author: TRAYLOR, Justice. WEIMER, J.,

text:
    Peggie HUNTER v. MORTON’S SEAFOOD RESTAURANT & CATERING and XYZ Insurance Company.
    No. 2008-C-1667.
    Supreme Court of Louisiana.
    March 17, 2009.

      Eric John Halverson, Jr., Metairie, for applicant.
    The Law Office of John Finckbeiner, Jr., John Joseph Finckbeiner, Jr., New Orleans, for respondent.
   TRAYLOR, Justice.

| tWe granted certiorari in this matter to consider the meaning of the term “forward” as contained in the facsimile filing statute, La. R.S. 13:85o. For the following reasons, we find that “forward” means “to send.” Consequently, we remand this matter to the trial court to allow plaintiff to present proof that she “foiwarded” the original signed pleading, together with the filing and transmission fee, within five legal days from the date of the facsimile transmission of the document, as required by the statute.

FACTS AND PROCEDURAL HISTORY

Peggie Hunter (“Ms. Hunter”) alleges that she was injured when she fell on March 10, 2006 as she was leaving Morton’s Seafood Restaurant in Madisonville, Louisiana. On Thursday, March 8, 2007, Ms. Hunter filed a petition for damages by facsimile transmission against Morton’s Seafood Restaurant & Catering and XYZ Insurance Company (“defendants”). Ms. Hunter’s facsimile transmission was | .¿directed to the office of the Clerk of Court for the Twenty-Second Judicial District Court for the Parish of St. Tammany (“Clerk’s Office”). On Friday, March 9, 2007, the Clerk’s Office transmitted a receipt of transmission that Ms. Hunter’s suit had been received on March 8, 2007. Thereafter, on Friday, March 16, 2007, the United States Postal Service delivered Ms. Hunter’s original petition, together with filing and facsimile transmission fees, to the Clerk’s Office. The Clerk’s Office stamped Ms. Hunter’s original petition for damages as “filed” with the Clerk’s Office on March 16, 2007. Ms. Hunt’s original petition for damages also was stamped as “tax filed” on March 8, 2007.

On May 3, 2007, defendants filed a peremptory exception of prescription, asserting that Ms. Hunter’s cause of action had prescribed because suit was not filed until March 16, 2007, more than one year after the date of the accident. On October 12, 2007, following a hearing, the trial court granted defendants’ exception of prescription and dismissed Ms. Hunter’s suit with prejudice. Ms. Hunter appealed the trial court’s judgment to the First Circuit Court of Appeal.

On appeal, Ms. Hunter argued that the trial court erred in finding that her cause of action had prescribed. Ms. Hunter asserted that, pursuant to La. R.S. 13:850, she had timely forwarded the original petition to the Clerk’s Office within five legal days of instituting her suit by facsimile transmission. However, defendants maintained that because the original petition was not received by the Clerk’s Office until March 16, 2007, the sixth legal day following the facsimile filing, the petition was filed outside of the five-day requirement of La. R.S. 13:850.

The court of appeal, in an en banc decision, reversed the judgment of the trial court sustaining defendants’ peremptory exception of prescription and remanded this liimatter to the lower court for further proceedings. The court of appeal stated, in pertinent part, that:

[hjaving determined that the original petition was forwarded within five days of the receipt of the fax transmission by the clerk of court, and there being no issue of nonpayment of fees, the trial court erred in failing to give said fax filing force and effect. Therefore, because Ms. Hunter’s petition was filed as of March 8, 2007, it was timely filed pursuant to La.C.C. art. 3492 and La. R.S. 13:850. The trial court erred in granting [defendants’] peremptory exception raising the objection of prescription, and the October 12, 2007 judgment is hereby reversed. All First Circuit Court of Appeal jurisprudence not consistent with the ruling in this case is overruled.

Defendants now seek this court’s supervisory review of the First Circuit Court of Appeal’s decision.

LAW AND DISCUSSION

La. R.S. 13:850 provides the following:

§ 850. Facsimile transmission; filings in civil actions; fees; equipment and supplies
A. Any paper in a civil action may be filed with the court by facsimile transmission. All clerks of court shall make available for their use equipment to accommodate facsimile filing in civil actions. Filing shall be deemed complete at the time that the facsimile transmission is received and a receipt of transmission has been transmitted to the sender by the clerk of court. The facsimile when filed has the same force and effect as the original.
B. Within five days, exclusive of legal holidays, after the clerk of court has received the transmission, the party filing the document shall forward the following to the clerk:
(1) The original signed document.
(2) The applicable filing fee, if any.
(3) A transmission fee of five dollars.
C. If the party fails to comply with the requirements of Subsection B, the facsimile filing shall have no force or effect. The various district courts [4may provide by court rule for other matters related to filings by facsimile transmission.
D. The clerk may purchase equipment and supplies necessary to accommodate facsimile filings out of the clerk’s salary fund. [Emphasis added.]

Defendants argue that before the First Circuit Court of Appeal’s decision herein, the words “shall forward” in this statute have been interpreted by this state’s appellate courts to mean “shall deliver” or “clerk shall receive.” However, in the instant matter, the First Circuit has interpreted “shall forward” to mean “send.” Defendants contend that such an interpretation allows for undue delays, contrary to legislative intent, and leads to absurd consequences.

Ms. Hunter counters that the plain language of La. R.S. 13:850(B) is clear, and that in order to satisfy the mandates of the statute, a litigant must only “forward” the original pleading with filing and facsimile transmission fees within five days, exclusive of legal holidays. Because the statute does not provide a time period in which delivery must be achieved or identify a particular means of forwarding, Ms. Hunter asserts that any means of transmitting the original document and fees within five legal days is allowed by the statute.

The appropriate starting point in statutory interpretation is a consideration of the language of the statute itself. Touchard v. Williams, 617 So.2d 885, 887 (La.1993). When a statute is clear and unambiguous and its application does not lead to 16absurd consequences, the statute is applied as written. La. R.S. 1:4; La. C.C. art. 9. Those who enact statutory provisions are presumed to act deliberately and with full knowledge of existing laws on the same subject, with awareness of court cases and well-established principles of statutory construction, and with knowledge of the effect of their acts and a purpose in view. State v. Johnson, 2003-2993, p. 11 (La.10/29/04); 884 So.2d 568, 576; Theriot v. Midland Risk Insurance Co., 1995-2895, p. 3 (La.5/20/97); 694 So.2d 184, 186.

The only issue in this case is the meaning of the term “forward” as found in La. R.S. 13:850(B). The Louisiana Revised Statutes provide guidance as to the meaning of terms in statutes. Specifically, La. R.S. 1:3 provides, in pertinent part, that “[w]ords and phrases shall be read with their content and shall be construed according to the common and approved usage of the language.” La. R.S. 13:850(B) requires that the original pleading and filing and facsimile transmission fees shall be “forwarded” to the clerk. Black’s Law Dictionary defines “forward” as “[t]o send forward; to send toward the place of destination; to transmit.” The definition of this term does not include the concept of “delivery” or “receipt.” Consequently, we hold that to forward a document as required in La. R.S. 13:850(B), a litigant must only send the document; the sending of the document towards the place of destination is [ r,all that is required, pursuant to the clear and unambiguous language of La. R.S. 13:850(B).

Defendants argue that the problem with interpreting the word “forward” in the statute to mean “send” leads to absurd consequences because such an interpretation will result in litigation regarding the sending date of documents. Defendants maintain such a consequence justifies the appellate courts’ previous interpretation of the word “forward” in its decisions to mean the delivery or receipt of the document and fees. Ms. Hunter suggests that issues of proof should not be confused with application of a clear and unambiguous law.

Under the statute at issue, a filing is merely conditional once a facsimile of a document is transmitted. There is no legislative directive in the statute itself or in the statute’s history as to the manner in which section (B) of the statute is to be satisfied to make the filing complete. However, the absence of legislative directive regarding the manner in which to forward the original document and fees does not prohibit the court from upholding the literal meaning of the statute. During oral argument, this court and counsel for the parties discussed methods which can be used to “forward” documents and fees as required by La. R.S. 13:850. In the instant case, Ms. Hunter forwarded her original pleading, together with the filing and facsimile transmission fees, by United States Postal Service to the clerk. In addition to the United States Postal Service, other courier services were discussed, as well as the forwarding of documents and fees in person or by less conventional means.

The date when an original document and fees have been forwarded to the Clerk’s Office is a fact to be proved by the sender. The sender must establish, by a preponderance of the evidence, that the original document and required fees have Jabeen forwarded to the Clerk’s Office in the time set forth in the statute. Talbot v. Talbot, 2003-0814, p. 7 (La.12/12/03); 864 So.2d 590, 598 (“In civil cases, a party who has the burden of proof must prove the fact in issue by a preponderance of the evidence ... ”).

In the instant case, the parties do not dispute that Ms. Hunter forwarded the original document and fees to the Clerk’s Office through the United States Postal Service. Further, there is no dispute that Ms. Hunter’s original document and fees were received by the Clerk’s Office on the sixth legal day after the facsimile transmission of the pleading at issue. However, the trial court made no factual finding of whether Ms. Hunter forwarded the original document and fees within the five legal days required by La. R.S. 13:850(B).

