author: PER CURIAM. SALTER, J.

text:
    Angel ALVAREZ, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 3D09-3412.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 2010.
    Santiago J. Padilla, Miami, for appellant.
    Geri Atkinson-Hazelton, General Counsel, and Louis A. Gutierrez, Senior Attorney, for Florida Unemployment Appeals Commission.
    Before WELLS, SUAREZ, and SALTER, JJ.
   PER CURIAM.

Affirmed.

SALTER, J.

(concurring).

It is our duty to affirm the Florida Unemployment Appeals Commission’s order denying benefits to Mr. Alvarez on the grounds that he voluntarily quit his job without good cause attributable to his former employer, Cingular Wireless. We affirm that order, but I write to provide the background and to underscore the need for claimants to obtain legal advice immediately when their former employers appeal the payment of benefits and seek a telephonic administrative hearing.

In this case, Mr. Alvarez filed a claim which was allowed by the Agency for Workforce Innovation. Mr. Alvarez worked for Cingular from 2007 through April 2009, and his unemployment compensation benefit was determined to be $244.00 per week. The initial notice of determination found that:

THE CLAIMANT IS CONSIDERED TO HAVE BEEN DISCHARGED WHEN THE EMPLOYER REQUESTED THE CLAIMANT’S RESIGNATION BECAUSE OF ALLEGED POOR PERFORMANCE. NO INFORMATION HAS BEEN SUBMITTED WHICH CLEARLY SUBSTANTIATES MISCONDUCT.

The notice of determination indicated that it had been mailed May 20, 2009. Under the applicable rules, an appeal by Cingular had to be “filed” by June 9, 2009. The record contains a letter dated June 8, 2009 from “Talx UC Express,” an “unemployment state consultant” in St. Louis, Missouri, but the Agency’s clerk’s stamp on the letter is June 15, 2009. No evidence of a postmark, faxed version, or online filing is in the record. Under the Agency’s interpretation of “filed,” the employer’s appeal was subject to dismissal if the postmark was after June 9, 2009.

The Talx letter explained that Talx is an authorized agent empowered to act on behalf of Cingular and appealed the Agency’s determination awarding benefits to Mr. Alvarez. The Agency treated the letter as a timely appeal and scheduled a telephonic hearing. During the hearing, Mr. Alvarez’s supervisor testified:

Appeals Referee: And did [Mr. Alvarez] quit or was he discharged from his position?
Supervisor: No, he was not.
Appeals Referee: No, he was not what?
Supervisor: I understood that he was discharged from his position.
Appeals referee: I asked did he quit or was he discharged?
Supervisor: I am sorry, he quit.

The supervisor’s further testimony was primarily hearsay, but Mr. Alvarez, a non-attorney representing himself, did not object. At the conclusion of that first telephonic hearing, the Talx representative for the employer told the appeals referee, “if you have an issue on the credibility, we ask that the hearing, you know, be continued so that the area manager could testify that she didn’t fire him.”

The appeals referee did precisely that, noticing a second telephonic hearing so that Cingular could bring in two more witnesses. Thereafter the referee found that Mr. Alvarez voluntarily quit without good cause attributable to the employer. During the hearings, Mr. Alvarez testified on his own behalf but called no other witnesses and did not cross-examine any of the Cingular witnesses.

In his subsequent appeal to the Commission, treated as a request for review, the Commission found that the appeals referee’s findings were based on competent substantial evidence and affirmed them. Mr. Alvarez’s further appeal to this Court followed.

In the present appeal, Mr. Alvarez is represented by an attorney who has done his best to resuscitate the claim. Mr. Alvarez’s counsel has attempted to show through sworn declarations that Mr. Alvarez was unaware of his right to call other witnesses and that those witnesses would have substantiated his account of his alleged discharge. Mr. Alvarez’s brief is well prepared and makes persuasive arguments on his behalf.

The problem is that these measures come too late in the process to be availing. The employer’s appeal may have been late and subject to dismissal, but the record does not include the controlling postmark on the employer’s letter. Mr. Alvarez’s supervisor initially admitted that he was discharged, but then changed her testimony after a further prompt from the referee. Much of Cingular’s case was based on objectionable hearsay. Mr. Alvarez had no professional advocate (as Cingular did) to make a persuasive closing argument or to subpoena and cross-examine witnesses. And Mr. Alvarez’s declarations filed here are not “new evidence or information” that can be considered by the appeals referee, the Commission, or us. The information in those declarations was available when the telephonic hearings were conducted. See Reeves v. Fla. Unemployment Appeals Comm’n, 782 So.2d 525, 526 (Fla. 1st DCA 2001); Fla. Admin. Code R. 60BB-7.005. Until Mr. Alvarez obtained legal representation, the playing field was anything but level. The employer had a professional unemployment consultant and witnesses readily available to testify in its behalf.

Despite Mr. Alvarez’s persistence and the efforts of his counsel here, this Court and the Commission are constrained by the record. If Mr. Alvarez had been represented in the telephonic hearings, the outcome might have been different. The employer’s initial admission that Mr. Alvarez was “discharged,” timely objections to hearsay, and the introduction of additional evidence might have carried the day.

Unemployment compensation benefits are a safety net in a time of high unemployment such as this. The importance of the benefits to a claimant (and often, his or her family) cannot be overstated. The purpose of this concurrence, then, is to encourage unemployment compensation law specialists, pro bono attorney volunteers, and non-profit legal services providers to make their availability and services well known to claimants and the Agency for Workforce Innovation so that claimants like Mr. Alvarez can get the help they need when it matters most, and not when it is too late. With this cautionary autopsy of the record, I concur in the opinion that the Commission’s order must be affirmed.

      . The record is unclear whether the "unemployment state consultant” representing Cin-guiar was an attorney, but the transcripts evidence great familiarity with the applicable law and procedure. Mr. Alvarez was at a substantial disadvantage.

      . While Mr. Alvarez’s failure to object to hearsay would not preclude us from considering the sufficiency of competent evidence to support the referee’s findings, Yost v. Unemployment Appeals Comm’n, 848 So.2d 1235, 1238 (Fla. 2d DCA 2003), the employer’s then-struggling case was repaired when there was no opposition to its request for a continuance of the hearing to allow additional testimony. An attorney for Mr. Alvarez ordinarily would have (among other things) objected to the hearsay and to the continuance of the hearing (based on the employer’s failure to have available its witnesses on the duly-noticed hearing date).


source: Caselaw Access Project

author: CRENSHAW, Judge.

license: Public Domain

text:
    Todd A. HATFIELD, Petitioner, v. STATE of Florida, Respondent.
    No. 2D09-5938.
    District Court of Appeal of Florida, Second District.
    Nov. 3, 2010.

