author: MORRIS, Judge.

text:
    FIRST STATES INVESTORS 3300, LLC, Appellant, v. Betsy PHEIL, Walter Walker Pheil, Unknown Trustee, as Successor Trustee of the Clarence E. Pheil Bypass Trust, Unknown Trustee, as Successor Trustee of the Clarence E. Pheil Marital Trust, Frederick Pheil, Walter Bobbitt, Jr., as Successor Trustee of the Bertha Pheil Bobbitt Revocable Trust, Charles E. Van Middlesworth, as Successor Trustee of the Bertha Pheil Bobbitt Revocable Trust, Walter Pearson Bobbitt, Helen B. Pheil, Barbara P. Atkins, Robert F. Pheil, and Cynthia S. Pheil, Appellees.
    No. 2D10-3491.
    District Court of Appeal of Florida, Second District.
    Feb. 11, 2011.

      Leonard S. Englander and Courtney L. Fish of Englander & Fischer, LLP, St. Petersburg, for Appellant.
    Michael J. Keane and Charles W. Gerdes of Keane, Reese, Vesely & Gerdes, P.A., St. Petersburg, for Appellees.
   MORRIS, Judge.

First States Investors 3300, LLC, (First States) appeals a nonfinal order which vacated a deposit it made into the court registry and which ordered the disbursement of the monies to the appellees, who are the lessors of the commercial properties involved. We conclude that the trial court erred by first allowing the entire rental payments to be deposited into the court registry and then by ordering the disbursement of the monies, in toto, to the appellees, and we therefore reverse and remand.

I. Facts

In 1959, the parties entered into a commercial lease for property located in St. Petersburg, Florida. An amended lease was executed in 1973. Then, in 2010, First States filed its complaint and amended complaint seeking declaratory relief and accountings; First States also sought to quiet title and to partition various portions of the properties. First States alleged that due to ambiguities in the lease and provisions regarding rent escalation and price adjustments, First States was in doubt as to the proper amount of rent it was obligated to pay.

Shortly after the initial complaint was filed, but before the amended complaint was filed, First States filed an emergency motion to deposit rents into the court registry. The motion was not served on the appellees. Despite the lack of service on the appellees, the trial court granted the motion. Thereafter, the appellees filed a motion to vacate, arguing that the order was the equivalent of injunctive relief and that First States had not established its right to such relief. After a hearing, the trial court granted the appellees’ motion to vacate and ordered that the monies in the court registry be disbursed to the appel-lees. It is from that order that First States appeals.

II. Analysis

A trial court has broad discretion in deciding whether to permit a deposit into the court registry as well as deciding whether to grant a withdrawal from the registry. See Pomponio v. Claridge of Pompano Condo., Inc., 378 So.2d 774, 780 n. 39 (Fla.1979). However, we conduct a de novo review of a trial court’s interpretation of a rule of court. See Baillargeon v. Sewell, 33 So.3d 130, 136 (Fla. 2d DCA 2010).

Florida Rule of Civil Procedure 1.600 provides:

In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of a sum of money or the disposition of any other thing capable of delivery, a party may deposit all or any part of such sum or thing with the court upon notice to every other party and by leave of court. Money paid into court under this rule shall be deposited and withdrawn by order of court.

This rule is voluntary in nature, see Pomponio, 378 So.2d at 780 n. 39; Morroni v. Fisher, 647 So.2d 127, 129 (Fla. 2d DCA 1994), but the rule is inapplicable where the money in question is not the subject of the litigation, see Morroni, 647 So.2d at 129 (citing rule 1.600 and Wincast Assocs., Inc. v. Hickey, 320 So.2d 17 (Fla. 4th DCA 1975)); Geany v. Packers of Indian River, Inc., 660 So.2d 1144, 1145 (Fla. 4th DCA 1995) (citing Wincast Assocs., Inc.).

The first problem in this case is that only parts of the monies deposited into the court registry were the subject of the litigation. First States did not dispute the base rent amount. Rather, First States’ complaint was predicated on ambiguities in the rent escalation provisions. Thus, only the escalation amounts were the subject of the litigation and the trial court should not have permitted First States to deposit the full rental payments into the court registry. Had the trial court conducted a hearing prior to granting leave of court, this issue could have been fully fleshed out with the trial court’s determining what portions of the monies (i.e., the escalation amounts) could properly be deposited into the registry.

Further, if the appellees had been properly noticed of First States’ intention to deposit the monies into the court registry, the appellees would have been afforded due process as they could have presented their arguments against the deposit of the monies. However, we hold that any due process issue was rectified when the trial court conducted a hearing on the appellees’ motion to vacate.

Unfortunately, the hearing did not resolve the issue of what monies were properly subject to being deposited into the court registry, nor did it resolve the issue of the proper disbursement amount to the appellees. First States was not entitled to deposit all of the rent monies into the court registry because only the escalation amounts were the subject of the litigation. But neither were the appellees entitled to receive all of the rent monies which had been deposited. More specifically, the appellees were not entitled to receive the portion of the monies which constituted the escalation amounts. This is because where

a party seeking affirmative relief has paid money into [the] court upon condition that the party paying received something in return therefor[ ] or that a contingency happen, it cannot be delivered to the adversary party until the condition upon which it was paid has been performedf ] or the contingency occurs.

Masser v. London Operating Co., 106 Fla. 474, 145 So. 72, 76 (1932); see also Suchman Corporate Park, Inc. v. Greenstein, 600 So.2d 532, 533 (Fla. 3d DCA 1992) (reversing order distributing monies paid into registry because the deposit was a tender by the mortgagors to secure the release of the mortgaged property upon payment of the amount which they alleged was due; court held that the monies should be paid to the mortgagees at the conclusion of the case only if the mortgagors were ultimately successful in proving their case and, if not, the monies would be returned to them).

In Masser, the appellants were the lessees of a hotel and they filed a complaint seeking specific performance of certain provisions of the lease. 145 So. at 74. The appellants also sought an injunction preventing the lessor from bringing ouster proceedings for nonpayment of the $7500 rent installment. Id. The court granted the injunction on the condition that the lessees pay the $7500 into the court registry and file a bond. Id. The lessor then filed a motion to dissolve the injunction which the court granted, resulting in an order dismissing the lessees’ complaint and disbursing the $7500 to the lessor. Id.

On review, the Florida Supreme Court noted that the lessees paid the $7500 into the registry for the trial court to make a determination of whether they had been damaged by the lessor’s failure to perform under the lease and, if so, for the trial court to determine what amount should be deducted from the $7500. Id. at 76. The lessees argued that the monies were deposited “as a condition precedent to the obtaining of certain relief[] and not as a tender to satisfy the lessor’s claim for rent.” Id. The lessees also argued that the trial court’s order, in essence, directed a judgment for the lessor. Id. The Florida Supreme Court accepted the lessees’ arguments finding that the deposit “was not made for the purpose of meeting the installment of rent due ... in the event the suit should be dismissed” but rather, it “was deposited with the intention ... of having the differences apparently existing between [the] lessor and lessees adjusted.” Id. The court continued by noting that even if the complaint was without equity, the lessees could still have a claim against the lessor enforceable in an action at law. Id. The court held that because the complaint was dismissed without accomplishing the purpose for which the monies were offered as a deposit, the trial court lacked the authority to disburse the monies to the lessor. Id. In so holding, the court quoted 26 R.C.L. 658:

“Where one is not defending against a claim but is seeking affirmative relief to which, as a condition precedent, it is essential that he tender an amount due, the payment of the money tendered into court does not transfer the title to the other party, but it remains in the one making the tender subject to the final outcome of the suit.”

Masser, 145 So. at 76.

Here, as in Masser, First States tendered the monies into the court registry pending the outcome of the case and the trial court’s determinations of the proper amount of rent and whether First States was entitled to reimbursement for monies already paid. First States did not unconditionally tender the monies as rent due. Even after the trial court struck various portions of the claims pertaining to the rent escalation provisions as sham pleadings, other portions of those claims remained. Further, there is still a dispute concerning whether First States is paying the proper amount of rent due under the lease and whether First States is entitled to reimbursement for overpayment. Accordingly, the trial court erred by disbursing, in toto, the monies which were deposited into the registry.

We therefore reverse the trial court’s order and remand with instructions for the trial court to determine what portions of the rental payments are based on the rent escalation provisions and to order the ap-pellees to repay those portions into the court registry pending the outcome of the case. Because rule 1.600 clearly permits a plaintiff to deposit monies which are the subject of the litigation into the court registry upon leave of court and notice to the parties and because appellees were afforded due process at the hearing on their motion to vacate, the trial court need not conduct a new evidentiary hearing.

III. First States’ motion for appellate attorneys’ fees and costs

Finally, we must address First States’ motion for appellate attorneys’ fees and costs. Although this court is granting First States some of its requested relief, we are constrained to deny its request for appellate attorneys’ fees and to strike its request for costs.

First States seeks prevailing party attorneys’ fees pursuant to section 57.105(7), Florida Statutes (2010), paragraph 23 of the lease signed on November 1, 1959, and paragraph 19 of the lease signed March 22, 1973. Both relevant paragraphs of the leases provide that the lessee shall pay all costs, expenses, and attorneys’ fees incurred by and against the lessors when the lessors are made parties to litigation without any fault on them part. There is no provision for the lessee’s fees to be paid by the lessors.