The record, as it now exists, does not contain sufficient information for this court to make that factual determination. See, Picou v. Ferrara, 483 So.2d 915, 918 (La.1986). Ms. Hunter argued in the trial court that the original document and required fees were sent to the Clerk’s Office on March 9, 2007 by means of the United States Postal Service, and maintains that assertion in brief to this court. Argument, however, is not proof. The envelope by which the original document and required fees were forwarded through the United States Postal Service bears a Pitney Bowes stamp dated March 13, 2007. The United States Postal Service post mark is unclear. Consequently, we must remand this matter to the trial court to afford Ms. Hunter the opportunity to present proof, in the form of affidavits or other documents, such as proof of mailing, of the date on which the original document and required fees were forwarded to the Clerk’s Office. Thereafter, the trial court may make the factual determination of whether Ms. Hunter complied with the requirements of La. R.S. 13:850, as interpreted by this court.

^CONCLUSION

Based on the foregoing, we hold that the meaning of the word “forward” in La. R.S. 13:850, means to “send” the document. Because the trial court has made no factual finding of when Ms. Hunter “forwarded” her original document and required fees, this matter is hereby remanded for further proceedings consistent with the opinions expressed herein.

REMANDED.

WEIMER, J., concurs in part and dissents in part and assigns reasons.

WEIMER, J.,

concurring in part, dissenting in part.

hi concur in the finding by this court that the word “forward” in LSA-R.S. 13:850 means to “send” the document, but do not find it necessary to remand the matter to the trial court.

The parties do not dispute that Ms. Hunter forwarded the original document and fees to the Clerk’s Office through the United States Postal Service. Additionally, there is no dispute that the original document and fees were received by the Clerk’s Office on March 16, 2007, the sixth legal day after the facsimile transmission of the pleading at issue. It is more probable than not that the original document and fees would not be received by the clerk on the same day they were mailed. Because of these facts, I believe the record contains sufficient information for this court to make the factual determination that the original document and fees were forwarded within the five legal days required by LSA-R.S. 13:850.

I would find that there are sufficient facts in the record to rule in plaintiffs favor without remanding the matter.

      . Acts 1991, No. 463, Section 1; Acts 1995, No. 1119, Section 1. The provisions of the statute are set out in the body of the opinion, infra.

      . Hunter v. Morton's Seafood Restaurant & Catering, 2007-2396 (La.App. 1st Cir.7/3/08); 992 So.2d 1078.

      . Id., 2007-2396, p. 10; 992 So.2d at 1084.

        . See, e.g. Bryant v. Milligan, 2000-2524 (La. App. 1st Cir.6/6/01); 808 So.2d 660 (statute interpreted as “shall deliver (file)''); Granger v. Jefferson Parish Department of Recreation, 2000-1811 c/w 2000-1812 (La.App. 5th Cir.3/14/01); 783 So.2d 471 (statute interpreted as “clerk shall receive”); Antoine v. McDonald's Restaurant, 1998-1736 (La.App.3rd Cir.5/5/99); 734 So.2d 1257 (statute interpreted as "clerk shall receive”): Brown v. American National Property & Casualty Co., 1998-2292 (La.App. 4th Cir. 10/28/98); 720 So.2d 1278 (statute interpreted as "shall deliver (remit)”); Martin v. Kroger Company, 29, 915 (La.App.2nd Cir. 10/29/97); 702 So.2d 347, writ denied, 1998-0033 (La.3/13/98); 712 So.2d 881 (statute interpreted as “shall deliver”); Inferno Associates, Inc. v. Division of Administration, Office of State Purchasing, 1994-0675 (La.App. 1st Cir.3/3/95); 652 So.2d 577 (statute interpreted as “clerk shall receive").

      . La. R.S. 1:4 provides:
      Section 4. Unambiguous wording not to be disregarded
      When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.

      . La. C.C. art. 9 provides:
      Art. 9. Clear and unambiguous law
      When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.

      . Black's Law Dictionary, p. 655 (6th ed.1990).

      . Cases which hold to the contrary are expressly overruled.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Robert A. BOOTH, Jr.
    No. 2008-B-2353.
    Supreme Court of Louisiana.
    March 17, 2009.

      Charles Bennett Plattsmier, Baton Rouge, for applicant.
    Robert A. Booth, Jr., for respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

, 1 t This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Robert A. Booth, Jr. For the reasons that follow, we suspend respondent from the practice of law for a period of two years.

UNDERLYING FACTS

The Runyan Matter

On April 14, 2004, Marvin Runyan, Sr. hired respondent to handle the interdiction of his sister. Marvin Sr. paid respondent $3,000 to complete the interdiction and $380 in advanced court costs. Instead of placing these funds into his client trust account, respondent deposited the funds into his operating account and consumed them, thus converting the funds to his own use.

Respondent’s paralegal drafted the necessary pleadings in the interdiction matter, which Marvin Sr. signed on May 25, 2004. However, respondent did not file the pleadings before Marvin Sr. died on June 24, 2004. Despite his client’s death and the fact that the interdiction pleadings were never filed, respondent did not refund any of the costs or fees.

| ^Beginning in September 2005, Marvin Sr.’s son, Marvin Runyan, Jr., wrote respondent three letters requesting the return of the $3,000 fee. Having received no response from respondent, Marvin Jr. filed a disciplinary complaint against him in February 2006.

During a sworn statement in June 2006, respondent agreed to refund $2,780 to the Runyans. Respondent paid this amount to the Runyans on June 22, 2006.

The ODC alleges that respondent violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.5 (charging an excessive fee and failure to refund an unearned fee), and 8.4(a) (violation of the Rules of Professional Conduct) of the Rules of Professional Conduct.

The Carter Matter

In December 2004, Charles Carter (“Charles”), a resident of California, contacted respondent to request help in intervening in and staying the succession proceedings of his deceased parents, Hattie Carter and Lonnie Carter, both of whom were residents of Louisiana. Charles also requested help in proving that some of the named heirs were not Lonnie’s biological children. After reviewing the documents provided by Charles, respondent drafted a retainer fee agreement indicating Charles would pay $7,500 for the representation. Charles signed the fee agreement in February 2005 and forwarded a $3,000 check. He paid respondent the remaining $4,500 in October 2005.

|sEventually, respondent realized that he would not be able to help Charles because of a lack of evidence. Nonetheless, respondent did not withdraw from the representation, did not provide Charles with his file, did not provide Charles with an accounting, and did not refund the unearned fees.

in April 2006, Charles requested, via letter, that respondent refund the entire $7,500 fee plus interest or he would file a disciplinary complaint against respondent. Respondent promised to refund “a substantial portion” of the retainer fee if Charles would not file the disciplinary complaint against him. However, respondent failed to refund any portion of the fee, and Charles filed a disciplinary complaint against him in May 2006.

In a November 2006 sworn statement, respondent admitted he probably owed Charles a $2,000 refund of the $7,500 fee, indicating he had done many hours of research and talked to Charles on the phone numerous times. He stated that he told Charles he could not file the pleadings Charles requested because they were frivolous. He also indicated he stopped returning Charles’ calls when Charles wanted him to try to collect the other heirs’ DNA from cigarette butts and soda bottles. However, he denied telling Charles he would refund the entire fee if Charles would not file a disciplinary complaint against him.

In April 2008, respondent indicated that he and Charles had gone to fee arbitration through the Louisiana State Bar Association. According to respondent, the arbitrator decided Charles was due a refund of a portion of the fee. However, |4Charles did not accept the arbitrator’s decision and requested a continuance. It is unclear from the record if respondent refunded any amount to Charles.

The ODC alleges that respondent violated Rules 1.3, 1.4 (failure to communicate with a client), 1.5, 1.16 (failure to properly withdraw from the representation of a client and failure to return a file), 8.4(a), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, and misrepresentation) of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS

After investigation, the ODC filed formal charges against respondent. Respondent answered the formal charges, denying most of the misconduct in the Runyan matter and denying all of the misconduct in the Carter matter. This matter then proceeded to a formal hearing on the merits.

Heating Committee Report

After considering the evidence and testimony presented at the hearing, the hearing committee rendered its report.

Regarding the Runyan matter, the committee found respondent received $3,380 as a “feed fee” and advanced court costs. It determined he deposited the entire amount into his operating account, as he maintained no trust account. According to the committee, respondent spent approximately three hours working on the matter, but did not file any pleadings prior to Marvin Sr.’s death. Marvin Jr. contacted respondent more than a year later to request a refund, but respondent took the position Isthat he did not know if he had the authority to terminate the attorney-client relationship, even though his client had died, because he thought perhaps other relatives would request that he continue with the interdiction. Marvin Jr. claimed that respondent stated he was unable to pay back the funds. The committee further found Marvin Jr. made two more requests for a refund, to no avail. Rather, the committee found that it was not until after the filing of the disciplinary complaint that respondent finally refunded $2,780 to Marvin Jr. With the refund, he included a release of claim, which Marvin Jr. did not execute.

Regarding the Carter matter, the committee found Charles paid respondent a total fee of $7,500, which respondent deposited into his operating account, as he did not maintain a trust account. According to the committee, respondent listened to Charles and responded to his telephone calls, but performed no other services. When respondent failed to act or return the fee and file, Charles threatened to file a disciplinary complaint. The committee determined that respondent left a message on Charles’ answering machine that he would return the entire fee if Charles would not file a disciplinary complaint. Although respondent presented evidence at the hearing of his intent to enter into fee arbitration with Charles through the Louisiana State Bar Association, the committee noted he had no work product to justify the $4,000 fee he would charge Charles and could not provide any reason for keeping the unearned ^portion of the fee other than to say he was waiting for the outcome of these disciplinary proceedings.

I agree 100 percent. Yes. Now, what's wrong with that? If you want to pay somebody unearned fees if they will not turn you into disciplinary counsel, we all want to stay away from you ... we want to stay out of these situations. And if paying the money back would do it, a substantial amount, then I would, and I don’t see anything in the world wrong with that. The way you have referred to I forget which one of these documents, it sounds an awful lot like I’m bribing him. Here, here's some money, forget it. That was not the case. That was before this was ever done.