      Todd A. Hatfield, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Respondent.
   CRENSHAW, Judge.

Petitioner Todd Hatfield seeks a writ of prohibition against Circuit Judge Philip J. Federico to disqualify him from presiding over Hatfield’s postconviction proceeding. Judge Federico denied Hatfield’s motion to disqualify judge as insufficient on its face. Within his petition for writ of prohibition, Hatfield argues that his motion was legally sufficient and that the trial judge’s order was not timely entered, thereby requiring that the motion to disqualify be deemed granted. We deny the petition for writ of prohibition. We agree with the trial court’s determination that the motion to disqualify was facially insufficient without further discussion. We also conclude that the trial court’s order denying the motion to disqualify was timely entered and we write to explain this conclusion.

Hatfield served his motion to disqualify by mailing it from prison on November 5, 2009, along with a motion for postconviction relief. The trial court denied the motion on December 10, thirty-five days after service. Hatfield argues that Florida Rule of Judicial Administration 2.330(j) requires that the motion must be deemed granted:

The judge shall rule on a motion to disqualify immediately, but no later than 30 days after the service of the motion as set forth in subdivision (c). If not ruled on within 30 days of service, the motion shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case.

Fla. R. Jud. Admin. 2.330(j).

Although the plain language of the rule would appear to be in Hatfield’s favor, we note first that this provision refers to subdivision (c) of the same rule, which provides, in pertinent part, that “[i]n addition to filing with the clerk, the movant shall immediately serve a copy of the motion on the subject judge as set forth in Florida Rule of Civil Procedure 1.080.” Fla. R. Jud. Admin. 2.330(c)(4). Rule 1.080 provides, in pertinent part, that

[sjervice on the attorney or party shall be made by delivering a copy or mailing it to the attorney or the party at the last known address or, if no address is known, by leaving it with the clerk of the court. Service by mail shall be complete upon mailing.

Fla. R. Civ. P. 1.080(b). We conclude that because rule 2.330(c)(4) invokes the rule of civil procedure governing service of a pleading, related civil rules must also necessarily apply. Cf. Holter v. Dohnansky, 917 So.2d 242 (Fla. 5th DCA 2005) (invoking rule 1.090(a) to allow an extra day for filing a motion to disqualify when the filing deadline fell on a Sunday). Relevant to the present issue, rule 1.090(e) provides that

[w]hen a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon that party and the notice or paper is served upon that party by mail, 5 days shall be added to the prescribed period.

Fla. R. Civ. P. 1.090(e).

As such, because Hatfield served his motion by mail, the circuit court had five additional days to rule on Hatfield’s motion to disqualify, or a total of thirty-five days from the date of mailing. Because the court ruled on the motion on the thirty-fifth day, the ruling was timely under rule 2.330(j), and Hatfield’s petition for writ of prohibition must be denied.

Petition denied.

DAVIS and KHOUZAM, JJ„ Concur.

      . Having resolved the petition by finding the motion facially insufficient and the trial court’s order timely entered, we need not address the issue raised by the State regarding the timeliness of Hatfield’s original motion to disqualify.

      . That the judge is not a party to the underlying proceeding does not affect the requirement in rule 2.330(c)(4) that the service procedures of rule 1.080 be employed.

      . Cf. Tableau Fine Art Group, Inc. v. Jacoboni, 853 So.2d 299, 302-03 (Fla.2003) ("[W]e hold that a motion for judicial disqualification filed pursuant to Florida Rule of Judicial Administration 2.160 [current rule 2.330] must be ruled on within thirty days following its presentation to the court. We believe that thirty days gives the trial court sufficient time to determine the sufficiency of a motion.” (Emphasis added.)).


author: PER CURIAM.

text:
    In re Jalonda M. MORRIS.
    No. 2010-B-2167.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent failed to promptly refund to her client the unearned portion of the fee she was paid. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Jalonda M. Morris, Louisiana Bar Roll number 27017, be and she hereby is publicly reprimanded.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    In re Hany ZOHDY.
    No. 2010-OB-2020.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   |,ON APPLICATION FOR REINSTATEMENT

PER CURIAM.

This proceeding arises out of an application for reinstatement filed by petitioner, Hany Zohdy, an attorney who is currently suspended from the practice of law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In In re: Zohdy, 04-2361 (La. 1/19/05), 892 So.2d 1277, petitioner was suspended from the practice of law for three years, with one year deferred, for his conduct in two nationwide class action suits in federal court, which included filing frivolous claims and appeals and undermining settlements. Petitioner subsequently filed an application for reinstatement with the disciplinary board, alleging he has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). The Office of Disciplinary Counsel (“ODC”) took no position regarding the application for reinstatement. Accordingly, the matter was referred for a formal hearing before a hearing committee.

After considering the evidence presented, the hearing committee recommended petitioner be conditionally reinstated to the practice of law. The disciplinary board agreed petitioner has satisfied the requirements for reinstatement by clear and | ^convincing evidence. Accordingly, the board recommended to this court that petitioner be granted reinstatement.

After considering the record in its entirety, we will adopt the disciplinary board’s recommendation. Petitioner shall be reinstated to the practice of law.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that Hany Zohdy, Louisiana Bar Roll number 21409, be immediately reinstated to the practice of law in Louisiana. All costs of these proceedings are assessed against petitioner.

       Chief Justice Kimball not participating in the decision.

      . Petitioner’s first application for reinstatement was denied in 2008. In re: Zohdy, 08-1575 (La. 10/10/08), 993 So.2d 1271. In the instant matter, the ODC argued reinstatement could not be granted unless petitioner showed a change in circumstances, which is the requirement in bar admission cases. See In re: Jordan, 00-3006 (La.12/15/00), 775 So.2d 1065, and In re: Hinson-Lyles, 05-2446 (La. 1/24/06), 919 So.2d 721. The disciplinary board adopted the ODC’s argument, but determined petitioner has demonstrated a change in circumstances warranting reconsideration of the denial of the earlier application for reinstatement.
      The criteria for readmission or reinstatement are clearly outlined in Supreme Court Rule XIX, § 24, and pursuant to Supreme Court Rule XIX, § 24(1), the court identifies the period of time after which a petitioner may reapply for readmission or reinstatement following an adverse judgment. A review of Section 24 reveals nothing that requires the petitioner to show a change in circumstances when applying for readmission or reinstatement. Accordingly, we decline to apply the change in circumstances rule to readmission and reinstatement proceedings.


text:
    In re John B. COMISH.
    No. 2010-OB-2041.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   l,ON APPLICATION FOR REINSTATEMENT

PER CURIAM.

