author:
JOHNSON, Justice.
     GUIDRY, Justice,

text:
    James P. WELLS, Jr. v. Donald J. ZADECK, Zadeck Energy Group, Inc., Oleum Operating Company, L.C., T.M. Hopkins Operating, Inc. and T.M. Hopkins, Inc.
    No. 2011-C-1232.
    Supreme Court of Louisiana.
    March 30, 2012.

      Talbot, Carmouche & Marcello, Victor L. Marcello, Baton Rouge, LA, for Applicant.
    Shuey Smith LLC, John Miller Shuey, Jr., Wiener, Weiss & Madison, APC, Shreveport, LA, Franklin H. Spruiell, Jr., for Respondent.
   JOHNSON, Justice.

I,We granted this writ application to consider whether the doctrine of contra non valentem applies to suspend the ten year liberative prescriptive period applicable to an action by the mineral interest owners against the operator of a unit well who has failed to pay the owners their share of proceeds for mineral production. Wells v. Zadeck, 11-1232 (La.10/12/11), 74 So.3d 212.

For the reasons that follow, we conclude the doctrine of contra non valentem applies to suspend the running of prescription because the mineral interest owners did not know nor reasonably should they have known of the mineral production until December 19, 2008.

FACTS

On September 17, 1949, James P. Wells and Olean Speights Wells executed a cash deed in favor of Paul and Cleo Holmes conveying 120 acres of property situated in DeSoto Parish, Louisiana. In the sale of the property to Mr. and Mrs. Holmes, Mr. and Mrs. Wells established a mineral servitude by reserving an undivided one-half interest in the mineral rights on the property. In the 1950s, James and Olean Wells divorced; and pursuant to their community property 12settlement, they divided the servitude with each party retaining ownership of an undivided one-fourth mineral interest in the property.

On June 5, 1954, Mrs. Wells executed a mineral lease in favor of Z.T. Gallion, pursuant to which a well was drilled on the property. The lease was released on June 26, 1958 because the well resulted in a dry hole. In 1961, the Holmes family executed a mineral lease with Parnell, Inc., Zadeck’s predecessor in interest, covering lessors’ “entire undivided one-half interest in and to” the property. The property was then included in the Paluxy Sand Unit U, a unit in which the Shirey Well No. 1 achieved production in January, 1965, and continued producing through 2007.

Mrs. Wells died in 2002, and her servitude was inherited by her son, the Plaintiff, James P. Wells, Jr., and his sister, Martha C. Perser, who is not a party to this lawsuit. On December 19, 2008, James P. Wells, Jr. (“Wells”) was contacted by Bill Dempsey, a landman representing Comstock Resources, concerning a lease of his mineral interest. Thereafter, Wells discovered the long history of production involving the servitude and filed this lawsuit.

On December 18, 2009, Wells filed suit against Defendants Donald Zadeck and Zadeck Energy Group, Inc. (hereinafter referred to collectively as “Zadeck”), Ole-um Operating Company, L.C., and T.M. Hopkins Operating, Inc. and T.M. Hopkins, Inc., who all allegedly conducted oil and gas exploration and production activities from his unleased unitized acreage, for their failure to tender unto him and/or his mother their rightful share of proceeds from the production. In response, Zadeck filed a Peremptory Exception of Prescription, urging that according to LSA-C.C. art. 3499, Wells’ claim to recover payment is a claim in quasi contract that prescribed ten years from Zadeck’s cessation of involvement |swith the Shirey Well No. 1. Zadeck admitted that it was the operator of the Shirey Well No. 1, but contended its ownership interest ended on September 3, 1994, when it sold all of its rights in the well to T.M. Hopkins, Inc. It maintained that thereafter, it had no further involvement with the Shirey Well No. 1. Zadeck maintained that Wells failed to file his suit until fifteen years after Zadeck ceased service as operator of Shirey Well No. 1. It argued that any claims urged by Wells can only revert back to December 18, 1999; therefore, Wells’ claims against Zadeck are prescribed. The present exception of prescription involves defendant Zadeck only.

In response to Zadeck’s exception, Wells argued that the doctrine of contra non valentem applies to suspend the running of prescription since he had no knowledge of the existence of the mineral interests or production until December 19, 2008. Wells contended that his ignorance was not attributable to any fault of his own, and he clearly exercised due diligence in discovering the relevant facts once he learned that he owned the mineral interests.

On May 11, 2010, at the hearing on the Exception of Prescription, the parties stipulated that Zadeck ceased ownership and service as operator of the Shirey Well on September 3, 1994. Since the lawsuit was filed more than fifteen years after the cessation of that service as operator, the burden then shifted to the Plaintiff to overcome the presumption of ten year li-berative prescriptive, based on the stipulation. At the hearing, Wells testified that he was unaware of the mineral reservation until he received a phone call from a land-man for Comstock Resources. He immediately traveled to Shreveport, Louisiana, researched the records at the Office of Conservation, and discovered that there had been production on the subject property. Wells also testified that after his parents’ |4divorce in the 1950s, his mother raised him and his sister as a single parent on a minimum wage salary while riding the trolley to work, as she could not afford an automobile. He testified that had his mother been receiving additional income from the mineral interest, it would have been an event of significance in his household and he surely would have been aware of it. He further testified that at the time of the hearing, both his parents were deceased. His father’s one-fourth interest had been conveyed to Stan Lewis; thus, only his mother’s one-fourth interest is at issue. Wells testified that after his parents divorced his mother remarried twice, first to John Morris and then to Lewis English. Mrs. Wells died intestate. Her survivors are her son, the Plaintiff, and his sister, who is not a party to this suit.

After hearing the arguments from both sides, the trial court granted Zadeck’s peremptory exception of prescription and dismissed Wells’ claims against Zadeck with prejudice. The court of appeal summarized the trial court’s reasoning as follows:

[The Court] granted Zadeck’s peremptory exception of prescription on two bases: 1) as a result of Wells’ mother’s failure to monitor her mineral interests, which in effect is a finding that the Wells family (including Plaintiff) failed to exercise reasonable diligence regarding the mineral activity on the Property, and 2) Wells’ failure to prove that some reason external to his own will led to his or his mother’s ignorance of the fact that they had a cause of action they could pursue.

The trial court accepted that Plaintiff “had no knowledge of the unrecognized mineral interest until December 19, 2008, and that there was no reason for him to suspect he had mineral rights that were not being recognized.” The court reasoned that Mrs. Wells leased the property in 1954, and “[h]er failure to monitor her own mineral rights has passed to her son.” Wells’ present claim is the same claim his mother could have brought in 1965 when the Shirey Well was | ¿producing. The trial court noted that Wells failed in his burden to present evidence that Zadeck intentionally deprived his family of the knowledge of the mineral interests. The trial court also reasoned:

Presumably, there was an assumption by the original operator or producer of the Shirey Well that James P. Wells’ and Olean Speights Wells’ mineral interests reverted to the surface owner because of 10 years without production in paying quantities. This court’s presumption further assumes that the original operator was not aware of the P.F. Holmes dry hole well which interrupted the 10 year prescription period of non-use. R.S. 31:29 The court is making these assumptions to explain the lack of evidence as to the original operator’s bad faith.

Relying on LSA-C.C. art. 3499, the trial court found this to be a personal action subject to a liberative prescription period of ten years. The court granted Zadeck’s Exception of Prescription and dismissed Wells’ claim against Zadeck.

The court of appeal agreed that Wells failed to present any evidence that his mother, who executed the mineral lease of 1954, and later released that lease, exercised due diligence to protect her mineral interest. Wells v. Zadeck, 46,138 (La.App. 2 Cir. 4/13/11), 62 So.3d 861. The court reasoned that Mrs. Wells was familiar with leasing and drilling activity based on the fact that she signed a single mineral lease in 1954, yet she remained silent and inactive for more than 40 years. The court attributed the ignorance of. a potential claim to Mrs. Wells’ own neglect and reasoned that Mrs. Wells could have learned of the mineral production by exercising reasonable diligence in protecting her interests, i.e., some reasonable inquiry or action was required from her. The' court “decline[d] to create a brightline rule regarding what actions might be considered reasonably diligent in protecting such interest.” Id. 46, 138 at p. 7, 62 So.3d at 866.

Judge Brown, in his dissent, took issue with the majority’s repeated characterization of Mrs. Wells as someone who was familiar with the exploration, | pleasing, and drilling processes as a result of her onetime execution of a mineral lease.

Not only did she execute the lease contemporaneously with Mr. Wells, which could indicate her reliance on his mineral leasing knowledge, but the particular well drilled as a result of the lease was actually drilled on the Property. Meanwhile, in the present case, the completed well was not on the 120 acres in which Mrs. Wells had an interest, but was located on a different tract within the drilling unit. To try to equate the knowledge needed to execute a mineral lease where a well will be drilled on the actual property you have an interest in, to being familiar with the complexities involved in a forced pooled unit, is quite an overreach.

Id., 46,138 at p. 4, 62 So.3d at 868-69.

DISCUSSION

Prescription

Louisiana jurisprudence provides that a claim against the operator of a unit well brought by the owners of unleased mineral interests in the production unit seeking their statutory share of production from the well is grounded in quasi-contract, and thus, the claim is subject to liberative prescription of ten years. See Taylor v. Smith, 619 So.2d 881 (La.App. 3 Cir.1993), writ denied, 625 So.2d 1038. A quasi-contractual relationship is created between the unit operator and the un-leased mineral interest owner with whom the operator has not entered into contract. This relationship is personal and heritable. King v. Strohe, 98-656 (La.App. 3 Cir. 5/8/96), 673 So.2d 1329, 1339. LSA-C.C. art. 3499 provides that “[ujnless otherwise provided by legislation, a personal action is subject' to a liberative prescription of ten years.” Accordingly, this claim is subject to a liberative prescriptive period of ten years. '

Burden of Proof

An exception of prescription must be specifically pleaded and may not be supplied by the court. LSA-C.C.P. art. 927(B). Generally, prescription statutes are |7strictly construed against prescription and in favor of the claim sought to be extinguished by it; thus, of two possible constructions, that which favors maintaining, as opposed to barring an action, should be adopted. Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d 1261, 1268; Bailey v. Khoury, 04-0620 (La.1/20/05), 891 So.2d 1268.