Based on these findings, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges, except Rule 8.4(c) with respect to the Carter matter. The committed found that respondent violated duties owed to his clients, the public, the legal system, and the legal profession. He acted intentionally and knowingly in injuring his clients and continues to injure Charles by withholding his funds, which should have been returned, at the very latest, in early 2006.

As aggravating factors, the committee found a dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim, substantial experience in the practice of law (admitted 1963), indifference to making restitution, failure to repay unearned fees, and attempting to intentionally preclude Charles from filing a disciplinary complaint by promising to return a clearly unearned fee. The committee found only one mitigating factor: absence of a prior disciplinary record.

After further considering this court’s prior jurisprudence, the committee recommended that respondent “be suspended immediately from the practice of law, and continuing for a period of at least 24 months from the date of the verified return of any and all unused client costs, and unearned fees.”

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

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings are not manifestly erroneous except that, in the Carter matter, 17respondent did not offer to refund the entire fee but did offer to refund a “substantial portion” of the fee if Charles would not file a disciplinary complaint against him.

The board determined that respondent violated Rules 1.3, 1.5, and 8.4(a) in the Runyan matter and violated Rules 1.3, 1.4, 1.5, 1.16(d), and 8.4(a) in the Carter matter. Respondent violated Rule 1.3 by failing to file the interdiction in a timely manner and failing to promptly return unearned fees in the Runyan matter as well as failing to adequately represent Charles and failing to move toward terminating the attorney-client relationship in the Carter matter. Respondent violated Rule 1.4 in the Carter matter because he had no evidence that he communicated with Charles, who claimed to have had very little contact with respondent, and he admitted to cutting off communications with Charles after telling him he would not collect certain evidence on Charles’ behalf. Respondent violated Rule 1.5 because he charged excessive fees relative to the small amount of work he performed in both the Runyan matter and the Carter matter. He also violated Rule 1.5 by failing to timely refund unearned fees in both matters. Respondent violated Rule 1.16(d) in the Carter matter by failing to formally terminate the attorney-client relationship or return Charles’ file upon written request. Finally, respondent violated Rule 8.4(a) by violating the above rules. However, like the committee, the board determined that respondent did not violate Rule 8.4(c) in the Carter matter because it does not appear he lied to Charles or made misrepresentations to him, notwithstanding his failure to adequately communicate with his client.

The board concluded that respondent knowingly, and in some instances intentionally, violated duties owed to his clients, the public, the legal system, and the legal profession. As aggravating factors, it recognized a dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful | snature of the conduct, vulnerability of the victim, substantial experience in the practice of law, and indifference to making restitution. The only mitigating factor identified by the board was the absence of a prior disciplinary record.

Based on the ABA’s Standards for Imposing Lawyer Sanctions and the jurisprudence of this court, the board determined that an eighteen-month suspension is the baseline sanction in this matter. However, the board felt an upward deviation from the baseline sanction was warranted under these facts because of respondent’s continued failure to refund the unearned portion of the fee and his absolute refusal to acknowledge the wrongful nature of his conduct in the Carter matter. The board also noted that respondent deprived Charles and the Runyans of then-money for a significant period of time.

Accordingly, the board recommended that respondent be suspended from the practice of law for two years.

Respondent filed an objection to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the | shearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The record supports the hearing committee’s factual finding that respondent failed to refund an unearned fee and advanced court costs to the Runyans even after numerous requests to do so. It was not until Marvin Runyan, Jr. filed a disciplinary complaint against him that respondent finally refunded the unearned $2,780.

Similarly, in the Carter matter, respondent neglected Charles’ legal matter, did not properly terminate the attorney-client relationship, failed to adequately communicate with Charles, and failed to return Charles’ file and the unearned fee. Moreover, when Charles indicated he intended to file a disciplinary complaint, respondent attempted to persuade Charles not to do so by agreeing to refund a “substantial portion” of the fee. However, as of the date of this opinion, respondent still has not refunded the unearned fee to Charles despite acknowledging that he has not earned a portion of the $7,500 fee.

These findings support the conclusion that respondent violated Rules 1.3, 1.4, 1.5, 1.16, and 8.4(a) of the Rules of Professional Conduct, as charged in the formal charges. We agree with the hearing committee and the disciplinary board that there is not clear and convincing evidence of a Rule 8.4(c) violation in the Carter matter.

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

Respondent has knowingly and intentionally violated duties owed to his clients. He caused them actual harm in that he deprived them of their funds for an extended period of time. The baseline sanction for this type of misconduct is a period of suspension. See, e.g. In re: Arbour, 05-1189 (La.11/29/05), 915 So.2d 345 (two-year suspension imposed upon an attorney who mishandled succession proceedings), and In re: Lacobee, 03-2010 (La.2/20/04), 866 So.2d 237 (three-year suspension, with one year deferred, imposed upon an attorney who failed to place disputed funds in trust, failed to provide proper accountings, failed to refund unearned fees, fabricated a bill, and converted funds).

The record supports the aggravating factors of a dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct in the Carter matter, vulnerability of the victims, substantial experience in the practice of law, and indifference to making restitution. The only mitigating factor we are able to discern from the record is the absence of a prior disciplinary record.

Considering the entirety of the record in this case, we conclude the two-year suspension recommended by the disciplinary board is an appropriate sanction. Accordingly, we will suspend respondent from the practice of law for two years, and further order him to make full restitution in the Carter matter.

DECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Robert A. Booth, Jr., Louisiana Bar Roll number 3271, be and he Inhereby is suspended from the practice of law for two years. It is further ordered that respondent shall make full restitution to Charles Carter. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . After Marvin Sr.'s death, a judgment of possession was rendered leaving his entire estate to his wife, Cherrie. Thereafter, Cherrie gave their son, Marvin Jr., power of attorney to handle her affairs.

      . Respondent stated that he did approximately three hours of work on the interdiction. His normal hourly rate is $200. Therefore, he believed he earned approximately $600 of the $3,000 fee. He also stated that he would refund the $380 advanced court costs since he never filed any pleadings.

      . Respondent left the following message on Charles’ answering machine: "Mr. Carter, this is Robert Booth in Shreveport. I've gotten your letter here, uh, I need to talk to you about this. I will certainly be happy to refund, uh, a substantial portion of your retainer fee, uh, but, uh, I’m not going to do (inaudible) it'll just make life hard for me. Give me a call. Thank you. Bye."

      . In a letter to the disciplinary board dated April 10, 2008, respondent indicated the arbitrator decided that a fair and equitable attorney’s fee was $5,000, which meant that respondent had to refund $2,500. Then the arbitrator reduced that fee to $4,000. However, in his objection to the board’s recommendation filed in this court, respondent indicated that the arbitrator decided that Charles should be refunded $5,000, which the arbitrator later increased to $6,500. Furthermore, according to respondent, at a continuation of the arbitration on June 23, 2008, the arbitrator decided that Charles should be refunded the entire $7,500 if he dropped his disciplinary complaint against respondent. Respondent objected and has not heard from Charles since.

      . When questioned at the hearing about telling Charles he would refund monies if Charles would not file a disciplinary complaint, respondent stated:

      . Although the case was set on the court’s docket, respondent declined to appear for oral argument.


author:
      KNOLL, Justice.
     JOHNSON, J.,

text:
    Arthur SNOWTON v. SEWERAGE AND WATER BOARD.
    No. 2008-C-399.
    Supreme Court of Louisiana.
    March 17, 2009.

      Law Offices of William S. Vincent, Jr., William Jared Vincent, New Orleans, for applicant.
    Brian A. Ferrara, Gerard Michael Victor, New Orleans, for respondent.
   KNOLL, Justice.

I,We granted writs in this Workers’ Compensation case primarily to address whether it is procedurally necessary to have reargument before a five-judge panel in the Court of Appeal for a reversal of an Office of Workers’ Compensation (“OWC”) judgment. Plaintiff, Arthur Snowton, filed a disputed claim for compensation with the OWC against his employer, the Sewerage and Water Board of New Orleans (“SWB”). The OWC hearing officer rendered judgment in plaintiffs favor. The court of appeal reversed in a 2-1 decision and subsequently denied rehearing, implicitly denying plaintiffs request to refer this matter to a five-judge panel for consideration. For the following reasons, we find the court of appeal did not err in its refusal to refer this matter to a five-judge panel for reargument and affirm the judgment of the Court of Appeal reversing the judgment of the OWC.

FACTS AND PROCEDURAL HISTORY

On August 15, 2000, plaintiff, a laborer with the SWB, sustained injury to his back while attempting to lift a manhole cover in the course and scope of his employment. Plaintiff was diagnosed with a L4-L5 disc herniation with | ¿radiculopathy for which he subsequently underwent a lumbar lami-nectomy in October 2000.

After the accident, the SWB began paying plaintiff temporary total disability (“TTD”) benefits, which benefits were discontinued in November 2003 after the SWB identified other available employment for plaintiff and began paying supplemental earning benefits (“SEB”). Plaintiff, thereafter, filed a disputed claim for compensation with the OWC, asserting the SWB miscalculated his TTD benefits. As a result, plaintiff also sought penalties and attorney’s fees. The SWB filed an answer and reconventional demand, asserting that plaintiff was not entitled to SEB because he was able to earn 90 percent of his pre-accident wage. Consequently, the SWB sought a return of the SEB it had paid to plaintiff.