Section 57.105(7) provides that where a contractual provision permits prevailing party attorneys’ fees to one party when that party is required to take action to enforce the contract, the court may allow reasonable attorneys’ fees to the other party when that other party prevails in the action. Section 57.105(7) thus provides for mutuality of attorneys’ fees in contract cases. See Fla. Hurricane Prot. & Awning, Inc. v. Pastina, 43 So.3d 893, 895 (Fla. 4th DCA 2010). However, section 57.105(7) specifies that it “applies to any contract entered into on or after October 1, 1988.” Because the contracts in this case were entered into many years prior to that date, First States is not entitled to recover prevailing party attorneys’ fees based on the contracts and section 57.105(7). See Commercial Serv. of Perry, Inc. v. Campbell, 861 So.2d 1258, 1261 (Fla. 4th DCA 2003); Bird Lakes Dev. Corp. v. Raskin, 596 So.2d 133, 135 n. 1 (Fla. 3d DCA 1992) (both recognizing that unilateral attorneys’ fees provisions in contracts predating amendment to section 57.105 were valid and enforceable).

Regarding First States’ request for costs, First States has sought relief in the wrong court. Pursuant to Florida Rule of Appellate Procedure 9.400(a), we strike First States’ request for costs as unauthorized without prejudice to First States’ filing an appropriate request with the trial court.

IV. Conclusion

Because the trial court first erred by allowing First States to deposit the entire rental payments into the court registry and then erred again by disbursing the full amount to the appellees, we reverse and remand for proceedings in conformance with this opinion. We deny First States’ request for appellate attorneys’ fees and strike its request for costs.

Reversed and remanded with instructions.

VILLANTI and CRENSHAW, JJ., Concur.


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    John SCIANDRA, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5523.
    District Court of Appeal of Florida, Second District.
    Feb. 11, 2011.
    Roger D. Futerman and Melissa A. Loesch of Law Offices of Roger D. Futer-man & Associates, Clearwater, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba C. Martin-Schomaker, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

The State properly concedes that John Sciandra’s probation ended on September 19, 1997, and that his order of discharge should have been entered nunc pro tunc to that date. Accordingly, we reverse the order denying Sciandra’s motion to correct illegal sentence. See Francois v. State, 695 So.2d 695, 697 (Fla.1997) (“[W]hen a probationary period expires, the court is divested of jurisdiction over the probationer unless, prior to that time, the appropriate steps were taken to revoke or modify the probation.”); Slingbaum v. State, 751 So.2d 89, 89-90 (Fla. 2d DCA 1999) (“[Wjhere it can be determined without an evidentiary hearing that a sentence has been imposed by a court without jurisdiction, that sentence is illegal, whatever its length.”).

Reversed.

ALTENBERND and MORRIS, JJ., Concur.


author:
VICTORY, J.
     CLARK, Justice,

text:
    STATE of Louisiana in the Interest of H.A.S. and C.W.C.
    No. 2010-CJ-1529.
    Supreme Court of Louisiana.
    Nov. 30, 2010.
    Diane Elaine Cote, for Applicant.
    Anderson & Dozier, Keith Paul Saltz-man, Lafayette, Allyson Melancon Preje-an; Vivian Vernon Neumann, Michael Har-son, District Atty; The Dangerfield Law Firm, Lloyd Dangerfield, Christopher Luke Edwards, Lafayette, for Respondent.
   VICTORY, J.

_JjWe granted a writ in this termination of parental rights case to determine if the court of appeal erred in reversing a trial court judgment terminating the parental rights of the mother, “S.M.S.S.” After reviewing the record and the applicable law, we find the trial court was premature in terminating S.M.S.S.’s parental rights and remand this matter to the trial court to reinstate the child in need of care proceeding pursuant to Title VI of the Children’s Code.

FACTS AND PROCEDURAL HISTORY

S.M.S.S. is the biological mother of H.A.S., a girl born July 11, 2005, and C.W.C., a boy born April 17, 2000. The father of H.A.S. is J.S., who is now deceased; the father of C.W.C. is C.C., who is presently incarcerated. In February 2007, the Louisiana Department of Social Services, Office of Community Services (“OCS”) obtained custody of the children based upon allegations of neglect, sexual abuse, chronic and longstanding substance abuse, and allegations the mother might flee with the children. On March 13, 2007, the children were adjudicated as children |2in need of care, and have remained in foster care since that time. A case plan was developed on March 14, 2007, with the goal of reunification with the parents, which included the following requirements for S.M.S.S.: (1) completion of parenting classes and weekly visitation with the children; (2) participation in a psychological evaluation and compliance with the recommendations of the psychologist regarding appropriate treatment; (3) successful completion of an inpatient substance abuse treatment program and maintenance of sobriety; (4) submission to random drug screens; (5) attendance of local Narcotics Anonymous meetings in her community twice a week; (6) attendance of Family Violence Intervention Program; (7) maintenance of a steady income; and (8) maintenance of adequate and stable housing.

In July 2008, the case plan’s goal was changed to adoption for both of the children. H.A.S. was living with non-relative foster parents who would adopt her if she was freed for adoption, and C.W.C. was living with his paternal grandfather, a certified foster parent. On March 24, 2009, OCS filed a “Petition for Termination of Parental Rights and Certification for Adoption.” Relying on La. Ch. C. art. 1015(5), OCS asserted the mother’s rights should be terminated because she had not ^substantially complied with her case plan and had no reasonable expectation of significant improvement of her condition or conduct in the near future. The matter was heard on August 31, September 1, and September 2, 2009.

Linda Lenoir, the OCS caseworker for the mother and children, testified that the case plan remained essentially the same throughout the time the children were in OCS’s custody. Lenoir testified that S.M.S.S. was compliant with the case plan regarding housing, parenting classes, and visitation with the children. She testified that S.M.S.S. had odd jobs as a carpenter, had a family support system in place and addressed her medical needs. The main issue that concerned OCS involved S.M.S.S.’s drug use and mental health care. Lenoir testified that although S.M.S.S. attended a 28-day in-house drug treatment program at Southeast Medical Hospital and attended an aftercare support group called Celebrate Recovery at her church, she refused to submit to psychological counseling in direct contravention of the case plan. Further, while she began seeing Dr. Susan Ulrich, a licensed psychiatrist, in November 2008, Dr. Ulrich provided only prescriptions and medical monitoring, not psychiatric counseling. Finally, Lenoir presented evidence that S.M.S.S. tested positive for drugs thirteen out of seventeen random drug screens, including testing positive for cocaine on numerous occasions.

Dr. Ed Bergeron testified that he conducted a psychological evaluation of S.M.S.S. on April 20, 2007. He testified she suffered from post-traumatic stress disorder, bipolar disorder, cocaine dependence, dependent personality disorder and |4a maladaptive behavior disorder. In his view, she was inclined to act out her emotions, to become involved in unhealthy relationships, and had a strong inclination for addictive behaviors because mood-altering chemicals provided her with relief from emotional distress. Based on this evaluation, he testified he would not recommend reunification until she completed her treatment and established a pattern of stability. He has not seen her since that evaluation on April 20, 2007.

Dr. Ulrich testified S.M.S.S. was referred by her primary care physician, Dr. Nathan Landry. Dr. Landry asked that she evaluate and treat S.M.S.S. for any psychiatric illness. Dr. Ulrich first saw her on November 6, 2008, and diagnosed her with post-traumatic stress disorder, obsessive-compulsive disorder, and partial complex-seizure disorder, and has been seeing her consistently since that time. Dr. Ulrich prescribed Depakote, an anti-seizure medication for her partial complex seizure disorder, and Remeron and Cym-balta for her obsessive compulsive disorder. She testified that none of these medications contained narcotics or amphetamines because S.M.S.S. is an addict. Dr. Ulrich testified that she could not render an opinion as to whether S.M.S.S. could provide a safe and stable home, but relative to her post-traumatic stress disorder, obsessive compulsive disorder and seizure disorder, S.M.S.S. was medically sound and had engaged in her treatment. She further testified that she does not provide the mother psychological counseling services, but she would have noticed if S.M.S.S. were using cocaine. She did not see any signs of relapse or cocaine use during her treatment. At no time did S.M.S.S. advise Dr. Ulrich that she had been prescribed, or was taking, any medications containing narcotics.

laNo other physicians testified, although voluminous medical records were introduced into evidence relative to S.M.S.S.’s medical history. Records from Lafayette General Medical Center indicate she visited its emergency room seventeen times from February 25, 1999, until March 31, 2009, for reasons ranging from physical injuries resulting from accidents or domestic abuse, to shoulder pain and disc problems. Two of her treating physicians, Dr. Landry and Dr. Bryan Frentz, an ortho-paedist, apparently were employed by Hamilton Medical Group, where S.M.S.S.’s mother also was employed as a nurse. From the time S.M.S.S. began to work on her case plan until the time of trial, she visited Hamilton Medical Group twenty-two times for various reasons, some of which appear to be follow-up visits from emergency room visits. These records indicate the doctors were aware S.M.S.S. was a “recovering addict” and was taking various medications, including the drugs prescribed by Dr. Ulrich. On April 3, 2009, and June 29, 2009, Dr. Frentz prescribed Celestone, Marcaine, and Xylo-caine after office visits. By telephone, she was prescribed pain medication on June 11, June 22, June 29, July 1, July 7, and July 17, 2009. Also, on April 20, 2009, she was given Demerol and Phenergan at the emergency room of Lafayette General for a re-injured shoulder and was given those same medications at the emergency room on August 1, 2009. Finally, medical records from South Kirby Pain Clinic in Texas indicate that she was prescribed Lora-tab, Xanax, and Soma on January 14, 2009, and April 22, 2009, for neck and shoulder pain.

C.C., C.W.C.’s father, testified he was incarcerated at Dixon Correctional Center due to a violation of probation regarding domestic violence charges, with a scheduled release date of August 23, 2010. He testified neither he nor the mother were capable of caring for their son. J.S., H.A.S.’s father, testified he was recently 1 ^released from jail, his marriage to the mother was unstable, and there was domestic violence and drug use in the home. He testified neither he nor the mother were capable of caring for their daughter. J.S. is now deceased.

