (La.4/20/00), 760 So.2d 348. In these respects, then, it more closely resembles prescription than peremption.

Fortunately, the supreme court has provided guidance on the issue. Clark unequivocally recognized that “[abandonment is both historically and theoretically a form of liberative prescription that exists independent from the prescription that governs the underlying substantive claim.” Clark, 00-3010 at p. 11, 785 So.2d at 787. (Emphasis supplied.) It further observed that “[t]he historical and theoretical nature of abandonment as a species of prescription renders it appropriate to consider prescriptive principles in ^analyzing res nova abandonment issues.... ” Clark, 00-3010 at p. 19, 785 So.2d at 791. The issue before us is res nova.

Since the legislature intended that even the strict time limitation of peremption should be suspended pursuant to La. R.S. 9:5822(A) due to the 2005 hurricane crisis, it is logical to conclude that it also intended that abandonment,' a species of the less-strict time limitation of prescription, should likewise be suspended. We are also guided by the legislature’s express directive that La. R.S. 9:5821, et seq., “shall be liberally construed” to effect the purposes stated. Accordingly, we hold that Executive Orders KBB 2005-32, 2005-48, and 2005-67 and La. R.S. 9:5822(A) apply to abandonment as well as to other forms of liberative prescription.

The abandonment period in this case “would have otherwise lapsed” on September 9 (or, alternatively, September 26), 2005 (“during the time period of’August 26, 2005, through January 3, 2006”). See La. R.S. 9:5822(A). It was therefore suspended “through January’ 3, 2006” and “lapse[d] on January 4, 2006.” Id. Plaintiffs request for a status ■ conference on November 23, 2005 was therefore timely.

In summary, we hold that the abandonment period that would have ordinarily accrued on September 9, 2005 was statutorily suspended from August 26, 2005 through January 3, 2006, and that the filing of plaintiffs request for a status conference on November 23, 2005, given its express purposes, constituted a step in the prosecution of the action, sufficient to interrupt abandonment. The judgment of the trial court is reversed and the case is remanded for further proceedings. All costs of this appeal are assessed to the defendant-appellee, JPMorgan Chase Bank, N.A. (formerly Bank One, Louisiana, N.Á.).

REVERSED AND REMANDED.

      . Executive Order KBB 2005-67 provided that deadlines in legal proceedings in the parishes of Calcasieu, Cameron, Jefferson Davis, and Vermilion were suspended until November 25, 2005.

      . See La. R.S. 9:5821(B) and 9:5822(A), enacted by Acts 2005, 1st Ex.Sess., No. 6, § 1, effective November 23, 2005. The statutes were expressly declared to be applicable "retroactively as well as prospectively.” Acts 2005, 1st Ex.Sess., No. 6, § 4.

      . The denial of Regions's motion in the second consolidated action was an interlocutory judgment and not appealable. Not being a party to the first action, Regions likewise cannot properly be considered an appellee in this appeal. To the extent that Regions’s brief discusses issues relating to the judgment in the first action, it might conceivably be construed as an amicus curiae brief. However, as Regions did not move for leave to submit its brief, we also will not consider it in that respect. Uniform Rules of Louisiana Courts of Appeal, Rule 2-12.11.

      . Louisiana Code of Civil Procedure article 1551 authorizes a trial court to set “conferences” of counsel for the purposes of considering "[t]he necessity or desirability of amendments to the pleadings”; ”[t]he control and scheduling of discovery”; and “other matters as may aid in the disposition of the 'action.” The article specifically authorizes the trial court in its discretion to conduct multiple conferences.


author: CARTER, C.J.

text:
    PARISH NATIONAL BANK v. HERO’S OPERATING COMPANY, L.L.C; Hero’s Restaurant Group, L.L.C; Cash Register Sales, Inc.; and Chase Paymentech Solutions, L.L.C.
    No. 2007 CA 0461.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2007.
    Roy E. Blossman, J. Patrick Gaffney, New Orleans, LA, for Plaintiff/Appellant, Parish National Bank.
    Clement F. Perschall, Jr., Metairie, LA, for Defendant/Appellee, Cash Register Sales, Inc.
    Thomas P. Anzelmo, Andre J. Lagarde, Metairie, LA, for Defendants/Appellees, Hero’s Operating Co., and Hero’s Restaurant Group.
    Before CARTER, C.J., PETTIGREW and WELCH, JJ.
   CARTER, C.J.

| ^Parish National Bank appeals a judgment of the trial court dismissing its claims against Cash Register Sales, Inc., with prejudice.