This proceeding arises out of an application for reinstatement filed by petitioner, John B. Cornish, an attorney who is currently suspended from the practice of law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In In re: Cornish, 04-1453 (La.12/13/04), 889 So.2d 236, petitioner was suspended from the practice of law for three years, with all but one year and one day deferred, for failing to exercise sufficient supervisory oversight of a disbarred attorney working in his office as a paralegal, failing to provide competent representation to a client, neglecting the client’s legal matter, and failing to communicate with the client. Petitioner subsequently filed an application for reinstatement with the disciplinary board, alleging he has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). The Office of Disciplinary Counsel (“ODC”) took no position regarding the application for reinstatement. Accordingly, the matter was referred for a formal hearing before a hearing committee.

After considering the testimony and evidence presented at the hearing, the hearing committee recommended petitioner be reinstated to the practice of law. The | ^disciplinary board adopted the committee’s reasoning and determinations. Accordingly, the board recommended to this court that petitioner be granted reinstatement.

After considering the record in its entirety, we will adopt the disciplinary board’s recommendation. Petitioner shall be reinstated to the practice of law.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that John B. Cornish, Louisiana Bar Roll number 4392, be immediately reinstated to the practice of law in Louisiana. All costs of these proceedings are assessed against petitioner.

       Chief Justice Kimball not participating in the opinion.


text:
    In re John Jewell PACE.
    No. 2010-OB-2042.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   hON APPLICATION FOR REINSTATEMENT

PER CURIAM.

This proceeding arises out of an application for reinstatement filed by petitioner, John Jewell Pace, an attorney who is currently suspended from the practice of law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Petitioner, who is an alcoholic, relapsed in February 2008 by abusing narcotic pain medication which was prescribed to him after he was injured in two different accidents. He also resumed drinking alcohol and began using marijuana and crack cocaine. In the aftermath of his relapse, petitioner abandoned his law practice and his clients, placing the clients and the public at great risk. In In re: Pace, 09-2618 (La.1/22/10), 26 So.3d 148, the court accepted a petition for consent discipline suspending petitioner from the practice of law for one year and one day, retroactive to May 16, 2008, the date of his interim suspension imposed in In re: Pace, 08-1041 (La.5/16/08), 981 So.2d 686.

After serving his suspension, petitioner filed an application for reinstatement with the disciplinary board, alleging he has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). The Office of Disciplinary Counsel |2(“ODC”) took no position regarding the application for reinstatement. Accordingly, the matter was referred for a formal hearing before a hearing committee.

Following the hearing, the hearing committee recommended petitioner be conditionally reinstated to the practice of law. The disciplinary board agreed petitioner has satisfied the requirements for reinstatement by clear and convincing evidence. Accordingly, the board recommended to this court that petitioner be reinstated to the practice of law, subject to a five-year period of probation to coincide with a five-year LAP contract. Neither petitioner nor the ODC objected to the disciplinary board’s recommendation.

After considering the record in its entirety, we will adopt the disciplinary board’s recommendation and reinstate petitioner to the practice of law, subject to the condition that he must extend his current LAP contract for a period of five years and fully comply with the terms and conditions thereof. The ODC shall monitor petitioner’s compliance with his recovery agreement and notify this court of any violation, which may be grounds for immediately transferring petitioner to disability inactive status, or placing him on interim suspension, as appropriate.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that John Jewell Pace, Louisiana Bar Roll number 1115, be immediately reinstated to the practice of law in Louisiana, subject to the conditions set forth herein. All costs of these proceedings are assessed against petitioner.

CLARK, J., would deny.

       Chief Justice Kimball not participating in the opinion.

      . In March 2008, petitioner was admitted to a substance abuse treatment facility in Birmingham, Alabama. Upon his discharge, he signed a Lawyers Assistance Program (“LAP”) contract, dated June 9, 2008.

      . Petitioner's current LAP contract expires on June 9, 2013. The five-year extension that is a condition of petitioner’s reinstatement will subject him to monitoring by LAP through 2015.


text:
    STATE of Louisiana v. Michael CHAPMAN.
    No. 2010-KK-1510.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   PER CURIAM.

11 Granted. In a dispute prompted by the state selecting from its priority list one case for trial before defendant’s case, although defendant appeared higher on the list and had filed a motion for a speedy trial, the court of appeal correctly rejected defendant’s demand that at the new trial date set by the court over his objection, the state place his case at the top of the list. However, the court of appeal directed the District Attorney to comply with the dictates of our decision in State v. Simpson, 551 So.2d 1303 (La.1989), “by listing for defense counsel the cases on the criminal docket in the order in which cases are to be called for trial.” State v. Chapman, 45,717 (La.App. 2nd Cir.5/27/10). The court of appeal appears to have subscribed to the view, expressed by the defense in its opposition to the state’s writ seeking review in this Court, that while the District Attorney “has all of 12the discretion in the world” before drawing up the priority list, once done with the list, “he must live with it.”

This Court did observe in Simpson, albeit in dicta, after holding the procedure for allotting criminal cases employed at the time in 15th Judicial District Court did not comport with due process, that “the criminal docket for a particular day must indicate the order in which cases are to be called for trial.” Id., 551 So.2d at 1305. However, we made that observation in considering a local rule of the 15th Judicial District Court, which permitted the District Attorney to call criminal cases “in any order preferred by him.” We cautioned that the rule “cannot be interpreted to grant that authority on the day of trial.” Id. However, we meant by that observation not to impose a rigid rule of practice encroaching on the broad discretion of a District Attorney to determine “whom, when, and how he shall prosecute,” La. C.Cr.P. art. 61, but only to emphasize as a general proposition that “[a]ll litigants have a right to their day in court, and have a right to know, at least relatively, when that day will come, that he may prepare for his defense, or otherwise, as the case may be.” Simpson, 551 So.2d at 1305(in-ternal quotation marks and citation omitted); cf. La.C.Cr.P. art. 702 (providing that cases shall be set for trial on motion of the state and that “defendant shall be given notice of trial sufficiently in advance thereof so that he may summon , his witnesses.”).