S.M.S.S. testified she loves her children and, if they are returned to her, she will provide them with a safe and stable home and environment. She is committed to maintaining sobriety. She has lived at the same address for over two years (at the time of trial), across the street from her mother and brothers, and has plans to add a third bedroom to her home so that each child could have his/her own bedroom. Regarding her employment, she worked at Home Furniture from June 2008 until February 2009 when she was forced to leave because OCS kept changing her visitation and home-visit schedule on short notice. She became employed at Brown’s Furniture in March 2009 but lost that job after three months in connection with an incident of sexual harassment by a coworker. For the three months between May 2009 until the time of trial, she performed subcontracting work for various general contractors painting, flooring, and plumbing. She admitted she failed to provide verification of the work to her case worker on several occasions. She is planning to renew her contractor’s safety license. In addition, she receives Social Security disability benefits sufficient to cover her rent, utilities and other living expenses.

S.M.S.S. testified that when she met with Dr. Bergeron in April 2007, she was actively using cocaine and was under a great deal of stress and anxiety due to OCS taking custody of her children and the possibility that H.A.S. had been sexually assaulted. After OCS demanded she undergo another psychological evaluation, she had the evaluation at Freedom Recovery Center of Acadiana. She intended to attend aftercare at that facility but could not because of the expense. Instead, she attended |7aftercare at Celebrate Recovery, held at her church and approved by the trial judge. She testified that after completing the inpatient treatment program at Southeast State Hospital on August 22, 2007, she relapsed once in November 2007 and as a result tested positive for cocaine in February 2008. She testified she has not used cocaine since November 2007 and could not explain how she tested positive for cocaine in January 2009, but added she also testified negative for cocaine in January 2009. No explanation was given as to why she also tested positive for cocaine on July 8, 2008. She testified that narcotic pain medication has at times been prescribed to her in connection with an arm and shoulder injury, and she has used it sparingly. She testified that Dr. Frentz prescribed Darvocet, Ultran, Ultracet, and Licderm patches for pain and that a “different hospital” prescribed Hydrocodone, Lortab and Valium. When presented with evidence that she visited South Kirby Pain Clinic in Texas in January and April of 2009, and was prescribed narcotic pain medication on both occasions, she explained that she visited the clinic while working in Houston on the recommendation of a friend. She testified she did not take much of the medication she was given in Texas, and the drugs were stolen by her then boyfriend, against whom she was ultimately forced to obtain protective orders. She remembers going to that pain clinic only once, despite documentary evidence to the contrary.

S.M.S.S.’s mother testified S.M.S.S. began using drugs in 1992 or 1993 when she met C.C. and had gone through three rehabilitation programs, the most recent being in July 2007. She testified she sees S.M.S.S. everyday and that she would know if S.M.S.S. were using drugs again. She testified that S.M.S.S. is back to | ^“normal” since getting off of drugs and is a loving mother. Three friends testified they spend time with S.M.S.S., occasionally take her to aftercare at Celebrate Recovery, and would know if she were using drugs again. Another testified that he refers carpentry jobs to S.M.S.S.

At the conclusion of the evidence, the trial court granted OCS’s “Petition for Termination of Parental Rights and Certification for Adoption,” thereby terminating the parental rights of S.M.S.S. and both fathers. In written reasons for judgment, the trial court determined OCS proved by clear and convincing evidence that S.M.S.S. failed to substantially comply with the case plan. The trial court first found she had failed to obtain steady employment and that any income earned was “speculative at best.” In addition, the trial court found her testimony that she was sober disingenuous in light of overwhelming evidence that shows she continues to suffer from a substance abuse addiction:

More importantly, this Court finds that [S.M.S.S.] suffers from a substance abuse addiction that renders her incapable of exercising parental care for her two children. Throughout this process, [S.M.S.S.] has maintained that she has been drug free and is proud to point out that she regularly attends her after-care program. However, the evidence shows that [she] has failed to maintain her sobriety, through both use of prescription drugs and cocaine. Since her children have been removed from her, she has failed numerous drug tests and lied about obtaining prescription medication. She was disingenuous during her trial testimony regarding her continued and current drug use. When confronted on cross examination, [she] admitted that she went to the South Kirby Pain Relief Clinic in Texas in January 2009, but stated that she did not take most of the medication prescribed. She denied going to the clinic a second time, even after being confronted with the records from the second visit in April 2009, wherein she obtained refills on her prescriptions. She testified that her boyfriend had taken the pain medication from the first visit and had no recollection of visiting the clinic again in April 2009. She had no explanation as to whether her boyfriend or anyone else took the medications prescribed on the second visit. It is important to note that at the very least, [she] fraudulently obtained almost 400 pills of prescription medication within a three month period. Additionally, [S.M.S.S.] filled the prescriptions from the pain clinic in Texas at a |Bpharmacy in Washington, Louisiana, approximately fifty miles from her home, rather than the Walgreens in Scott, Louisiana, where she usually fills her prescriptions. [She] did not tell her own psychiatrist, Dr. Ulrich, about the pain clinic or the medications she had obtained from the clinic, and it appears to this Court that she was getting double doses of medications from two different doctors who didn’t know about the other’s existence. This Court can find no valid reason why [she] would (1) obtain additional prescription medication from a pain clinic in Texas, when she claims not to have taken all the first prescription; (2) fill only these prescriptions at a pharmacy in Washington, Louisiana; and (3) fail to tell her treating psychiatrist about the additional meds. In jury trials, the Court instructs the jury that if they find a witness to have lied in one respect, it may be presumed that their entire testimony is also a lie. This Court believes that she has been untruthful with regards to the pain medication obtained in Texas, and thus is concerned that all of her testimony about sobriety cannot be believed. Thus, due to her continued drug addiction, this Court finds it to be in the best interest of the children to terminate the parental rights of [S.M.S.S.].

The court of appeal reversed and reinstated S.M.S.S.’s parental rights. State in the Interest of H.A.S. and C.W.C., 09-1530 (La.App. 3 Cir. 6/2/10), 38 So.3d 1278. Regarding the mother’s mental health issues, the court of appeal found as follows:

[S.M.S.S.] is required to provide OCS with a list of her prescribed medications and dosages and must see her doctor for follow-ups and medication management. Dr. Ed Bergeron did an initial evaluation on Appellant in April of 2007, and found that she needed to receive treatment and counseling. From that time forward, [she] has been receiving treatment from Dr. Susan Uhrich. Dr. Uh-rich has treated [her] for post traumatic stress disorder, obsessive compulsive disorder, and partial complex seizure disorder. She has also managed [her] medications. Dr. Uhrich has not provided any sort of psychological counseling to [her]. Despite not providing evidence of any psychological counseling, we find [she] has taken sufficient steps toward controlling and bettering her physical and mental health. Accordingly, we find that she has substantially complied with this aspect of her case plan.

38 So.3d at 1281. In addition, the court of appeal found S.M.S.S. substantially complied with the substance abuse portion of her case plan:

Because of her history of drug abuse, [S.M.S.S.]’s case plan called for her to live a clean and drug free life. She was required to complete an in-patient substance abuse treatment program, follow the after care recommendations of the treating clinicians, and submit to random drug [inscreens. The record reveals that [she] attended and completed an in-patient treatment program at Southeast State Hospital and provided OCS with verification of the program. Thereafter she enrolled in an aftercare program at Celebrate Recovery.
[S.M.S.S.] has complied in submitting to random drug screens, but the results of those screens have come back positive for various narcotics. On multiple occasions, the screens have shown a positive test for cocaine. However, because of the many prescription medications [she] has been taking over the period, it is unclear to what degree [she] has deviated from her case plan. The State notes that along with testing positive for cocaine, [she] also tested positive for ben-zodiazepine, opiates, and barbiturates. The record indicates that all three of these substances can be found in the prescription medication that [she] has been taking in connection with treatment for a shoulder injury. For this reason, the court is more concerned with the tests that suggest cocaine use.
[S.M.S.S.] has tested positive for cocaine as recently [as] January 2009. [She] admits to having a relapse in November of 2007, thus explaining the positive test in February of 2008. However, she is adamant that she has been clean ever since. While she did test positive for cocaine in January of 2009, a test taken at a different clinic during the same week showed a negative result for cocaine. Furthermore, Dr. Ulrich testified at trial that she would have noticed had [she] resumed using cocaine and that she saw no signals that indicate a relapse.
While there is still a great level of concern with regard to [her] drug use, this court is encouraged by her progress in this area. In completing an in-patient program and continuing treatment in an aftercare program, we find that [S.M.S.S.] has displayed considerable effort in overcoming her problems. Accordingly, we find that she has substantially complied with this element of her case plan.

Id. at 1282. The court of appeal also found the mother’s job as a carpenter fulfilled the case plan requirement for steady employment, and she had enrolled in parenting classes, maintained regular visitation, and maintained housing since July 2007, fulfilling those portions of the plan. Id. at 1282-83. Finally, the court of appeal found the mother has a reasonable expectation of improvement:

We note that in State in the Interest of L.L.Z. v. M.Y.S., 620 So.2d 1309, 1317 (La.1993), our supreme court found that “a reasonable expectation of reformation is found to exist if the parent has cooperated with state officials and has shown improvement, although all of the problems that exist have not been eliminated.” We find this language to be particularly significant to the case at issue. While it is true that | T1 Appellant has not resolved all of the problems that have plagued her in the past, particularly her failure to engage in psychological counseling and her struggle with cocaine addiction, it is clear that she has made great strides in becoming a better parent and citizen and that she has been notably cooperative with state officials throughout this process. Furthermore, as we have already mentioned, this court has been greatly encouraged by [the mother’s] progress in completing an inpatient drug rehabilitation program at Southeast State Hospital and in continuing her aftercare treatment through Celebrate Recovery.
In light of [the mother’s] continued cooperation with OCS and her considerable progress in bettering herself and creating a suitable environment for her children, we find that the State has failed to prove by clear and convincing evidence that there is no reasonable expectation of significant improvement in [the mother’s] conduct or condition. Accordingly, we find the trial court was manifestly erroneous in its determination.