The rules of prescription are designed to prevent old and stale claims from being prosecuted. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Campo v. Correa, 01-2707, p. 7 (La.6/21/02), 828 So.2d 502, 508. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Campo, 01-2707 at p. 7, 828 So.2d at 508; Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1386 (La.1993). In the absence of evidence, the objection of prescription must be decided upon the facts alleged in the petition, and all allegations contained therein are accepted as true. LSA-C.C.P. art. 931 provides in pertinent part that “... evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.”

In the case at hand, according to Wells’ petition, his unleased mineral interests were included in an unitized zone established by the Louisiana Office of Conservation. The petition also states that despite the inclusion of Wells’ mineral interests, Zadeek and other unit operators failed to pay him his share of proceeds from the production from the involved unit well. It is clear that Zadeek ceased operation in 1994, and this suit was not filed until 2009; therefore, applying LSA-C.C. art. 3499, the claims against Zadeek appear prescribed on the face of the petition. Accordingly, we must determine whether Wells has carried his burden of | ^proving that prescription had been sufficiently suspended, so as to bring his action.

Contra Non Valentem

Although LSA-C.C. art. 3467 provides that “prescription runs against all persons unless exception is established by legislation,” Louisiana jurisprudence has long recognized the doctrine of contra non valentem as a means of suspending the running of prescription when the circumstances of a case fall within one of four categories. See Frank L. Maraist and Thomas C. Galligan, Louisiana Tort Law § 10-4(b), 222 (1996). Contra non valen-tem non cumt praescriptio means that prescription does not run against a person who could not bring his suit. Harvey v. Dixie Graphics, Inc., 593 So.2d 351, 354 (La.1992); see also, Cartwright v. Chrysler Corp., 255 La. 597, 232 So.2d 285, 287 (1970). This Court has recognized that the doctrine of contra non valentem is used to soften the occasional harshness of prescriptive statutes. Carter v. Haygood, 04-646 (La.1/19/05), 892 So.2d 1261,1268.

In Plaquemines Parish Commission Council v. Delta Development Company, Inc., 502 So.2d 1034, 1056 (La.1987), this Court held that “[tjhere is no question but that contra non valentem continues to be a viable exception to the running of libera-tive prescription in Louisiana.” This Court recognized the four instances where contra non valentem can be applied to prevent the running of prescription: (1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing |9himself of his cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant. These categories allow “the courts to weigh the ‘equitable nature of the circumstances in each individual case’ to determine whether prescription will be tolled.” Id. at 1054, 1055.

The court of appeal relied on Marin v. Exxon Mobil Corp., 09-2368 (La.10/19/10), 48 So.3d 234, and determined that the fourth category of contra non valentem, commonly referred to as the “discovery rule,” is at issue. The court additionally found that Wells was required to show that his ignorance of his cause of action was not attributable to his own willfulness or neglect.

In Marin, sugarcane farmland owners sued Exxon for damages when their lands were contaminated by oilfield wastes deposited in unlined earthen pits. Exxon argued that Plaintiffs’ claims had prescribed because they were or should have been aware of the contamination as early as 1991, yet did not file suit until 2003. This Court held that by 1995, the dying sugarcane on Plaintiffs’ land put them on sufficient notice of the possible contaminants and that it was unreasonable for the Plaintiffs to wait eight years to file suit. Id. at 251.

In Marin, this Court described the knowledge sufficient to start the running of prescription under the fourth category of contra non valentem as constructive knowledge, or the ‘“acquisition of sufficient information, which, if pursued, will lead to the true condition of things.’” Marin, 09-2368 at 13-14, 48 So.3d at 246. According to Marin, “the ultimate issue in determining whether a plaintiff had constructive knowledge sufficient to commence a prescriptive period is the reasonableness of the plaintiffs action or inaction in light of his education, intelligence, and the nature of the defendant’s conduct.” Marin, 09-2368 at 15, 48 |10So.3d at 246.

Using this test for constructive knowledge, this Court in Marin examined the reasonableness of the plaintiffs’ actions in light of the knowledge they possessed. The Court cited a litany of facts within the plaintiffs’ knowledge and then asked: “As plaintiffs took no further action upon learning that sugarcane would not grow in certain areas, that something in the soil was causing the sugarcane not to grow, and that Exxon was responsible for this damage, was their inaction reasonable in light of their education, intelligence, and the nature of the defendant’s conduct?” Marin, 09-2368 at 18, 48 So.3d at 248-249.

In the instant case, the lower courts clearly failed to follow the blueprint set forth in Marin. Rather than looking to the record for evidence of facts within plaintiffs knowledge and then examining the reasonableness of plaintiffs inaction in light of those facts, considering plaintiffs education, intelligence and the nature of defendant’s conduct, the Court of Appeal held that contra non valentem does not apply here solely because the “record is devoid of evidence of any efforts on the part of Mrs. Wells to keep abreast of the mineral activity on the Property.” According to the reasoning of the Court of Appeal, Mrs. Wells’ execution of a mineral lease in 1954 and her subsequent release of that lease in 1958 (after the well that was drilled on the 120 acres in which she had an interest proved to be a dry hole) was knowledge sufficient to alert her to a possible claim for production from a well, not on the 120 acres in which she had an interest, but on a different tract, drilled after the lease she executed was released.

The undisputed facts in this record establish: plaintiff, Mr. Wells, had no knowledge of the mineral production until 2008, when he was contacted by a landman; his mother, Mrs. Wells, executed a mineral lease in 1954, but released it Inin 1958 when the well that was drilled resulted in a dry hole; thereafter Mrs. Wells moved to Shreveport. Production resulted in 1965 after unitization and drilling of a well on property outside the 120 acres in which Mrs. Wells held mineral interests. She did not receive “one penny” from the production on the unit.

Based on these facts, the trial court in this case found that plaintiff “had no knowledge of the unrecognized mineral interest until December 19, 2008, and that there was no reason for him to suspect he had mineral rights that were not being recognized.” The Court of Appeal found that “[w]hen Zadeck conducted a search of the public records in connection with the leasing of the Property, the one-fourth interest of Mrs. Wells was not discovered by Zadeck and Mrs. Wells was not provided notice of the mineral activity on the property.”

Consistent with Marin, given these facts, the inquiry should have been: As plaintiff took no further action after signing and then releasing the lease covering her 1/4 mineral interest, was her inaction after 1958 reasonable in light of her education, intelligence, and the nature of defendant’s conduct? The reasonableness of the plaintiffs actions centers upon the knowledge she possessed. Wells argues that neither he nor his mother had knowledge that the drilling production was ongoing, since Zadeck failed to tender production payments for unleased mineral interests.

In support of his position, Wells relies upon Amoco Production Company v. Texaco, Inc., 02-240 (La.App. 3 Cir. 1/29/03), 838 So.2d 821, writ denied, 03-1104 (La.6/6/03), 845 So.2d 1096, which held that the doctrine of contra non valentem halts the running of prescription when the plaintiff was indeed prevented from filing its claim under one of the four categories listed above. The facts of that case are accurately summarized by Judge Brown in his dissent:

|]2In Amoco, supra, Amoco, a major oil and gas corporation, subleased five of its leaseholds in Vermillion Parish. The contract executed by the parties contained a “reassignment clause,” whereby the defendants, one of which was IMC, were not to allow the cancellation of any of the leases without providing notice to Amoco at least 60 days in advance. In 1976 the defendants allowed one of the leases to expire, and in 1981 the defendants released then nonproducing acreage from the other four leases. The defendants subsequently took new leases in their names on these properties. In 1993 Amoco hired a landman to audit its properties being operated by outside companies such as the defendants. This audit led to the discovery of the lease cancellations 18 and 13 years prior.

Defendant IMC argued that Amoco should have discovered the lease cancellations earlier because they were recorded in the Vermillion Parish public records, and thus, Amoco failed to exercise reasonable diligence such as would entitle it to claim the benefit of contra non valentem. The Court of Appeal rejected that argument out of hand, finding that in all of the cases in which the courts found a duty on the part of a plaintiff to investigate the public records, the plaintiff had been placed on notice of a possible injury. Siding with Amoco, the Court of Appeal concluded that “these cases do not apply to an unsuspecting plaintiff, who has no notice of the potential claim as a direct result of defendant’s failure to provide information it was required by contract to furnish.” Amoco, 02-240 at p. 11, 838 So.2d at 831. The Court of Appeal explained: “The law of prescription references what a plaintiff knew or should have known about his potential cause of action not what he could have known.” Id. at 831-832 (italics in original).

The court found persuasive Amoco’s argument that requiring a continuous search of the public records would place an unreasonable burden on a company:

[T]o police every single release, like the ones that were taken here, of every override in all of the parishes of Louisiana and all of the eastern half of the United States that Amoco’s New Orleans office was in charge of, we would have had to have sent an army of people into | 1severy courthouse, looking for the thousands of leases and overriding royalty interests out there, just to verify that each and every one of those leases or any one of them had not been released. And we had thousands of overrides, not just this one.

Id. at 831. The court found “nothing in the jurisprudence which places such a heavy burden on a company -without some prior notification of a possible problem.” Id. The court reasoned that Defendants failed to give Amoco the proper notification that it was required to furnish by contract and thus could not take advantage of that lack of notice to claim the benefits of prescription.

According to LSA-R.S. 30:10(A)(3), as an operator of a forced pooling unit, Za-deck was required to remit to Mrs. Wells her “pro rata share of the proceeds of the sale of production within 180 days of such sale.” However, the record | ^establishes that Zadeck failed to perform its affirmative statutory duty by not tendering to Mrs. Wells her pro rata share of the production proceeds. Clearly, when Zadeck acquired the Holmes lease, securing only a half interest in the minerals underlying the property, it was well aware that someone or some entity other than their lessee owned the other undivided one-half interest.