This matter proceeded to a hearing before an OWC hearing officer. The parties stipulated that plaintiff had suffered a work-related injury, but disputed his claim for continued benefits after reaching maximum medical improvement. The disputed issues specifically involved whether plaintiff was capable of working, under what restrictions, and whether such a job was available. At the conclusion of the hearing, the OWC hearing officer rendered judgment in favor of plaintiff finding (1) that plaintiff was entitled to reimbursement for TTD benefits after the SWB miscalculated his pre-injury wages and to the presumption of a forty-hour work week; (2) that plaintiff was entitled to an award of penalties and attorney’s fees, based on the SWB’s miscalculation; and (3) that plaintiff was entitled to SEB at a zero earnings rate with no credit to his employer for unearned wages, because the employer failed to identify available employment suitable to plaintiffs physical and cognitive limitations.

| oThe SWB appealed, and the Court of Appeal, Fourth Circuit reversed in a 2-1 decision. Snowton v. Sewerage and Water Board, 07-0677 (La.App. 4 Cir. 12/5/07), 972 So.2d 417. The appellate court majority found that the hearing officer erred (1) in concluding plaintiff was entitled to SEB after he reached maximum medical improvement as the record supported the conclusion that plaintiff was capable of working in at least two positions offered to him and each job would have paid him more than 90 percent of his pre-accident wage; (2) in applying the forty-hour work week presumption as the SWB presented sufficient evidence to rebut the presumption; and (3) in awarding penalties and attorney’s fees in light of its finding that plaintiff was not entitled to SEB. Therefore, the court of appeal reversed the judgment of the OWC and remanded this matter for recalculation of benefits and credits.

Plaintiff then requested rehearing and consideration by a five-judge panel of the court of appeal. While the appellate court did not specifically act on the motion for consideration, it denied rehearing. Plaintiff applied for writs to this Court, which we granted primarily to address the procedural issue of whether the court of appeal erred in not referring this matter to a five-judge panel in accordance with the provisions of La. Const. art. V, § 8(B). Arthur Snowton v. Sewerage and Water Board of New Orleans, 08-399 (La.5/16/08), 984 So.2d 709.

LAW AND DISCUSSION

In reference to the judgments of the courts of appeal, La. Const, art. V, § 8(B) specifically provides:

Judgments. A majority of the judges sitting in a case must concur to render judgment. However, in civil matters only, when a judgment of a district court is to be modified or Reversed and one judge dissents, the case shall be rear-gued before a panel of at least five judges prior to rendition of judgment, and a majority must concur to render judgment.

[ .¡Plaintiff in this case argues that pursuant to this provision, once an appellate judge dissents from a majority decision to reverse the judgment of a hearing officer, the court of appeal is required to refer the case to a five-judge panel. Plaintiffs position finds particular support in this Court’s writ grant in Travelers Insurance Co. v. Reliable Home Health Care, Inc., 99-1481 (La.7/2/99), 747 So.2d 4, in which we remanded a 2-1 decision reversing a judgment of the OWC to the court of appeal “for re-argument before a panel of at least five judges. La. Const. art. V, Section 8(B).”

In response, the SWB asserts that La. Const, art. V, § 8(B) is limited to decisions by district courts, and as the OWC is not a constitutionally-created district court, the court of appeal did not err in reversing the judgment of the OWC by a majority of a three-judge panel. Support for the SWB’s argument can be found in cases involving reversals of judgments rendered by city courts, American Deposit Ins. Co. v. Myles, 00-2457, p. 5 (La.4/25/01), 783 So.2d 1282, 1285, and decisions of ethics boards and civil service commissions, Bagert v. State Bd. of Ethics for Elected Officials, 594 So.2d 922 (La.App. 1st Cir.1992), and Cannatella v. Department of Civil Service, 592 So.2d 1374, 1378-79 (La.App. 4th Cir.), writ denied, 596 So.2d 215 (La.1992), respectively. In those cases, the reviewing courts | r,held that the constitution did not require reargument before a five-judge panel prior to reversal because the judgments or decisions were not rendered by district courts.

The appellate court in this case did not assign reasons for its refusal to refer this matter to a five-judge panel. We presume the court found the case did not have to be referred to a five-judge panel because the judgment on appeal was not rendered by a district court and, thus, the case did not satisfy the requirements of La. Const, art. V, § 8(B) for reversal. Seemingly, it falls to this Court to interpret whether the language of La. Const, art. V, § 8(B) requires reargument before a five-judge panel prior to reversal or modification of judgments rendered by the OWC when one judge of the original three-judge panel dissents.

According to the general rule, articles of the constitution are to be construed and interpreted using the same canons of interpretation applicable to statutes and written instruments. State v. Expunged Record (No.) 24.9,044, 03-1940, p. 4 (La.7/2/04), 881 So.2d 104, 107; Barnett v. Develle, 289 So.2d 129, 146 (La.1974). Thus, under the well-established rules of statutory construction, any interpretation of constitutional provisions begins with the language of the constitution itself. Record, 03-1940 at p. 4, 881 So.2d at 107; Ocean Energy, Inc. v. Plaquemines Parish Government, 04-0066, pp. 6-7 (La.7/6/04), 880 So.2d 1, 7.

When the provision is clear and unambiguous and its application does not lead to absurd consequences, its language must be given effect and its provisions must be construed so as to give effect to the purpose indicated by a fair interpretation of the language used. Perschall v. State, 96-0322, p. 21-22 (La.7/1/97), 697 So.2d 240, 255; Cajun Elec. Power Co-op., Inc. v. Louisiana Pub. Serv. Com’n, 544 So.2d 362, 363 (La.1989) (on rehearing). Unequivocal constitutional provisions are not subject to judicial construction and should be applied by giving words their generally | ^understood meaning. Ocean Energy, 04-0066 at p. 7, 880 So.2d at 7; Cajun Elec., 544 So.2d at 363. Accordingly, we are bound by the plain language of the constitutional provision to which we now turn.

The language of La. Const, art. V, § 8(B) requires reargument “when a judgment of a district court is to be modified or reversed and one judge dissents.” Lee Hargrave, The Judiciary Article of the Louisiana Constitution of 1974, 37 La. L.Rev. 765, 808 (1976-1977). Specifically, it provides that in such reversals or modifications, “the case shall be reargued before a panel of at least five judges prior to rendition of judgment, and a majority must concur to render judgment.” La. Const, art. V, § 8(B). This required rear-gument is not for all rehearings, but rather reargument is triggered “prior to rendition of judgment,” when the district court judgment is to be modified or reversed on a question of law or a question of fact and one judge dissents. Hargrave, supra.

Moreover, clearly by its terms, the rear-gument required by La. Const, art. V, § 8(B) is limited to district court judgments, which are modified or reversed by the majority of the three-judge panel. American Deposit Ins. Co., 00-2457 at p. 5, 783 So.2d at 1285. By its terms the provision does not apply if a district court judgment is sustained, even if one judge dissents, or in criminal matters. Har-grave, supra. Therefore, by implication, this provision does not apply to OWC judgments, which are rendered not by a district court, but by an administrative agency within the Department of Labor. See Albe v. Louisiana Workers’ Compensation Corp., 97-0581, p. 8 (La.10/21/97), 700 So.2d 824, 828. Thus, we find the plain language of the ^constitutional provision by which we are bound clearly limits the application of the five-judge panel reargument requirement to district court judgments and does not apply to judgments rendered by the OWC. Accordingly, our decision in Travelers to the contrary is hereby overruled.

Because this case originated in the OWC, the constitution does not require reargument for reversal by the court of appeal. Thus, the court of appeal properly did not refer the appeal for reargument before a five-judge panel.

|rAs to the merits, plaintiff argues the court of appeal applied the improper standard of review and erroneously reversed the findings of the OWC. In granting this application, we were concerned that the court of appeal may have disregarded the OWC’s factual findings. However, after careful review of the record and the court of appeal opinion, we find the court of appeal was correct in concluding there was insufficient support for the OWC’s factual findings.

On the issue of plaintiffs entitlement to SEB, the sole question presented was whether plaintiff is able to perform some work, thus entitling the SWB to a credit against his SEB. The OWC concluded that the SWB failed to identify available employment suitable to plaintiffs physical and cognitive limitations. However, insofar as the OWC held that plaintiff was not mentally or physically capable of working at least one of the jobs identified by the SWB, specifically, the groundskeeper job, its conclusion is clearly wrong. We note the record shows even plaintiffs expert agreed on cross-examination that plaintiff could perform the groundskeeper job, subject to the restrictions prescribed by plaintiffs treating physician. Thus, plaintiff is not entitled to SEB, and the court of appeal correctly reversed the OWC judgment awarding attorney’s fees and penalties. Moreover, as to the calculation of plaintiffs TTD benefits, the court of appeal correctly found that, based on the evidence submitted in the record, the SWB successfully rebutted the forty-hour work week presumption, and the OWC erred in presuming plaintiff worked a forty-hour week for purposes of calculating his benefits.

| ¡Accordingly, we find the comb of appeal correctly applied the manifest error/clearly wrong standard of review in reversing the judgment of the OWC and affirm the judgment of the court of appeal.

DECREE

For the foregoing reasons, we find the court of appeal did not err in refusing to refer this matter to a five-judge panel for reargument and affirm the judgment of the court of appeal reversing the judgment of the OWC. Case remanded to the OWC in keeping with the Court of Appeal opinion.

AFFIRMED and REMANDED.

JOHNSON, J. dissents and assigns reasons.

JOHNSON, J.,

dissenting.

hi respectfully dissent.

LSA-Const. Art. V, § 8(b) provides:

A majority of the judges sitting in a ease must concur to render judgment. However, in civil matters only, when a judgment of a district court is to be modified or reversed and one judge dissents, the case shall be reargued before a panel of at least five judges prior to rendition of judgment, and a majority must concur to render judgment. (Emphasis added).