Id. at 1283. We granted OCS’s writ application, giving the matter priority attention as required by La. Ch.C. art. 1001.1. State in the Interest of H.A.S. and C.W.C., 10-1529 (La.7/14/10), 39 So.3d 592. The children remain in foster care pending this resolution.

DISCUSSION

An appellate court reviews a trial court’s findings as to whether parental rights should be terminated according to the manifest error standard. State ex rel. K.G. and T.G., 02-2886 (La.3/18/03), 841 So.2d 759, 762. We have expressed the unique concerns present in all cases of involuntary termination of parental rights as follows:

In any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child. The parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children warranting great deference and vigilant protection under the law, and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship. However, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care. In balancing |12those interest, the courts of this state have consistently found the interest of the child to be paramount over that of the parent. The State’s parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the State seeks the permanent severance of that relationship in an involuntary termination proceeding. The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. As such, the primary concern of the courts and the State remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven.
Title X of the Children’s Code governs the involuntary termination of parental rights. La. Ch.C. art. 1015 provides the statutory grounds by which a court may involuntarily terminate the rights and privileges of parents. The State need establish only one ground, La. Ch.C. art. 1015, but the judge must also find that the termination is in the best interest of the child. La. Ch.C. art. 1039. Additionally, the State must prove the elements of one of the enumerated grounds by clear and convincing evidence to sever the parental bond. La. Ch. C. art. 1035(A).

State ex rel. K.G. and T.G., supra at 762; State ex rel. C.J.K., 00-2375 (La.11/28/00), 774 So.2d 107, 113; State in the Interest of J.A., 99-2905 (La.1/12/00), 752 So.2d 806, 810-811.

In this case, OCS sought to terminate S.M.S.S.’s parental rights pursuant to La. Ch.C. art. 1015(5), which provides:

Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

113The first requirement has been met as two years elapsed between the time the children were removed from the mother’s custody pursuant to the court order until the petition for termination was filed.

The second requirement, lack of substantial compliance with the case plan, may be evidenced, as relevant to this case, by one of the following:

(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.

La. Ch.C. art. 1036(C).

The third requirement, lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future, may be evidenced by the following:

(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of' behavior.

La. Ch.C. art. 1036(D).

This Court has stated that “[wjhile a finding of mental illness, standing alone, is insufficient grounds to warrant termination of [a parent’s] parental rights, La. Ch.C. art. 1015, a mental deficiency related to the parenting ability is relevant in determining the role of the mother in abuse or neglect of the children.” State ex rel. C.J.K., 774 So.2d at 116 (citing State in the Interest of J.A., supra, 752 So.2d at 814). In a case like this, the impairment must be such that the child is exposed to a | ^substantial risk of serious harm, and the risk must be substantiated by testimony of a qualified expert or by an established pattern of the child’s risk which has resulted from the parent’s acts or omissions.

Here, the mother’s substance abuse problem is our dominant concern, and the main reason termination was imposed by the trial court. However, the only expert who testified her substance abuse could expose the children to a substantial risk of serious harm was Bergeron, and he had only seen her one time, immediately after the children were taken into state custody. No expert testified relative to the two years the mother had been working the ease plan and getting treatment and assistance with her substance abuse issues. Secondly, there was no evidence of a “established pattern” demonstrating a risk to the children from the mother’s acts during the time the children were in state custody. We can distinguish this case from State in the Interest of H.A.B., 10-1111 (La.10/19/10), 49 So.3d 345 wherein we recently ruled a mother’s parental rights must be terminated. In that case, we stressed the “uncontradicted expert testimony in this case advocated termination because of the persistence of the conditions that led to removal, ... as well as the lack of substantial improvement in redressing the problems preventing reunification, ..., particularly the mother’s and the child’s mental health issues coupled with her childrearing attitudes.” Id., at 368. In that case, two psychologists recommended termination based on evaluations and reports done as late as the month of trial. In this case, Bergeron testified he would not recommend reunification until S.M.S.S. completes her treatment and establishes a pattern of stability, but that was based on an evaluation done over two years before trial.

1 lsOther troubling issues in this case are the failed drug screens for narcotics, and the corresponding evidence that S.M.S.S. was being issued prescriptions for various narcotics by various doctors, some at the same time. For instance, while Dr. Ulrich did not prescribe narcotics, S.M.S.S. was able to obtain them from South Kirby Pain Clinic, her doctors at Hamilton Medical Group, and the emergency room at Lafayette General. Thus, the record seems to support the trial court’s finding that she was “getting double doses of medications from two different doctors who didn’t know about the other’s existence.” However, none of the prescribing doctors testified, and it is possible S.M.S.S. needed prescription medication for valid physical ailments. In any event, the record is not straightforward on this issue, and we are left with many unknowns. In addition, while S.M.S.S. tested positive for cocaine on February 16, 2007, December 4, 2007, February 19, 2008, July 8, 2008, and January 28, 2009, eight months elapsed between the last failed test and the trial. In addition, almost two years have now past since that last failed test. Based on this record, we are not convinced that termination is in the best interests of the children at this time.

However, the mother’s apparent continued substance abuse concerns us enough that we also do not believe reunification would be in the best interests of the children at this time. In ordering reunification, the court of appeal erred somewhat in relying on State in the Interest of L.L.Z. v. M.Y.S., 620 So.2d 1309 (La.1993), to find that S.M.S.S. has shown a reasonable expectation of improvement because she has “made great strides in becoming a better parent and citizen and that she has been notably cooperative with state officials throughout this process,” as well as completing in-patient rehabilitation and continuing in aftercare treatment. 38 So.3d at 1283. In State in the Interest of L.L.Z., this Court held that “a reasonable expectation of reformation is found to exist if the parent has cooperated with state officials and has |1Bshown improvement, although all of the problems that exist have not been eliminated.” 620 So.2d at 1317. After reviewing appellate court cases relying on that holding that placed too much emphasis of whether the parent had cooperated with OCS, we found the need to elaborate on that holding in State in the Interest of S.M., 98-0922 (La.10/20/98), 719 So.2d 445, 450-51. There, we held that instead of focusing on whether the parent had cooperated with OCS, the court should determine whether the evidence shows a significant and substantial indication of reformation from behavior which served as a basis for the State’s removal of the children. Id. at 451. Here, the court of appeal should have focused more on the mother’s substance abuse issues and the risks they posed to the children.

In any case, a court should not terminate parental rights unless it determines to do so is in the child’s best interest. La. Ch.C. art. 1037(B). We note that the children’s lawyer has represented to this Court that she adopts the mother’s position in this case and is in favor of reunification. Even though we think the trial court’s factual findings are not manifestly erroneous, we are not yet convinced that termination is in the children’s best interest, nor are we convinced there is no reasonable expectation of significant improvement in the mother’s conduct in the near future.

When the alleged grounds under La. Ch.C. art. 1039 are not proven by clear and convincing evidence, or the court finds that termination is not in the best interest of the child, the court may: (1) dismiss the petition; (2) reinstate the parent to full care and custody of the child; (3) if the child has been previously adjudicated as a child in need of care, reinstate that proceeding pursuant to Title VI; (4) upon a showing of sufficient facts, adjudicate the child in need of care in accordance with Title VI; (5) upon a showing of sufficient facts, adjudicate the family in need of services in 117accordance with Title VII; or (6) make any other disposition that is in the best interest of the child. State ex rel. K.G. and T.G., supra at 768.

Exercising our supervisory jurisdiction, we order that this case be remanded to the trial court for further proceedings and that a new plan, focusing on S.M.S.S.’s mental health and substance abuse issues, be in place for a period of nine months, after which the trial court shall conduct another termination hearing. In conjunction with that plan, S.M.S.S. shall be re-evaluated by Dr. Bergeron, (or be evaluated by any other doctor approved by the trial court), for a recommended course of mental health treatment if needed. Further, monthly drug tests shall be administered, and S.M.S.S. must present written prescriptions to the trial court for all pi'escription medications she is taking from this date through the trial date. For any positive drug test for any type of narcotic, S.M.S.S. must present medical testimony regarding any prescribed medications causing that positive test and the reasons why the prescription was issued. Further, S.M.S.S. must present evidence from her treating physicians regarding any and all prescriptions issued. Any positive result for illegal drugs, such as cocaine, or narcotics unsupported by a valid prescription attested to by a physician, may be considered valid grounds for termination by the trial court.

DECREE

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

REVERSED AND REMANDED.

GUIDRY, J., dissents.

CLARK, J., dissents and assigns reasons.

CLARK, Justice,

dissents and assigns reasons.

hi respectfully dissent from the majority opinion because I believe the focus of the majority is in error. Instead of focusing on the mother in this circumstance, our focus should be on the children who have been put at risk, and have suffered from this mother’s inability to confront or conquer her addiction to drugs.

Even the majority admits the factual findings of the district court are not manifestly wrong. And those findings show us that this mother has lied about her continued and current drug use. She has taken extraordinary efforts to obtain prescription medication, even to crossing the state line to obtain prescriptions. She fills these prescriptions at a pharmacy at a distance from her home. Although the mother claims she is drug free and has maintained her sobriety, her actions show she is not only continuing with her usage of drugs, but the manner in which she does so indicates an awareness of her addiction at odds with her testimony.