FACTS AND PROCEDURAL HISTORY

Parish National filed the underlying suit relating to credit card usage, naming several defendants, including Cash Register Sales. Cash Register Sales responded by filing exceptions raising multiple objections including no right of action, no cause of action, failure to join necessary parties, failure to plead fraud and special damages with specificity, and vagueness. Thereafter, Parish National moved to voluntarily dismiss its claims against Cash Register Sales without prejudice. Cash Register Sales objected to the dismissal being without prejudice. After a hearing on the motion to dismiss, the trial court dismissed Parish National’s claims against Cash Register Sales with prejudice. After its motion for new trial was denied, Parish National appealed.

DISCUSSION

This appeal concerns the legal interpretation to be given LSA-C.C.P. art. 1671, which provides:

A judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs, if the application is made prior to any appearance of record by the defendant. If the application is made after such appearance, the court may refuse to grant the judgment of dismissal except with prejudice.

(Emphasis added.) The specific question raised is whether the second sentence of the article grants the trial court discretion to dismiss a suit with ^prejudice if the application for dismissal without prejudice is filed after the defendant has made an appearance.

In Vardaman v. Baker Center, Inc., 96-0831 (La.App. 1 Cir. 2/14/97), 689 So.2d 667, 669-670, this court interpreted the language of Article 1671 as follows:

The first sentence of [Article 1671] refers specifically to an application of the plaintiff for a dismissal of an action “without” prejudice. The second sentence of this article must be read in conjunction with the first sentence so that the reference to “the application” means the application for a dismissal “without” prejudice. Therefore, if an application for dismissal without prejudice is made prior to a general appearance by the defendant, a judgment dismissing the action without prejudice is mandatory and the trial court has no discretion in this regard. However, if an application for dismissal without prejudice is made after a general appearance by the defendant, the trial court has discretion to refuse to grant a judgment of dismissal without prejudice. Turner v. Leslie, 96-2288 (La.12/6/96), 684 So.2d 395, 396. Moreover, the trial court may not dismiss an action without prejudice if the substantive rights acquired by the defendant would be lost or if the dismissal would deprive the defendant of a just defense. City National Bank v. Anlage, 448 So.2d 199, 200 (La.App. 1st Cir.1984). When either of these circumstances exists and the plaintiff has moved for a dismissal without prejudice, the trial court may grant the voluntary dismissal only if the plaintiff agrees that it be a dismissal with prejudice. See R.G.C. Investments, Inc. v. Almerico, 435 So.2d 1043, 1046 (La.App. 5th Cir.), writ denied, 438 So.2d 574 (La.1983).

The trial court does not have the power to dismiss with prejudice pursuant to a motion to dismiss without prejudice. Article 1671 merely empowers the trial court to “refuse to grant the judgment of dismissal except with prejudice.” Upon objection, the dismissal should not be granted with prejudice, and the case should proceed. Spencer v. Children’s Hosp., 432 So.2d 823, 824-825 (La.1983). See also State, Dept. of Social Services v. Powell, 00-926 (La.App. 5 Cir. 10/18/00), 769 So.2d 820, 822.

|4In the instant case, Parish National moved to dismiss its claims against Cash Register Sales without prejudice. Cash Register Sales had made an appearance before the motion was filed and did object to a dismissal without prejudice. Parish National clearly did not consent to a dismissal with prejudice. Thus, it was improper for the trial court to dismiss Parish National’s claim against Cash Register Sales with prejudice. The motion to dismiss without prejudice should have been denied, and the case should proceed. See Spencer, 432 So.2d at 823.

CONCLUSION

Considering the foregoing, we vacate the judgment of the trial court dismissing Parish National Bank’s claim against Cash Register Sales, Inc. with prejudice. Judgment is further rendered denying Parish National’s motion to dismiss its claims against Cash Register Sales without prejudice. This matter is remanded to the trial court so that the case may proceed. Costs of this appeal are assessed to Cash Register Sales, Inc.

JUDGMENT VACATED; JUDGMENT RENDERED; REMANDED.

      . Parish National's claims against the other three defendants were dismissed without prejudice. However, one defendant filed a cross-claim against Cash Register Sales, which was not dismissed.