Although Amoco involved a contractual obligation between two sophisticated oil companies and the obligation here is a statutory one between an operator and a mineral interest owner, the same principles are applicable. An unleased mineral interest owner, who was minimally educated and not living in the same parish where the subject unit well was located, should not be required to continuously search the public records, make cold calls, or investigate the possibility of a unit well not located on the property subject to the mineral servitude. The record in this case establishes that Mrs. Wells, like the plaintiff in Amoco, was not put on notice of a possible injury because she never received payment from production, although such was clearly required by statute. In this case involving unleased mineral interests included in a producing unit, there is a statutory burden on this defendant, who has an affirmative obligation to pay. Here, as in Amoco, the defendant’s neglect of that duty or failure to diligently perform it (whether wilful or negligent) is a factor to consider in assessing the reasonableness of plaintiffs conduct, given her intelligence and situation. Moreover, despite the Court of Appeal’s unsupported conclusion that Mrs. Wells 11shad knowledge of her ownership rights and was familiar with the leasing and drilling processes (simply by virtue of having executed a mineral lease that was later released), it is clear that this single mother holding a minimum wage job who did not live in the parish in which production was obtained and who never received a penny from that production was reasonable in not pursuing a claim, or more accurately, in-not calling the surface owners or former neighbors to ask whether there has been production, especially where the defendant conceded in argument that the plaintiffs interest was overlooked by his predecessor, implicitly acknowledging thereby that statutorily required notice of unitization and/or production was not provided.

Taking into consideration Mrs. Wells’ education, intelligence, and the defendant’s conduct, the conclusion of the lower courts that Mrs. Wells’ inaction was unreasonable and her ignorance of a potential claim was attributable to her own neglect is not supported by the record. Moreover, we agree with the conclusion in Amoco that there is nothing in the jurisprudence requiring the owner of a mineral servitude to continuously check the property records to determine if new unitized wells are producing from the servitude owner’s property.

Not undermined by Marin’s statement that contra non valentem applies only in “extreme circumstances,” we find the equitable nature of the circumstances in each individual case determines the applicability of the doctrine. Nathan v. Carter, 372 So.2d 560, 563 (La.1979). In this case, the relevant equitable considerations weigh in favor of finding that the running of prescription on plaintiffs claim was suspended by application of contra non valen-tem.

CONCLUSION

|1fiFor the above reasons, we find that prescription was suspended by the application of contra non valentem.

REVERSED AND REMANDED.

Retired Judge H. CHARLES GAUDIN, assigned as Justice ad hoc, sitting for VICTORY, Justice, recused.

GUIDRY, Justice, dissents and assigns reasons.

GUIDRY, Justice,

dissents and assigns reasons.

[il respectfully dissent from the majority’s finding that the doctrine of contra non valentem applies to suspend the liberative prescriptive period applicable in the mineral rights action filed by the plaintiff, James P. Wells, Jr. For the following reasons, I conclude the court of appeal did not err in affirming the trial court judgment granting the peremptory exception of prescription filed by the defendants, Donald J. Zadeck and Zadeck Energy Group, Inc.

In the instant suit, the plaintiff seeks production payments from the defendants for a unit well that produced oil and gas from property subject to a mineral servitude that was owned by his mother and transferred to him by inheritance. The record reflects that, from the early 1950’s until the time of her death in 2002, the plaintiffs mother, Olean Wells, retained sole ownership of an undivided one-fourth mineral interest in property located in De-Soto Parish.- In 1954, Ms. Wells executed a mineral lease in favor of a party, and released the lease four years later due to the lack of productivity. Shortly thereafter, Ms. Wells moved to another parish. The record lacks any evidence that Ms. Wells subsequently had contact with any party regarding the mineral servitude owned by) ¡.her or whether she knew of the production activities that continued on the property. The instant suit was filed by the plaintiff after he learned in 2008 of the existence of the mineral servitude and that a unit well had been producing oil and gas as early as 1965. The plaintiff now seeks relief from the trial court’s dismissal of his suit based on prescription.

The parties agree that the plaintiffs claims filed against the defendants are prescribed on the face of the petition because suit was instituted outside of the applicable ten-year liberative prescriptive period. See La. C.C. art. 3499. To cure the legal defect, the plaintiff has invoked the doctrine of contra non valentem, the jurisprudential principle that suspends the running of prescription when the circumstances of the case fall into one of four categories. Each category allows the courts “to weigh the ‘equitable nature of the circumstances in each individual case’ to determine whether prescription will be tolled.” Carter v. Haygood, 04-0646, p. 12 (La.1/19/05), 892 So.2d 1261,1268.

The plaintiff primarily relies on the fourth category of contra non valentem, known as the discovery rule, which courts have applied to suspend the running of liberative prescription where the cause of action is neither known nor reasonably knowable by the plaintiff, and the plaintiffs ignorance is not induced by the defendant. Marin v. Exxon Mobil Corp., 09-2368, p. 12 (La.10/19/10), 48 So.3d 234, 245; La. C.C. art. 3467, Official Revision Comment (d). “[T]he ultimate issue in determining whether a plaintiff had constructive knowledge sufficient to commence a prescriptive period is the reasonableness of the plaintiffs action or inaction in light of his education, intelligence, and the nature of the defendant’s conduct.” Marin, 09-2368, p. 15 (La.10/19/10), 48 So.3d at 246, citing Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502, 511. However, “[t]his principle will not except the plaintiffs claim from the running of prescription if his ignorance is attributable to his own willfulness or neglect; that is, a plaintiff will be deemed to know what he could by reasonable diligence have learned.” Marin, 09-2368 at 13 (La.10/19/10), 48 So.3d at 245-246, citing Corsey v. State, Through Dept. of Corrections, 375 So.2d 1319, 1322 (La.1979).

The defendants correctly point out that the plaintiff bears the burden of proving prescription is suspended under the doctrine of contra non valentem. See Lima v. Schmidt, 595 So.2d 624 (La.1992). See also, Barbe v. American Sugar Refining, Inc., 11-0544 (La.App. 4 Cir. 12/14/11), 83 So.3d 75, 79 (“A reading of the reasons for judgment as a whole shows that the trial court properly charged the plaintiffs with the burden of proving that the doctrine of contra non valentem applied to suspend the running the prescription.”). With this in mind, the defendants argue that the discovery rule does not apply in this case because the plaintiff is unable to satisfy his burden of proving his alleged ignorance of his cause of action was not attributable to his or his mother’s willfulness or neglect. I agree.

The plaintiff urges that his mother had no knowledge at any time prior to her death of the continued existence of the mineral servitude or any oil and gas production activity following the termination of the lease in 1958. The plaintiff also maintains that he had no first hand knowledge of the existence of his mother’s |4mineral interests until December 2008 when he was contacted by a third party regarding his inherited ownership rights to the property. In support of his assertion that his mother lacked constructive knowledge sufficient to commence the tolling of prescription, the plaintiff states that his mother was minimally educated and lacked sufficient monetary resources as a single parent with two minor children. The plaintiff testified that had his mother become aware of available income from her property, he surely would have been aware of it since it would have been a remarkable event due to the family’s dire straits. In the alternative, the plaintiff speculates that his mother believed her mineral interests were worthless after the termination of the lease, and simply forgot about her ownership in the property after she moved to another parish.

While these factors may be true, they are not sufficient to sustain the plaintiffs burden of proving his mother’s ignorance of her cause of action for any mineral royalties, ignorance which is imputed to him, was not attributable to her own lack of diligence or neglect. See Marin v. Exxon Mobil Corp., 09-2368, p. 15 (La.10/19/10), 48 So.3d 234, 246. As an initial matter, the plaintiff fails to meet his burden of proof because his case is principally based on speculation and conjecture, namely, what he believed his mother knew or would have told him based on the family’s socioeconomic circumstances. Furthermore, based on the facts presented, I agree with the lower courts that it was not unreasonable to expect Ms. Wells to monitor her ownership interests following her earlier execution of a mineral lease. As the defendants correctly point out, the record reflects that a reasonable amount of diligence on the part of Ms. Wells to inspect her property or to communicate with her former neighbors would have put her on notice of drilling activity.

Being mindful that this court’s standard of review is not whether we would |shave weighed the evidence differently; rather, the standard is whether the trial court’s determination was manifestly erroneous or clearly wrong. Adhering to that standard, I do not find that the court of appeal erred in finding the trial court was not manifestly erroneous or clearly wrong in ruling that the doctrine of contra non valentem did not operate to suspend the running of prescription. See, London Towne Condominium Homeowner’s Ass’n v. London Towne Co., 06-401 (La.10/17/06), 939 So.2d 1227, 1231 (“[T]he trial court’s findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review.”). The law is clear that the doctrine of prescription protects defendants from having to defend against stale claims by requiring plaintiffs to file suit in a court of competent jurisdiction and venue in a timely manner. Cichirillo v. Avondale Industries, Inc., 04-2894, 04-2918, p. 9 (La.11/29/05), 917 So.2d 424, 430. As such, this court is bound to abide by the dictate that the doctrine of contra non valentem should only apply in exceptional circumstances. Renfroe v. State ex rel. Dept. of Transp. and Development, 01-1646 (La.2/26/02), 809 So.2d 947, 953; La. C.C. art. 3467, Official Revision Comment (d); Harsh v. Calogero, 615 So.2d 420, 422 (La.App. 4th Cir.1993) (Louisiana jurisprudence considers contra non valentem to be “an exceptional remedy ... in direct contradiction to the articles in the Civil Code” which must be “strictly construed.”). No exceptional circumstances exist under the facts presented.

       Justice Victory recused and Retired Judge H. Charles Gaudin assigned as Justice ad hoc.