It appears that in accord with the District Attorney’s established protocol, the state furnished its priority list to defendant three weeks before the trial date and then advised defense counsel six days before that date that another case would go to trial, although it was lower on the list. The District Attorney thus provided fair notice to counsel that defendant’s day had not yet come sufficiently in advance of trial that defendant and counsel could plan accordingly. We have no reason to IsSuppose that a similar procedure will not be employed for future trial settings on the District Attorney’s priority lists, thereby continuing to provide defendant with fair notice of the probability that his case will or will not go to trial on the date assigned.


author: PER CURIAM

text:
    In re Marvin E. ROBINSON, Jr.
    No. 2010-B-1790.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   |,ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Marvin E. Robinson, Jr., an attorney licensed to practice law in Louisiana, but currently ineligible to practice.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In 2008 and 2009, the ODC filed two separate sets of formal charges against respondent. Respondent failed to answer either set of formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committees written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration in either matter.

Thereafter, the two sets of formal charges were consolidated by order of the disciplinary board. The board subsequently filed in this court a single recommendation of discipline encompassing both sets of formal charges.

\908-DB-0Jp6

Count I — The Butler Matter

In July 2004, Inez Butler hired respondent to represent her in a personal injury matter, based on a slip and fall incident that occurred on July 16, 2004 in New Orleans. During the representation, respondent did not maintain appropriate communication with Ms. Butler, did not consult with her to explain the progress of her case, was rude and offensive to her on the telephone, and repeatedly failed to return her phone calls. In October 2006, without Ms. Butler’s knowledge, permission or consent, respondent filed a motion to dismiss her lawsuit with prejudice.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1 (failure to provide competent representation to a client), 1.3 (failure to act with reasonable diligence and promptness in representing a client), and 1.4 (failure to communicate with a client).

Count II — The Garrett Matter

In November 2004, Marie Garrett executed a will, which was prepared and notarized either by respondent or his law partner. After Ms. Garrett’s death on March 11, 2006, one of her children, Kenneth Garrett, contacted respondent about obtaining the original will. Mr. Garrett sent respondent $250 for the original will. Respondent provided him with a partial photocopy of the will. Thereafter, Mr. Garrett filed a disciplinary complaint against respondent. The complaint was received by respondent on October 16, 2006. Between October 16, 2006 and October 23, 2006, respondent left three messages on Mr. Garrett’s voice mail system that were threatening in tone and content, including a message that “there will be criminal charges against you” and “don’t mess with me.”

|sThe ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.4(d) (engaging in conduct prejudicial to the administration of justice) and 8.4(g) (threatening to present criminal or disciplinary charges solely to obtain an advantage in a civil matter).

Hearing Committee Report

After considering the ODC’s deemed admitted submission in 08-DB-046, the hearing committee determined the factual allegations of the formal charges were proven by clear and convincing evidence. Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee determined respondent violated the most basic duty to Ms. Butler: the duty to handle her lawsuit diligently and communicate with her. By filing a motion to dismiss her suit, respondent took a step in the litigation that was neither authorized by nor communicated to Ms. Butler. By issuing threats to Mr. Garrett, in response to his legitimate exercise of his right to file a disciplinary complaint, and by threatening Mr. Garrett with criminal prosecution, respondent has demeaned the profession and engaged in conduct prejudicial to the fair administration of justice. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the applicable baseline sanction in this matter is suspension.

In aggravation, the committee found the following factors present: prior disciplinary offenses, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the 14rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, and substantial experience in the practice of law (admitted 1992). The committee did not mention any mitigating factors.

After considering this court’s prior jurisprudence involving similar misconduct, the committee recommended respondent be suspended from the practice of law for one year and six months.

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

09-DB-0I8

This matter involves the same client subject of Count I of 08-DB-046. On August 31, 2006, respondent settled Ms. Butler’s personal injury suit for the sum of $6,000, without Ms. Butler’s knowledge or permission. In September 2006, respondent executed and notarized a settlement release containing Ms. Butler’s forged signature. Respondent did not render any accounting for the settlement proceeds and did not disburse any portion of the settlement proceeds to Ms. Butler.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.2 (scope of the representation), 1.4, 1.5(c) (contingency fee agreements) 1.15(a) (safekeeping property of clients or third persons), 1.15(d) (failure to timely remit funds to a client or third person), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

| ¿Hearing Committee Report

After considering the ODC’s deemed admitted submission in 09-DB-048, the hearing committee determined the factual allegations of the formal charges were proven by clear and convincing evidence. Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee determined respondent violated duties owed to his clients, the public, and to the profession. The committee found respondent’s conduct was intentional. His dishonesty to his client, to opposing counsel, and to the court is the type of conduct that erodes the trust and confidence of the public in both the legal profession and the legal system in general.

Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the applicable baseline sanction in this matter is disbarment. The committee did not mention aggravating factors but determined there are no mitigating factors present. After considering this court’s prior jurisprudence, the committee recommended respondent be disbarred. The committee also recommended respondent be ordered to pay restitution in the amount of $6,000 either to Ms. Butler or to the Louisiana State Bar Association’s Client Assistance Fund as appropriate.

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

Disciplinary Board Recommendation

08-DB-OÍ6 & 09-DB-0J/.8

After reviewing these consolidated matters, the disciplinary board found the hearing committees’ factual findings are supported by the factual allegations asserted Ifiin the formal charges, which are deemed admitted, and/or by the documentary evidence submitted in support of the allegations. Additionally, the board found respondent not only threatened Mr. Garrett with criminal prosecution, but also threatened to file a defamation suit against him. Based upon these findings, the board determined both committees correctly concluded respondent violated the Rules of Professional Conduct as charged.

The board determined respondent violated duties to his client, the public, the legal system, and the profession. By the very nature of his actions, respondent’s conduct was both knowing and intentional, and caused significant harm. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the applicable baseline sanction is disbarment.

In aggravation, the board recognized the following factors: prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, and substantial experience in the practice of law. The board agreed there are no mitigating factors present.

In determining an appropriate sanction, the board considered this court’s prior jurisprudence involving similar misconduct and found that the sanction recommended by the second hearing committee is appropriate. Accordingly, the board recommended respondent be disbarred and be ordered to pay restitution in the amount of $6,000 either to Ms. Butler or the Client Assistance Fund as appropriate.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

^DISCUSSION

Bar disciplinary matters fall -within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.

