author: PER CURIAM.

text:
    In re Noland James HAMMOND.
    No. 2010-B-0419.
    Supreme Court of Louisiana.
    Jan. 19, 2011.

      Charles Bennett Plattsmier, Elizabeth Dougherty, Baton Rouge, LA, for Applicant.
    Darrell Keith Hickman, Noland James Hammond, for Respondent.
   PER CURIAM.

11 This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Noland James Hammond, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Hammond, 05-2538 (La.12/22/05), 917 So.2d 433.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In March 2008, the ODC filed twenty-four counts of formal charges against respondent. The formal charges can be grouped together into three broad categories: Counts I through XII, which involve inappropriate sexual contact with clients, many of whom were inmates housed at correctional facilities in the Alexandria area; Counts XIII through XXIII, which involve neglect of legal matters, failure to communicate with clients, and failure to properly terminate the representation of clients, including returning files and refunding unearned fees; and Count XXIV, which involves engaging in the unauthorized practice of law following interim suspension. Because the sexual misconduct and the unauthorized practice of law | ^charges, standing alone, support the disciplinary board’s recommendation of permanent disbarment, our opinion will focus only on those counts.

Counts I & II

G.L. and I.S. were inmates at the Bunk-ie Detention Center in Avoyelles Parish. In October 2003, respondent visited the jail and told Mr. L. and Mr. S. that he was an attorney, that he was familiar with the circumstances of their cases, and that he believed they had been wrongfully convicted. Respondent advised the men that he believed he could obtain the reversal of their convictions, resulting in their immediate release from jail, but that he would need samples of their semen in order to do so.

The following day, respondent returned to the jail accompanied by a sixteen-year old girl whom he identified as his “assistant.” Under the pretense of requiring an attorney-client contact visit, respondent obtained permission to meet with Mr. L. and Mr. S. in a private office, along with his “assistant.” Once the four were alone, the girl performed oral sex on Mr. L. and Mr. S. while respondent videotaped the encounter.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.7(a)(2) (a lawyer shall not represent a client if there is a significant risk that the representation will be materially limited by a personal interest of the lawyer), 1.8(b) (a lawyer shall not use information relating to the representation of a client to the disadvantage of the client), 4.1(a) (making a |sfalse statement of material fact or law to a third person), 4.4(a) (in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act, especially one that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

Count III

In November 2002, Vernon Creecy, the warden of the Rapides Parish Detention Center, filed a complaint against respondent with the ODC. According to the complaint, inmates were frequently found in possession of contraband after their visits with respondent, including cell phones, cigars, and money.

During its investigation of Warden Creecy’s complaint, the ODC obtained tapes and transcripts of telephone calls recorded between respondent and inmates housed at correctional facilities in the Alexandria area. In these conversations, which are extremely graphic, respondent solicited inappropriate sexual contact between himself and the inmates.

1 ,tThe ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.7(a)(2), 8.4(a), 8.4(b), 8.4(c), and 8.4(d).

Count IV

In 1998, M.M. retained respondent to defend him in a criminal case in which he was charged with possession of drugs. Mr. M. paid respondent a fee of $6,000. During the course of the representation, respondent informed Mr. M. that the district attorney had offered him a plea with a sentence of sixty years.

Respondent subsequently told Mr. M. that in order to defend him, he would need to see Mr. M. in his boxer shorts. Respondent took Mr. M. to his (respondent’s) home and told him to strip down to his boxer shorts. Respondent also told Mr. M. that he needed to achieve an erection, which Mr. M. could not do. Respondent then turned on a sexually explicit video, but this did not help Mr. M. achieve an erection, so respondent began stroking Mr. M.’s penis. Scared, Mr. M. jumped away, got dressed, and left respondent’s home.

The following Monday, respondent met Mr. M. in court for a pre-trial conference and told him that the district attorney had offered him a plea deal of five years incarceration beginning immediately. Mr. M. fired respondent and reported his conduct to Alexandria attorney Bridgett Brown, who had previously represented Mr. M. Through Ms. Brown, Mr. M. accepted the plea arrangement and was sentenced to serve five years in jail.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.7(b) (a lawyer shall not represent a client if there is a significant risk that the representation will be materially limited by a | .^personal interest of the lawyer), 1.8(b), 7.1 (communications concerning a lawyer’s services), 8.4(a), 8.4(b), and 8.4(c).

Count V

In June 2003, C.S. filed a complaint against respondent with the ODC. According to the complaint, Mr. S., who was then incarcerated, paid respondent $400 to represent him in a probation matter. Mr. S. attempted to discuss the case with respondent on numerous occasions, but in response, respondent made sexual advances toward Mr. S. Respondent promised to help Mr. S. get out of jail if he did not say anything about the sexual advances.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.7(a)(2), 4.4(a), 8.4(a), 8.4(b), 8.4(c), and 8.4(d).

Count VI

In May 2003, D.H. filed a complaint against respondent with the ODC. According to the complaint, Mr. H. retained respondent to represent him in a criminal matter. When respondent visited Mr. H. in the jail where he was incarcerated, he would not discuss the case, but would use the visits to make sexual advances toward Mr. H. Respondent also gave Mr. H. his home telephone number to engage in sexually explicit conversations. Finally, Mr. H. alleged that respondent instructed him to give false testimony in an unrelated criminal proceeding so that he could get out of jail. Mr. H. eventually discharged respondent, who returned a portion of the file to Mr. H., claiming the remaining portion was lost.

|fiThe ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.7(a)(2), 1.16(d) (obligations upon termination of the representation), 4.4(a), 8.4(a), 8.4(b), 8.4(c), and 8.4(d).

Count VII

In 1999, P.C. filed a complaint with the ODC, alleging that respondent sexually harassed him and that his conversations with respondent were of a sexual nature. The complaint was dismissed in 2000 for lack of clear and convincing evidence to support the allegations; however, in light of numerous similar complaints filed subsequent to the dismissal, the ODC reopened Mr. C.’s complaint in 2004.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.7(a)(2), 4.4(a), 8.4(a), 8.4(b), 8.4(c), and 8.4(d).

Counts VIII and IX

In 2002, G.S. retained respondent to file an application for post-conviction relief, the deadline for which was August 2003. Mr. S.’s mother, C.W., paid respondent a fee of $5,500. During the course of the representation, respondent solicited sexual acts from Mr. S., suggesting he would work more diligently on the case if Mr. S. were receptive. Respondent also had Mr. S. telephone him from the prison facility where he was incarcerated, and during these conversations, engaged Mr. S. in graphic sexual conversations.

In 2005, Mr. S. filed a complaint with the ODC, alleging respondent had done no legal work even though he had been paid in full. Subsequently, respondent visited 17Mr. S. in jail and presented him with an affidavit withdrawing the complaint, which he instructed Mr. S. to sign.

A hearing in Mr. S.’s legal matter was held on January 13, 2006, after the date respondent was placed on interim suspension. Attorney Attlah Burrell appeared on Mr. S.’s behalf at the hearing. Mr. S. was not given the opportunity to consent to Ms. Burrell’s representation. At the hearing, the court found Mr. S.’s matter was moot. Following the hearing, respondent and Ms. Burrell refunded $1,500 of the $5,500 fee paid by C.W., despite the request of Mr. S. and Ms. W. that the entire fee be refunded.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.7(a)(2), 8.4(b), 8.4(c), and 8.4(d).

Count X

In June 2000, Mr. and Mrs. N.D., Sr. paid respondent $4,400 to file an application for post-conviction relief on behalf of their son, N.D., Jr. Respondent met with Mr. D., Jr. to discuss the matter, but during the meeting, he grabbed Mr. D., Jr.’s penis and said he wanted to have sex with him. Once it became clear that Mr. D., Jr. would not engage in sex acts with respondent, respondent did not work on the case any further. He then withdrew from the case in November 2001. Respondent did not complete the representation and refused to refund any of the fee he was paid.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.5(f)(5) (failure to refund an unearned fee), 1.7(a)(2), 1.16(d), 8.4(c), and 8.4(d).

| gCount XI

In February 2004, T.G. retained respondent to represent him in a criminal matter. Respondent was paid $10,000 for the representation. According to Mr. G., respondent made inappropriate sexual solicitations toward him when he went to respondent’s office to discuss his case. Eventually, Mr. G. stopped going to respondent’s office without asking a family member to accompany him. Mr. G. also stated that once he refused respondent’s sexual advances, respondent no longer pursued the criminal case with the same level of interest.

Nevertheless, on respondent’s advice, Mr. G. pled guilty to the criminal charge against him. He was sentenced to serve five years in prison at hard labor without benefit of parole, probation, or suspension of sentence. However, Mr. G. had understood from respondent that because he had no criminal record, he would be sentenced to probation with no jail time. Consequently, Mr. G. discharged respondent and hired another attorney. Mr. G. was subsequently allowed to plead to a lesser charge and to serve his remaining sentence on probation and out of jail.

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), 1.4 (failure to communicate with a client), 1.7(a)(2), and 8.4(c).