      . Specifically, LSA-R.S. 30:10 provides, in pertinent part:
      A. When two or more separately owned tracts of land are embraced within a drilling unit which has been established by the commissioner as provided in R.S. 30:9(B), the owners may validly agree to pool their interests and to develop their lands as a drilling unit.
      (1) Where the owners have not agreed to pool their interests, the commissioner shall require them to do so and to develop their lands as a drilling unit, if he finds it to be necessary to prevent waste or to avoid drilling unnecessary wells.
      (a) All orders requiring pooling shall be made after notice and hearing. They shall be upon terms and conditions that are just and reasonable and that will afford the owner of each tract the opportunity to recover or receive his just and equitable share of the oil and gas in the pool without unnecessary expense. They shall prevent or minimize reasonable avoidable drainage from each developed tract which is not equallized by counter drainage.
      (2)(a)(i) Any owner drilling or intending to drill a unit well, including a substitute unit well, on any drilling unit heretofore or hereafter created by the commissioner, may, by certified mail, return receipt requested, notify all other owners in the unit of the drilling or intent to drill and give each owner an opportunity to elect to participate in the risk and expense of such well. Such notice shall contain:
      (aa) an estimate of the cost of drilling, testing, completing, and equipping the unit well;
      (bb) the proposed location of the well;
      (cc) the proposed objective depth of the unit well; and
      (dd) all logs, core, analysis, production data, and well test data from the unit well which has not been made public.
      (ii) ... Failure to give written notice of the election to participate shall be deemed to be an election not to participate.
      (3)If there is included in any unit created by the commissioner of conservation one or more unleased interests for which the party or parties entitled to market production therefrom have not made arrangements to separately dispose of the share of such production attributable to such tract, and the unit operator proceeds with the sale of unit production, then the unit operator shall pay to such party or parties such tract’s pro rata share of the proceeds of the sale of production within one hundred eighty days of such sale.

      . This court recognizes four factual situations in which contra non valentem prevents the running of liberative prescription:
      (1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff’s action;
      (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting;
      (3)where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; or
      .(4) where the cause of action is neither known nor reasonably knowable by the plaintiff even though plaintiff’s ignorance is not induced by the defendant.

        Plaquemines Parish Com’n Council v. Delta Development Co., Inc., 502 So.2d 1034 (La. 1987).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jane DOE v. SOUTHERN GYMS, L.L.C., et al.
    No. 2012-CC-0449.
    Supreme Court of Louisiana.
    May 4, 2012.
    Rehearing Denied June 15, 2012.
   PER CURIAM.

| defendants filed a motion to transfer this action from Evangeline Parish to East Baton Rouge Parish based on forum non conveniens. The district court denied the motion. Relying on La.Code Civ. P. art. 123(A), the district court determined it could not transfer the action because plaintiff was domiciled in Evangeline Parish. Defendants sought supervisory review, which the court of appeal denied. Defendants now seek relief in this court.

La.Code Civ. P. art. 123(A) allows a district court to transfer a civil case to another district court where it might have been brought for the convenience of the parties and the witnesses. The article further provides, “no suit brought in the parish in which the plaintiff is domiciled, and in a court which is otherwise a court of competent jurisdiction and proper venue, shall be transferred to any other court pursuant to this Article.” The jurisprudence interpreting this article has held the plaintiffs domicile is determinated at the time the motion to transfer is filed. See Wallace v. Wallace, 25,366 (La.App. 2 Cir. 1/19/94), 631 So.2d 40, 42 (holding La.Code Civ. P. art. 123(A) “only prohibits a case transfer if the plaintiff is domiciled in the parish where suit was filed when the motion to change venue is made”).

Lin the instant case, defendants submitted plaintiffs deposition testimony, which establishes that at the time the motion was filed, she was residing in East Baton Rouge Parish and intended to remain in that parish. Additionally, defendants produced evidence indicating East Baton Rouge Parish is a more convenient venue for the suit, as the incident in question took place in that parish, the majority of the witnesses reside in that parish and other lawsuits arising out of the same incident have been filed in that parish. Under these circumstances, we find the district court erred in failing to grant defendants’ motion to transfer.

Accordingly, the writ is granted. The judgment of the district court is reversed, and the motion to transfer based on forum non conveniens is granted. The case is remanded to the district court, which is instructed to transfer the proceeding to the 19th Judicial District Court for the Parish of East Baton Rouge.

WEIMER, J., would grant and docket.


text:
    Jane DOE v. SOUTHERN GYMS, L.L.C., et al.
    No. 2012-CC-0455.
    Supreme Court of Louisiana.
    May 4, 2012.
    Rehearing Denied June 15, 2012.
   PER CURIAM.

| defendants filed a motion to transfer this action from Evangeline Parish to East Baton Rouge Parish based on forum non conveniens. The district court denied the motion. Relying on La. Code Civ. P. art. 123(A), the district court determined it could not transfer the action because plaintiff was domiciled in Evangeline Parish. Defendants sought supervisory review, which the court of appeal denied. Defendants now seek relief in this court.

La.Code Civ. P. art. 123(A) allows a district court to transfer a civil case to another district court where it might have been brought for the convenience of the parties and the witnesses. The article further provides, “no suit brought in the parish in which the plaintiff is domiciled, and in a court which is otherwise a court of competent jurisdiction and proper venue, shall be transferred to any other court pursuant to this Article.” The jurisprudence interpreting this article has held the plaintiffs domicile is determinated at the time the motion to transfer is filed. See Wallace v. Wallace, 25,366 (La.App. 2 Cir. 1/19/94), 631 So.2d 40, 42 (holding La.Code Civ. P. art. 123(A) “only prohibits a ease transfer if the plaintiff is domiciled in the parish where suit was filed when the motion to change venue is made”).

[2In the instant case, defendants submitted plaintiffs deposition testimony, which establishes that at the time the motion was filed, she was residing in East Baton Rouge Parish and intended to remain in that parish. Additionally, defendants produced evidence indicating East Baton Rouge Parish is a more convenient venue for the suit, as the incident in question took place in that parish, the majority of the witnesses reside in that parish and other lawsuits arising out of the same incident have been filed in that parish. Under these circumstances, we find the district court erred in failing to grant defendants’ motion to transfer.

Accordingly, the writ is granted. The judgment of the district court is reversed, and the motion to transfer based on forum non conveniens is granted. The case is remanded to the district court, which is instructed to transfer the proceeding to the 19th Judicial District Court for the Parish of East Baton Rouge.

WEIMER, J., would grant and docket.


text:
    Susan, Laura, and Joelle ARRINGTON v. GALEN-MED, INC., Healthcare Indemnity, Inc., and the State of Louisiana, et al. Charles & Sharon Taylor v. Estate of Dr. Richard Joseph Clement.
    No. 2012-CA-0908.
    Supreme Court of Louisiana.
    May 22, 2012.
   PER CURIAM.

| r Defendants invoke the appellate jurisdiction of this court pursuant to La. Const, art. V, § 5(D) to review a judgment of the district court declaring La. R.S. 40:1299.42(13), which places a cap on damages in medical malpractice actions, to be unconstitutional. Pretermitting the merits, we find that at the time the district court rendered its judgment, it did not have the benefit of our recent opinion in Oliver v. Magnolia Clinic, 11-2132 (La.3/13/12), 85 So.3d 39. In Oliver, we reiterated our holding in Butler v. Flint Goodrich Hospital, 607 So.2d 517 (La. 1992), cert. denied, 508 U.S. 909, 113 S.Ct. 2338, 124 L.Ed.2d 249 (1993), and recognized the malpractice cap was constitutional.

Accordingly, the judgment of the district court is vacated and set aside. The case is remanded to the district court to reconsider its ruling in light of Oliver v. Magnolia Clinic, 11-2132 (La.3/13/12), 85 So.3d 39.


author: PER CURIAM

text:
    STATE of Louisiana v. Mark SEILER.
    No. 2012-KK-0389.
    Supreme Court of Louisiana.
    May 25, 2012.
   PER CURIAM

^Granted. The State sought review on writ of certiorari to the Court of Appeal, Fourth Circuit, of the trial court’s ruling granting the defendant’s Motion to Suppress. The Court of Appeal denied the writ, and, at the request of this court, the trial court submitted a per curiam. For the reasons set forth below, we reverse the ruling of the trial court and deny the defendant’s Motion to Suppress.

Louisiana jurisprudence has long recognized the legitimacy of the “knock and talk” approach by police. As this court has recognized before, there is a distinction between the police detaining a suspect on the street and the police knocking on a suspect’s door. State v. Sanders, 374 So.2d 1186, 1188 (La.1979). “When stopped on the street, a suspect has no choice but to submit to the authority of the police. When the door is opened in response to a knock, it is a consent of the occupant to confront the caller.” Id. In this instance, defendant’s home was the subject of a recent burglary. Upon information received from the burglary suspect there was contraband in the home, police officers from both the New Orleans Police Property Crimes Unit and officers from the Narcotics Unit traveled to defendant’s home to investigate. When the officers knocked on the defendant’s |2door, they requested and were granted entry into his home by the defendant himself. As a result, we do not find the officers were unlawfully in that place at that time.

The trial court, to justify its ruling suppressing evidence, stated in its per curiam the officers used a “pretext” to gain entry to the defendant’s home, in that the officers attempted to enter the defendant’s home under the guise of a continuing burglary investigation, and not a narcotics investigation. However, the United States Supreme Court ruled in Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978), “the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.” In other words, if the officers had an objective right to knock on the defendant’s door and ask to be admitted, it is of no moment the reason they were admitted may not have been the full reason they were at the defendant’s home in the first place. Here, detectives knocked on the defendant’s door, informed him they were there to investigate the burglary, and they were granted entry voluntarily by the defendant. See, Sanders, 374 So.2d at 1188.

Upon entry, Detective John O’Brien testified he became immediately aware of the strong odor of marijuana. Detective O’Brien also testified he observed on a sofa in the front room of the defendant’s home, in plain view, an open aluminum Altoid can with a butt of marijuana inside the can. It is well established “[w]hen an officer inadvertently observes evidence of a crime from a vantage point that does not intrude upon a protected area or when that protected area is entered with prior justification, there is no violation of the search warrant rule because there has been no ‘search’....” State v. Brown, 370 So.2d 525 (La.1979). See also, Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d_|564 (1971) (the court noting the plain view doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object). Because Detective O’Brien smelled marijuana and observed marijuana in plain view in the defendant’s home, there was probable cause to detain the defendant and search the Home. Consequently, we find the trial court was incorrect in stating “[njothing was cited in plain view that would have given rise to a narcotic arrest.”

After the officers detained the defendant and recited to him his Miranda warnings, the defendant informed the officers there was a shotgun in his bedroom, which was secured by another officer at the scene. When Detective O’Brien asked defendant if there was other contraband in the home, the defendant responded there was none. Detective O’Brien asked if he could search the defendant’s home, and defendant declined to give consent. It was at that point Detective O’Brien prepared and obtained a search warrant, which ultimately produced several items that are the subject of the instant Motion to Suppress. Based upon this sequence of events and the transcripts of the testimony submitted in support of the writ application by the State, we find the trial court was in error in finding “[t]he officers admitted that they did not have probable cause to get a warrant to search for narcotics, but nonetheless went there for that purpose.” We find no such admission in the testimony before us.