I find, from the facts established by the trial court, that this mother has shown herself incapable of conquering her drug addiction and, despite attempts to comply with the requirement that she remain drug-free, has failed. The mother has had from 2007 to 2009 to focus her efforts on maintaining sobriety. Our focus must then shift to her children, who have been in foster care for a long period of time. The outcome of the majority’s opinion is that these children will remain in limbo for an even longer period of time. For these reasons, I believe the proper course was to reinstate the trial court’s opinion and terminate this mother’s parental rights.

       Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.

      . Specifically, OCS alleged the police had investigated a report of sexual abuse of H.A.S., and found sexual abuse had occurred while the child was in the care and custody of S.M.S.S., who provided no reasonable explanation for the abuse. Further, OCS alleged the mother had a longstanding and chronic substance abuse history and suspected she was using narcotics. In addition, the home was in extremely poor condition, and, after law enforcement officers told S.M.S.S. of the investigation and requested the children be left with relatives pending the investigation, S.M.S.S. made comments to the adults in possession of the infant that she needed to pick up the infant to visit an ailing relative in another state. Based on these statements, OCS determined she intended to flee with the children so OCS sought to place the children in protective custody. It was determined the sexual abuse was not committed by S.M.S.S., but it is unclear from the record who committed the abuse and who was caring for the child at that time.

      . La. Ch.C. art. 1015(5) provides:
      The grounds for termination of parental rights are:
      Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, considering the child’s age and his need for a safe, stable and permanent home.

      .Her drug screen results are as follows: February 16, 2007, positive for cocaine; March 29, 2007, positive for benzodiazepines (temazepam) and propoxyphene; April 26, 2007, negative screen; May 31, 2007, positive for opiates (hydrocodone); September 24, 2007, positive for cocaine; December 4, 2007, positive for cocaine and benzodiaze-pines (oxazepam and temazepam); February 7, 2008, positive for barbiturates; February 19, 2008, positive for cocaine; July 8, 2008, positive for cocaine; August 14, 2008, negative screen; January 19, 2009, positive for opiates (hydrocodone); January 28, 2009, positive for cocaine; May 19, 2009, positive for opiates and benzodiazepines; May 20, 2009, refused test; August 13, 2009, negative screen; and August 21, 2009, negative screen.

      . The post-traumatic stress disorder was the result of abuse by her ex-husbands.

      . In Dr. Ulrich’s opinion, S.M.S.S. had been misdiagnosed with bipolar disorder.

      . Records from Freedom Recovery Center indicate she came in for an assessment on February 12, 2009, and had a psychiatric evaluation on March 2, 2009, where she reported she was taking Depakote and Cymbalta and had been sober for 17 months. She was diagnosed with major depression and substance dependency in remission. She attended one group therapy session on March 19, 2009, and one individual therapy session on March 12, 2009. She did not show up for a psychiatric consult on March 30, 2009, and attended no further sessions at Freedom Recovery. The treatment program at Freedom Recovery consists of 18 group therapy sessions and 6 individual sessions.

      . Oral argument was continued from the September docket because the attorneys for OCS and the mother could not be present.

      . While the trial court found her income was speculative at best, it found she had substantially complied with all areas of her plan except “maintenance of sobriety.”


text:
    STATE of Louisiana v. Jason DAUZART.
    No. 2010-KK-2867.
    Supreme Court of Louisiana.
    Jan. 3, 2011.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court, Div. F, No. 491-428; to the Court of Appeal, Fourth Circuit, No. 2010-K-1749.

Writ granted. We find the trial court abused its discretion in finding no probable cause to arrest the accused for possession of the firearm as a convicted felon. A reasonable officer could conclude the accused had dominion and control over the firearm that was in plain view and within his reach inside the vehicle. See Maryland v. Pringle, 540 U.S. 366, 371-372, 124 S.Ct. 795, 800-801, 157 L.Ed.2d 769 (2003) (Where cocaine was discovered behind the' back-seat armrest and accessible to all three occupants, probable cause existed to arrest the front-seat passenger.) Further, the ruling of the trial court granting the motions to suppress is vacated. The admissibility of evidence is dependent upon the circumstances under which it was obtained, not upon whether there was probable cause to believe the accused had committed a crime. See State v. Bradford, 98-1428, p. 4 (La. Ct.App. 4 Cir. 12/9/98), 729 So.2d 1049, 1051. Case is remanded to the trial court for further proceedings.

JOHNSON and WEIMER, JJ., would deny the application.


author:
PER CURIAM.
     CLARK, J.,

text:
    In re Bernard J. WILLIAMS.
    No. 2010-B-1972.
    Supreme Court of Louisiana.
    Jan. 7, 2011.
   |, ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from three sets of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Bernard J. Williams, an attorney licensed to practice law in Louisiana, but currently ineligible to practice.

UNDERLYING FACTS

09-DB-05Í

Count I — The Adams Matter

In November 2005, Cedric Adams hired respondent to defend him in a criminal matter. In order to pay respondent’s fee, Mr. Adams, who was incarcerated at the time, instructed his sister to give his income tax refund check to respondent. Thereafter, respondent was to deliver the check to Mr. Adams for endorsement, cash the cheek, and collect his fee. Contrary to Mr. Adams’s instructions, respondent negotiated the check, collected his $8,000 fee, and sent the remaining balance to Mr. Adams’s sister. When Mr. Adams’s sister contacted the jail to inform her brother that the fee had been paid, she learned the criminal charges had been dropped. After being advised of the dismissal, respondent agreed to refund the fee. However, ^respondent failed to return the fee, and eventually stopped answering and/or returning phone calls from Mr. Adams’s sister.

In June 2006, Mr. Adams filed a disciplinary complaint against respondent. The complaint was forwarded to respondent’s primary address in August 2006 and returned to the ODC marked “unclaimed.” Although the ODC made several more attempts to reach respondent, he did not respond to the complaint until February 2009. In his response, respondent admitted that he failed to return the unearned fee, despite Mr. Adams’s request for a refund.

The ODC alleged respondent’s conduct violated Rules 1.15(d) (failure to promptly deliver funds owed to a client or third person), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.

Count II — The Schween Matter

In May 2006, Lyle Schween hired respondent to represent him in a flood loss claim against Allstate Insurance Company, paying him $1,500. Thereafter, respondent failed to produce documents regarding the claim, despite requests by Mr. Schween. Mr. Schween was also unsuccessful in his numerous attempts to contact respondent.

In September 2006, Mr. Schween filed a disciplinary complaint against respondent. The complaint was forwarded to respondent’s primary address, but he failed to answer the complaint. After several more attempts by the ODC to reach respondent, he finally responded to the complaint in February 2009. In his response, | ^respondent admitted that his work on Mr. Schween’s behalf was limited to making a phone call to Allstate. Respondent also agreed to refund the fee paid by Mr. Schween; however, he failed to do so.

The ODC alleged respondent’s conduct violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.15(d), 8.4(a), and 8.4(c) of the Rules of Professional Conduct.

Count III — The Watson Matter

In July 2006, Marilyn Watson paid respondent $2,800 to represent her son in a criminal matter. Thereafter, Ms. Watson made numerous attempts to contact respondent, but with no success.

In September 2006, Ms. Watson filed a disciplinary complaint against respondent. The complaint was forwarded to respondent’s primary address and returned to the ODC marked “unclaimed.” Although the ODC made several more attempts to reach respondent, he did not respond to the complaint until February 2009. In his response, respondent admitted that he received $2,800 from Ms. Watson and failed to perform any work on behalf of her son. Respondent also stated that he was in the process of returning the unearned fees. However, according to Ms. Watson, she did not receive a refund.

The ODC alleged respondent’s conduct violated Rules 1.3, 1.4, 1.15(d), 8.1(c), 8.4(a), and 8.4(c) of the Rules of Professional Conduct.

| ¿Count TV — Respondent’s Criminal Conviction

Respondent was arrested in St. Tammany Parish in 2006 and charged with possession of cocaine and attempted possession of cocaine. In 2007, respondent pled guilty to the charges.

The ODC alleged respondent s conduct violated Rules 8.1(c), 8.4(a), and 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer) of the Rules of Professional Conduct.

09-DB-057

The Ramos Matter

In February 2003, Olivia Barrios hired respondent to pursue a worker’s compensation claim. After the matter was concluded successfully in her favor, Ms. Barrios sought respondent’s assistance in obtaining her deceased husband’s retirement benefits. Respondent failed to perform any work in that matter, and as a result, Ms. Barrios terminated respondent’s services and requested her file. When Ms, Barrios met with respondent to retrieve the file, respondent asked her for a loan. Without advising her to seek independent counsel, respondent asked Ms. Barrios to invest in his law practice and offered to repay the loan with interest. In turn, Ms. Barrios, who was seventy-five years old at the time, gave respondent $15,000 by two separate checks. Respondent prepared two promissory notes for the respective amounts. Thereafter, respondent failed to repay the debt and failed to communicate with Ms. Barrios.

In August 2005, Ms. Barrios filed a disciplinary complaint against respondent. The ODC made several attempts to contact respondent, to no avail, necessitating the issuance of a subpoena. In May 2006, respondent appeared before the ODC and 15submitted to a sworn statement. By August 2006, respondent had repaid $3,900 to Ms. Barrios. In February 2009, respondent acknowledged the outstanding balance and advised the ODC that he intended to make full restitution to Ms. Barrios of all amounts due, with interest.