Count XII

D.N. retained respondent to represent him following a criminal conviction. Mr. N.’s family paid $4,100 of respondent’s $5,500 fee to handle the matter. Respondent visited Mr. N. in prison on several occasions after he was hired, but never discussed any progress being made on the case. Rather, he solicited sexual favors from Mr. N. |9and asked to see Mr. N.’s penis. At one point, respondent began asking Mr. N. about the remaining payments due on the retainer fee. Respondent offered to waive the final payments if Mr. N. would engage in sexual acts with him. Mr. N. refused. Thereafter, respondent refused to accept Mr. N.’s telephone calls and the representation was not completed.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.4, 1.7(a)(2), and 1.16(d).

Counts XIII-XXIII

These counts involve allegations that respondent neglected his clients’ legal matters, failed to communicate with his clients, and failed to properly terminate the representation of his clients, including returning files and refunding unearned fees. As previously discussed, the specific facts of these counts have been omitted from this opinion.

Count XXIV

Following respondent’s December 22, 2005 interim suspension, his law school classmate, Baton Rouge attorney Attlah Burrell, agreed to help him with his pending cases and to adopt his Alexandria law office as her “satellite office.” Respondent worked in the office as a paralegal; his mother, Alice Hammond, worked as the secretary and notary; and his aunt, Mary Hammond, worked as the receptionist. Ms. Burrell was in the Alexandria office one or two days per week and remained in Baton Rouge during the rest of the week.

li (Although respondent contended that he was at all times acting under the authority and supervision of Ms. Burrell, the ODC received information to the contrary from a complainant, C.W. According to Ms. W., respondent told her that his license had been suspended; however, the law office and the clients were still his, and that Ms. Burrell was in the office only to go to court. The ODC also discovered that respondent was negotiating personal injury settlements with insurance adjusters and disbursing the settlement funds to the clients.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 5.5(a)(b) (engaging in the unauthorized practice of law), 5.5(e)(4) (a suspended lawyer shall not receive, disburse, or otherwise handle client funds), 8.4(a), 8.4(c), and 8.4(d).

DISCIPLINARY PROCEEDINGS

Respondent answered the formal charges filed by the ODC and generally denied any misconduct. The matter then proceeded to a formal hearing on the merits, which was conducted by the hearing committee over seven days in January and March 2009. Numerous witnesses testified during the hearing, including respondent; respondent’s mother, Alice Hammond, and his aunt, Mary Hammond; the inmates and their family members involved in each of Counts I — XII; attorneys Kenneth Rodenbeck, Phyllis Mann, and Bridgett Brown; Warden Vernon Creecy; several personal injury clients who dealt with respondent after his interim suspension, not knowing he was suspended; several claims adjusters who settled personal injury claims with respondent after his interim suspension, all believing he was licensed to practice law; and attorney Attlah Burrell.

11T Hearing Committee Report

After considering the evidence and testimony presented at the hearing, the hearing committee made factual findings which were generally consistent with the underlying facts as set forth above in connection with the formal charges. In addition, the committee made these findings:

Counts I & II — Phyllis Mann, a central Louisiana criminal defense attorney, complained that her former client, G.L., related to her that on October 15, 2003, respondent appeared at the Bunkie Detention Center with his assistant at the request of the inmate’s relatives. Respondent claimed that if semen samples could be obtained from Mr. L. and I.S., respondent would be able to obtain their releases from prison. Mr. S. did not testify at the formal hearing, but Mr. L. testified that respondent’s assistant performed oral sex on him and Mr. S. while respondent filmed these acts. Mr. L. also testified that upon ejaculation, his semen was deposited on a piece of plastic which respondent put inside his briefcase and removed from the prison. The hearing committee found Mr. L.’s testimony credible in this regard, and rejected the testimony of both respondent and his assistant that the events Mr. L. described did not occur.

Based on these findings, the committee concluded that respondent violated Rules 1.7(a)(2), 4.4(a), 8.4(a), 8.4(b), 8.4(c), and 8.4(d) in connection with Counts I and II. The committee found the other violations of the Rules of Professional Conduct alleged in Counts I and II were not proven by clear and convincing evidence.

Count III — Vernon Creecy, a retired warden with the Rapides Parish prison system, complained that respondent introduced contraband into secure areas of a 112prison and that respondent engaged in inappropriate solicitation of sexual acts from inmates during tape recorded telephone conversations. The committee did not find these allegations were proven by clear and convincing evidence, because (1) according to the testimony of Warden Creecy and other employees of the prison, several of the inmates found with contraband were not thoroughly searched prior to their private meetings with respondent, and (2) respondent testified that the conversations recorded on tape were with inmates whom he had known for long periods of time but never represented as an attorney. The committee did find, however, that the tape recorded conversations, which were characterized as being “of a graphic sexual nature,” were probative and relevant in two regards: (a) they show a pattern and practice of respondent attempting to engage in sexual conversations and/or sexual solicitations with inmates, and (b) they lend credibility to the other allegations of inappropriate sexual misconduct set forth in the formal charges.

Coimt TV — The committee found that M.M. hired respondent to handle a criminal case. During the representation, respondent brought Mr. M. to his home, telling him that in order to defend him, he would need to see him in his boxer shorts. Respondent grabbed Mr. M.’s penis and began stroking it when Mr. M. could not achieve an erection. The committee also found that respondent told Mr. M. that in order to help with his case, he would have to have sex with respondent. Thereafter, Mr. M. fired respondent and reported the incident to attorney Bridgett Brown, who had previously represented Mr. M. The evidence reflects that respondent subsequently tried to contact Mr. M. in an effort to get him to retract his allegations of wrongdoing. Furthermore, the committee found that Ms. Brown convened a meeting to discuss the allegations of sexual misconduct against respondent. In attendance at the meeting were Ms. Brown, Mr. M., respondent’s mother, and |1sattorney Ed Larvadain. While respondent’s mother denied this meeting took place, the committee did not find her testimony credible.

Based on these findings, the committee concluded that respondent violated Rules 1.7(b), 1.8(b), 7.1, 8.4(a), 8.4(b), and 8.4(c) in connection with Count IV. The committee recommended that respondent be required to make restitution to Mr. M. in the amount of $6,000.

Count V — The committee found that although he was paid $400 to handle C.S.’s probation matter, respondent did little, if anything, toward obtaining the relief Mr. S. sought. The committee also noted that respondent had previously represented Mr. S. while working as an indigent defender; however, at that time, Mr. S. related to Ken Rodenbeck, the chairman of the Indigent Defender Board, that respondent had made unwarranted sexual advances toward him. The committee found credible Mr. Rodenbeck’s testimony that this was one of the reasons why respondent’s contract with the IDB was not renewed. The committee likewise found credible Mr. S.’s testimony, and rejected affidavits prepared by respondent that were used in an attempt to discredit Mr. S.’s testimony. Mr. S. admitted he cannot read and was unaware of the contents of the affidavits when he signed them. Further, the committee did not find that Mr. S.’s testimony was discredited by the fact that he used respondent’s services on two occasions, as Mr. S. testified that he felt he did not have a choice of attorneys and that money was also a concern.

Based on these findings, the committee concluded that respondent violated Rules I.7(a)(2), 4.4(a), 8.4(a), 8.4(b), 8.4(c), and 8.4(d) in connection with Count V.

Count VI — The committee found that during respondent’s representation of D.H. in a criminal matter, respondent instructed him to give false testimony in | ^connection with an unrelated criminal proceeding in which Mr. H. was a witness. The committee also determined -that respondent attempted to get Mr. H. to sign an affidavit which would discredit a complaint to the ODC previously filed by Mr. H. However, the committee did not find Mr. H.’s allegations of sexual misconduct by respondent were proven by clear and convincing evidence, as Mr. H. was very vague and nonspecific in his recollection of this issue.

Based on these findings, the committee concluded that respondent violated Rules 4.4(a), 8.4(b), 8.4(c), and 8.4(d) in connection with Count VI. The committee found the other violations of the Rules of Professional Conduct alleged in Count VI were not proven by clear and convincing evidence.

Count VII — P.C. alleged that respondent made inappropriate sexual advances toward him. Following the filing of a complaint with the ODC, Mr. C. executed an affidavit acknowledging that he had received his file and that respondent had done nothing improper in connection with the handling of his case. Mr. C. later repeated his allegations of sexual harassment in pleadings filed with the Rapides Parish Clerk of Court. However, in light of the conflicting statements made by Mr. C. and considering his demeanor at the hearing, the committee did not find him credible. Accordingly, the committee did not find the violations of the Rules of Professional Conduct alleged in Count VII were proven by clear and convincing evidence.

Counts VIII and IX — G.S. was incarcerated and serving a lengthy prison sentence when he hired respondent to help with post-conviction relief. His mother paid respondent a fee of $5,500. Mr. S. testified that respondent sexually propositioned him and engaged in graphic sexual conversations with him over the telephone. Mr. S. did not feel that respondent adequately worked on his case and 11sfiled a complaint with the ODC. He was subsequently visited by respondent and signed an affidavit discrediting the ODC complaint. Mr. S. explained that he signed the affidavit because he was concerned about the large sum of money his mother had paid for respondent’s services. The committee found Mr. S.’s testimony in this regard was credible and worthy of belief, and determined that respondent did not perform the agreed upon work in a timely manner.