The trial court’s ruling suppressing the evidence is reversed, and the Defendant’s Motion to Suppress is denied. This matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

       Kimball, C.J., not participating in this opinion.

      . It is important to note for purposes of the record that, based upon Detective O’Brien's testimony, the trial court’s per curiam is incorrect in stating “nothing was cited in plain view that would have given rise to a narcotics arrest.”


text:
    ABERTA, INC. v. Honorable Dale N. ATKINS, Ex-Officio Recorder of Mortgages and Registrar of Conveyances, Business Loan Center, LLC and BLX Capital, LLC.
    No. 2012-C-0061.
    Supreme Court of Louisiana.
    May 25, 2012.
   PER CURIAM.

I,We grant these writ applications and recall the mandamus action brought by Aberta, Inc. (“Aberta”) to cancel two recorded mortgages and two assignments of lease held by Ciena Capital Funding, LLC (“Ciena”) and granted by Wagner World, LLC, (“Wagner World”)(collectively, the “Ciena Mortgages”) on property located in Orleans Parish.

FACTS AND PROCEDURAL HISTORY

A series of transactions occurred on August 26, 2003: (1) Stor-All Ponchartrain, LLC sold the subject property to Aberta, whose shares were owned by Scott Wolfe; (2) Aberta sold the property to Wagner World, also controlled by Scott Wolfe, for $626,000.00 in a Cash Sale Deed; (3) Wagner World granted the Ciena Mortgages encumbering the property. All transactions except the sale of the property from Aberta to Wagner World were recorded in the Orleans Parish mortgage and conveyance records the next day, August 27, 2003. On December 15, 2008, Scott [ 2Wolfe and FHH Properties, LLC entered into a contract titled “CREDIT SALE OF MOVABLES” in which FHH purchased all of Wolfe’s “right, title, and interest” in certain movable properties, including 100% of the shares of Aberta’s capital stock. Finally, on May 18, 2010, the Cash Sale Deed between Aberta and Wagner World was recorded in the Orleans Parish mortgage and conveyance records.

On May 5, 2010, Aberta filed a Petition for Writ of Mandamus to cancel the Ciena Mortgages, naming as defendants Dale N. Atkins, as recorder of mortgages, and Cie-na. Essentially, Aberta claimed that because the sale of property from it to Wagner World on August 26, 2003 was not recorded, Aberta still owned the property and thus the Ciena Mortgages granted by Wagner World were ineffective and should be cancelled. On June 8, 2010, Wagner World intervened to preserve the Ciena Mortgages and both Ciena and Wagner World filed dilatory exceptions of unauthorized use of summary proceeding and motions to continue the hearing on mandamus to permit discovery. Without considering the dilatory exceptions, the district court granted the mandamus. The Fourth Circuit affirmed, finding (1) mandamus is a proper remedy for compelling a recorder of mortgages to cancel an illegal or unauthorized inscription, and (2) FHH was a third party when it purchased Aberta and on the face of the documents that were recorded, Aberta still owned the property and therefore had the right to mandamus to have the encumbrances removed. Aberta, Inc. v. Atkins, 10-1523 (La.App. 4 Cir.11/23/11), 80 So.3d 609. We now grant Wagner World and Ciena’s writ applications and reverse the judgments of the lower courts.

DISCUSSION

“Mandamus is a writ directing a public officer or a corporation or an officer thereof to perform any of the duties set forth in Articles 3863 and 3864.” La. C.C.P. art. 3861. Pursuant to La. C.C.P. art. 3863, “[a] writ of mandamus may be directed |3to a public officer to compel the performance of a ministerial duty required by law, ...” Further, “[a] writ of mandamus may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice ...” La. C.C.P. art. 3862; Board of Trustees of Sheriff’s Pension and Relief Fund v. City of New Orleans, 02-0640 (La.5/24/02), 819 So.2d 290, 291 (“mandamus is an extraordinary remedy which should be applied only where ordinary means fail to afford adequate relief’). This Court has explained that “mandamus will only issue where the action sought to be compelled is ministerial in nature, i.e., where it contains no element of discretion.” Newman Marchive Partnership, Inc. v. City of Shreveport, 07-1890 (La.4/8/08), 979 So.2d 1262, 1269; Hoag v. State, 04-0857 (La.12/1/04), 889 So.2d 1019, 1023. In Hoag, we defined a ministerial duty as a “simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law.” 889 So.2d at 1024.

While certain statutes impose upon the recorder of mortgages the duty to cancel mortgages when the request meets specific requirements, here, in order to cancel the mortgages at issue, the recorder would have to determine that Aberta, and not Wagner World, is the owner of the property at issue. This is a disputed factual issue and involves a determination of whether Aberta, now owned by FHH, is a third party protected by the Public Records Doctrine from the sale between Aberta, then owned by Scott Wolfe, and Wagner World. This is not a condition admitted or proved to exist and imposed by law; thus, the cancellation of the Ciena Mortgages involves more than a ministerial duty. Further, mandamus may not be granted where, as here, Dordinary means afford adequate relief. Thus, the issuance of a writ of mandamus is inappropriate under the facts of this case.

WRITS GRANTED; REVERSED; WRIT OF MANDAMUS RECALLED.

      . Ciena Capital Funding, LLC is successor-in-interest to both  Business Loan Center, LLC and BLX Capital, LLC. The subject mortgages were originally issued in favor of the latter two companies.

      . La. R.S. 44:114 provides the actions that may be against the recorder of mortgages and includes and action to “compel the cancellation from the records of any instrument or document authorized or permitted to be can-celled,” and to "cancel from the records any improperly recorded instrument or document.” La. R.S. 44:114(2) and (3). Further, La. C.C. art. 3366 requires the recorder of mortgages to cancel in the matter prescribed by law the recordation of mortgage or privilege upon receipt of a signed written request for cancellation that identifies the mortgage or privilege by reference to its place in the records where it is recorded.


text:
    In re Elise Marybeth LaMARTINA.
    No. 2012-B-0892.
    Supreme Court of Louisiana.
    May 25, 2012.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| ,This disciplinary matter arises from a motion and rule to revoke probation filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Elise M. La-Martina, an attorney licensed to practice law in Louisiana, for her violation of additional Rules of Professional Conduct while on court-ordered probation imposed in In re: LaMartina, 10-0093 (La.7/2/10), 38 So.3d 266 (“LaMartina I ”).

UNDERLYING FACTS AND PROCEDURAL HISTORY

The record in LaMartina I demonstrated that respondent was convicted of unauthorized access to a public school and resisting arrest, stemming from a series of incidents in which she entered the campus of her son’s middle school without authorization from school officials. Following her conviction, which occurred prior to her admission to the Louisiana bar, respondent was placed on probation and ordered to stay off the premises of any public school in St. Tammany Parish. She was also required to pay a monthly supervision fee of $50 while she was on probation. Thereafter, in 2007, respondent violated the conditions of her criminal probation by going onto the campus of an elementary school in St. Tammany Parish without authorization and by failing to pay her monthly supervision fee.

In 2008, the ODC filed one count of formal charges against respondent arising out of the criminal probation violation. At the conclusion of the ^disciplinary proceedings, we suspended respondent from the practice of law for one year and one day, fully deferred, subject to a two-year period of unsupervised probation with conditions. Our opinion concluded:

In the event respondent fails to comply with these conditions, or if she engages in any misconduct during the period of probation, the deferred suspension may become executory, or additional discipline may be imposed, as appropriate. [Emphasis added.]

DISCIPLINARY PROCEEDINGS

Motion and Rule to Revoke Probation

On March 21, 2012, the ODC filed a motion and rule to revoke respondent’s probation, alleging that she had committed the following additional misconduct during the period of her probation:

1. On October 5, 2011, respondent was arrested for shoplifting, a misdemeanor violation of La. R.S. 14:67.10, stemming from the theft of $166.87 in merchandise from a Target store in Covington. Respondent pleaded not guilty to the charge; the case is set for trial this summer.
2. In the matter of Deborah M. Henson d/b/a Law Office of Deborah M. Henson v. Elise Mary Beth LaMar-tina, No. 2010-12215 on the docket of the 22nd Judicial District Court for the Parish of St. Tammany, Division “B,” on October 18, 2010, an attachment was issued for respondent’s arrest for her failure to appear in court after having been duly served with the plaintiffs motion to examine judgment debtor. The attachment was recalled later the same day and respondent was served with another subpoena to appear for the judgment debtor rule. In February 2011, when the matter was taken up by the court, respondent again failed to appear, and the court issued a civil attachment for respondent and set a cash bond of $2,500. Respondent was arrested on the civil attachment on May 4, 2011 and brought to court on May |⅞5, 2011. The court ordered the attachment satisfied, but because respondent had also been arrested on a civil attachment issued by another division of the court (see matter number 3, infra), she was remanded back to the St. Tammany Parish jail.
3. In the matter of Lake Villas No. II Homeowners Association v. Elise LaMartina, No. 2008-11842 on the docket of the 22nd Judicial District Court for the Parish of St. Tammany, Division “J,” on January 26, 2011, a civil attachment was issued by the court for respondent’s failure to appear. On May 4, 2011, respondent was arrested for contempt of court, a violation of La. R.S. 14:4 and La.Code Crim. P. art. 21. Respondent was released to the custody of the St. Tammany Parish jail and booked accordingly.

Based on the foregoing matters, the ODC prayed for revocation of respondent’s probation and the imposition of the previously deferred one year and one day suspension.

Respondent did not file an answer to the ODC’s motion and rule to revoke probation, nor did she file any other formal pleading responding to the allegations against her. Rather, on April 2, 2012, she sent an e-mail to the disciplinary board in which she represented that she had been experiencing “major health problems” over the last several months and was then “in the middle of a medical emergency which requires that I be admitted to the hospital ■within the next 24 hours.” Although the board staff advised respondent that she must file a motion if she |4wished to request an extension of time to respond or if she desired a continuance of the hearing, respondent filed no motions before the hearing was held.