Based on the deemed admitted allegations of the formal charges as well as other evidence in the record, it is undisputed that respondent failed to communicate with a client, failed to represent the client with diligence and promptness, improperly dismissed the client’s lawsuit after settling it without her permission and kept the settlement money for himself, and threatened a complainant with criminal prosecution and a defamation suit to prevent him from pressing forward with a disciplinary complaint. This misconduct supports a finding that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

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

The record supports a finding that respondent acted knowingly and, in some instances, intentionally. He violated duties owed to his client, Ms. Butler, when he misappropriated the settlement funds from her personal injury suit to promote his financial gain, causing her actual serious harm. Respondent violated duties owed to the legal system and to the legal profession by committing forgery to obtain Ms. Butler’s settlement funds and by threatening Mr. Garrett with a civil defamation suit and criminal prosecution for filing a disciplinary complaint against him. Considering the ABA’s Standards for /to- posing Lawyer Sanctions, we find the applicable baseline sanction is disbarment.

In aggravation, we agree the following factors are supported by the record: prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, and substantial experience in the practice of law. We find there are no mitigating factors present.

Under the circumstances of this ease, and in light of the numerous aggravating factors and lack of mitigating factors present, we will adopt the disciplinary board’s | Recommendation and impose disbarment. We will also order respondent to make restitution to Ms. Butler or repay the Client Assistance Fund, as appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committees and the disciplinary board, and considering the record, it is ordered that the name of Marvin E. Robinson, Jr., Louisiana Bar Roll number 21842, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. It is further ordered that respondent pay restitution, plus legal interest, to Inez Butler or repay the Louisiana State Bar Association’s Client Assistance Fund any amounts paid to her on his behalf. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, -with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . On September 29, 2007, respondent was declared ineligible to practice law for failure to comply with the mandatory continuing legal education requirements. He is also ineligible for failure to pay his bar dues and the disciplinary assessment and for failure to file a trust account disclosure form.

      . In March 1997, respondent was admonished by the disciplinary board for failing to act with diligence in a litigation matter and failing to return portions of an unearned fee. In November 2004, respondent was admonished for neglecting a client's legal matter and failing to communicate with the client. Respondent was also the subject of a complaint that was referred to diversion.


text:
    In re Arcenious Francis ARMOND, Jr.
    No. 2010-B-1560.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   |,ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Arcenious Francis Armond, Jr., an attorney licensed to practice law in Louisiana.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1991. In 2003, the ODC filed six counts of formal charges against respondent, alleging that he neglected legal matters, failed to communicate with his clients, failed to refund unearned fees, failed to supervise his nonlawyer assistant, and failed to properly withdraw from a case. In June 2005, the parties filed with this court a petition for consent discipline, proposing that respondent be suspended from the practice of law for one year and one day, fully deferred, subject to respondent’s successful completion of a two-year period of supervised probation with conditions. In November 2005, we accepted the petition for consent discipline and imposed the proposed discipline. In re: Armond, 05-1701 (La.11/29/05), 915 So.2d 353 (“Armond I ”).

[¡.Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Formal charges were filed by the ODC in February 2009, and were supplemented and amended in July 2009. As amended, the formal charges include seven counts of alleged misconduct. Respondent answered the original formal charges and the supplemental and amending formal charges, in both instances admitting some alleged misconduct and denying other alleged misconduct.

Prior to the formal hearing in this matter, the ODC agreed to dismiss one count of the formal charges, leaving six remaining counts. At the hearing, respondent and the ODC submitted joint stipulations of fact and law, in which the parties stipulated to most of the underlying facts and some rule violations, as follows:

The McGinnis Matter

The following facts are not in dispute, having been stipulated to by the parties:

In 1998, John McGinnis was convicted of armed robbery and sentenced to serve forty-five years at hard labor. In 2001, Mr. McGinnis retained respondent to review his file in exchange for a fee. In February 2002, Mr. McGinnis retained respondent to file an application for post-conviction relief. In December 2004, after the expiration of the statutory deadline, respondent filed an application for post-conviction relief on behalf of Mr. McGinnis. The trial court rejected the application as untimely. Respondent applied for writs to the court of appeal, which affirmed the trial court’s ruling.

|sThe parties stipulated respondent violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client) and 1.4 (failure to communicate with a client) of the Rules of Professional Conduct.

The Washington Matter

The following facts are not in dispute, having been stipulated to by the parties:

In September 2006, Toren Washington filed a disciplinary complaint against respondent. On September 27, 2006, respondent was served with the complaint. Although respondent prepared a response to the complaint dated November 14, 2006, and believed it had been transmitted, the ODC did not receive the response.

The ODC alleged respondent violated Rule 8.1(c) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct.

The Medious Matter

The following facts are not in dispute, having been stipulated to by the parties:

In 1999, Roscoe Medious paid respondent a $500 fee to review his file. Respondent completed the review, fully earning the fee. Thereafter, Mr. Medious paid respondent an additional $2,000 to file an application for post-conviction relief under the “newly-discovered evidence” exception. For the next several years, respondent attempted to obtain the evidence at issue and filed a petition for mandamus against the district attorney’s office for that purpose. When the evidence could not be located, respondent ended the representation in 2006. Respondent earned some portion of the $2,000 fee based on work he performed for Mr. Medious, but he failed to file an application for post-conviction relief. By letter dated July 6, 2006, respondent invited Mr. Medious to contact the Louisiana State Bar Association |4to begin a fee arbitration process. Mr. Medious did not respond to respondent’s letter, nor did he initiate arbitration. At that time, respondent did not immediately refund the unearned portion of the fee or promptly escrow the disputed portion pending the resolution of the fee dispute as he was obligated to do by the Rules of Professional Conduct. In May 2009, after the filing of the original formal charges, respondent refunded the $2,000 fee to Mr. Medious.

The ODC alleged respondent violated Rule 1.5(f)(5) (failure to refund an unearned fee) of the Rules of Professional Conduct.