A hearing was held in Mr. S.’s legal matter after the date of respondent’s interim suspension. Mr. S.’s mother, C.W., heard about respondent’s suspension through the media, but respondent told her he was still operating his office and that attorney Attlah Burrell, who appeared on Mr. S.’s behalf at the hearing, was there simply to “go to court.” Following the hearing, at which the court found that Mr. S.’s matter was moot, Ms. Burrell and respondent refunded $1,500 of the $5,500 fee. Ms. W. asked for a refund of the entire fee, which request was denied.

Based on these findings, the committee concluded that respondent violated Rules 1.3, 1.7(a)(2), 8.4(c), and 8.4(d) in connection with Counts VIII and IX. The committee did not address the alleged violation of Rule 8.4(b). The committee recommended that respondent be required to make restitution to Ms. W. in the amount of $5,500, less a credit for the $1,500 previously paid.

Count X — Respondent was retained to represent N.D., Jr. in a post-conviction relief claim. The committee found credible and believable Mr. D., Jr.’s testimony that during a conference relative to his legal matters, respondent grabbed Mr. D., Jr.’s penis without permission. Once it became clear that Mr. D., Jr. would not engage in sex acts, respondent did not work on his case any further, causing Mr. D., Jr. to lose his only opportunity to address any issues relative to his post-conviction relief. Respondent also refused to refund any part of the $4,400 fee he was paid.

11fiBased on these findings, the committee concluded that respondent violated Rules 1.3, 1.5(f)(5), 1.7(a)(2), 8.4(c), and 8.4(d) in connection with Count X. The committee found the other violations of the Rules of Professional Conduct alleged in Count X were not proven by clear and convincing evidence. The committee recommended that respondent be required to make restitution to Mr. D., Jr. in the amount of $4,400.

Count XI — T.G. retained respondent to defend him in a criminal case, paying him $10,000. The committee noted there was conflicting testimony as to whether Mr. G. understood that he would be incarcerated for a period of five years or whether a lesser sentence would be imposed. That conflict was resolved in subsequent court proceedings. The committee found, however, that there was clear and convincing evidence that Mr. G. was the victim of unwarranted sexual advances made by respondent during office visits, as a result of which Mr. G. stopped going to respondent’s office alone.

Based on these findings, the committee concluded that respondent violated Rules 1.7(a)(2) and 8.4(c) in connection with Count XI. The committee found the other violations of the Rules of Professional Conduct alleged in Count XI were not proven by clear and convincing evidence.

Count XII — The committee found credible D.N.’s testimony that during prison visits, respondent solicited sexual favors from him and asked to see his penis. The committee further found that respondent did not obtain any legal relief for Mr. N., and that when his sexual advances were rebuffed, he ceased communicating with Mr. N.

Based on these findings, the committee concluded that respondent violated Rules 1.4 and 1.7(a)(2) in connection with Count XII. The committee found the other violations of the Rules of Professional Conduct alleged in Count XII were not proven |17by clear and convincing evidence. The committee recommended that respondent be required to make restitution to Mr. N. in the amount of $4,100.

Addressing respondent’s defenses to the sexual misconduct alleged in Counts I through XII, the committee specifically rejected respondent’s contention that the conduct did not occur. The committee also rejected respondent’s argument that his conduct was not of such a nature as to be a violation of the Rules of Professional Conduct, citing the prior jurisprudence of this court involving attorneys who engaged in sexual activity with clients.

Counts XIII-XXIII — A discussion of these counts has been omitted from this opinion.

Count XXIV — C.W. testified that respondent told her that although he was suspended, his law office was still his, the clients were still his, and that Ms. Burrell was only in the office to go to court. The committee found this testimony was consistent with the testimony of three insurance adjusters, who after dealing with respondent were all under the impression that he was the attorney handling the various cases. Specifically, during recorded statements given by personal injury clients, the adjusters referred to respondent as the attorney. Respondent did absolutely nothing on the record to correct the mischaracterization of his status, which the committee believed he had an obligation to do. Rather, by his silence, respondent perpetuated the continued actions of others in dealing with him as a lawyer. The committee also found that respondent signed up new personal injury clients and negotiated and distributed settlements on behalf of existing clients, all without disclosing his suspension from the practice of law, thereby causing the clients |1sto execute documents signing away their legal rights without the benefit of advice from a licensed attorney.

Ms. Burrell testified that at the time of respondent’s interim suspension she agreed to assist him with his pending cases. While Ms. Burrell may have initially been motivated to help a friend, the committee found it telling that she later realized the situation presented a “business opportunity” for her to have a satellite office in central Louisiana. The committee observed that both respondent and Ms. Burrell had a selfish interest in declaring that respondent was working under Ms. Burrell’s supervision and instruction. Although in many cases these instructions were allegedly communicated in writing, according to the testimony of Ms. Burrell and respondent, the committee noted that no documentation of the written communications were submitted into evidence to substantiate their claims. The committee found that the testimony presented by respondent and Ms. Burrell regarding their arrangement was simply not believable.

Based on these findings, the committee concluded that respondent violated Rules 5.5(a)(b) and 5.5(e)(4) in connection with Count XXIV. The committee did not address the other violations of the Rules of Professional Conduct alleged in Count XXIV.

The committee found respondent knowingly and intentionally violated duties owed to his clients, the legal system, and the legal profession, causing actual, serious harm. The committee determined that the baseline sanction for respondent’s misconduct is disbarment.

In aggravation, the committee found the following factors: a dishonest or selfish motive, a pattern of misconduct, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, indifference to making restitution, and | ^illegal conduct. The committee did not find any mitigating factors applicable to Counts I-XII or Count XXIV.

Considering these circumstances, particularly the extent of the aggravating factors and the absence of mitigating factors, the committee determined that an upward deviation from the baseline sanction is appropriate. Accordingly, the committee recommended respondent be permanently disbarred.

Respondent filed an objection to the hearing committee’s report and recommendation.

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board found that for the most part, the hearing committee’s factual findings are not manifestly erroneous. The board identified a few instances in which the committee made erroneous findings, and corrected those as follows:

(1) In Count III, the committee found respondent had sexually explicit conversations with inmates whom he had known for long periods of time but never represented as an attorney. However, respondent’s testimony clearly indicates otherwise. He testified that he represented a majority of the inmates as their attorney, but that they were friends before the representation. Respondent also stated that he engaged in these types of conversations with the inmates before there was an attorney-client relationship, though it was unclear whether respondent was representing these inmates as an attorney at the time the conversations occurred.

(2) In Count IV, the committee found respondent told M.M. that in order to help with his case, Mr. M. would have to have sex with respondent. However, Mr. |2qM. never made such a claim in his testimony before the hearing committee. Furthermore, nothing in the record supports that Mr. M. ever made such a claim.

(3) In Count X, the committee found that as a result of respondent’s lack of effort, N.D., Jr. lost his only opportunity to address any issues relative to his post-conviction relief. However, nothing in the record indicates that respondent’s neglect caused a loss of rights (although certainly respondent’s neglect may have negatively impacted Mr. D., Jr.’s post-conviction matter).

Based on the factual findings, the board determined the committee appropriately applied the Rules of Professional Conduct as they relate to the core misconduct alleged in the formal charges. However, the board found the committee did not apply or misapplied several rules which are ancillary to the core misconduct, and corrected the committee’s conclusions as follows:

(1) In Counts I and II, the committee found respondent did not violate Rule 1.8(b). The evidence indicates that respondent, aware of the circumstances of the convictions of Mr. L. and Mr. S., told the men he could secure their release from jail by obtaining semen samples. Thus, respondent used information related to their case to coerce Mr. L. and Mr. S. to engage in sexual acts with an “assistant” while he videotaped the acts. The board found this conduct is a violation of Rule 1.8(b).

Also in Counts I and II, the committee found respondent violated Rule 4.4(a), which states that a lawyer shall not use means having no substantial purpose other than to embarrass, delay, or burden a third person. The rule is not applicable to clients such as Mr. L. and Mr. S., but only to third persons. Therefore, the board found respondent did not violate Rule 4.4(a).

| ?A Finally, to the extent it was unclear from the committee’s report, the board clarified that respondent violated Rule 8.4(c) by coercing Mr. L. and Mr. S. to engage in sexual acts under false pretenses.

(2) In Count IV, the committee found respondent violated Rule 7.1, which generally concerns the advertising and marketing of a lawyer’s services. The board found it is unclear how the factual allegations in the formal charges or the factual findings of the committee relate to this rule. While respondent made misrepresentations to Mr. M., it was not in the context of advertising his services. Therefore, the board found respondent did not violate Rule 7.1.

(3) In Count V, the committee found respondent violated Rule 4.4(a). However, an attorney-client relationship clearly existed between respondent and Mr. S. Therefore, Mr. S. is not a third party as contemplated by the rule. Furthermore, there is no allegation or evidence that respondent obtained evidence in Mr. S.’s matter that somehow violated the rights of a third party. Therefore, the board found respondent did not violate Rule 4.4(a).