The ODC alleged respondent’s conduct violated Rules 1.4, 1.8 (conflict of interest), 8.1(c), 8.4(a), 8.4(c), and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

09-DB-058

The Graham Matter

In February 2002, Kelley Graham hired respondent to represent her in a personal injury matter. The matter settled in May 2004 and checks were disbursed to respondent and Ms. Graham. However, Ms. Graham subsequently discovered that respondent had failed to pay approximately $2,000 in medical expenses to some of her medical providers. Thereafter, Ms. Graham made several attempts to contact respondent, but with no success.

In July 2004, upon receiving notice that her medical bills were being sent to a collection agency, Ms. Graham filed a disciplinary complaint against respondent. Respondent failed to reply to the complaint, necessitating the issuance of a subpoena. During his November 2004 sworn statement, respondent testified that Ms. Graham’s funds were being held in his operating account. He also testified that his secretary had misappropriated client funds. Respondent explained that he endorsed blank |fichecks from his operating account, requiring his assistant to add the names of medical providers. Respondent assured the ODC that all of Ms. Graham’s medical providers would be paid immediately and that he would provide copies of the checks to the ODC as proof of payment. In February 2005, respondent provided the ODC with proof that he had paid the medical providers and sent Ms. Graham a written apology.

The ODC alleged respondent’s conduct violated Rules 1.3, 1.15(a) (safekeeping property of clients or third persons), 5.3(b) (responsibilities regarding nonlawyer assistants), 8.1(c), 8.4(a), and 8.4(c) of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS

In September 2009, the ODC filed the formal charges in 09-DB-054, 09-DB-057, and 09-DB-058. Respondent answered the formal charges, admitting some alleged misconduct and denying other alleged misconduct. In particular, respondent denied that he failed to cooperate with the ODC. Respondent explained that he had been absent from Louisiana since August 2006 to undergo drug rehabilitation treatment in New York, and he represented that he had notified the ODC of this fact. Following the filing of respondent’s answer, the three sets of formal charges were consolidated by order of the hearing committee chair.

Formal Hearing

The consolidated matters proceeded to a formal hearing on the merits conducted by the hearing committee in January 2010. The parties filed a joint stipulation of facts, which provides, in pertinent part:

I. Respondent represented Kelley Graham in a personal injury matter.

|72. After reaching a settlement in the matter, checks made payable to Ms. Graham and respondent were disbursed.

3. Respondent failed to timely reimburse Ms. Graham’s medical providers.

5. Respondent settled a worker’s compensation claim for Olivia Barrios.

6. Respondent asked Ms. Barrios to extend him a loan for $15,000 to be recognized as an investment in his law firm.

7. Respondent failed to advise Ms. Barrios to seek independent counsel.

8. A total of $3,900 was repaid to Ms. Barrios prior to the filing of formal charges.

10.Respondent was retained by Cedric Adams and paid a $3,000 fee for representing him in a criminal matter.

II. Charges lodged against Mr. Adams were dropped prior to respondent taking any action regarding the matter.

12. Respondent received Mr. Adams’s request for a refund but failed to refund the fee.

13. Thereafter, respondent failed to communicate with Mr. Adams.

15. Respondent was retained by Lyle Schween, who paid respondent a $1,500 fee for representing him in a flood loss claim with Allstate Insurance Company.

16. Respondent failed to communicate with Mr. Schween.

17. The only action taken by respondent regarding the Schween matter was a telephone call to Allstate.

19.Respondent was retained by Marilyn Watson to represent her son in a criminal matter.

20. Respondent received a $2,800 fee from Ms. Watson.

21. Respondent failed to take any action regarding the criminal matter.

|s22. Respondent failed to further communicate with Ms. Watson.

23. Respondent failed to refund the fee Ms. Watson paid.

Respondent also stipulated that he violated Rules 1.3, 1.4, 1.8, 1.15(a), 1.15(d), 5.3(b), 8.4(a), 8.4(b), and 8.4(c) of the Rules of Professional Conduct.

Hearing Committee Report

After considering the evidence and testimony presented at the hearing, the hearing committee accepted the parties’ stipulation of facts. As to the facts that were not stipulated to by the parties, the committee made the following findings:

1. As to whether or not respondent had notified the ODC of his relocation to New York for further drug treatment and whether or not he had cooperated with the ODC in its investigation, the committee determined the only evidence available was the unrefuted testimony of respondent. Although admittedly self-serving, he testified to the plausible explanation that the treatment facility did not notify him of attempts to send certified letters and that he had telephoned the ODC to advise of the situation. Furthermore, the deputy disciplinary counsel indicated earnest cooperation by respondent during her handling of the matter. This, along with respondent’s apparent success in rehabilitation and restitution, allowed the committee to give him the benefit of the doubt on this issue and not find him guilty of the rule violation.

2. As to whether or not an attorney-client relationship existed between Ms. Barrios and respondent contemporaneous with the transaction that took place, which would be a requisite to finding a conflict of interest, the only evidence | flintroduced by the ODC was that of a former relationship. There was no direct or indirect evidence that respondent solicited the loan (or “investment in his practice”) while Ms. Barrios was a client. Therefore, and despite the abhorrent nature of soliciting the loan from a person as vulnerable as Ms. Barrios, the committee was unable to find a conflict of interest violation.

3. As to whether or not respondent had a substance abuse problem, which would be a potential mitigating factor in determining the appropriate discipline, in addition to the fact that respondent’s own testimony was uncontradicted that he had an addiction, the exhibits from the ODC actually corroborated his testimony.

Based on these facts, the committee determined respondent violated the following Rules of Professional Conduct: Rules 1.3 and 5.3(b) in the Graham matter; Rule 1.15(d) in the Adams matter; Rules 1.3 and 1.15(d) in the Schween matter; Rule 1.15(d) in the Watson matter; Rule 8.4(b) in the criminal matter; and Rule 8.4(c) in the Barrios matter. The committee determined that respondent intentionally violated duties owed to his clients, but found the actual injuries sustained by the clients were “not colossal.”

The committee found the following aggravating factors present: a pattern of misconduct, multiple offenses, vulnerability of the victim, and substantial experience in the practice of law (admitted 1982). The committee found the following mitigating factors present: absence of a prior disciplinary record, personal or emotional problems, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, mental disability or chemical dependency including alcoholism or drug abuse, imposition of other penalties or sanctions, and remorse. The committee also observed that respondent paid restitution to his clients in an effort |into rectify the consequences of his misconduct, but found this was done “years later” and was not “timely.”

After considering this court’s prior jurisprudence involving similar misconduct, the committee recommended respondent be suspended from the practice of law for three years, “retroactive to the date of his interim suspension.”

Respondent is not presently on interim suspension, however, a fact which the ODC noted in support of its contention that the sanction recommended by the hearing committee is unduly lenient. The ODC also objected to the committee’s finding in mitigation that there is a causal connection between respondent’s substance abuse and his misconduct.

Disciplinary Board Recommendation

After reviewing these consolidated matters, the disciplinary board determined the hearing committee’s factual findings are supported by evidence adduced at the formal hearing. Based on those facts, and the joint stipulation of facts submitted by the parties, the board determined respondent violated the Rules of Professional Conduct as follows:

Rule 1.3: This rule requires a lawyer to act with reasonable diligence and promptness in representing a client. The record reflects, however, that after he was retained, respondent failed to diligently and promptly attend to Mr. Schween’s flood loss claim, to the post-settlement payments to Ms. Graham’s medical providers, and to the various tasks of representing Ms. Watson’s son, who was a defendant in a criminal case.

| uRule 1.⅛: This rule requires a lawyer to communicate with a client and to give the client sufficient information to participate intelligently in the client’s matter. During respondent’s representation of Mr. Schween, he failed to communicate with his client. Respondent admitted that his only action in that matter was to make a single call to an insurer. Respondent also took no action on behalf of Ms. Watson’s son. However, the board found respondent did not violate Rule 1.4 in the Barrios matter because he had no attorney-client relationship with Ms. Barrios.

Rule 1.8: This rule requires the existence of an attorney-client relationship in order for certain transactions by the lawyer — such as loans — to present a conflict of interest. The committee specifically found respondent had no attorney-client relationship with Ms. Barrios at the time he solicited a loan from her. The ODC does not dispute this finding, which the board found was supported by the record. Therefore, even though respondent stipulated to a violation of Rule 1.8, the board rejected such a finding.

Rule 1.15(a): This rule requires a lawyer to safeguard client and third-party property. When the property consists of funds, they must be deposited into a trust account. According to respondent’s sworn testimony, he worked on Ms. Graham’s case with another attorney, and the funds recovered for Ms. Graham were deposited into the other attorney’s trust account. However, the other attorney disbursed one check to respondent for attorney’s fees and for third-party medical expenses. Instead of depositing this check into a trust account and then segregating his own funds from those of the medical provider and disbursing the medical provider’s funds from a trust account, respondent deposited the funds into his operating account. In fact, respondent had no trust account established to comply with the procedures of Rule 1.15(a).

| wRule 1.15(d): This rule requires an attorney to promptly deliver client and third-party funds. The board found the record reflects respondent failed to promptly return unearned fees to Mr. Adams, Mr. Schween, and Ms. Watson.

Rule 5.3(b): This rule requires that a lawyer having direct supervisory authority over a nonlawyer assistant make reasonable efforts to ensure that the assistant’s conduct is consistent with the lawyer’s professional responsibilities. The record reflects, however, that respondent signed three blank checks for his assistant to fill out and transmit to Ms. Graham’s medical providers. The assistant misappropriated the money to her own use instead. The board found that by giving the assistant three signed but blank checks, respondent did not reasonably supervise the assistant.

Rule 8.1(c): This rule requires a lawyer to cooperate with the ODC’s efforts to investigate disciplinary complaints. The committee found, and the ODC does not dispute, that respondent cooperated with the deputy disciplinary counsel currently handling this matter. The committee also noted that respondent testified he had cooperated with a previously assigned deputy counsel. The board therefore found the ODC failed to prove a violation of Rule 8.1(c) by clear and convincing evidence.