Hearing on Revocation of Probation

This matter proceeded to a hearing before an adjudicative panel of the disciplinary board on April 12, 2012. Respondent testified at the hearing on her own behalf and on cross-examination by the ODC. The ODC called Elizabeth Luke, an employee of Target, to testify before the hearing committee.

Ms. Luke, whose job entails monitoring the security cameras at the Target store in Covington, testified that she apprehended respondent for shoplifting after she was seen trying to exit the store with jewelry and clothing she had not paid for. Ms. Luke watched respondent select a ring at the jewelry counter and place it into her purse. She then selected another ring and headed towards the ladies’ clothing department, where she discarded the packages for the jewelry, picked up some clothes, and went into the fitting room. After respondent came out of the fitting room, she walked through the grocery department and down the main aisle of the store. Ms. Luke testified that respondent then placed the clothing inside her jacket, which was laying in the top basket of her shopping cart, and “carefully” placed her day planner on top of the pile for “concealment.” As respondent exited the store, Ms. Luke stopped her and asked her to return inside. Respondent was then escorted to a “booking room” at the rear of the store to await the arrival of the police. During this time, respondent gave Ms. Luke the clothing she had concealed |sin her jacket, but she did not return the two rings. The rings were retrieved when they fell out of respondent’s purse after a police officer entered the room where she was being detained. Respondent was arrested and read her Miranda rights, then issued a misdemeanor summons for shoplifting.

In her testimony, respondent admitted that she was “ticketed” for theft of goods from Target valued at $166.87. However, she disputed that she was actually arrested, claiming she “wasn’t taken away in cuffs to a jail or anything.” She also contested that the merchandise she was accused of taking amounted to $166.87. Respondent maintained that she did not intend to steal anything but simply placed some clothing in her shopping cart and forgot to pay for it at the cash register. She adamantly denied taking any jewelry.

With regard to the two civil suits in which she failed to make court appearances, respondent denied that she has disobeyed any court orders in those matters. Respondent testified that she has followed court orders “to the best of my ability” and that on the occasions when she failed to appear in response to a subpoena, she was simply running late for court, once because she had a flat tire. Respondent stated that she tried to make it to court on time, but when she couldn’t, she alerted the court to that fact. Respondent dismissed her “lateness” as insignificant, noting “it happens.”

Disciplinary Board Recommendation

On April 20, 2012, the disciplinary board filed its report with this court, recommending that respondent’s probation be revoked and that she be suspended from the practice of law for one year and one day.

In the shoplifting matter, the board found that the testimony of Target’s employee, Ms. Luke, is supported by and is consistent with the surveillance video 1 fisubmitted by the ODC. The board noted the surveillance video shows that respondent was in Target for approximately one hour. The video shows respondent selecting items from a jewelry counter, the clothing department, and the grocery department and placing those items in her shopping cart. Respondent spent approximately five minutes at the jewelry counter, twenty to twenty-five minutes in the clothing department, and five minutes in the grocery department; the remainder of the time, respondent is seen walking through Target and apparently texting on her cell phone. Respondent rearranged the items in her shopping cart at least twice.

After hearing the testimony of Ms. Luke and reviewing the surveillance video, the board made a finding that it was “very hard to believe that Respondent simply forgot to pay for $166.87 worth of merchandise. Rather, the testimony of Ms. Luke and the surveillance video support the allegations of ODC — that Respondent engaged in criminal conduct.”

Turning to the issue of respondent’s failure to appear in court in two separate civil suits, the board noted respondent’s admission that she failed to appear on January 26, 2011 (in the suit by the homeowners’ association) and on February 10, 2011 (in the suit for attorney’s fees). She testified that a flat tire prevented her from appearing on the February 10th date, and further that she appeared later in the day and provided information to the court. However, the board found there is no evidence in the record supporting this claim. The board also noted that respondent did not offer an explanation as to why she did not appear on January 26th. When questioned generally by the ODC about her failure to appear in court pursuant to court orders, respondent replied that “it happens.”

17Based on respondent’s testimony and the evidence in the record, the board made a finding that respondent knowingly failed to comply with court orders in the two civil suits at issue. Respondent’s failure to appear resulted in the issuance of attachments for her arrest by two divisions of the 22nd Judicial District Court, and ultimately, her arrest for contempt of court. The board further found that this conduct is “strikingly similar” to that for which she was disciplined in LaMartina I.

Based on the above findings, the board concluded that the ODC presented sufficient evidence that respondent engaged in criminal conduct and failed to comply with court orders, in violation of Rules 3.4(c) and 8.4(b) of the Rules of Professional Conduct. Respondent’s additional violations of the Rules of Professional Conduct are grounds for the revocation of her probation. Accordingly, the board recommended that respondent’s probation be revoked and that she be suspended from the practice of law for one year and one day. The board also recommended that respondent be assessed with all costs and expenses of these proceedings.

DISCUSSION

A review of the documentary evidence in the record reveals that respondent failed to comply with court orders by failing to appear in court pursuant to subpoenas issued in two separate civil matters. As the board noted, this conduct resulted in respondent’s arrest for contempt of court, and is precisely the same kind of conduct for which she was suspended and placed on probation in LaMar-tina I. Respondent’s continued disrespect for legal obligations imposed upon her is disturbing, and suggests that she has learned nothing from the disciplinary process. On the basis of this conduct alone, we find it is appropriate to revoke respondent’s probation and to impose the period of suspension which was previously deferred.

|sThe ODC also suggests that respondent’s probation should be revoked as the result of her arrest for shoplifting. The board agreed, based upon the panel’s finding that the testimony of Target’s employee, Ms. Luke, was credible and consistent with the security video introduced into evidence by the ODC. In light of the testimony and documentary evidence in the record, we cannot say this finding is clearly wrong. See In re: Bolton, 02-0257 (La.6/21/02), 820 So.2d 548 (“Although this court is the trier of fact in bar disciplinary cases, we are not prepared to disregard the credibility evaluations made by those committee members who were present during respondent’s testimony and who act as the eyes and ears of this court.”). Therefore, we find respondent’s commission of the criminal act of shoplifting forms an additional basis for the revocation of her probation.

In sum, respondent has knowingly disobeyed an obligation under the rules of a tribunal, in violation of Rule 3.4(c) of the Rules of Professional Conduct, and has engaged in criminal conduct, in violation of Rule 8.4(b). Accordingly, she has committed additional misconduct during the period of her probation in LaMartina I, warranting the revocation of her probation and the imposition of the previously deferred one year and one day suspension.

DECREE

For the reasons assigned, respondent’s probation is revoked and the previously deferred one year and one day suspension imposed in In re: LaMartina, 10-0093 (La.7/2/10), 38 So.3d 266, is hereby made immediately executory. All costs and expenses in the matter are assessed against respondent, Elise M. LaMartina, Louisiana Bar Roll number 30583, 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.

      . In its pre-hearing memorandum, the ODC alleged that the conduct which prompted the filing of the motion and rule to revoke probation constituted a violation by respondent of the following provisions of the Rules of Professional Conduct: Rules 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(b) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer).

      . At the hearing, respondent produced no medical evidence other than a hospital bracelet for an emergency room visit on April 3rd. In its report, the board noted that it was not completely disregarding respondent’s claim that she experienced health problems in March and April 2012, but "without supporting evidence the [board] Panel cannot make a finding on the extent or impact of her medical condition. Regardless, the conduct at issue in this matter took place before Respondent’s medical problems allegedly occurred. Thus, no causal connection between her conduct and her medical problems was established.”

      .The ODC introduced into evidence two CD’s obtained from Target which contain the footage from the security cameras. Respondent did not object to the introduction of the CD’s.

      . In response to the questions of a board panel member, respondent indicated that she forgot to pay for four T-shirts costing "maybe ... $20 each.”

      . Respondent was in the clothing department for approximately twenty minutes before entering the fitting room with items of clothing. The surveillance video does not include the time respondent spent in the fitting room.


text:
    In re Walter W. GERHARDT.
    No. 2012-B-0893.
    Supreme Court of Louisiana.
    May 25, 2012.
    See also, 64 So.3d 203.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| ] This disciplinary matter arises from a motion and rule to revoke probation filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Walter W. Gerhardt, an attorney licensed to practice law in Louisiana, for his violation of additional Rules of Professional Conduct while on court-ordered probation imposed in In re: Gerhardt, 11-0687 (La.4/29/11), 64 So.3d 203 (“Gerhardt I ”), as well as for his failure to comply with the conditions of probation imposed in that matter.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The record in Gerhardt I demonstrated that respondent failed to act with diligence and failed to communicate with his clients in two separate matters. In 2010, two counts of formal charges were filed against respondent by the ODC. Prior to a hearing on the formal charges, respondent and the ODC submitted a joint petition for consent discipline, proposing that respondent be suspended for one year and one day, fully deferred, subject to his successful completion of a two-year period of supervised probation governed by the following conditions:

1. Respondent shall fully cooperate and comply with the requirements of a plan of probation which is to include periodic reviews of procedures to insure adequate communication with clients and the exercise |2of reasonable diligence in the completion of matters for which respondent has been engaged;
2. Within twelve months of the order of the court imposing discipline, respondent shall enroll in and successfully complete the Louisiana State Bar Association’s Ethics School;
3. Respondent shall fully' cooperate with the ODC in any future disciplinary investigations;
4. Respondent shall not violate the Rules of Professional Conduct in the future; and
5. Respondent shall pay the costs of the disciplinary proceeding in full within thirty days.

On April 29, 2011, we accepted the petition for consent discipline in Gerhardt I. Our order stated in pertinent part as follows:

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Walter W. Gerhardt, Louisiana Bar Roll number 20827, be suspended from the practice of law for a period of one year and one day. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a two-year period of supervised probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. [Emphasis added.]

Following this ruling, respondent entered into a probation monitoring plan and the adjudicative committee of the disciplinary board appointed Shreveport attorney Brian A. Homza to serve as respondent’s probation monitor. The probation plan provided that respondent “is on probation for two years commencing April 29, 2011.”