The Jones Matter

The following facts are not in dispute, having been stipulated to by the parties:

In June 1999, Mark Jones paid respondent a $500 fee to review his file. Respondent completed the review, fully earning the fee. Mr. Jones paid respondent an additional $1,500 to file an application for post-conviction relief. Respondent did not file the application. In May 2006, Mr. Jones filed a disciplinary complaint against respondent. By letter dated December 2, 2006, respondent responded to the complaint, indicating that he did not have Mr. Jones’ file because it was in the possession of a former associate who was then handling the matter. Respondent advised that he would contact the associate immediately and file a more substantive response. Despite repeated attempts, however, respondent was unable to obtain any further information from the associate regarding the status of Mr. Jones’ case. Respondent did not respond further to the disciplinary complaint filed by Mr. Jones.

Respondent earned some portion of the fee based on work he performed for Mr. Jones. However, he did not complete the agreed-upon representation and did not immediately refund the unearned portion of the fee or promptly escrow the disputed portion pending the resolution of the fee dispute as he was obligated to do by the |fiRules of Professional Conduct. In May 2009, after the filing of the original formal charges, respondent refunded the $1,500 fee to Mr. Jones.

The parties stipulated respondent violated Rule 1.3 of the Rules of Professional Conduct. The ODC further alleged respondent violated Rules 1.5(f)(5) and 8.1(c).

The Avgust Matter

The following facts are not in dispute, having been stipulated to by the parties:

Daniel August filed a disciplinary complaint against respondent. In November 2006, respondent was notified of the .filing of the complaint. Although respondent recalls responding to the complaint, he has been unable to locate any response. Moreover, no response was received by the ODC.

The ODC alleged respondent violated Rule 8.1(c) of the Rules of Professional Conduct.

The Henry Matter

The parties did not enter into any stipulations regarding this count and there is a disagreement as to what exactly respondent was retained to do. The ODC alleges that Aaron Henry hired respondent to file a motion to enforce plea agreement, but then failed to complete the representation and failed to return the $1,500 fee Mr. Henry paid. However, respondent contends that he was retained to draft correspondence and furnish records to the Department of Corrections relative to Mr. Henry’s sentence in his criminal case. Considering the work that he performed, respondent contends that he fully earned the $1,500 fee paid by Mr. Henry.

Mr. Henry subsequently filed a disciplinary complaint with the ODC. Although respondent believed he had forwarded his response to the complaint to the ODC, the ODC did not receive the response.

|fiThe ODC alleged respondent violated Rules 1.3, 1.5(f)(5), and 8.1(c) of the Rules of Professional Conduct.

Hearing Committee Report

This matter proceeded to a hearing. As previously discussed, the parties submitted joint stipulations of fact and law to the hearing committee. The committee accepted the stipulations of fact and found the following violations by respondent of the Rules of Professional Conduct: Rules 1.3 and 1.4 in the McGinnis matter; Rule 8.1(c) in the Washington matter; Rule 1.5(f)(5) in the Medious matter; Rules 1.3 and 1.5(f)(5) in the Jones matter; and Rule 8.1(c) in the August matter. As to the Henry matter, the committee found no evidence of misconduct by respondent. The committee determined that respondent was retained to advise Mr. Henry with regard to his administrative remedies within the Department of Corrections. The committee found no evidence to support the ODC’s contention that respondent was hired to file a motion to enforce Mr. Henry’s plea. The committee also found no evidence that the $1,500 charged by respondent in the Henry matter was either unreasonable or unearned, or that respondent failed to cooperate with the ODC in its investigation of the complaint filed by Mr. Henry.

The committee adopted the following aggravating factors stipulated to by the parties: a pattern of misconduct, multiple offenses, substantial experience in the practice of law (admitted 1991), and vulnerability of the victims. The committee likewise adopted the mitigating factors stipulated to by the parties: absence of a dishonest or selfish motive, personal or emotional problems, restitution, good 17character and reputation, cooperative attitude toward the disciplinary proceedings, and remorse.

With regard to the sanction, both parties maintained that the misconduct in the present matter occurred during the same time period as respondent’s misconduct subject of Armond I. Accordingly, the parties contended that the approach 'of Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), is applicable. After considering Chatelain and other case law, the parties agreed that a one-year suspension is appropriate. The committee accepted this proposal and agreed to recommend a one-year suspension. The committee reasoned that respondent’s violations were the result of mere negligence, owing to his excessive case load, poor management skills, and various personal issues he wrestled with at the time. The committee also noted that respondent appeared to exhibit genuine remorse during the proceedings, as well as respect for the legal system and the profession.

Based on this reasoning, the committee recommended that respondent be suspended from the practice of law for one year.

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

Disciplinary Board Recommendation

After review, the disciplinary board determined the hearing committee’s factual findings are not manifestly erroneous. The board also determined the committee correctly applied the Rules of Professional Conduct, except that in addition to the | ^misconduct found by the committee, respondent failed to cooperate with the ODC in its investigation of the Jones and Henry matters, in violation of Rule 8.1(c).

The board determined respondent negligently violated duties owed to his clients by failing to diligently pursue matters and failing to return unearned fees in a timely manner. Respondent also negligently violated a duty owed to the profession by failing to ensure that he complied with the ODC’s requests. Respondent caused actual harm to his clients by delaying their legal matters and failing to refund unearned fees in a timely manner. However, the board also determined any harm caused by respondent’s failure to cooperate with ODC appears to be de minimis since respondent eventually fully cooperated with the ODC and stipulated to a majority of the factual allegations in the formal charges. After reviewing the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is suspension. The board found the aggravating and mitigating factors, as stipulated by the parties, are supported by the record.

Turning to the issue of an appropriate sanction, the board agreed that the Chate-lain approach is applicable to the facts of this matter. The board determined that the substantive misconduct occurred during the same time period as the misconduct in Armond I; accordingly, for the purposes of determining a sanction, the substantive misconduct should be considered in conjunction with the misconduct that was the subject of Armond I.

Based upon these findings, the board determined that if the substantive misconduct in this matter was considered together with the misconduct in Armond I, the court would have imposed a period of actual suspension, rather than a fully-deferred suspension. The case law indicates the suspension would range from sixty days to six months. Together with the multiple instances of failure to cooperate seen |9in this case, the board agreed that the one-year suspension stipulated to by the parties appears to be justified.

Accordingly, the board recommended respondent be suspended from the practice of law for one year.

One board member dissented and would recommend a one year and one day suspension from the practice of law.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

In this matter, the record supports the stipulation of facts and the factual findings made by the hearing committee. Based on those facts, respondent neglected two legal matters, failed to communicate with a client, failed to return an unearned fee, and failed to cooperate with the ODC in its investigations. The record supports the rule violations found by the disciplinary board.