Also in Count V, the committee found respondent committed a criminal act in violation of Rule 8.4(b). The board found that neither the factual allegations in the formal charges nor the factual findings of the committee clearly demonstrate a criminal act committed by respondent. Therefore, the board found respondent did not violate Rule 8.4(b).

(4) In Count VI, the committee found respondent did not violate Rule 8.4(a). However, by violating Rules 4.4(a), 8.4(b), 8.4(c), and 8.4(d) in conjunction with his representation of Mr. H., respondent violated Rule 8.4(a).

(5) In Count X, the committee concluded that respondent did not violate Rule 1.16(d), which requires that upon termination of the representation, a lawyer shall 1 g2take reasonable steps to protect a client’s interest, including returning any unearned fees and the client’s file. By-failing to refund any portion of the $4,400 fee paid by Mr. and Mrs. D., Sr., respondent violated Rule 1.16(d).

(6) Likewise, in Count XII, the committee concluded that respondent did not violate Rule 1.16(d). However, the committee apparently concluded that respondent did not earn the $4,100 fee paid by Mr. N., as the committee recommended respondent refund the entire fee. Therefore, respondent violated Rule 1.16(d).

(7)In Count XXIV, the committee concluded that respondent did not violate Rules 8.4(a), 8.4(c), and 8.4(d). However, the committee found that respondent engaged in the unauthorized practice of law while on interim suspension. Such conduct necessarily implicates violations of Rules 8.4(c) and 8.4(d), as respondent engaged in dishonest conduct (he ignored an order of this court and failed to inform prospective clients that he was not authorized to practice law) and conduct prejudicial to the administration of justice (respondent’s clients executed legal documents upon the advice of an attorney who was not authorized to give such advice). Furthermore, by violating these rules, respondent violated Rule 8.4(a).

The board determined respondent knowingly and intentionally violated duties owed to his clients, the public, the legal system, and the profession. He caused significant harm to several vulnerable clients by making unsolicited sexual advances toward them. In a few instances, respondent actually engaged in unsolicited or coerced sexual contact with vulnerable clients. To make matters worse, when clients resisted respondent’s sexual advances, he would cease working on then* legal matters without returning the unearned fees. Furthermore, respondent caused potential and actual harm to the legal system and the profession by engaging in the unauthorized practice of law. The baseline sanction for this misconduct is disbarment.

⅛⅛ mitigation, the board found respondent has suffered the imposition of other penalties or sanctions in that his sexual misconduct was covered by a local newspaper. In aggravation, the board found the following factors: prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, indifference to making restitution, and illegal conduct.

Based upon these findings, and considering the court’s prior jurisprudence involving similar misconduct, the board recommended respondent be permanently disbarred.

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

DISCUSSION

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

^Respondent has been charged with twenty-four separate counts of misconduct. Following a hearing, the hearing committee found respondent had violated multiple Rules of Professional Conduct in the majority of the counts involving sexual misconduct. The committee also found clear and convincing evidence that respondent had engaged in the unauthorized practice of law following his 2005 interim suspension. The disciplinary board affirmed the committee’s factual findings, with relatively minor exceptions, and found clear and convincing evidence to support numerous violations of the Rules of Professional Conduct. Respondent objects to these findings.

With respect to the issue of the sexual misconduct charged in Count III, respondent contends that during his telephone conversations with the inmates he was not speaking with clients, but rather with friends or former clients. This argument is not supported by the record, in particular respondent’s own testimony before the hearing committee. There, respondent acknowledged on cross-examination that he engaged in “sexual discussions over the phone ... with clients who were inmates, yes.” Based on this testimony, we find the hearing committee and the disciplinary board erred in finding Count III of the formal charges was not proven by clear and convincing evidence.

Turning to the issue of the unauthorized practice of law, both the committee and the board found respondent violated this court’s interim suspension order by engaging in the practice of law. This finding is supported by clear and convincing evidence.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high 12pStandards 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 intentionally violated duties owed to his clients, the public, the legal system, and the profession, causing significant harm. There are numerous aggravating factors present, as found by the board, and there are no mitigating factors present. Under the circumstances, disbarment is clearly appropriate. However, in their respective reports, the hearing committee and the disciplinary board have concluded respondent’s offenses are so egregious that he should be permanently prohibited from applying for readmission to the bar.

We agree. In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might result in permanent disbarment. Respondent’s conduct falls squarely within the scope of Guideline 8 (following notice, engaging in the unauthorized practice of law subsequent to resigning from the Bar Association, or during the period of time in which the lawyer is suspended from the practice of law or disbarred). A person who is not licensed and eligible to practice law in Louisiana is not permitted to receive and handle client funds. Respondent clearly did so in several instances, as set forth in Count XXIV of the formal charges. Respondent also gave his clients legal advice and negotiated the settlement of their personal injury claims, all at a point in time when he knew he was not allowed to practice law in this state because he was on interim suspension.

| ^Considering respondent’s refusal to respect the authority of this court, as well as his use of his position as an attorney to obtain sexual gratification at the expense of his client’s interests, we find permanent disbarment is warranted. Accordingly, we will accept the disciplinaiy board’s recommendation and impose permanent disbarment. We will further order respondent to make restitution to his clients subject of the formal charges.

DECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that the name of Noland James Hammond, Louisiana Bar Roll number 24116, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. Respondent shall make restitution to all clients subject of the formal charges and repay the Louisiana State Bar Association’s Client Assistance Fund any amounts paid to claimants 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.

       Retired Judge Robert L. Lobrano, assigned as Justice ad hoc, sitting for Justice Jeannette T. Knoll, recused.

      . Because of the sensitive nature of the allegations in these counts, we have used the clients’ initials rather than their full names. See In re: Touchet, 99-3125 (La.2/4/00), 753 So.2d 820; see also La. R.S. 46:1844(W).

      . Mr. L. had been convicted of aggravated battery; Mr. S. was convicted of rape. Both convictions stemmed from sexual contact with the female victim.

      . When Mr. L. asked respondent why he needed the videotape, respondent explained that he “had to record this [the sex act] for the courthouse to know the semen came from you." Respondent then instructed Mr. L. and Mr. S. to ejaculate onto a piece of plastic which he had brought with him to the jail. Respondent wrapped up the plastic and put it into his briefcase, telling the men he intended "to show the Court that the semen they found in [the victim] wasn’t [theirs.]”

      . In 2004, following an investigation by law enforcement into the serious allegations forming the basis of Counts I and II of the formal charges, a grand jury in Avoyelles Parish returned an indictment against respondent on two counts of obscenity. In June 2008, the criminal charges against respondent were dismissed by the Avoyelles Parish District Attorney's Office.

      .The calls are recorded so that they can be monitored by jail officials for security purposes. Both parties to the call are made aware of the recording policy by an announcement at the beginning of the call.
      During the pendency of the criminal proceedings against respondent, see note 4, supra, he filed a motion to suppress these tape recordings. The trial court denied the motion, and his writ applications seeking review of that ruling were likewise denied. See State v. Hammond, 07-1024 (La.App. 3rd Cir. 10/23/07), — So.3d-, writ denied, 07-2265 (La. 1/25/08), 973 So.2d 760 (Knoll, J., recused).

      . Rule 1.7(b) was applicable at the time of respondent’s alleged misconduct in Count IV. This provision is now set forth at Rule 1.7(a)(2).

      . Prior to this time, Mr. D., Jr. had already filed a pro se application for post-conviction relief, to which no answer was filed by the district attorney. Mr. and Mrs. D., Sr. hired respondent because they were concerned a pro se application would not be given serious consideration by the courts.

      . On February 20, 2008, this court placed Ms. Burrell on interim suspension for threat of harm to the public in In re: Burrell, 08-0327 (La.2/20/08), 974 So.2d 1279. Any findings of fact we make in the instant case should not be interpreted as being controlling in the disciplinary proceedings pending against Ms. Bur-rell.

      . Mr. S.’s mother testified, although her testimony regarding the occurrence of these events was hearsay. She did, however, testify that respondent contacted her and asked her to intercede with her son to coach him as to what to say to law enforcement regarding the incident. Upon those matters as to which Mr. S.’s mother had direct knowledge, the committee found her to be credible.

      . The committee incorrectly referenced Rule 1.7(a)(2) in this count.

      . The committee incorrectly referenced Rule 1.16(d) in this count, but is clear in context that the committee intended to find a violation of Rule 4.4(a).

      . See In re: Ryland, 08-0273 (La.6/6/08), 985 So.2d 71; In re: Touchet, 99-3125 (La.2/4/00), 753 So.2d 820; In re: Ashy, 98-0662 (La.12/1/98), 721 So.2d 859.

      . In 2001, respondent was suspended by this court for four months, fully deferred, for incompetence, neglect, failure to communicate with a client, and failure to cooperate with the ODC in its investigation. In re: Hammond, 01-0318 (La.6/29/01), 789 So.2d 1259.


source: Caselaw Access Project

author: GUIDRY, Justice.

license: Public Domain

text:
    Kenneth ARDOIN v. FIRESTONE POLYMERS, L.L.C.
    No. 2010-C-0245.
    Supreme Court of Louisiana.
    Jan. 19, 2011.