Rule 8.1(a): This rule prohibits a lawyer from violating or attempting to violate the Rules of Professional Conduct. By violating the foregoing rules, respondent violated Rule 8.4(a).

Rule 8Mb): This rule prohibits a lawyer from committing a criminal act. Respondent violated Rule 8.4(b) when he committed the crime of possessing cocaine.

Rule 8.1(c): This rule prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. The board found respondent violated Rule 8.4(c) only in connection with his solicitation of a loan from Ms. Barrios. Respondent sought to borrow money from Ms. Barrios under the pretext that she was [ ^investing in his law practice; however, only lawyers can be stakeholders in a law practice. Therefore, respondent violated Rule 8.4(c) in the Barrios matter.

The board determined respondent breached duties owed to his clients, who had a legitimate expectation that respondent would communicate with them, diligently represent them, and return to them any unearned fees. Respondent breached duties owed to the public, which has a legitimate expectation that a lawyer will not commit crimes, will refrain from soliciting improper loans/investments in law firms from nonlawyers, and will promptly deliver property owed to third parties. Respondent breached duties owed to the legal profession by failing to supervise his nonlawyer assistant. By the very nature of his misconduct, respondent acted knowingly and intentionally. Respondent’s actions also caused actual and serious injury. After reviewing the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the applicable baseline sanction in this matter is disbarment.

The board found the following aggravating factors present: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, vulnerability of the victims, substantial experience in the practice of law, and illegal conduct, including that involving the use of controlled substances. The board found the following mitigating factors present: absence of a prior disciplinary record, personal or emotional problems, timely good faith effort to make restitution or to rectify the consequences of the misconduct, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, imposition of other penalties or sanctions, and remorse. The board further recognized the mitigating factor of mental disability or chemical dependency, including alcoholism or drug abuse, specifically | urejecting the ODC’s argument that there no causal connection between respondent’s substance abuse and his misconduct. Here, respondent has adduced evidence that he was affected by chemical dependency, but that he has recovered. More specifically, the board pointed to documentary evidence from the Executive Director of the Lawyers Assistance Program (LAP) confirming that respondent entered into a LAP contract on March 18, 2009 and describing the facts of respondent’s chemical dependency treatment and rehabilitation since 2006.

The board found these mitigating factors “loom large” and are “closer to the present time than the aggravating factors,” warranting a downward deviation from the baseline sanction of disbarment to a three-year suspension. The board further determined that the three-year suspension should be fully deferred. According to the board, the committee recommended a suspension retroactive to respondent’s “interim suspension” because the committee apparently believed it would be unduly punitive for respondent to serve an active period of suspension given the undisputed evidence that he did not practice law for three years while he was ineligible to do so. Noting that respondent was not actually placed on interim suspension, and that the public would be better protected with a deferral because respondent would be monitored under a program of supervised probation, the board recommended a two-year period of supervised probation to commence with respondent’s return to active status. Additionally, the board recommended that respondent’s trust and operating accounts be audited quarterly by a certified public accountant.

Although neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation, on November 9, 2010, this court ordered briefing addressing the issue of an appropriate sanction. Both respondent and the ODC filed briefs in response to the court’s order.

I,.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: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The record reveals that, among other things, respondent induced a former client to make an improper loan/investment in his law practice, committed a criminal offense by possessing cocaine, and failed to refund unearned fees to several clients. Based on these facts, we find the record supports the conclusion that respondent has violated the Rules of Professional Conduct as found by the disciplinary board.

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).

11.Respondent’s conduct was knowing, if not intentional, and violated duties owed to his clients and the public. The following aggravating factors are present: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, vulnerability of the victim, and substantial experience in the practice of law. The record supports the following mitigating factors: absence of a prior disciplinary record, personal or emotional problems, timely good faith effort to make restitution or to rectify the con sequences of the misconduct, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, imposition of other penalties or sanctions, and remorse. We also agree with the hearing committee and the board that the mitigating factor of mental disability or chemical dependency, including alcoholism or drug abuse, is present.

Turning to the issue of an appropriate sanction, we note that In re: Steinhardt, 04-0011 (La.9/9/04), 883 So.2d 404, provides guidance in cases involving an attorney’s chemical dependency. In Steinhardt, an attorney was convicted of a misdemeanor charge of possession of marijuana, which she failed to report to the ODC. She also suffered from an addiction to marijuana, though at the time the case was before the court she had been drug free for three years. As a sanction, the disciplinary board recommended the attorney be suspended for three years. In rejecting that recommendation, we acknowledged the attorney’s substance abuse problems and the positive steps she had taken to address them, including her successful completion of a substance abuse treatment program and her entry into a LAP contract. Under these circumstances, we found it would be “excessively punitive” to impose a flat three-year suspension, as had been recommended by the disciplinary board. Rather, we deferred two years of the three-year suspension (resulting in a one-year actual suspension) and placed the attorney on probation.

| nHere, respondent has taken similar positive steps to address his addiction to cocaine. However, his conduct does not only involve the criminal conviction for cocaine possession; if that were so, perhaps the sanction imposed in Steinhardt would be appropriate. Rather, respondent’s misconduct includes additional misconduct not found in Steinhardt. Specifically, respondent engaged in a substantial amount of misconduct that involved five clients, some of whom were particularly vulnerable. Nevertheless, we acknowledge that respondent’s drug addiction contributed to his misconduct, he has since sought treatment for his drug problem, and he has been drug free since 2006. Under these circumstances, we find a three-year suspension, with eighteen months deferred, is warranted.

Accordingly, we will suspend respondent from the practice of law for three years, with eighteen months deferred. We will further order respondent to either refund $2,800 to Ms. Watson or, if he previously refunded the money, provide proof of same.

DECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record and briefs, it is ordered that Bernard J. Williams, Louisiana Bar Roll number 1646, be and he hereby is suspended from the practice of law for three years. It is further ordered that eighteen months of the suspension shall be deferred. It is further ordered that respondent shall refund $2,800 to Marilyn Watson or provide proof of the refund, if previously paid. All costs and expenses in the matter are assessed against respondent in accordance with haSupreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

GUIDRY, J., dissents and would impose a three-year suspension with no time deferred.

CLARK, J., dissents and assigns reasons.

CLARK, J.,

dissenting.

|,I respectfully dissent from the majority’s disposition as I feel a harsher sanction is warranted. Particularly, I find the recommendation of the hearing committee to suspend respondent from the practice of law for three years to be, at a minimum, an appropriate measure. Respondent violated duties owed to his clients in failing to communicate with them, diligently represent them, and timely return unearned fees to them. The disciplinary board found respondent made a timely good faith effort to make restitution to his victims; however, I do not agree that restitution made after three or four years of tiresome attempts to contact respondent constitutes a timely effort to refund monies owed.

Further, respondent was convicted of two felony drug offenses, failed to supervise his nonlawyer assistant, and improperly solicited a loan/investment in his law firm from a nonlawyer. The board found the latter conduct was not an express violation of Rule 1.8 (conflict of interest) insofar as it determined respondent had no attorney-client relationship with Ms. Barrios at the time he solicited a loan from her. However, the board seemingly ignored the fact that respondent stipulated to a violation of Rule 1.8. This court recently held “[i]n a disciplinary proceeding, the parties are free to enter into such stipulations, and effect must be given to them unless they are withdrawn.” In re: Torry, 10-837 (La.10/19/10), 48 So.3d 1038. The majority appears to have found significance in the fact that the ODC did not dispute the | ¡board’s finding; thus, it found the parties implicitly withdrew the stipulation. I find the stipulation to be controlling inasmuch as it was not formally withdrawn. Furthermore, the ODC, reasonably relying on the stipulation, was not, in my view, required to dispute the finding, particularly when the ODC originally alleged respondent violated Rule 1.8 and the factual evidence of the case could support such a finding. At the very least, I find respondent to be a manipulator. Ms. Barrios, a seventy-five year old widow, who was frustrated with respondent’s failure to work on her case and who met with respondent only to retrieve her file, agreed to give him $15,000 as an “investment in his law practice.” This ability to change a victim’s mind set from frustration to one of assistance and generosity is a telling sign of a con artist and is behavior that should not be looked upon lightly.

Lastly, this court has repeatedly deferred to the evaluations made by the hearing committee members, as they have had the benefit of hearing the live testimony of witnesses, and act as the eyes and ears of this court. See In re: Holliday, 09-0116 (La.6/26/09), 15 So.3d 82; In re: Bolton, 02-0257 (La.6/21/02), 820 So.2d 548. Based on the egregious facts of this case and the pattern of misconduct, the majority’s deviation from the hearing committee’s recommendation is unwarranted. I would impose, at a minimum, a three-year suspension with no time deferred, as recommended by the hearing committee.

       Chief Justice Kimball not participating in the opinion.

      . Respondent has been ineligible to practice law since September 11, 2006 for failure to pay bar dues and the disciplinary assessment. He is also ineligible for failing to file his trust account disclosure form.

      . Respondent has since paid Mr. Adams $4,149.31, the original fee with interest.

      . Respondent has since paid Mr. Schween $2,015.66, the original retainer amount with interest.

      . Ms. Barrios died prior to respondent's repayment of the loan funds; however, respondent has paid the full amount of the loan with interest, $16,266.54, to the heirs of Ms. Barrios.

      . Respondent placed Ms. Graham’s settlement funds in the trust account of another lawyer because he had not had a client trust account since 2003. Afterwards, respondent transferred the funds to his operating account.