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

Respondent violated duties owed to his clients, the legal system, and the legal profession. Respondent acted negligently by failing to promptly perform duties necessary to protect his clients’ interests. Under the ABA’s Standards for Imposing Lawyer Sanctions, the baseline sanction for respondent’s misconduct is suspension. We agree with the committee’s and the board’s assessment of the mitigating and aggravating factors.

Turning to the issue of an appropriate sanction, we note the board’s recommendation of a one-year suspension is largely based on its determination that the substantive misconduct in this case occurred simultaneously with the misconduct at issue in Armond I. We agree with the board’s analysis, and therefore we will adopt its recommendation and suspend respondent from the practice of law for one year.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, it is ordered that Arcenious Francis Armond, Jr., Louisiana Bar Roll number 20678, be and he hereby is suspended from the practice of law for one year. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, | n 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.

      . The parties also stipulated to the existence of several aggravating and mitigating factors, and jointly proposed a sanction of a one-year suspension from the practice of law.

      . The committee noted that respondent nevertheless fully refunded Mr. Henry's fee in May 2009.

      . In Chatelain, this court observed that when a second attorney disciplinary proceeding involves conduct which occurred during the same time period as the first proceeding, the overall discipline to be imposed should be determined as if both proceedings were before the court simultaneously.


text:
    STATE of Louisiana v. Jeffery James BUTLER.
    No. 2010-KO-595.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Butler, Jeffery James; — Defendant; Applying for Writ of Certiorari and/or review, Parish of Jefferson, 24th Judicial District Court, Div. A, No. OS-2817; to the Court of Appeal, Fifth Circuit, No. 09-KA-814.

Writ application denied.

JOHNSON, J., would grant writ application and assigns reasons.

JOHNSON, J., would grant this writ application.

|TIn this matter, Jefferson Parish Sheriffs Office Deputy Louis Adams merely observed two black men near a vehicle described by an anonymous tipster. In fact, even though two white men were also allegedly involved, Adams did not observe these men, despite arriving at the location a few minutes after he received the information. There is no indication that Deputy Adams adequately corroborated the anonymous tip and, thus, it cannot solely form the basis for reasonable suspicion to stop the defendant. The record does not indicate that Deputy Adams testified to any behavior, or any other fact that would have justified a Terry stop. See, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In my view, the defendant was unlawfully seized at the time he dropped the contraband. Evidence abandoned by an individual and recovered by the police as a direct result of an unconstitutional seizure may not be used in a resulting prosecution against the individual. State v. Chopin, 372 So.2d 1222 (La.1979). I would reverse the defendant’s conviction and sentence, since the trial court erred in denying defendant’s motion to suppress.


author: CLARENCE E. McMANUS, Judge. JOHNSON, J.,

text:
    Donisha BROWN v. John DOE, Checker’s Drive-In Restaurants, Inc. d/b/a Rally’s Hamburgers, Inc., and ABC Insurance Company.
    No. 09-CA-1032.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2010.
    Christian W. Helmke, Leonard L. Le-venson, Attorneys at Law, New Orleans, Louisiana and Franz L. Zibilich, Attorney at Law, Metairie, Louisiana, for Plaintiff'Appellant.
    Shannon S. Dartez, Hurlburt, Privat & Monrose, Attorney at Law, Lafayette, Louisiana, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

\ STATEMENT OF THE CASE

Plaintiff, Donisha Brown, was an employee at a Rally’s Restaurant in Jefferson Parish. She was working the drive-thru window on March 21, 2005. On that date, the manager on duty was Shantell Davis. Davis was cleaning the oven and placed the can of oven cleaner on a shelf above the deep fryer. The can of oven cleaner then fell into the deep fryer and exploded. Brown and other employees in the restaurant were burned with hot grease. The injured employees, including Brown, were paid workers’ compensation indemnity benefits and medical expenses.

On March 20, 2006, Brown filed a lawsuit in the Twenty-Fourth Judicial District Court against Checker’s Drive-In Restaurant, Inc. d/b/a Rally’s Hamburgers, Inc. She alleged she sustained injuries as a result of being burned by the hot grease due to the intentional acts of Davis. On April 25, 2008, defendants filed a motion for summary judgment alleging Brown’s suit must be dismissed because her exclusive remedy is limited to workers’ compensation benefits because she was in the course and scope of her employment with Rally’s at the time of the explosion and injury. Brown opposed the motion arguing Rally’s, through its employee, had wantonly and recklessly exposed her to the extremely |sdangerous and harmful environment which ultimately injured her, thus Rally’s was liable to her for these intentional acts beyond its workers’ compensation liability.

The trial court held a hearing on the motion for summary judgment January 21, 2009 and granted the motion. A written judgment was executed by the trial court granting the motion for summary judgment and dismissing Brown’s suit on February 10, 2009. Brown now appeals this judgment. For the reasons which follow, we affirm the trial court’s judgment granting defendants’ motion for summary judgment and dismissing all claims of Brown.

DISCUSSION

A motion for summary judgment is properly granted only on a showing that there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Tassin v. City of Westwego, 95-307 (La.App. 5 Cir. 12/13/95) 665 So.2d 1272. Summary judgments are reviewed on appeal de novo. Tassin, supra, citing Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). An appellate court must ask the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact remaining to be decided, and whether the appellant is entitled to judgment as a matter of law. Tassin, supra, citing Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 731, 750.

On appeal, Brown argues the trial court erred in finding her exclusive remedy lies in La. R.S. 23:1032(A) of the Workers’ Compensation Act. She further argues summary judgment is inappropriate because genuine issues of material fact remain because credibility determinations were made to determine the intent and knowledge of Davis, the manager.

|4La. R.S. 23:1032(A) provides as follows:

A. (l)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages, unless such rights, remedies, and damages are created by a statute, whether now existing or created in the future, expressly establishing same as available to such employee, his personal representatives, dependents, or relations, as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or disease.

In accordance with this section of the article, since Brown was injured while in the course and scope of her employment, her exclusive remedy for her injuries is workers’ compensation. Brown argues the injuries she suffered were caused by the intentional acts of the restaurant’s manager, Davis. Therefore, she argues the exception of La. R.S. 23:1032(B) applies. La. R.S. 23:1032(B) provides:

B. Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.