      Taylor, Wellons, Politz & Duhe, APLC, B. Scott Cowart, Baton Rouge, LA, for Applicant.
    The Marceaux Law Firm, LLC, Gregory Paul Allen Marceaux, Lake Charles, LA, for Respondent.
   GUIDRY, Justice.

|, The central issue in this workers’ compensation case involving an “unwitnessed accident” is whether the Office of Workers’ Compensation hearing officer was manifestly erroneous or clearly wrong in finding the plaintiff had sustained a work-related injury. The appellate court found no such error and affirmed the hearing officer’s factual determination that the plaintiff had suffered a disabling injury from a work-related accident. We granted the employer’s writ application to review the correctness of the appellate court’s judgment and its application of Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992), and the manifest error standard of review. For the reasons that follow, we conclude the court of appeal erred in affirming the hearing officer’s factual finding, and now reverse. Our review of the record evidence convinces us the hearing officer manifestly erred in finding the plaintiff carried his burden of establishing a work-related accident.

FACTS

The plaintiff, Kenneth Ardoin, first began employment with the defendant, Firestone Polymers, Inc., in 1992, commencing as a laborer and eventually becoming a batch lab analyst. This position required the plaintiff to collect samples |?and then test them in a laboratory. To do so, the plaintiff rode a bicycle to the reactor unit, climbed twenty-eight stairs, collected the samples, climbed down the stairs, and returned by bicycle to the lab. The plaintiff claimed that, sometime in June 2006 while riding his bicycle to collect a sample, he almost fell off the bicycle, but to avoid falling, he threw his right leg down and twisted the knee. Although he felt pain at the time, he said he ignored it and continued working.

At trial, the plaintiff admitted he did not report the accident to Firestone until some eighteen months later. He explained that he had been suspended for three days without pay for reporting a hand injury in 2001. He claimed there was an unspoken word at Firestone that if an employee reported an accident, he or she would be reprimanded.

On June 26, 2006, the plaintiff consulted his family physician, Dr. Craig Broussard, complaining of knee pain. Dr. Broussard’s report indicated the plaintiff denied any falls or injuries. The plaintiff testified at trial that he either forgot to mention the accident to Dr. Broussard or was in too much pain to remember to do so. On July 14, 2006, the plaintiff was referred to Dr. Alan Hinton, an orthopedic surgeon. Dr. Hinton’s report states the plaintiff sustained a twisting injury to his right knee. The plaintiff testified he reported a “twisting injury” and “difficulty with [his] right knee” to Dr. Hinton, but he admitted on cross-examination that he had previously testified at his deposition that it was Dr. Hinton who had informed him the MRI revealed a twisting injury. Dr. Hinton diagnosed the plaintiff with a medial men-iscal tear to the right knee, and recommended surgery.

Following surgery, the plaintiff was released for full duty and returned to work on October 30, 2006. He successfully passed the fit-for-duty or “work hardening” tests specific to his position, including climbing stairs. Eventually, the plaintiff began experiencing pain in his right knee, along with pain in his left knee |sbecause he was favoring his right knee. He returned to Dr. Hinton on March 12, 2007, and subsequently underwent another MRI and a bone scan of both knees. Dr. Hinton ultimately diagnosed the plaintiff with degenerative joint disease.

The plaintiffs attorney sent a letter to Dr. Hinton seeking his comments on the cause and nature of the plaintiffs knee condition. Dr. Hinton responded with a letter, dated August 12, 2008, outlining as follows:

Mr. Ardoin is a patient ... who has sustained an on the job injury to his right knee. He sustained a medial men-iscal injury. This was treated with surgical arthroscopy. Unfortunately, he has had persistent pain and problems with the result in formation of arthritis secondary to his work injury. He has pain in his right knee. I think that his injury to the left knee [sic] possibly aggravated his right knee [sic] although causation is difficult to establish. Mr. Ardoin’s right knee is very symptomatic resulting in disability. This was noted on March 7, 2007. His current restrictions are avoidance of ladders, no scaffolding working, no type of work that could result in a potential fall and he is precluded from prolonged stair climbing. His prognosis at this time is guarded. These are permanent restrictions.

The plaintiffs request for a light-duty assignment was declined, because Firestone does not offer such positions for non-work-related injuries, according to Jayde Butler, a senior occupational health nurse for Firestone. Commencing in March 2007, the plaintiff was receiving payments under Firestone’s Accident and Sickness (hereinafter “A & S”) program, totaling 80% of his salary. According to Butler, the plaintiff never indicated on the A & S forms he was required to complete that the accident was work-related. It was not until late 2007 that the plaintiff first indicated on the form that he was “not sure” if the injury was work-related; however, when questioned by Butler as to what he meant, the plaintiff explained that he was not sure what was going on with his knees. Butler testified she recommended the plaintiff be tested for rheumatoid arthritis. The plaintiff was tested, but the results were negative. Ultimately on December 6, 2007, the plaintiff filed a disputed claim for workers’ compensation benefits alleging a work-related | ¿injury.

The hearing officer for the Office of Workers’ Compensation found the plaintiff had established that a disabling injury occurred as the result of a work-related accident. The hearing officer recognized that the “excessive time” it took for the plaintiff to report the accident “require[s] some explanation.” The hearing officer then contrasted Firestone’s argument that the plaintiffs testimony was self-serving and amounted to a fabrication, against the plaintiffs assertion that he initially declined to report the accident only out of fear of being reprimanded. In the hearing officer’s view, the circumstances surrounding the prior accident involving the hand and the consequences for reporting it were in dispute. Acknowledging that the plaintiffs excuse for not reporting the accident timely “raises questions,” the hearing officer nevertheless found the plaintiff had met his burden of proving a work-related accident, noting that “few workers’ compensation claims are characterized by rigid, unwavering adherence to an ideal chronology which could produce, at a glance, an accurate picture of exactly what happened and why.” The hearing officer further found the claim had not prescribed and awarded penalties and attorney fees for Firestone’s failure to investigate the claim before denying compensation benefits.

The court of appeal affirmed the hearing officer’s judgment in part, and reversed the award of penalties and attorney fees. Ardoin v. Firestone Polymers, Inc., 09-0530 (La.App. 3 Cir. 12/30/09), 30 So.3d 177. We granted Firestone’s writ application to review the court of appeal’s judgment with regard to the proof of the work-related accident. 10-0245 (La.4/16/10), 31 So.2d 1062.

LAW

A worker in a compensation action must establish “personal injury by accident arising out of and in the course of his employment.” La.Rev.Stat. | a23:1031(A). An accident is “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La.Rev.Stat. 23:1021(1). As in other civil actions, the plaintiff-worker in a compensation action has the burden of establishing a work-related accident. Nelson v. Roadway Express, Inc., 588 So.2d 350 (La.1991); Prim v. City of Shreveport, 297 So.2d 421 (La.1974). An employee may prove by his or her testimony alone that an unwitnessed accident occurred in the course and scope of employment if the employee can satisfy two elements: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged accident. Bruno v. Harbert International, Inc., supra, 593 So.2d at 361 (citing West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Civil Law Treatise, Workers’ Compensation, Section 253 (2d Ed.1980)). As we noted in Bruno, corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends, or by medical evidence. Id. (citing West, Nelson, and Malone and Johnson).

In Bruno, we cautioned that, in deciding whether the plaintiff-worker has discharged his or her burden of proof, the fact-finder “should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent ‘circumstances casting suspicion on the reliability of this testimony.’ ” 593 So.2d at 361 (quoting West, 371 So.2d at 1147, and citing Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987)). The fact-finder’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his burden of proof are, most certainly, factual determinations that should not be | (¡disturbed on appellate review unless clearly wrong or manifestly erroneous. Id. (citing Gonzales v. Babco Farm, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988)).

It is well-settled that a reviewing court may not disturb the factual findings of the trier of fact in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1979). In Arcen-eaux, we set forth a two-part test for the appellate review of facts: (1) the appellate court must find from the record that there is a reasonable factual basis for the finding of the trial court, and (2) the appellate court must further determine that the record establishes the finding is not clearly wrong or manifestly erroneous. Arceneaux, 365 So.2d at 1333; see also Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 883 (La.1993); Sistler, 558 So.2d at 1112.

In this case, the hearing officer’s factual finding that the plaintiff succeeded in establishing the existence of a work-related accident was based on his determination with regard to the plaintiffs credibility. As we pointed out in Bruno, 593 So.2d at 361, this court in Rosell v. ESCO explained the concept of “clearly wrong” or “manifestly erroneous” with regard to credibility determinations as follows:

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict \nthe witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

Rosell v. ESCO, 549 So.2d at 844-45 (emphasis added and citations omitted).