      . Some of the testimony by respondent at the hearing can be seen as contradicting the stipulated rule violations. For example, during the hearing, respondent testified that his attorney/client relationship with Ms. Barrios had ended prior to the time they entered into the loan agreement. A loan between an attorney and a person who is not a client is not covered by Rule 1.8.

      . See In re: Bertucci, 08-1349 (La.9/26/08), 990 So.2d 1275 (fully deferred two-year suspension, subject to a two-year period of probation with conditions, imposed upon an attorney who participated in a pre-trial diversion program after he was detained by the police and found to be in possession of illegal drugs; the attorney successfully completed a drug treatment program and enrolled in LAP).

      . The board rejected the committee’s finding that restitution was not made timely, noting that respondent paid restitution after completing several years of rehabilitative treatment for substance abuse,

      . As noted earlier, the record indicates respondent entered into a recovery contract with LAP in March 2009. We strongly encourage respondent to continue to pursue treatment for his substance abuse problems and avail himself of the resources of LAP. This court will carefully review respondent’s efforts at rehabilitation if and when he applies for reinstatement after serving his suspension. See Supreme Court Rule XIX, § 24(E)(3).


text:
    In re G. Thomas PORTEOUS, Jr.
    No. 2011-OB-0078.
    Supreme Court of Louisiana.
    Jan. 12, 2011.
   In re Disciplinary Counsel; Porteous Jr., G. Thomas; — Other(s); Applying for Petition for Voluntary Permanent Resignation from the Practice of Law in Lieu of Discipline Pursuant to Rule XIX, § 20.1.

ORDER

On December 8, 2010, respondent was impeached, removed from his office as a federal judge and was disqualified “to hold and enjoy any Office of honor, Trust, or Profit under the United States.” Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The Office of Disciplinary Counsel (“ODC”) has concurred in respondent’s petition.

Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by G. Thomas Porteous, Jr., Louisiana Bar Roll number 14903, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of G. Thomas Porteous, Jr. for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.

IT IS FURTHER ORDERED that G. Thomas Porteous, Jr. shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

FOR THE COURT:

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


author: PER CURIAM.

text:
    PARISH OF ST. CHARLES through the DEPARTMENT OF PLANNING AND ZONING v. Wanda Fontenot, Wife of and Douglas E. BORDELON and Southern Crane Services, Inc.
    No. 2010-C-2552.
    Supreme Court of Louisiana.
    Jan. 28, 2011.
   PER CURIAM.

The court of appeal’s ruling is vacated and the ruling of the trial court is reinstated. Louisiana Revised Statute 9:5625(A)(3) clearly states, “With reference to violations of use regulations all such actions ... must be brought within five years from the date the parish ... first had been actually notified in writing of such violation.” The statute further states, “The provisions of this Section shall supersede any other provisions of law inconsistent herewith.” La. R.S. 9:5625(E). The Parish received written notice of the violation in 1999 and did not file suit until 2007. Thus, the action is prescribed under La. R.S. 9:5625(A)(3).

COURT OF APPEAL RULING VACATED; RULING OF TRIAL COURT IS REINSTATED.

VICTORY, J., concurs in result.

       KIMBALL, C J., not participating.


text:
    In re William T. SMITH.
    No. 2010-OB-1240.
    Supreme Court of Louisiana.
    Jan. 28, 2011.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, William T. Smith, is eligible to be admitted to the practice of law in Louisiana.

ADMISSION GRANTED.

       Chief Justice Kimball not participating in the opinion.


text:
    In re Connie M. EASTERLY.
    No. 2010-B-2765.
    Supreme Court of Louisiana.
    Jan. 28, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent violated Rule 8.4(b) of the Rules of Professional Conduct. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, proposing that respondent be suspended from the practice of law for one year and one day. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Connie M. Easterly, Louisiana Bar Roll number 26278, be suspended from the practice of law for a period of one year and one day, retroactive to May 20, 2010, the date of her interim suspension.

IT IS FURTHER ORDERED that 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.

       Chief Justice Kimball not participating in the opinion.


text:
    Patrick RUSSO, Janice Russo, Individually and on Behalf of Their Minor Child Patrick R. Russo and Ashley Russo and Russell Russo v. Dr. Steven KRAUS. In re Medical Review Panel Claim of Janice Russo.
    No. 2010-C-2463.
    Supreme Court of Louisiana.
    Jan. 28, 2011.
   ORDER

Writ granted. In light of the defendants’ stipulation to the latency of Janice Russo’s disease and this Court’s prior findings concerning the existence of a medical malpractice insurance crisis in the 1970s, the Court of Appeal erred in reversing the District Court’s judgment and remanding this matter for a Sibley v. Board of Supervisors of Louisiana State University, 477 So.2d 1094 (La.1985), hearing on these issues. See Crier v. Whitecloud, 496 So.2d 305, 308-09 (La.1986); see also, Branch v. Willis-Knighton Medical Center, 92-3086, pp. 9-10 (La.4/28/94), 636 So.2d 211, 215, overruled on other grounds in David v. Our Lady of the Lake Hospital, 02-2675 (La.07/02/03), 849 So.2d 38. Accordingly, the judgment of the Court of Appeal is hereby reversed, and the judgment of the District Court is hereby reinstated.

JOHNSON and WEIMER, JJ., would deny.


text:
    SUCCESSION OF William C. GAMBEL.
    No. 2010-CD-2734.
    Supreme Court of Louisiana.
    Dec. 21, 2010.
   In re Sweeney, Jean M.; —Other; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 671-673; to the Court of Appeal, Fifth Circuit, No. 10-C-1060.

Stay denied; Writ denied


text:
    STATE of Louisiana v. Terrance Wayne LEWIS.
    No. 2010-KK-2814.
    Supreme Court of Louisiana.
    Dec. 23, 2010.
   In re Lewis, Terrance Wayne; -Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson Davis, 31st Judicial District Court Div. 0, No. CR-36-10; to the Court of Appeal, Third Circuit, No. KW 10-01288.

Denied.


text:
    RATHBORNE PROPERTIES, L.L.C., et al. v. EXXON MOBIL CORP., et al.
    No. 2010-CC-2822.
    Supreme Court of Louisiana.
    Dec. 23, 2010.
   In re Kenneth R. Wynne d/b/a The Wynne Law Firm; The Wynne Law Firm; Wynne, Kenneth R.; —Third Party(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 2001-12081; to the Court of Appeal, Fourth Circuit, No. 2010-C-1625.

Stay Denied; Writ Denied.


text:
    STATE of Louisiana v. Robert Daniel WILKINS.
    No. 2010-KK-2862.
    Supreme Court of Louisiana.
    Dec. 30, 2010.
   In re Wilkins, Robert Daniel; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. A, No. 19337-04; to the Court of Appeal, Third Circuit, No. KW10-01415.

Denied.


text:
    LOUTRE LAND AND TIMBER COMPANY v. Wilton A. ROBERTS, Edward Roberts, Mark A. Roberts and Toni L. Roberts Daschke.
    No. 2010-C-2327.
    Supreme Court of Louisiana.
    Jan. 7, 2011.
   In re Loutre Land and Timber Co.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Franklin, 5th Judicial District Court Div. B, No. 36,820-B; to the Court of Appeal, Second Circuit, No. 45,355-CA.

Granted.


text:
    STATE of Louisiana v. Daniel HINTON, Jr.
    No. 2009-K-0821.
    Supreme Court of Louisiana.
    Jan. 7, 2011.
   In re State of Louisiana; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 12-07-0226; to the Court of Appeal, First Circuit, No. 2008 KA 1849.

Not considered; not timely filed.


text:
    Shaunn Caillier (McCorvey) HARDEN v. Derriel Carlton McCORVEY.
    No. 2010-CJ-2780.
    Supreme Court of Louisiana.
    Jan. 7, 2011.
   In re McCorvey, Derriel Carlton; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. D, No. 02-C-2619-D; to the Court of Appeal, Third Circuit, No. 10-551.

Not considered, not timely filed.


text:
    Stephanie WATKINS Wife of/and Greylin Watkins v. PANCO, INC., Cora K. Pania, Wife of/and Elmo Pania, Jr., Charles Richardson d/b/a Rehab Construction, Henry Louis Thurman, Jr., Hunt-Thurman Associates, City Of Plaquemine, Louisiana State Licensing Board of Contractors, The ABC Insurance Company, The DEF Insurance Company, The GHI Insurance Company, The JKL Insurance Company, The MNO Insurance Company, The PQR Insurance Company and the XYZ Insurance Company.
    No. 2010-OC-2277.
    Supreme Court of Louisiana.
    Jan. 7, 2011.
   In re Watkins, Stephanie, et al.; Applying for Reconsideration of this Court’s action dated November 12, 2010; Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. C505870; to the Court of Appeals, First Circuit, No. 2010 CA 0307.

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


text:
    STATE ex rel. Larry B. JONES v. STATE of Louisiana.
    No. 2009-KH-2442.
    Supreme Court of Louisiana.
    Jan. 7, 2011.
   In re Jones, Larry B.; —Plaintiff; Applying for Reconsideration of this Court’s action dated October 29, 2010; Parish of Orleans, Criminal District Court Div. E, No. 386-088; to the Court of Appeal, Fourth Circuit, No. 2009-K-1318.

Denied.


text:
    In re APPEAL OF the DECISION OF the DISCIPLINARY BOARD NOS. 2009-ADMIN-953 AND 2009-ADMIN-954.
    No. 2010-OB-2018.
    Supreme Court of Louisiana.
    Jan. 7, 2011.
   In re Elfrida W. Johnson, Petitioner; Applying for Reconsideration of this Court’s action dated October 29, 2010 to the Office of Disciplinary Counsel.

Denied.