In accordance with this section of the article, if Brown’s injuries were caused by an intentional act, she is entitled to pursue a tort claim against those who caused her injuries. The trial court found there was no intentional act and granted summary judgment in favor of defendants, dismissing Brown’s tort claims. We agree with the trial court and find the conduct of Davis, the restaurant manager, does not amount to an intentional act.

The Louisiana Supreme Court addressed whether an act by an employee was an intentional act in Reeves v. Structural Preservation Systems, 1998-1795, (La.3/12/99), 731 So.2d 208. The Supreme Court in Reeves determined the meaning of an “intentional act” based on its previous decision in Bazley v. Tortorich, 397 So.2d 475 (La.1981), and a discussion of the legislative intent of the exception of |sLa. R.S. 23:1032(B). The Supreme Court found the meaning of “intent” is when the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Reeves, supra, citing, Bazley, supra.

In Reeves, the Supreme Court further explained that “substantially certain to follow” requires more than a reasonable probability that an injury will occur. Reeves, supra, citing Jasmin v. HNV Cent. Riverfront Corp., 94-1497, (La.App. 4 Cir. 8/30/94), 642 So.2d 311. Further, believing that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls -within the range of negligent acts that are covered by workers’ compensation. Reeves, supra.

In Bazley, the Supreme Court found the employee’s acts of operating a garbage truck without a working horn, disregarding mechanical and electrical maintenance standards, failing to keep a lookout, failing to stop in a safe place and failing to warn the plaintiff of danger did not amount to an intentional act. Bazley, supra. In Reeves, the Supreme Court found that the employer’s act of requesting that an employee manually moving a sandblasting pot, even though OSHA guidelines prohibited the pot from being moved manually and the supervisor feared someone would eventually get hurt if the pot was moved manually, was not an intentional act under the workers’ compensation exception of La. R.S. 23:1032(B).

In this case, Davis was cleaning with an oven cleaner and placed the can on the shelf above the deep fryer. Another employee accidentally knocked the can of oven cleaner into the deep fryer of hot grease. After the can fell into the fryer, Davis said “[w]hatever is in there, get it out.” We find the act of placing the can of oven cleaner on the shelf above the fryer was not an intentional act by Davis, and | ^further, Davis had no knowledge of what was in the fryer or that the item in the fryer would explode or cause injury. The evidence presented does not demonstrate that Davis consciously desired the physical result of the act, the can falling into the deep fryer and then exploding, nor did she know that the result was substantially certain to follow from the placing of the can on the shelf. Therefore, we find Davis’ actions in placing the can on the shelf and then providing instructions to remove the object from the fryer did not amount to an intentional act. Davis’ acts may have been negligent; however, we find they did not rise to the level of intentional.

On appeal, Brown has also argued that the depositions of two other employees involved in this incident, Tyquincia Aguillard and Symmeron Cole, should not have been admitted or relied on by the trial court because Brown was not represented at the deposition and had no opportunity to ask questions on cross examination. These two employees filed similar intentional tort claims against these same defendants in Orleans Parish Civil District Court. These claims were eventually dismissed on summary judgment after the Fourth Circuit Court of Appeal granted writs and reversed the trial court’s denial of the motions.

In opposition on appeal, defendants claim copies of these depositions were provided to Brown well in advance and Brown had an opportunity to schedule a separate deposition in order to cross examine these witnesses. These two individuals were also listed by the defendants as witnesses for trial.

The trial court in this case has not provided reasons for judgment. We are unable to determine if the trial court actually relied on these depositions in deciding this motion for |7summary judgment. Nonetheless, we find these depositions were properly submitted by defendants in support of their motion for summary judgment and Brown was given an opportunity to conduct her own discovery to supplement these depositions.

Accordingly, we find the exception of La. R.S. 23:1032(B), for claims for intentional acts, does not apply to Brown’s claims against defendants. Brown’s exclusive remedy against defendants for her injuries as a result of the oven cleaner falling in the deep fryer and exploding, lies in workers’ compensation. We find no genuine issues of material fact remain and defendants are entitled to judgment as a matter of law. Thus, the trial court correctly granted summary judgment in favor of defendants and this Court affirms that judgment.

AFFIRMED.

JOHNSON, J., Dissents in Part With Reasons.

JOHNSON, J.,

dissenting.

hi, respectfully, dissent, in part, from the majority on the issue of whether the depositions of Symmeron Cole and Tyquin-cia Aguillard were admissible for summary judgment purposes pursuant to LSA-C.C.P. art. 966.

On appeal, Donisha Brown (“Brown”) alleged that the trial court erred in failing to apply the proper evidentiary standards in granting the motion for summary judgment when the depositions her co-workers were admitted as evidence. Brown contends that the copies of the depositions attached to the motion for summary judgment were taken in other matters filed in the Civil District Court in Orleans Parish, and she was not afforded the opportunity to ask questions during those depositions.

Conversely, Checker’s Drive-In Restaurant, Inc., d/b/a Rally’s Hamburgers, Inc. (“Rally’s”) avers that Brown was given notice well in advance of its motion that the depositions would be used in this litigation, and Brown had ample time to schedule her own depositions and cross-examine the deponents. Additionally, Rally’s avers that the two deponents were co-employees of Brown who were involved in the same accident and suffered substantially the same injuries. However, Rally’s fails to acknowledge that Brown was not a party to the actions wherein those depositions were taken.

|2LSA-C.C.P. art. 1450 permits a deposition taken in one case to be used in another case brought against the same parties involving the same subject matter. Yarbrough v. Louisiana Cement Co., Inc., 370 So.2d 602, 605 (La.App. 4th Cir.1979). Depositions in other proceedings are, however, collateral depositions and are not depositions “on file” for use in summary judgments, as required by LSA-C.C.P. art. 966(B), and should not be considered in a motion for summary judgment. Bell v. Gold Rush Casino, 04-1123, p. 7 (La. App. 3 Cir. 2/2/05); 893 So.2d 969, 973.

I agree with Brown that the two depositions from her co-workers should not have been admitted for consideration of the summary judgment. The two depositions were taken for the purposes of litigating the actions brought in Orleans Parish, and Brown did not have the opportunity to cross-examine the deponents because she was not a party to their actions. Those depositions were collateral depositions and should not have been considered by the trial court in this matter. However, I find that the admissions of the depositions constituted harmless errors by the trial court. Absent the depositions of the co-workers, the trial court had sufficient evidence to conclude that there were no remaining genuine issues of material fact to decide.