Admittedly, the Office of Workers’ Compensation is not a “district court,” but, rather, an administrative agency. However, in my view, it is necessary to treat workers’ compensation matters differently than judgments in city court cases, or decisions of ethics boards and civil service commissions.

At the time the 1974 Constitution was adopted, workers’ compensation matters were heard by the district court. During that time, this court held that a 2-1 reversal of a district court’s ruling in a workers’ compensation matter must be reargued before a five-judge panel. Virgil v. American Guarantee & Liab. Ins. Co., 514 So.2d 1169 (La.1987).

In 1990, the voters approved an amendment to La. Const. Art. V, § 16(A)(1), which became effective November 8, 1990, and provides:

Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for |2administrative agency determinations in workers’ compensation matters, a district court shall have original jurisdiction of all civil and criminal matters.

Thereafter, the Office of Workers’ Compensation (“OWC”) assumed jurisdiction of workers’ compensation matters.

As explained in. Albe v. Louisiana Workers’ Compensation Corp., 97-0581 (La.10/21/97), 700 So.2d 824, the Office of Workers’ Compensation is not a court, but an administrative agency created within the Department of Labor. However, Albe also recognized that following the constitutional amendment, the OWC has adjudicative and fact-finding powers akin to those of a district court, and exercises some of the functions previously reserved to the judiciary. Seen in this light, I would | ofind that, for procedural puiposes, the OWC is the functional equivalent of the district court. Thus, the change in jurisdiction for workers’ compensation cases from the district court to the OWC did not alter the requirement that, as with district courts, the same five-judge panel safeguard should apply.

For these reasons, I would reverse the court of appeal and remand this matter to a five judge panel to resolve the merits of this case.

       Calogero, C. J., retired, recused. Chief Justice Calogero recused himself after oral argument, and he has not participated in the deliberation of this case.

      . The SWB identified several jobs, including equipment operator, office assistant, parking control officer, groundskeeper with the SWB, a grounds maintenance worker, counter helper at a T-shirt shop, a lube technician at a car wash, and a badge checker with a security company.

      . This Court in Virgil v. American Guarantee & Liab. Ins. Co., 514 So.2d 1169, 1169 (La.1987) remanded a 2-1 reversal of a district court's ruling in a workers' compensation matter "to be argued before a panel of at least five judges. See La. Const, art. 5, section 8(B)." At that time, however, workers’ compensation matters were heard by the district court. This changed in 1990 with the approval by Louisiana voters of an amendment to La. Const, art. V, § 16(A)(1), which became effective November 8, 1990, and provided:
      Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker’s compensation matters, a district court shall have original jurisdiction of all civil and criminal matters.

        See Albe v. Louisiana Workers' Compensation Corp., 97-0581, p. 5 (La. 10/21/97), 700 So.2d 824, 827. Thereafter and in conjunction with La.Rev.Stat. § 23:1310.3(E), the OWC assumed original and exclusive jurisdiction to adjudicate workers’ substantive claims arising under the Workers’ Compensation Act. Id.

      . Albe explains that
      [t]he Office of Worker’s Compensation Administration was created within the Department of Labor for the purpose of administering the provisions of the Workers' Compensation Act. La.R.S. 23:1291. The administrative hearing officers are appointed by the director of the Office of Workers' Compensation Administration, who is in turn subject to the general administrative authority of the secretary of the Department of Labor. La.R.S. 23:1310.1 and La. R.S. 23:1310.2. There is no doubt that the Office of Workers' Compensation ... is an administrative agency.
      Administrative agencies are a governmental hybrid, exercising powers similar to those exercised by all three branches of government. While agencies have rulemak-ing authority that shadows the powers of the legislature, they do not have the power to make law. Similarly, agencies have adjudicative and fact finding powers that mimic those exercised by courts. Although we recognize the Office of Workers’ Compensation Administration constitutionally employs certain functions previously reserved to the judiciary in pursuit of its statutory duties, the exercise of these quasi-judicial functions does not make hearing officers judges under Art. V. Put simply, the hearing officers of the Office of Workers' Compensation Administration are not authorized to exercise “judicial power” under Art. 5, § 1. Their authority was properly restricted to “administrative agency determinations” by Art. V, § 16(A).

        Id. at 828.

      . Our decision in Virgil still stands, however, because at the time it was rendered, district courts had original jurisdiction over workers’ compensation matters, and the provisions of La. Const, art. V, § 8(B) clearly apply to district court judgments that are reversed or modified by the court of appeal.
      Our research has also revealed that the Second, Third, and Fifth Circuits, without assigning reasons for the practice, have referred workers' compensation appeals to five-judge panels prior to reversal or modification of OWC judgments when one or more judges have dissented. Freeman v. Poulan/Weed Eater, 618 So.2d 618 (La.App. 2d Cir.1993); Sharbono v. Steve Lang & Son Loggers, 96-405 (La.App. 3 Cir. 12/11/96), 685 So.2d 559; Montgomery v. Lafayette Parish Sch. Bd., 95-1613 (La.App. 3 Cir. 7/3/96), 677 So.2d 162; Chevalier v. Bossier, 94-1537 (La.App. 3 Cir. 7/12/95), 663 So.2d 70; Miller v. Roger Miller Sand, Inc., 93-252 (La.App. 3 Cir. 2/9/94), 632 So.2d 1176; Doucet v. Baker Hughes Prod. Tools, 626 So.2d 948 (La.App. 3d Cir.1993); Boudreaux v. Production Management, Inc., 94-960 (La.App. 5 Cir. 11/15/95), 665 So.2d 497, respectively. While La. Const. Art. V, § 8(B) does not mandate this practice, it does not necessarily prohibit it. Moreover, La. Const. Art. V, § 8(A) provides that each Court of Appeal "shall sit in panels of at least three judges selected according to rules adopted by the court.” Thus, according to our research, nothing in the constitution prohibits a court of appeal from referring appeals from OWC judgments to five-judge panels for reargument prior to rendition of a judgment of reversal or modification in accordance with its own rules. Those courts, however, are not constitutionally required to do so.
      Nevertheless, the Second Circuit did err in stating that "LSA-Const. Art. 5, § 8, mandated a reargument of this appeal before a five-judge panel when one judge of the original three-judge panel dissented to an opinion reversing the judgment of the Worker's Compensation Hearing Officer” in McCoy v. City of Shreveport Fire Dept., 26, 181, p. 1 (La.App. 2 Cir. 1/25/95), 649 So.2d 103, 104.

      . According to testimony, the groundskeeper job consisted of picking up trash with a stick with a nail in it and a little bag to put the trash in. The workers "would stab or pick up a few pieces of paper. Sit on the side, talk a little bit and move around. But, as long as they kept the yard clean of litter and all, that was their primary concern.” Transcript of Proceedings at 127, Snowton v. Sewerage and Water Board of New Orleans, 03-07846 (OWC Dist. 8 11/15/06). Moreover, as evident in the record, plaintiff could earn more than 90 percent of his pre-accident wage at this job.

      . Plaintiff's physician, Dr. Charles Murphy, restricted plaintiff's capacity to assume certain positions, sitting, standing, bending, walking, stooping, kneeling, crawling, reaching, and pushing and pulling to "occasional,” and limited his ability to lift to ten pounds.

      . Albe stated:
      Prior to July 1, 1983, all claims for worker’s compensation benefits were filed as a civil suit in state district court. In 1983, the Office of Worker’s Compensation Administration was established, and disputed claims for worker's compensation benefits were evaluated by the director of the OWC, who issued an advisory recommendation which could be accepted or rejected by the employee. If the employee rejected this recommendation, he was free to file suit in district court.
      The worker's compensation adjudication system was again changed by Act 938 of 1988, which became effective January 1, 1990. Under Act 938, a system of nine administrative hearing officers was created, and the hearing officers were vested with "original, exclusive jurisdiction over all claims filed pursuant to the Worker’s Compensation Act.” However, in Moore v. Roemer, 567 So.2d 75 (La. 1990), this court invalidated the hearing officer system, holding that Act 938 of 1988 divested the district court of original jurisdiction in violation of La. Const. art. V, § 16(A). See Long v. Insurance Co. of North America, 595 So.2d 636 (La.1992).
      Subsequent to Moore v. Roemer, LSA-Const. Art. V, § 16(A) was amended to provide, in relevant part:
      Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker's compensation matters, a district court shall have original jurisdiction of all civil and criminal matters.
      LSA-Const. Art. V, § 16(A)(1); (Emphasis added). This amendment became effective on November 8, 1990.

        LSA-R.S. 23:1310.3(E) is the statutory grant of jurisdiction to hearing officers authorized by LSA-Const. art. V, § 16(A)(1). It states:
      Except as otherwise provided by R.S. 23:1101(D) and 1378(E), the hearing officer shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter.
      LSA-R.S. 23:1310.3(E)(Emphasis added).

      The Office of Worker's Compensation Administration was created within the Department of Labor for the purpose of administering the provisions of the Workers' Compensation Act. La.R.S. 23:1291. The administrative hearing officers are appointed by the director of the Office of Workers’ Compensation Administration, who is in turn subject to the general administrative authority of the secretary of the Department of Labor. La.R.S. 23:1310.1 and La. R.S. 23:1310.2. There is no doubt that the Office of Workers' Compensation ... is an administrative agency.