DISCUSSION

The appellate court below acknowledged that it could find “manifest error in a credibility determination where ‘objective evidence so contradicts an employee’s testimony, or testimony is so internally inconsistent or implausible on its face that a reasonable factfinder would discredit the story.’ ” Ardoin, 09-530, p. 5, 30 So.3d at 181 (citing Butterfield v. Turner Indus., 06-1098, p. 4 (La.App. 3 Cir. 2/7/07), 951 So.2d 476, 479, writ denied, 07-507 (La.4/27/07), 955 So.2d 692). However, the court concluded the plaintiffs testimony was not so internally inconsistent, nor did the objective evidence so contradict his account of the events, as to find manifest error in the hearing officer’s determination that a bicycle accident had occurred. Upon our review of the record, and keeping in mind the correct standard of review, we find the court of appeal erred in not finding manifest error in the hearing officer’s factual determination that a work-related accident had been established by a preponderance of the evidence.

The hearing officer in this unwitnessed accident case was called upon to determine whether there was no other evidence presented that either discredited or cast serious doubt on the plaintiffs account of the accident and that there existed other evidence that corroborated the plaintiffs account. The hearing officer did not specifically address these elements, as required by Bruno. Instead, the hearing officer resolved the case on a finding that the plaintiff had reasonably feared disciplinary repercussions if he reported a work-related accident to Firestone. The |8court of appeal found the record supported the hearing officer’s conclusion the plaintiff feared repercussions for reporting a work-related injury. The court of appeal further reasoned that the inconsistencies in the plaintiffs' statements and actions with regard to whether an accident had occurred were not sufficient to cast a serious doubt on his account of the accident. Under Bruno, however, an unwitnessed accident may be proved by the testimony of the employee alone only if (1) no other evidence discredits or casts serious doubt upon his version of the accident and (2) his testimony is corroborated by the circumstances following the accident. Our review of the record reveals the plaintiff failed to meet his burden of proving both exceptions.

We first find there was evidence produced that either discredited or cast serious doubt on the plaintiffs account of a work-related accident. Here, the plaintiff employee failed to report the accident to his employer for some eighteen months, or until he was denied additional benefits under the employer’s Accident & Sickness program and denied a return to employment in a light-duty position. As the hearing officer acknowledged, that delay, along with the repeated denials of a work-related accident, required explanation and called into question the plaintiffs later claim that a work-related accident had occurred. As Firestone points out, when specifically asked within days or weeks of the alleged accident by Firestone’s safety manager whether he had suffered an accident at work, the plaintiff denied injuring himself, instead noting only that his knees were hurting. The plaintiff had undergone arthroscopic surgery on his right knee some twenty years earlier. He told both the safety manager and the nurse that he was going to see his doctor because of the knee pain, but there is no indication that he told Dr. Broussard that he had suffered a work-related accident by nearly falling off his bicycle. Instead, Dr. Broussard’s records indicate the plaintiff denied “any falls or 1 ¡Injuries” and indicated that, although the plaintiff had been doing well since his earlier surgery, “it is now getting progressively worse.” When questioned at trial, the plaintiff explained that he was in so much pain at the time that he forgot to tell either the safety manager or his doctor about the accident.

Although the plaintiff believed he had reported the accident to his orthopedic surgeon, Dr. Hinton, who ordered an MRI and diagnosed a meniscal tear to the plaintiffs right knee, Dr. Hinton’s narrative report of July 14, 2006, does not indicate the plaintiff reported a work-related injury. Instead, the report stated the plaintiff reported difficulty with his right knee, that he sustained a twisting injury to the knee, and that the plaintiff indicated he had “dealt with it long enough” and “wanted it removed.” Although his direct testimony suggested he had reported the twisting injury to Dr. Hinton as stemming from a work-related accident, the plaintiff on cross-examination admitted he had previously testified in deposition that it was Dr. Hinton who had described the injury as “twisting.” Thus, while the plaintiff suffered some type of injury, any suggestion that the injury was incurred allegedly as the result of a work-related accident was not indicated in the medical records as having been reported as such to either of the plaintiffs physicians.

After the successful surgery on his knee and his return to work under a full release, the plaintiff began again to experience pain in his right knee, but he still did not report the alleged bicycle accident to his employer or doctor. In an email to the company nurse dated March 8, 2007, he stated: “I guess it is here we go again. I’m trying to get to a doctor today. The problem is the stairs. For each set of batches it is 2 trips up 28 flights for the initials and 2 trips down. Then 30 min. later it is the same for the finals. I don’t know what is going to happen, but I will stay in touch.” The plaintiff also did not report the accident to his employer when he again “went out” on disability a few days later after seeing his doctor on March 11012, 2007. Dr. Hinton’s report from that visit made no mention of a work-related accident, but instead noted the plaintiff complained he was having problems with both knees and his problems involved “going up and down the stairs at work.” An MRI was conducted on each knee, after which Dr. Hinton diagnosed the persistent pain as “likely due to osteoarthritis.” A bone scan reviewed by Dr. Hinton on May 4, 2007, revealed “degenerative joint disease as expected.”

In June of 2007, the plaintiff was referred to Dr. Enrique Mendez, an arthritis specialist. Dr. Mendez’s records also do not indicate the plaintiff reported a work-related injury, but instead he reported a history of knee pain “after climbing stairs.”

The plaintiff failed to report to his employer even the possibility of a June 2006, work-related injury until late in 2007, either in October or November 2007, when he first indicated “not sure” on the monthly A & S form as to whether the accident was work-related. Even then, when he was specifically asked by the occupational health nurse what he meant by filling out the form in that manner, the plaintiff did not report the bicycle accident to Firestone, but instead repeated that his knees were hurting him.

When queried as to why he had not reported the accident to anyone, though he believed he had done so, the plaintiff initially claimed he had either forgotten or had been in too much pain to remember when talking to the safety manager or consulting his doctors, but then he ultimately claimed he had not reported a work-related accident because he feared negative repercussions for violating an unwritten rule at Firestone not to report accidents. While not every delay in reporting an accident necessarily discredits or casts serious doubt on the employee’s account of the accident, we conclude the particular circumstances surrounding the failure to report the alleged work-related accident in this case do ^indeed discredit or cast serious doubt on the plaintiffs claim that a work-related accident occurred sometime in June 2006.

Although Dr. Hinton diagnosed a meniscal tear to the right knee, which was repaired by July 2006 surgery, there is no corroborating evidence the injury was incurred in a June 2006, work-related accident. The only evidence the plaintiff presented was Dr. Hinton’s August 12, 2008 letter to the plaintiffs attorney, which stated that the plaintiff had “sustained an on the job injury to his right knee,” even though, as discussed above, Dr. Hinton’s records otherwise contained no report or notation of a work-related accident. Therefore, to resolve the question raised by the delay in reporting the accident and to satisfy the absence of corroborating evidence of a work-related accident, the hearing officer concluded that Firestone had created an environment in which it discouraged the reporting of work-related accidents, ostensibly justifying the plaintiffs failure to report the accident until he filed suit against Firestone.

Firestone’s safety manager, Steven Tra-han, denied the existence of an unwritten policy that employees should not report a work-related accident. Trahan further testified employees were not reprimanded for reporting an accident, though they could possibly be reprimanded for failing to report an accident. Trahan further testified the plaintiff had suffered an accident involving his hands in 2001, and was, at that time, “written up for unsafe activity.” The hearing officer observed there was confusion over the circumstances surrounding the prior hand accident and the consequences of reporting it. Although Firestone had argued the plaintiff had previously reported a slip-and-fall accident in 2000 and had incurred no sanctions for doing so, the court of appeal noted the 2000 accident had preceded the 2001 accident involving the plaintiffs hands. The court of appeal further reasoned the plaintiffs return to full duty following his surgery supported his | ^assertion that he simply wanted to resolve his knee problem and return to work without running the risk of a reprimand or suspension.

In short then, the hearing officer, and the court of appeal, relied on the plaintiffs own testimony as to why he did not report the accident to resolve the inconsistencies in his testimony regarding his failure to report the accident and to corroborate his account that a work-related accident had occurred. However, other than the plaintiffs testimony that he feared being reprimanded for reporting the accident, the evidence shows he was reprimanded only for unsafe activities, which had resulted in the accident involving his hands. The plaintiff did not deny that he might have violated Firestone safety policies when he injured his hands in 2001; instead, he simply explained that the accident had occurred around the time of the death of his father. Further, the plaintiff, when asked if falling off his bicycle violated any of Firestone’s safety rules, replied that Firestone had many rules of which he might not be aware. To find the existence of an unspoken policy against reporting accidents, based on this evidence alone, the hearing officer committed manifest error.

As we observed in Rosell v. ESCO, “where documents or objective evidence so contradict the witness’s story, or the story itself is so inconsistent or implausible on its face that a reasonable fact finder would not credit the witness’s story,” even a finding purportedly based upon a credibility determination may be deemed manifestly erroneous or clearly wrong. The only basis for his claimed fear is as follows: In 2000, the plaintiff reported an accident but was not reprimanded; in 2001, he reported an accident but was reprimanded for engaging in unsafe activity, which he did not deny; and then in 2006, he failed to report an accident because he feared being reprimanded, but he could not point to any safety rules he might have violated. Under the facts of this case, the hearing officer’s determination that the |iaplaintiff had a reasonable fear of being reprimanded if he reported the accident was not supported by the record evidence.