In September 2011, Betty Jo Fountain filed a complaint against respondent with the ODC. Ms. Fountain had previously filed a disciplinary complaint alleging |sthat respondent had not drafted and filed a qualified domestic relations order (QDRO) providing for the equal division of her former husband’s pension benefits, and this complaint was included in the formal charges filed against respondent which were resolved by way of the consent discipline in Gerhardt I. In the consent discipline proceedings, respondent represented that he was in the process of completing the QDRO; in fact, however, he failed to do so. He also failed to communicate with Ms. Fountain and otherwise misrepresented to her the progress being made in the matter on her behalf, or alternatively, offered false explanations for why he was unable to successfully complete the task for which he had been retained.

In a separate matter, Gary Steven Brown filed a complaint against respondent with the ODC on September 26, 2011. Mr. Brown and his sister, Patricia Hill, retained respondent in November 2010 to assist them in obtaining the interdiction of their 90-year old aunt, Lorene Caldwell. Respondent accepted the representation knowing that time was of the essence because Mrs. Caldwell, who was in extremely poor health, was being evicted from the nursing home where she resided and access was needed to her funds to properly provide for her care. Mr. Brown and Ms. Hill paid respondent $7,500 to handle the matter, plus court costs of $500. In December 2010, respondent filed a petition seeking Mrs. Caldwell’s interdiction, but he failed to timely file the necessary pleadings to apply for an order appointing an attorney to represent the interests of the interdict. He also failed to communicate with his clients and refused to see them when they traveled to his office to meet him in September 2011.

14After receiving the complaint from his clients, respondent filed a motion on September 27, 2011 seeking to have an attorney appointed to represent Mrs. Caldwell’s interests. Unfortunately, respondent’s actions came too late to help Mrs. Caldwell. She died in October 2011, having never been interdicted and deprived of the medical care her personal savings could have provided. As of February 2012, respondent had refunded only $8,000 of the original fee paid by Mr. Brown and Ms. Hill, notwithstanding his clients’ request for a refund of the entire fee. Respondent did not place the disputed portion of the fee into his client trust account pending resolution of the dispute as required by Rule 1.5(f)(5).

DISCIPLINARY PROCEEDINGS

Motion and Rule to Revoke Probation

On February 17, 2012, the ODC filed a motion and rule to revoke respondent’s probation. The ODC premised its motion and rule on respondent’s violation of the Rules of Professional Conduct in the Fountain and Caldwell matters, specifically Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(f)(5) (failure to hold disputed funds in trust), 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. In addition, the ODC alleged that respondent had failed to comply with the conditions of his probation in Gerhardt I, in that he had failed to enroll in and successfully complete the Louisiana State Bar Association’s (“LSBA”) Ethics School within twelve months of the court’s order accepting the petition for consent discipline. The ODC also noted that respondent had not met his obligations under the probation monitoring plan, “nor has Respondent demonstrated any meaningful | .-.effort towards compliance.” Accordingly, the ODC prayed for revocation of respondent’s probation and the imposition of the previously deferred one year and one day suspension.

Respondent, through counsel, filed an answer to the motion and rule to revoke probation, essentially denying any misconduct. In the Fountain matter, respondent stated that he had prepared the QDRO and submitted it on two occasions; however, it had not been approved by the employer. Respondent maintained that he was continuing, without the payment of any additional fee, to submit a QDRO acceptable to all parties, but complained that it had become increasingly difficult to represent Ms. Fountain, “who is unsupportive of his work and who continues to report him in spite of his efforts.” In the Caldwell matter, respondent admitted that he did not file the interdiction documents on a timely basis, and that he did not refund the entire fee paid by his clients. Respondent maintained that he had earned some of the fee in preparing the documents and noted that his clients never complained the partial refund was unreasonable. Nevertheless, respondent represented that “given recent conversations with the Office of Disciplinary Counsel, he is in the process of refunding the entire fee.” Finally, as to the allegations that he had not complied with the conditions of probation imposed in Gerhardt I, respondent suggested that he had only recently become aware that the LSBA’s Ethics School is offered just twice a year. He also denied that he had failed to cooperate in the implementation of his probation monitoring plan. Respondent therefore urged the disciplinary board to deny the ODC’s motion to revoke probation, or alternatively, to extend the term of his probation and add additional conditions thereof.

16Hearing on Revocation of Probation

This matter proceeded to a hearing before an adjudicative panel of the disciplinary board on April 12, 2012. Respondent testified at the hearing on his own behalf and on cross-examination by the ODC. The ODC called the following witnesses to testify in person before the hearing committee: Betty Jo Fountain; her former husband, Ronald Fountain; and Brian Homza, respondent’s probation monitor. Gary Steven Brown gave a telephone deposition which tracks the underlying facts set forth above regarding the failed effort to obtain the interdiction of Lorene Caldwell. The parties stipulated that Mr. Brown’s sister, Patricia Hill, if called to testify, would give testimony substantially similar to that of Mr. Brown.

In his testimony on cross-examination, respondent acknowledged that he did not contact the LSBA regarding his attendance at Ethics School until March 29, 2012, some six weeks after he was served with the ODC’s motion to revoke probation. He further acknowledged that he was not in compliance with the court’s April 29, 2011 order in Gerhardt I requiring him to complete Ethics School within one year. Respondent testified that he has recently made arrangements to attend the Ethics School session scheduled on June 22, 2012.

Turning to the Caldwell matter, respondent admitted that he has no explanation for his nearly one-year delay in filing the pleadings necessary to complete the interdiction of Mrs. Caldwell. He therefore acknowledged that he violated the Rules of Professional Conduct in handling that matter, notwithstanding that the conditions of his probation in Gerhardt I required him to refrain from any additional ethical violations. On March 29, 2012, respondent issued a cashier’s check to Mr. Brown in the amount of $4,500, representing a refund of the remainder of the attorney’s fee he was paid in the interdiction matter.

17Concerning the Fountain matter, respondent acknowledged that he was retained in November 2003 to obtain a QDRO establishing Ms. Fountain’s claim to half of her former husband’s pension benefits from his employer, AutoZone, Inc. Respondent did not submit any documents to AutoZone or to Mercer, the QDRO administrator for AutoZone, until September 2009, when he sent a draft (unexecuted) QDRO to AutoZone for review. In November 2009, Mercer rejected the draft QDRO as not qualified, and AutoZone sent respondent a checklist of items to be corrected as well as a sample generic QDRO containing pre-approved language. However, as of April 2011, when this court accepted the petition for consent discipline in Gerhardt /, respondent had not revised the QDRO for review by Mercer, notwithstanding his representation in the petition for consent discipline that he was “continuing his efforts to complete” the QDRO. He also had not been in contact with either Mercer or AutoZone by telephone or email, despite his representations to Ms. Fountain to that effect.

By the summer of 2011, Ms. Fountain had become extremely frustrated with respondent’s lack of effort and the fact that the QDRO had not been approved. In September 2011, respondent finally revised the draft of the QDRO and mailed it to AutoZone. However, the QDRO was still not qualified, and indeed, Ms. Angela Beaver of Mercer told Ms. Fountain that after reviewing respondent’s work product, “[t]here’s so much missing and/or wrong that I don’t even know where to start.” In response, respondent claimed that he did not know what to correct because Auto-Zone was “not helpful” and had refused to review a draft of the QDRO. Ms. Beaver assured both respondent and Ms. Fountain by e-mail that this was not the case, and that she would prefer to review a draft so that the QDRO would be in the correct form before it was sent to the court for a judge’s signature. Respondent testified that he did not recall receiving this communication from Ms. Beaver.

| sIn late December 2011, Leslie Schiff, respondent’s counsel in this proceeding, contacted Ms. Beaver by telephone to advise her that respondent would be sending her another draft of the QDRO for review. Ms. Beaver received the draft on January 4, 2012, but by letter dated January 25, 2012, Mercer notified respondent that the draft was not qualified as written “because certain required provisions are either missing or unclear.” Included with Mercer’s letter to respondent was another copy of a checklist of items to be corrected as well as a model QDRO. On March 6, 2012, respondent received a letter from Mercer acknowledging receipt of a revised QDRO; on April 2, 2012, this version of the QDRO was accepted by Mercer as qualified. At the April 12th hearing in this matter, both Mr. Fountain and Ms. Fountain agreed to sign the approved QDRO, and respondent committed to filing the signed document with the court “tomorrow.”

Ms. Fountain testified that respondent informed her in 2003 that the QDRO was completed; however, in July 2009, when her former husband turned 65 and attempted to draw his pension benefits from AutoZone, he was informed that nothing was on file. Thereafter, she said, respondent repeatedly refused to respond to her requests for information as to the status of the matter, or to send her copies of the documents he claimed to have drafted and sent to AutoZone and/or Mercer. Ms. Fountain also noted that respondent had only recently begun taking steps to finalize the QDRO. Ms. Fountain testified that both she and her former husband were entitled to receive approximately $100 per month from his AutoZone pension, and that respondent’s delay in finalizing the QDRO had cost them more than $6,000. For his part, Mr. Fountain testified that not having access to these funds for the last three years has been a financial hardship in his retirement.

| ¡,!Disciplinary Board Recommendation

In its report, the disciplinary board found that respondent failed to adequately communicate with Ms. Fountain or exercise reasonable diligence with respect to her QDRO, which demonstrates continued misconduct and a failure to comply with the terms and conditions of probation. The board noted that although respondent was sanctioned on April 29, 2011 for his lack of diligence in handling the QDRO, he took no further action in the matter until August or September 2011, when Ms. Fountain threatened to file another disciplinary complaint against him. Moreover, respondent falsely advised Ms. Fountain in October 2011 that he had not finished the QDRO because he was “still having problems” with AutoZone. The board found it was not until January of 2012 that respondent began acting in a “diligent” manner, and noted that he did not receive approval from Mercer for the QDRO until April 2, 2012.

The board also found that respondent violated the conditions of his probation by failing to enroll in and successfully complete the LSBA’s Ethics School within twelve months of the April 29, 2011 order in Gerhardt I. Respondent did not contact the LSBA regarding Ethics School until March 29, 2012, and he will not successfully complete the program until June 22, 2012. Therefore, the board concluded that respondent failed to comply with the Ethics School condition of his probation.