      Administrative agencies are a governmental hybrid, exercising powers similar to those exercised by all three branches of government. While agencies have rulemaking authority that shadows the powers of the legislature, they do not have the power to make law. Similarly, agencies have adjudicative and fact finding powers that mimic those exercised by courts. Although we recognize the Office of Workers’ Compensation Administration constitutionally employs certain functions previously reserved to the judiciary in pursuit of its statutory duties, the exercise of these quasi-judicial functions does not make hearing officers judges under Art. V. Put simply, the hearing officers of the Office of Workers’ Compensation Administration are not authorized to exercise “judicial power’’ under Art. 5, § 1. Their authority was properly restricted to “administrative agency determinations” by Art. V, § 16(A). [emphasis added]

        Albe, 700 So.2d at 826-828.


text:
    BARABAY PROPERTY HOLDING CORPORATION v. BOH BROTHERS CONSTRUCTION CO., L.L.C. d/b/a Boh Brothers Construction.
    No. 2008-C-1185.
    Supreme Court of Louisiana.
    March 17, 2009.
    Adams & Reese, Louis Charles LaCour, Jr., William David Shea, Lauren Joanna Delery, New Orleans, for applicant.
    McGlinchey Stafford, Michael David Ferachi, Kyle Achee Ferachi, Baton Rouge, for respondent.
   PER CURIAM.

Upon defendant’s writ application, we granted certiorari in this case. Barabay Prop. Holding Corp. v. Boh Brothers Constr. Co., 08-1185 (La.10/10/08), 993 So.2d 1270. After hearing oral arguments and reviewing the issues raised by this matter, we conclude that the writ of certio-rari was improvidently granted. Accordingly, we recall our order of October 10, 2008, and we deny defendant’s application.

WEIMER, J. dissents from the recall of the writ.

KNOLL and VICTORY, JJ., dissent from recalling the writ.


author: VICTORY, J.

text:
    Sherron G. BOWERS v. FIREFIGHTERS’ RETIREMENT SYSTEM.
    No. 2008-C-1268.
    Supreme Court of Louisiana.
    March 17, 2009.

      Broussard, Halcomb & Vizzier, Daniel Elmo Broussard, Jr., Alexandria, for applicant.
    Steven Scott Stockstill, Baton Rouge, Klausner & Kaufman, Robert D. Klausner, Pro Hac Vice, for respondent.
   VICTORY, J.

LWe granted this writ application to determine if the lower courts properly interpreted the laws governing disability benefits for firefighters in determining that the plaintiff in this case, Sherron Bowers (“Bowers”), was only entitled to non-job related disability benefits under La. R.S. ll:2258(B)(l)(d). After reviewing the record and the applicable law, we reverse the judgment of the court of appeal and hold that Bowers is entitled to job related disability benefits under La. R.S. ll:2258(B)(l)(c).

FACTS AND PROCEDURAL HISTORY

The facts underlying this case are not in dispute. Bowers was hired by Caddo Fire District #4 on March 26, 1991 as a firefighter/operator, later becoming Fire Captain. While so employed, Bowers was a member of the Firefighters’ Retirement System (the “FRS”). Bowers took sick leave on May 1, 2003, as a result of a medical condition known as genitourinary prolapse of the female organs. She applied for ^disability retirement benefits on February 19, 2004. In compliance with FRS procedures, she submitted to a medical examination by the State Medical Disability Board physician. Dr. Payne issued a report stating that Bowers could not return to her current job because of the heavy lifting involved with that job. As to the cause of her disability, he stated as follows:

These conditions most often have a genetic component, and tend to be common in thin, Caucasian females. However, chronic activity, such as heavy lifting, or chronic coughing, secondary to a smoking habit, could contribute to genitourinary prolapse. Her history of two vaginal deliveries has also contributed to the initial condition. It is impossible to discern which percentage of genetics, vaginal deliveries, or heavy lifting contributed to her prolapse. It is reasonable to conclude that many years of heavy lifting would have worsened this condition. * * *
In conclusion, I feel that the combination of genetic factors, history of vaginal deliveries, and the chronic nature of heavy lifting that her job entailed at the Fire Department, all contributed to her history of genitourinary prolapse. As stated above, it is hard to determine which percentage each contributed. However, I do feel that it is fair to assume that since her problem arose well after the date of March 26, 1991, that heavy lifting associated with her job would have made a significant contribution.

The FRS asked Dr. Payne to clarify his comments as to the cause of Bowers’ genitourinary prolapse. He then issued a second report, stating as follows:

As I stated in my previous examination and conclusion, I feel that it is a combination of genetic factors, history of vaginal deliveries, and the chronic nature of her job description that have contributed in the past to her genitourinary prolapse and are certainly a threat to the success of surgery to correct that in the future. While it is difficult to assign a percentage to these different factors, as far as causation, it is certainly not recommended that she continue in her current job description, as this would result in almost certain failure of her successful surgery today. While the patient may have had a genetic predisposition to genitourinary prolapse, I can state with confidence that, without having had two vaginal deliveries or the chronic heavy lifting of her job description, this condition would almost certainly not have revealed itself.

laDuring its April 13, 2004 meeting, the Board of Trustees of the FRS (the “Board”) found that plaintiffs physical disability was not casually related to the physical requirements of her job and denied her job related disability retirement benefits. However, the Board allowed her non-job related disability benefits, which were approximately $860.00 per month less than the job related benefits would have been.

After Bowers sought reconsideration of the Board’s determination, on October 27, 2004, Dr. Payne’s deposition was taken, wherein he testified that Bowers was, in fact, a thin, Caucasian female which genetically predisposed her to this condition. He further classified his opinion that prior vaginal deliveries were a factor in contributing to her condition as a “theory” and that there was no way to determine whether she would have had the prolapse without the heavy lifting associated with her job. However, he agreed that it was reasonable to assume that, because she did not suffer a prolapse until 12 years after her employment and she was asymptomatic until the heavy lifting associated with her job, that the heavy lifting was the “trigger” of her prolapse. After considering this additional evidence, the Board affirmed its prior decision by maintaining non-job related benefits.

Bowers disagreed and filed suit, alleging that the Board’s decision was arbitrary and capricious, amounted to an abuse of discretion, and constituted discrimination based on plaintiffs “gender-related circumstances.” Bowers filed an affidavit with attached exhibits, attesting to the following:

During work hours, I was the only firefighter operator and responded alone. Also, I was responsible for all station duties: cutting grass, maintaining tools and appliances in trucks. I would lift a push lawnmower into the back of a salvage truck to move it to the substation, mow and reload it myself.... In the month prior to May 1, 2003,1 responded to several different types of calls, such as motor vehicle accidents, grass fires, a fatality accident with disentanglement of victims and medical emergencies where lifting, caring for and patient loading of different weights and sizes was involved. Attached to this affidavit and marked as Exhibit A is a letter from Fire Chief Bryant Williams. Also 14attached as Exhibit B is a list of tools, appliances and weights that I used and lifted during my employment. I have undergone several employment physical examinations including one in 1995 after a knee injury and a promotional examination when I was promoted to firefighter Captain in June of 1999. I passed all my physical examinations until May 1, 2003.

The trial judge ruled in favor of the FRS, ruling that the Board’s decision was not arbitrary and capricious and was properly based on Dr. Payne’s opinion that the disability was caused by “a confluence of factors,” and not solely on injuries sustained in the performance of her official duties. The trial judge also rejected Bowers’ claim of discrimination, finding that in order to be discriminatory, the Board would have to conclude that the female condition is an invalid disabling medical condition, but that “[ijnstead the Board recognized the unique female disorder as a disabling condition and confined its analysis as to whether or not her occupation caused the prolapse.” The court of appeal affirmed the trial court’s judgment. Bowers v. Firefighters’ Retirement System, 06-2386 (La.App. 1 Cir. 9/19/07), 963 So.2d 1106 (unpublished). We granted the plaintiffs writ application. Bowers v. Firefighters’ Retirement System, 08-1268 (La.10/03/08), 992 So.2d 997.

DISCUSSION

The scope of review of administrative agencies in the performance of a discretionary duty is restricted to a determination of whether the agency’s action can be deemed to have been unreasonable, arbitrary or capricious, or whether it amounted to an abuse of power. Delta Bank & Trust Company v. Lassiter, 383 So.2d 330 (La.1980). “Arbitrary and capricious” means the absence of a rational basis for the action taken. Bannister v. Department of Streets, 05-404 (La.1/16/96), 666 So.2d 641. Under the arbitrary and capricious standard, an agency decision is entitled to deference in its interpretation of its own rules and regulations; however, it is not entitled to |deference in its interpretation of statutes and judicial decisions. Entergy Louisiana, LLC v. Louisiana Public Service Com’n, 08-0284 (La.7/01/08), 990 So.2d 716, 723.

The Board and the lower courts found that because Dr. Payne’s report showed three factors contributed to Bowers’ genitourinary prolapse, i.e., genetic predisposition (she was a thin, Caucasian female), two vaginal deliveries at least 25 years prior, and heavy lifting associated with her job, her disability was not caused solely as a result of injuries sustained in the performance of her official duties. Therefore, she was not entitled to job related disability under the relevant statutes. We now review those statutes to determine whether the Board and the lower courts properly interpreted those statutes.

La. R.S. 11:215(A) is determinative of whether a firefighter is eligible for disability benefits, providing as follows:

A. A member who becomes disabled, and who files for disability benefits while in service, and who upon medical examination and certification as provided for elsewhere in this Subpart, is found to be totally disabled solely as the result of injuries sustained in the performance of his official duties, or for any cause, provided the member has at least five years of creditable service and provided that the disability was incurred while the member was an active contributing member in active service, shall be entitled to disability benefits under the provisions of R.S. 11:2258(B). (Emphasis added.)