CONCLUSION

We conclude the appellate court erred in affirming the hearing officer’s finding that the plaintiffs account of an unwitnessed work-related accident was supported by the record evidence. Contrary to the requirements of Bruno, not only is there no objective evidence to corroborate the plaintiffs account of his work-related accident, but there are ample indicia that, when considered together, discredit or cast serious doubt on his account, to wit: his initial denial of an accident; his long delay in reporting the claimed work-related injury, even waiting until after Dr. Hinton diagnosed a twisting injury; his inconsistent accounts of why he delayed reporting the accident (fear of repercussions versus forgetting as a result of pain); and his admission well over a year after the claimed accidental injury that he was not sure of the cause of his knee pain. Although the hearing officer is required to make credibility determinations based on the testimony at a live hearing, the objective evidence in this record, combined with the plaintiffs internally inconsistent and implausible testimony, casts such suspicion on his account of the accident as to show manifest error in the hearing officer’s credibility finding. Accordingly, we reverse the lower courts’ rulings and render judgment in favor of the defendant.

DECREE

For the reasons set forth above, the decision of the • appellate court affirming the hearing officer’s award of indemnity benefits to the plaintiff is reversed; judgment is rendered in favor of the defendant; and the plaintiffs claims are dismissed with prejudice.

REVERSED AND RENDERED.

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


text:
    STATE of Louisiana v. Daniel L. PEGUES.
    No. 2010-K-1626.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   PER CURIAM.

liFor the following reasons, we grant the state’s application, reverse the decision of the court of appeal, and reinstate defendant’s conviction and sentence for attempted simple burglary in violation of La.R.S. 14:27 and 14:62.

The state charged defendant with second degree murder in violation of La.R.S. 14:30.1(A)(1), and attempted simple burglary, following an incident on the night of January 24, 2007, in which the victim, an off-duty deputy with the Calcasieu Parish Sheriffs Office, was shot several times and killed while investigating a burglary in progress at Mudd Fashions on Ryan Street in Lake Charles. After trial by jury, during which two other participants in the attempted break-in testified for the state, defendant was convicted of manslaughter and attempted simple burglary. The trial court sentenced him to concurrent terms of 40 years’ imprisonment at hard labor for manslaughter and to six years’ imprisonment at hard labor for attempted simple burglary. On appeal, defendant |2argued, among other assignments of error, that his multiple convictions subjected him to double jeopardy in violation of this Court’s settled rule that even in a single proceeding, the state may not convict and sentence a defendant for felony murder/manslaughter and the underlying felony offense. See, e.g., State ex rel. Adams v. Butler, 558 So.2d 552 (La.1990). On the basis of remarks made by jurors to the trial judge at the close of the proceedings, explaining how they reached a verdict on the lesser included and responsive offense of manslaughter, the Third Circuit affirmed defendant’s conviction and sentence for manslaughter but vacated his conviction and sentence for attempted simple burglary. State v. Pegues, 09-1089 (La.App. 3d Cir. 6/9/10), 43 So.3d 1008 (Thibodeaux, C.J., dissenting in part and assigning reasons).

The state charged defendant with a specific intent homicide in violation of La.R.S. 14:30.1(A)(1) because simple burglary (or its attempt) is not one of the enumerated felonies in La.R.S. 14:30.1(A)(2), defining the offense of second degree felony murder. The case therefore went to the jury as a specific intent homicide. However, in its general charge to jurors, after instructing them that a verdict of guilty as charged required a finding that defendant killed the victim and that he acted with the specific intent to kill or to inflict great bodily harm, the trial court turned to the responsive verdicts to second degree murder and gave jurors the definitions of manslaughter in La.R.S. 14:31(A)(l)(provoca-tion and heat of blood reducing a homicide that would otherwise constitute first or second degree murder), and in La.R.S. 14:31(A)(2), ie., a homicide committed without a specific intent to kill when the offender is engaged in any felony not otherwise enumerated in the felony murder provisions of first and second degree murder. The court specifically informed jurors that they could find defendant guilty of manslaughter |sif they found either that defendant killed the victim and acted with the specific intent to kill or to inflict great bodily harm in the heat of passion or that the victim ivas killed when the offender was engaged in the perpetration or attempted perpetration of certain offenses, including attempted simple burglary. The charge, with its shift from active to passive voice, thus gave jurors the option of finding the defendant guilty of a homicide, ie., felony manslaughter, even if they failed to agree he fired the fatal shots that killed the officer. The jury returned its verdict of manslaughter without indicating whether they found defendant guilty of the offense defined by La.R.S. 14:31(A)(1) or La.R.S. 14:31(A)(2)(a).

It appears from the trial court’s remarks at sentencing that the judge spoke with one of more jurors following return of the manslaughter verdict. The court apparently conducted the interview because of its firm opinion, stated on the record at sentencing, that the state had proved defendant guilty of second degree murder because it proved he fired the fatal shots. The court thus sought some understanding of what led jurors to the lesser verdict. According to the court’s summary of the interview, jurors informed the judge that they had entertained some doubt that defendant, as opposed to one of the co-participants in the attempted break-in who had testified at trial for the state, had, in fact, fired the fatal shots. “ ‘So you were convicted of manslaughter,’ ” the court informed defendant before it imposed the maximum sentence of 40 years’ imprisonment at hard labor on the manslaughter count, “ ‘based on the fact that since they didn’t feel certain that it was necessarily you, but because you were involved in ... the attempted burglary, and that [the deputy] was murdered in the process of the commission of that crime that you were convicted of manslaughter.’ ” Pegues, 09-1089 at 16, 43 So.3d at 1018.

14For the trial judge, all the jurors’ remarks during the post-verdict interview meant was that defense counsel “‘did a very good job of muddying the water a little bit....’ ” Id. However, for the court of appeal, the jurors’ remarks meant that, rather than “determin[ing] on our own, from the facts presented during trial, whether the jury relied on a basis other than the underlying felony to arrive at a verdict,” the court could determine as a matter of fact that defendant had been convicted of felony manslaughter and the underlying felony offense of attempted simple burglary, and that defendant therefore had been punished twice for the same conduct. Pegues, 09-1089 at 13-14, 43 So.3d at 1017. The court of appeal accordingly vacated defendant’s sentence for attempted simple burglary, the less severely punishable and punished of the two crimes. Id.

Dissenting from that portion of the majority opinion, Chief Judge Thibodeaux agreed with the majority that “[c]learly ... if the attempted simple burglary was the only basis for the manslaughter conviction, there would be a double jeopardy violation.” Pegues, 09-1089 at 1, 43 So.3d at 1022 (Thibodeaux, C.J., dissenting in part). However, in his view, the state presented sufficient evidence “to support the compromise verdict of manslaughter based on specific intent to kill.” Id. (footnote omitted). Chief Judge Thibodeaux further remarked that “[o]rdinarily, a reviewing court does not scrutinize the thought processes employed by jurors in reaching a verdict,” because, as a general rule, “[t]he mental processes of a juror are insusceptible of appropriate legal inquiry.” Id., 09-1089 at 4, 43 So.3d at 1022 (Thibo-deaux, C.J., dissenting in part)(citing La. C.E. art. 606(B)). To the extent that the trial court’s observations “though well-intended, were an indirect breach of this evidentiary rule,” Chief Judge Thibodeaux [ ¿observed that “any reference to these comments to vitiate an otherwise valid conviction was error.” Id.

We agree with Chief Judge Thi-bodeaux that the majority on the court of appeal panel erred in seizing on the jurors’ remarks during the informal interview with the trial judge as a basis for invalidating the verdict for attempted simple burglary. By deliberate choice, Louisiana does not provide jurors with special verdicts by which they may reveal at least some of the underlying thought processes leading to a verdict. See State v. Beavers, 364 So.2d 1004, 1009 (La.1978)(discussing why “[tjhere is no authority in our law for special verdicts in criminal cases” and why “[sjpecial verdicts are not favored in criminal cases because of their restrictive effects upon the jury.”). La.C.Cr.P. art. 817 enforces the system of general verdicts in the criminal law of Louisiana by providing that “[a]ny qualification of or addition to a verdict of guilty, beyond a specification of the offense as to which the verdict is found, is without effect upon the finding.” Although the language “specification of the offense” might encompass identifying which alternative definition of an offense the jurors actually found, in the present case, La.C.Cr.P. art. 814(3) maintained the verdicts for second degree murder at the most general level, i.e., guilty, guilty of manslaughter, guilty of negligent homicide, and not guilty. Moreover, as Chief Judge Thibodeaux emphasized in his dissent, in Louisiana as elsewhere, a juror generally may not testify as to the mental processes by which he arrived at his or her verdict as a basis for attacking the validity of that verdict. La.C.E. art. 606(B)(“Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or | f,dissent from the verdict or indictment or concerning his mental processes in connection therewith[.]”).