As to the Caldwell matter, the board determined that the ODC presented sufficient evidence of additional misconduct by respondent during his probation. Respondent failed to act with reasonable diligence in handling the interdiction of Mrs. Caldwell, causing significant harm to Mrs. Caldwell as well as to his clients. In addition, respondent failed to communicate with his clients and failed to promptly refund the attorney’s fee he was paid. Prior to the filing of the ODC’s motion to revoke probation, respondent had refunded only $3,000 of the fee, | inclaiming he had earned the remaining amount. Respondent did not place the disputed portion of the fee into his client trust account pending a resolution of the dispute, and did not refund the remainder of the fee until March 2012. Finally, the board found the record supports a finding that respondent made misrepresentations to the ODC and to his clients about the status of the interdiction.

Based on the above findings, the board concluded that respondent failed to comply with the terms and conditions of his probation and has engaged in additional misconduct, both of which are grounds for the revocation of his probation. Accordingly, the board recommended that respondent’s probation be revoked and that he be suspended from the practice of law for one year and one day. The board also recommended that respondent be assessed with all costs and expenses of these proceedings.

Respondent filed an objection to the disciplinary board’s recommendation. He asserted that the revocation of probation, and the imposition of the previously deferred suspension, is “too severe considering the initial misconduct, his consent discipline, and his inadvertent failure to comply with the conditions of his probation.” The ODC replied to respondent’s objection and urged the court to accept the board’s recommendation.

DISCUSSION

A review of the record reveals that respondent neglected the Fountain and Caldwell matters and failed to communicate with his clients. The substantial delay | n occasioned by respondent in handling Ms. Fountain’s QDRO and Mrs. Caldwell’s interdiction proceeding caused actual and substantial harm to the individuals involved. Respondent also failed to comply with the conditions of probation in Ger-hardt I, in that he failed to successfully complete Ethics School within twelve months of the order of discipline, and he has failed to meet the obligations of his probation monitoring plan. These facts amply support the disciplinary board’s conclusion that the revocation of respondent’s probation and imposition of the deferred one year and one day suspension is warranted.

Therefore, we will revoke respondent’s probation and make the previously deferred one year and one day suspension executory.

DECREE

For the reasons assigned, respondent’s probation is revoked and the previously deferred one year and one day suspension imposed in In re: Gerhardt, 11-0687 (La.4/29/11), 64 So.3d 203, is hereby made immediately executory. All costs and expenses in the matter are assessed against respondent, Walter W. Gerhardt, Louisiana Bar Roll number 20827, 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.

      .Mrs. Caldwell had sufficient funds in her bank account to pay for the expenses of her care; however, the relative who had signature authority on the account had refused to release any funds to the nursing home. As a result, Ms. Hill, who is 70 years old and not in the best of health herself, had assumed the responsibility for caring for Mrs. Caldwell in her home.

      . Mr. Brown resides in Flint, Michigan and had flown to Louisiana to meet with respondent when he could not communicate with him by telephone. Ms. Hill resides in north Louisiana, in the town of Ida.

      . For example, respondent’s probation monitoring plan required him to obtain the assistance of the LSBA’s Loss Prevention Counsel and Practice Assistance Counsel "in the creation of proper law office management programs” and to participate in a law office management practice seminar. However, respondent had not complied with either of these requirements as of April 12, 2012, when the hearing was held in this matter.

      . In his testimony on direct, respondent attributed the delay to the "lack of a good diary system” in his office; however, he testified that he has since "cured” this problem with the assistance of his probation monitor.

      . On May 7, 2012, the disciplinary board received from respondent's counsel a certified copy of the executed QDRO for inclusion in the record. The QDRO was signed by the district judge on April 17, 2012, and counsel represented that it "has been mailed to the administrator for the AutoZone retirement plan.”

      . In a letter dated August 8, 2011, respondent indicated that he was in the process of having an attorney appointed to represent Mrs. Caldwell’s interest; however, nothing more had been accomplished by the time the disciplinary complaint was filed on September 26, 2011. As previously stated, respondent did not file the motion for the appointment of an attorney until September 27, 2011.
      The board also noted that in October 2011, respondent informed the ODC in response to Mr. Brown’s complaint that there had simply been a "misunderstanding” which had been resolved, and that the matter was moving forward to everyone's satisfaction. This was clearly not the case. On November 7, 2011, a year after he was hired by Mr. Brown and Ms. Hill to expedite the interdiction of Mrs. Caldwell, respondent informed the ODC that she had died.


author: PER CURIAM. VICTORY, J., WEIMER, J.,

text:
    Alfred DUPREE, et al. v. LOUISIANA MEDICAL MUTUAL INS. CO., et al.
    No. 2011-C-2453.
    Supreme Court of Louisiana.
    May 25, 2012.

      Judice & Adley, APLC, Marc W. Judice, Michelle Regan Judice, James J. Hautot, Jr., Lafayette, LA, for Applicant.
    Chopin, Wagar, Richard & Kutcher, LLP, Nelson William Wagar, III, Justin McCarthy Chopin, Daryl K. Washington, Metairie, LA, for Respondent.
   PER CURIAM.

_JjWe granted defendant’s application for a writ of certiorari in this case on February 3, 2012. After receiving briefing from the parties and reviewing the record of the matter, we conclude the judgment below does not require the exercise of this court’s supervisory authority. Accordingly, we recall our order of February 3, 2011 as improvidently granted, and we deny defendant’s writ application.

VICTORY, Justice, dissents with reasons.

WEIMER, Justice, dissents with reasons.

GUIDRY, Justice, dissents and would consider the defendant’s writ application.

VICTORY, J.,

dissenting.

hi respectfully dissent from the majority’s decision to recall the writ. Having granted the writ, I would resolve this case on the merits.

WEIMER, J.,

dissenting.

hi respectfully dissent from the majority’s decision to recall the writ. Having granted the writ, I would resolve this case on the merits.


text:
    STATE of Louisiana v. Joseph MARINO.
    No. 2011-K-2218.
    Supreme Court of Louisiana.
    May 25, 2012.
    James D. Caldwell, Attorney General, Leon A. Cannizzaro, Jr., District Attorney, Scott Gerard Vincent, Assistant District Attorney, for Applicant.
    Samuel Beardsley, Jr., Metairie, LA, for Respondent.
   PER CURIAM.

hWe granted the State’s application for a writ of certiorari in this case on February 17, 2012. After hearing oral arguments and reviewing the record of the matter, we conclude the judgment below does not require the exercise of this court’s supervisory authority. Accordingly, we recall our order of February 17, 2012, as improvidently granted, and we deny the writ application.

VICTORY, Justice, dissents with reasons.

WEIMER, Justice, dissents with reasons.

VICTORY, J.,

dissenting.

hi respectfully dissent from the majority’s decision to recall the writ. Having granted the writ, I would resolve this case on the merits.

WEIMER, J.,

dissenting.

U respectfully dissent from the majority’s decision to recall the writ. Having granted the writ, I would resolve this case on the merits.


text:
    Reginald LONG v. Karesa SIMS.
    No. 2012-CC-1027.
    Supreme Court of Louisiana.
    May 11, 2012.
   In re Sims, Karesa; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. B, No. 2011-003234; to the Court of Appeal, First Circuit, No. 2012 CW 0379.

Stay denied. Writ denied.


text:
    Eve Parson PHILLIPS v. Darryl M. PHILLIPS.
    No. 2012-CC-1015.
    Supreme Court of Louisiana.
    May 16, 2012.
   In re Phillips, Darryl M.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div B, No. 2011-10585; to the Court of Appeal, Fourth Circuit, No. 2011-C-0432.

Stay denied; writ denied.


text:
    STATE ex rel. Charles Oliver BURNS v. STATE of Louisiana.
    No. 2012-KH-0009.
    Supreme Court of Louisiana.
    May 18, 2012.
   In re Burns, Charles Oliver; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 4, No. 262,422; to the Court of Appeal, Second Circuit, No. 47,-093-KH.

Denied.


text:
    Sarah Richards BUCK v. DEUTSCHE BANK, as trustee for Long Beach Mortgage Loan Trust 2003-2, Washington Mutual Bank, F.A., Long Beach Mortgage Loan Company, and Dean Morris, LLP.
    No. 2012-C-0839.
    Supreme Court of Louisiana.
    May 18, 2012.
   In re Buck, Andrew Kausler et al.; Buck, Francis V.; Buck, Harold J.; Buck, Magdalene M.; Buck, PFC Stephen Samuel Gueringer; Buck, William R.K.; Williams, Mary L.S. Buck; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. I, No. 98407; to the Court of Appeal, First Circuit, No. 2010 CA 1653.

Writ not considered. Not timely filed. See Supreme Court Rule X, § 5.


text:
    In re Appeal of the Decision of the DISCIPLINARY BOARD NO. 11-PDB-105.
    No. 2012-OB-0682.
    Supreme Court of Louisiana.
    May 18, 2012.
   In re Allen, Kenan; — Plaintiff; Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Board, No. ll-PDB-105.

Leave to appeal denied.


text:
    In re Appeal of Decision of the DISCIPLINARY BOARD NO. 11-PDB-076.
    No. 2012-OB-0689.
    Supreme Court of Louisiana.
    May 18, 2012.
   In re Serhan, Joe; Serhan, Joyce;— Plaintiff(s); Applying For Appeal of Decision of the Disciplinary Board Office of the Disciplinary Board, No. ll-PDB-076.

Leave to appeal denied.


text:
    In re Appeal of the Decision of the DISCIPLINARY BOARD NO. 11-PDB-100.
    No. 2012-OB-0704.
    Supreme Court of Louisiana.
    May 18, 2012.
   In re Ainsworth, Kenneth; — Plaintiff; Applying For Appeal of the Decision of the Disciplinary Board Office of the Disciplinary Board, No. ll-PDB-100.

Leave to appeal denied.


text:
    In re Appeal of Decision of the DISCIPLINARY BOARD NO. 11-PDB-112.
    No. 2012-OB-0747.
    Supreme Court of Louisiana.
    May 18, 2012.
   In re Holmes, Terry T.; — Plaintiff; Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Board, No. ll-PDB-112.

Leave to appeal denied.