La. R.S. 11:2258(B) then determines which type of disability benefits the firefighter will be entitled to: job related benefits which are payable at a higher rate, or non-job related benefits, payable at a lower rate. La. R.S. 11:2258(B)(1) provides in part:

(c) Any member who is totally disabled from an injury received in the line of duty, even though the member may have less than five years of creditable service, shall be paid, on a monthly basis, an annual | 6pension of sixty percent of the average final compensation being received at the time of disability.
(d) Any member of the system who has become disabled or incapacitated because of continued illness or as a result of any injury received, even though not in the line of duty, and who has five years of creditable service, but is not eligible for retirement under the provisions of R.S. 11:2256 may apply for retirement under the provisions of this Section and shall be retired on seventy-five percent of the retirement salary to which he would be entitled under R.S. 11:2256 if he were eligible thereunder or twenty-five percent of the member’s average salary, whichever is greater. (Emphasis added.)

We find that the Board and the lower courts misinterpreted the statute to require that Bowers be totally disabled solely as the result of injuries sustained in the course of her official duties in order to be entitled to job related disability benefits under La. R.S. ll:2258(B)(l)(c). The rules of statutory construction provide that when a law is clear and unambiguous and its application will not lead to absurd consequences, it must be applied as written. La. C.C. art. 9. La. R.S. 11:215 determines eligibility and entitles a member to disability benefits if one of two requirements are met: (1) the member is totally disabled solely as a result of injuries sustained in the performance of his official duties; or (2) for any cause provided the member has five years of creditable service. If a firefighter is eligible for benefits, the next step is to look at what type of benefits he or she is entitled to under La. R.S. 11:2258. La. R.S. ll:2258(B)(l)(c) provides for the higher job related benefits if the firefighter is “totally disabled from an injury received in the line of duty ...” and La. R.S. ll:2258(B)(l)(d) provides lower non-job related benefits if the firefighter has five years of service and is disabled as a result of a continued illness or injury received even though not on the job.

In this case, Bowers is eligible for disability benefits because she had at least five years of service and was an active contributing member in active service when the disability occurred, whatever the cause of her disability. La. R.S. 11:215(A). She |7will be entitled to the higher job related benefits under La. ll:2258(B)(l)(c) if she was “totally disabled from an injury received in the line of duty.” Pursuant to La. R.S. ll:2258(B)(l)(c), there is no requirement that her disability be “solely” as the result of an injury received on the job.

In this case, Dr. Payne testified that three factors contributed to her disability: (i)she was a thin, Caucasian female; (2) she had two vaginal deliveries at least 25 years prior to her prolapse; and (3) her job involved heavy lifting. Being a thin, Caucasian female is clearly not an injury and cannot be considered as a cause of her disability. As to her prior vaginal deliveries and the heavy lifting associated with her job, he could not determine which percentage each contributed to the disability. Based on his opinion, the Board and the lower courts found that her disability was not “solely” caused by the heavy lifting. However, as we have interpreted the statute, such a finding is unnecessary. In order to receive job related benefits under La. R.S. 11:2258(B)(1)(c), it is only re-, quired that she is totally disabled from an injury received in the line of duty. Dr. Payne testified that heavy lifting “triggered” her | ¡^disability and Bowers presented evidence at the trial court in the form of an affidavit that in the month immediately preceding her disability, she engaged in numerous tasks involving heavy lifting. Thus, she is entitled to benefits under La. R.S. ll:2258(B)(l)(c)

CONCLUSION

La. R.S. 11:215(A), which is determinative of whether a firefighter is eligible for disability benefits of any kind, requires either that a firefighter be totally disabled (1) solely as a result of injuries sustained in the performance of his official duties or (2) for any cause as long as he or she has' five years creditable service and the disability was incurred while the firefighter was an active contributing member in active service. If either of these two requirements are met, the firefighter is entitled to benefits under La. R.S. ll:2258(B)(l)(c) if he or she is totally disabled from an injury received in the line of duty, or to benefits under La. R.S. ll:2258(B)(l)(d) if he or she has five years creditable service and is disabled because of a continued illness or as a result of any injury received, even if not in the line of duty. In this case, Bowers is eligible for benefits pursuant to La. R.S. 11:215(A) because she was totally disabled, had five years of creditable service, and was an active contributing member. She is then entitled to benefits under La. R.S. ll:2258(B)(l)(c) because she was totally disabled as a result of the heavy lifting associated with her job, even if the heavy lifting was not the sole cause of her disability.

DECREE

For the reasons stated herein, the judgment of the court of appeal is reversed and the case is remanded to the district court for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

       Calogero, C.J., retired, recused. Chief Justice Calogero recused himself after oral argument and he has not participated in the deliberation of this case.

      . "Genitourinary prolapse” was described by, the State Medical Disability Board physician, Dr. Thomas Payne, as follows:
      Essentially, the female organs are supported by fascial material in the pelvis that kind of support the pelvis — or, rather, support the bladder and the vagina and tire uterus and the ovaries and the space between the bladder and the vagina and the space between the rectum and the vagina. That tissue is responsible for holding everything in place, if you will. If that tissue weakens or breaks down with time, then things tend to fall down or prolapse or herniate into the vaginal canal.

      . Because of our ruling that Bowers is entitled to job related benefits, we need not consider her discrimination claim.

      . Two courts that have discussed these two statutes have read them in conjunction with each other, with one court setting out the analysis as follows:
      Read in conjunction, these provisions set forth two types of service-connected disability requirements: (1) an "in the line of duty" benefit for a disability resulting solely from injuries sustained in the performance of the employee's official duties (La. R.S. 11:215 and La. R.S. 1 l:2258(B)(l)(c)); and (2) a benefit for disabilities because of a "continued illness" or as a result of an injury received outside the line of duty, despite the cause thereof, provided that the disability was incurred while the member was an active contributing member in active service (La. R.S. 11:215 and La. R.S. 1 l:2258(B)(l)(d)).

        Moity v. Firefighters' Retirement System, 06-0775 (La.App. 1 Cir. 3/23/07), 960 So.2d 158, 164, writ denied, 07-0829 (La.6/01/07), 957 So.2d 183; see also Gibson v. Firefighters’ Retirement System, 01-1585 (La.App. 1 Cir. 6/21/02), 822 So.2d 98. However, we see no reason why these two separate statutes should be read together when such an interpretation essentially changes the language of one of the statutes, i.e., La. R.S. 11:2258(B)(1)(c). While the rules of statutory construction provide that "[l]aws on the same subject matter must be interpreted in reference to each other,” that does not require that we rewrite one of the statutes to exactly track the language of the other. To the extent that those two cases are inconsistent with this opinion, they are overruled.


text:
    Shaun COLEMAN v. JIM WALTER HOMES, INC.
    No. 2008-CC-1221.
    Supreme Court of Louisiana.
    March 17, 2009.

      Seale, Smith, Zuber & Barnette, Eric Michael Barrilleaux, Jennifer Gaubert Aertker, Brent E. Kinchen, Baton Rouge, for applicant.
    The Whitehead Law Offices, Charles Raymond Whitehead, Jr., Natchitoches, for respondent.
   PER CURIAM.

| Jn this case, we are called upon to decide whether the lower courts court erred in denying defendant’s motion to compel arbitration. For the reasons that follow, we conclude that the arbitration clause at issue is valid, and therefore reverse the judgments of the lower courts.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In 2004, Shaun Coleman and his wife, Lisa Coleman, contacted Jim Walter Homes, Inc. (“JWH”) regarding the building of a residential home in Natchitoches, Louisiana. Robert Fry, a salesman for JWH assisted the Colemans in selecting a home and negotiating the terms of the sale, including financing through JWH. A closing was scheduled for December 16, 2004.

On that date, Mr. Coleman arrived at JWH’s office in Shreveport, Louisiana without his wife. Mr. Fry went through each of the documents to be signed at the closing, and asked Mr. Coleman to either initial or sign each document. Mr. Fry advised Mr. Coleman to ask any questions he had about any of the documents before signing them, and encouraged Mr. Coleman to speak up if he was unsure about something.

|2The first document presented to Mr. Coleman was the building contract. On page two of that contract, in all capital letters, was the following provision:

IN CONNECTION WITH THE FOREGOING, BUYER ACKNOWLEDGES HAVING READ, UNDERSTOOD AND ACCEPTED THE ARBITRATION AGREEMENT SET FORTH IN EXHIBIT “D” ATTACHED HERETO AND INCORPORATED BY THIS REFERENCE.

Mr. Coleman signed his initials immediately after this clause in the contract.

Mr. Coleman was also presented with a two and half page document entitled “Arbitration Agreement.” That document provided, in pertinent part:

The parties agree that any controversy (whether asserted as an original claim, counterclaim, cross claim or otherwise) arising out of or relating to this Agreement, or the breach thereof, or any negotiations leading up to the making of this Agreement, or the House that is the subject of this Agreement, or any insurance sold or in connection with this Agreement, or any relationship resulting from any of the foregoing, whether asserted in tort, cont[r]act or warranty, or as a federal or state statutory claim, and whether arising before, during or after performance of this Agreement, shall be settled under this Arbitration Agreement in accordance with the procedures specified below.
NOTICE: Seller and Buyer hereby acknowledge and voluntarily waive the right to trial by jury of any controversy between them that is covered by this Arbitration Agreement. Buyer acknowledges that he/she/they are waiving their right to a jury trial that may otherwise exist by executing this Agreement.
By signing below, you are agreeing to have controversies described in this Arbitration Agreement decided by binding arbitration, and you are giving up any rights you might possess to have those matters litigated by a jury trial or in a court, except to the extent specifically provided for under this Agreement. By signing in the space below you are giving up your judicial rights to discovery and appeal except to the extent that they are specifically provided under this Agreement. If you refuse to submit to arbitration after signing this provision, you may be compelled to arbitrate under federal or state law. By signing in the space below, you 13are acknowledging that your agreement to this arbitration provision is freely and voluntarily given.
I/We have read and understand the foregoing, waive our right to a jury trial, and agree to submission of all controversies to binding arbitration in accordance with this Arbitration Agreement, [emphasis in original]

Mr. Coleman initialed each page of the document and signed the last page.

On July 7, 2006, Mr. Coleman filed a “Petition for Declaratory Judgment” against JWH in the Tenth Judicial District Court for the Parish of Natchitoches. In his petition, Mr. Coleman alleged that during construction of the home, “all material had been stored outside without cover, causing them to degrade and be unfit for the purpose intended.” Mr. Coleman further alleged that the home flooded as a result of defective water piping, causing the home’s floor covering to be destroyed, and resulting in an infestation of mold. Mr. Coleman sought cancellation of the building contract, damages, and removal of the home from his property.

JWH responded to Mr. Coleman’s petition by filing a dilatory exception of prematurity and a motion to compel arbitration and stay proceedings. In support, JWH asserted that the parties entered into a written arbitration agreement which provided that “any controversy” arising out of or relating to the building contract should be settled through arbitration.

Mr. Coleman opposed JWH’s exception and motion. He argued that the arbitration agreement was unenforceable “due to an error of law on his part and the fact that he did not understand that by agreeing to arbitration he was giving up his | ¿rights to hire an attorney and to file suit in the Tenth Judicial District Court of Natchitoches Parish, Louisiana, in the event that defendant breached the contract.”

The matter proceeded to a hearing before the district court. At the conclusion of the hearing, the district court denied JWH’s motion to compel arbitration and stay proceedings. In written reasons for judgment, the district court found that the arbitration agreement “is unenforceable due to the lack of consideration given by the defendant in return for plaintiffs waiver of his right to a jury trial in the district court.” The district court explained that nearly a month before the date of closing, the parties had agreed on the design of the house and price to be paid. The court reasoned that there was “no evidence that the arbitration agreement was included in the original terms of the agreement, and therefore the unilateral addition of the arbitration agreement at closing renders the agreement unenforceable.” Further, the district court reasoned that Mr. Coleman was not required to sign the arbitration agreement in order to complete the sale, but believed that he was required to do so; as a result, the court concluded Mr. Coleman signed the agreement in error, and this error vitiated his consent.

From this ruling, JWH filed an application for supervisory review. The court of appeal denied the writ, with one judge dissenting.

JWH then applied to this court. We granted the writ and remanded the case to the court of appeal for briefing, argument and opinion. Coleman v. Jim Walter Homes, Inc., 07-1956 (La.12/7/07), 969 So.2d 616.

On remand, the court of appeal affirmed the district court’s judgment. Coleman v. Jim Walter Homes, Inc., 07-1574 (La.App. 3 Cir. 5/7/08), 982 So.2d 341, In its opinion, the court of appeal found Mr. Coleman’s consent to the arbitration agreement was vitiated by error. The court stated in pertinent part:

| sin the present case, we find the Cole-mans were unaware that relinquishing their right of access to the courts was a condition of the sale when they were negotiating the terms of the contract with JWH. There was no mention of an arbitration clause during any of the discussions with Mr. Fry. JWH unilaterally added the arbitration clause to the final contract of sale. Had the Colemans refused to sign the document, the process would have stopped. We find the Cole-mans’ consent to arbitration was vitiated by error. The parties agreed on the terms of the sale before closing. Unilateral insertion of the arbitration clause by JWH was not part of the original bargain the parties consented to perfect. Accordingly, we affirm the decision of the trial court denying JWH’s exception of prematurity and the motions to stay proceedings and compel arbitration.

Upon JWH’s application, we granted the writ to review the correctness of this ruling. Coleman v. Jim Walter Homes, Inc. 08-1221 (La.10/3/08), 992 So.2d. 997 The sole issue presented for our consideration is whether the arbitration agreement between the parties is valid and enforceable.

DISCUSSION

Pursuant to La. R.S. 9:4202. a court shall stay the trial of an action in order for arbitration to proceed if any party applies for such a stay and shows (1) that there is a written arbitration agreement, and (2) the issue is referable to arbitration under that arbitration agreement, as long as the applicant is not in default in proceeding with arbitration. International River Center v. Johns-Manville Sales Corp., 02-3060, p. 3 (La.12/3/03), 861 So.2d 139, 141. In this case, Mr. Coleman does not dispute that a written arbitration exists or that the issue in his suit is referable to arbitration under that agreement. Rather, the crux of his argument is that the arbitration agreement is unenforceable due to an error of consent. According to Mr. Coleman, it was his belief that the parties had confect-ed an oral argument regarding the design of the home and the price to be paid, with no mention of the arbitration provision. He maintains JWH ] B-unilaterally inserted the arbitration agreement into the final documents, and he signed this agreement in error.

Article 1949 of the Civil Code provides, “[e]rror vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party.” In the instant case, it is clear the principal cause of the contract between the parties was the building of a home. There is no indication that the procedure for future litigation over the contract was a cause without which the obligation would not have been incurred. See In re J.M.P., 528 So.2d 1002 (La.1988) (“[e]rror vitiates consent only when a party’s consent has been determined by it and when the other party knew or should have known that the matter affected by the error was the cause of the obligation for the party in error”). Thus, to the extent there was unilateral error by Mr. Coleman concerning the arbitration agreement, we do not find such error is sufficient to vitiate his consent to the contract.

Moreover, we see little support for Mr. Coleman’s assertion that the parties reached a complete oral agreement regarding the building of the house before the closing documents were signed. It is obvious that the parties contemplated additional documents, such as a mortgage and promissory note, which the law requires to be reduced to writing in order to be effective. Where the parties intend to reduce their negotiations to writing, they are not bound until the contract is reduced to writing and signed by them. Breaux Brothers Construction Co. v. Associated Contractors, Inc., 226 La. 720, 77 So.2d 17, 20 (1954).

A review of the written documents signed by Mr. Coleman in this matter reveal that the arbitration provisions are set forth in clear and unambiguous language. There is no indication the arbitration language was hidden in small type in the documents; |7to the contrary, the arbitration language is highlighted in both the building contract and the arbitration agreement.

In Aguillard v. Auction Management Corp., 04-2804 (La.6/29/05), 908 So.2d 1, we explained that a party who signs a written agreement is presumed to know its contents:

The Civil Code recognizes the right of individuals to freely contract. La. Civ. Code art. 1971; see also, Art. I, § 23 of the Louisiana Constitution of 1974. “ ‘Freedom of contract’ signifies that parties to an agreement have the right and power to construct their own bargains.” Louisiana Smoked Products, Inc. v. Savoie’s Sausage and Food Products, Inc., 96-1716 (La.7/1/97), 696 So.2d 1373, 1380 (citing Blake D. Morant, Contracts Limiting Liability: A Paradox with Tacit Solutions, 69 Tul.L.Rev. 715 (1995)).
It is well settled that a party who signs a written instrument is presumed to know its contents and cannot avoid its obligations by contending that he did not read it, that he did not understand it, or that the other party failed to explain it to him. See, e.g., Tweedel v. Brasseaux, 433 So.2d 133, 137 (La.1983) (stating: “The presumption is that parties are aware of the contents of writings to .which they have affixed their signatures ... The burden of proof is upon them to establish with reasonable certainty that they have been deceived.” “If a party can read, it behooves him to examine an instrument before signing it; and if he cannot read, it behooves him to have the instrument read to him and listen atten-tatively whilst this is being done.”). The plaintiff in this case signed the contract “acknowledg[ing] that he ... read and [understood the] AUCTION TERMS & CONDITIONS and agree[d] to be bound thereby.”

Similarly, in the instant case, it is undisputed that Mr. Coleman signed the arbitration agreement, which clearly provided, “I/We have read and understand the foregoing, waive our right to a jury trial, and agree to submission of all controversies to binding arbitration in accordance with this Arbitration Agreement.” Having signed this agreement, Mr. Coleman cannot seek to avoid its obligations by contending that he did not read or understand it. As this court observed over a century ago, “[w]e have only to say that the law does not compel people to read or to inform themselves of the ^contents of instruments which they may choose to sign, but that, save in certain exceptional cases, it holds them to the consequences, in the same manner and to the same extent as though they had exercised those rights,.... ” Ray v. McLain, 106 La. 780 at 790, 31 So. 315 at 319 (1901).

In summary, we find that the arbitration agreement between the parties is valid and enforceable. Because a written arbitration agreement exists, and the issue is referable to arbitration under that arbitration agreement, La. R.S. 9:4202 mandates that the trial must be stayed and the matter referred to arbitration. The lower courts erred in holding otherwise. Accordingly, we reverse the judgment of the court of appeal, and direct that this matter be submitted to arbitration.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed. The motion to compel arbitration and stay proceedings filed by Jim Walter Homes, Inc. is hereby granted. Each party is to bear its own costs.

      . Mr. Coleman raised a procedural objection to JWH’s exception of prematurity, arguing that JWH waived the exception by attending a pre-trial conference. As a result, JWH filed an alternative motion to compel arbitration and stay proceedings in the event its exception of prematurity was found to be waived, The district court subsequently ruled that the exception of prematurity was timely, as it was filed prior to the answer. See La.Code Civ. P. art, 928(A).

      . We note that during oral argument before this court, the attorney for JWH represented to this court that there were no procedural impediments resulting from the length of time during which this matter was pending which would preclude Mr. Coleman from presenting his demands for arbitration.