The statutory rules in La.C.Cr.P. art. 817 and La.C.E. art. 606(B) combine to form a jury shield law which serves important institutional goals. In Tanner v. United States, 488 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987), the Supreme Court traced Fed.R.Evid. 606(b), progenitor of La.C.E. art. 606(B), back to its origins in the common law and found that nothing in the rule appeared inconsistent with the Sixth Amendment guarantee of a fair and impartial jury. The Court observed that “[sjubstantial policy considerations support the common-law rule against the admission of jury testimony to impeach a verdict.... The Court’s holdings requiring an evidentiary hearing where extrinsic influence or relationships have tainted the deliberations do not detract from, but rather harmonize with, the weighty government interest in insulating the jury’s deliberative process.” Tanner, 483 U.S. at 119-20, 107 S.Ct. at 2747; see also Fed.R.Evid. 606(b), Advisory Committee Notes (“Under the federal decisions the central focus has been upon insulation of the manner in which the jury reached its verdict, and this protection extends to each of the components of deliberation, including arguments, statements, discussions, mental and emotional reactions, votes, and any other feature of the process.”).

In the present case, the trial judge clearly was not intent on impeaching the verdicts returned by the jury by inquiring into their validity when he spoke informally to jurors at the close of the case to satisfy himself why jurors had returned a verdict he thought inadequately described the conduct of defendant proved by the state at trial. The indirect circumvention of La.C.E. art. 606(B) was not by the trial court but by the majority on the court of appeal when it seized on 17his summary of the jury interview at sentencing as a basis for invalidating the verdict of attempted simple burglary on double jeopardy grounds. The preclusion rule of La.C.E. art. 606(B) would have prevented defense counsel from haling jurors back into court for the same purpose, and not the least of the problems in taking into account a subjective analysis of the verdicts rendered in the present case is that the trial judge’s summary of the interview does not clearly indicate whether the juror or jurors communicated their personal thought processes in agreeing to the verdicts or whether they conveyed the consensus of the jury as a whole. It remains entirely possible that several jurors thought the state had proved its case of second degree murder because the evidence established beyond a reasonable doubt that defendant fired the fatal shots but exercised their plenary discretion to compromise their verdict, if for no other reason than to reach a verdict in the case, without compromising their belief that defendant had shot and killed the victim, i.e., that they could agree to a verdict of manslaughter under the definition of the offense provided by La.R.S. 14:31(A)(1) and the trial court’s general charge, even as other jurors, unpersuaded by the state’s evidence that defendant personally fired the fatal shots, agreed to a manslaughter verdict on the basis of the felony-murder definition of the offense in La.R.S. 14:31(A)(2). No constitutional rule forbids a state from combining into a single crime alternative definitions of murder as a premeditated homicide or a homicide during commission of an underlying felony offense, or jurors from reaching one general verdict based on any combination of alternative findings. See Schad v. Arizona, 501 U.S. 624, 631-32, 111 S.Ct. 2491, 2497, 115 L.Ed.2d 555 (1991)(Souter, J.)(“We have never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission.... In |8these cases, as in litigation generally, different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line.”)(internal quotation marks and citation omitted).

Thus, as Chief Judge Thibodeaux noted in his dissent, the trial judge’s summary of his informal meeting with the jurors did not necessarily reflect the jury’s overall judgment that the state had failed to prove defendant fired the shots which killed the deputy and that they did not take alternate routes to the same end according to individual juror’s perceptions of what the state did or did not prove at trial. To the extent that Louisiana’s system of general verdicts provides a jury with that discretion, and otherwise generally precludes a juror from explaining his thought processes as a basis for challenging the validity of his verdict, the double jeopardy analysis in cases such as the present one necessarily proceeds on the same purely objective level that a due process inquiry into the sufficiency of the evidence supporting the verdicts also takes place. Jackson v. Virginia, 443 U.S. 307, 319 n. 13, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)(“Just as the standard announced today does not permit a court to make its own subjective determination of guilt or innocence, it does not require scrutiny of the reasoning process actually used by the factfinder — if known.”). The analysis begins and ends with the question of whether a rational trier of fact could have returned a verdict for the charged offense of second degree murder, defined solely as a specific intent homicide, and thus could have grounded its lesser verdict for manslaughter on a finding other than commission of an underlying felony offense, ie., on a finding that defendant shot the victim with the specific intent to kill or to inflict great bodily harm.

|nThe trial judge clearly thought so, in part because DNA analysis of a swab taken from the murder weapon discarded near the scene excluded all of the other participants but defendant. While the sufficiency of the evidence was not raised on appeal, Chief Judge Thibodeaux summarized the other evidence in the state’s case as follows:

The investigation indicated Deputy In-zer was standing still while smoking a cigarette when he was first shot, and he was shot at least three more times, with two fatal wounds to the chest. The deputy’s gun, which was loaded, was found in its holster inside his left boot. Elmer Franklin testified that while he was running he heard a gunshot, he looked around, and saw Mr. Pegues ‘right there standing up and a man that fell, like, on the ground.’

We agree with the dissent that on this evidence, “the record supports sufficient evidence to base the manslaughter conviction on specific intent to kill,” and thus, given the general verdict returned for manslaughter, “there was no double jeopardy violation.” Pegues, 09-1089, p. 3, 43 So.3d at 1022 (Thibodeaux, C.J., dissenting in part). We therefore reverse the decision of the court of appeal to the extent that it vacated defendant’s conviction of attempted simple burglary and his concurrent sentence of six years’ imprisonment at hard labor, and reinstate the conviction and sentence.

REVERSED IN PART; DEFENDANT’S CONVICTION AND SENTENCE FOR ATTEMPTED SIMPLE BURGLARY REINSTATED.


text:
    Robbie PAYNE, et al. v. Brett GARDNER, et al.
    No. 2010-C-2627.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   PER CURIAM.

1,Finding the Court of Appeal erred in reversing summary judgment on the basis there are material issues of fact regarding whether Lufkin Industries, Inc. (“Lufkin”) should have reasonably anticipated an ordinary person in the same or similar circumstances would use or handle its pumping unit as a “ride,” we grant this writ to reinstate the District Court’s judgment, granting Lufkin’s motion for summary judgment and dismissing plaintiffs claim with prejudice.

This litigation arises from an accident that occurred in rural Rapides Parish on March 9, 2004, when thirteen-year-old Henry Goudeau climbed onto the moving pendulum of an oil well pump and attempted to “ride” the pendulum. As the pendulum continued its upward motion, his pants unfortunately became entangled in other parts of the pump, resulting in severe personal injuries.

Henry’s mother, Robbie Payne, subsequently filed suit against the manufacture of the pumping unit, Lufkin, among others. In response, Lufkin filed a motion for summary judgment, asserting it was not liable for Henry’s injuries because it did not “anticipate” at the time it designed and manufactured the product in the 1950s that it would be “used” for recreational purposes — “riding”—by persons, including teenagers. Lufkin, in support thereof, filed a Statement of Undisputed Material Facts, which ^stated Lufkin manufactured the pump for the sole purpose of extracting oil, and not as a ride, as well as the deposition of Jon Tarver, the co-owner of the company that owned the oil pump, who testified to the same. In opposition, Ms. Payne argued there existed a foreseeable risk children would attempt to play on the oil well pump and submitted trial court cases from California, Texas, and Oklahoma in which children had been injured while attempting to “ride” on an oil well pumping unit and the deposition testimony of Brett Gardner, regarding a fatal accident in Shreveport involving teenagers attempting to ride a pumping unit.

The District Court granted summary judgment, finding plaintiff “failed to allege any facts that the pump was unreasonably dangerous in itself and for the purpose for which it was intended,” ie., pumping oil:

At the time of the accident, the minor was thirteen years of age; he should have known not to attempt to ride the oil pump. The standard is that of a reasonable person.
The oil well, in itself, was not unreasonably dangerous for its reasonably anticipated use; because it’s anticipated use was for pumping oil and not riding.

On appeal, the Court of Appeal, Third Circuit, reversed and remanded, finding it could not “conclude that the scintilla of direct evidence presented by Ms. Payne was insufficient to allow a reasonable juror to conclude Lufkin ... should have expected an ordinary person in the same or similar circumstances to use or handle the pumping unit in this way,” and so, summary judgment was not proper. Payne v. Gardner, 10-0021, 0022, p. 8 (La.App. 3 Cir. 10/27/10), 49 So.3d 1013.

Under the law governing this action, plaintiffs exclusive remedy against IsLufkin sounds in products liability as governed by the Louisiana Products Liability Act (LPLA), La.Rev.Stat. 9:2800.1 et seq. In accord with its provisions, a manufacturer’s responsibility to a party injured by its product is set forth in La.Rev.Stat. 9:2800.54(A), which provides:

The manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity. (Emphasis added).

A “reasonably anticipated use” of the product is defined as “a use or handling of a product that the product’s manufacturer should reasonably expect of an ordinary person in the same or similar circumstances.” La.Rev.Stat. 9:2800.53(7). Notably, this definition is narrower in scope than its pre-LPLA counterpart, “normal use,” which included “all reasonably foreseeable uses and misuses of the product,” see Bloxom v. Bloxom, 512 So.2d 839, 841 (La.1987)(definition of “normal use”), but, like “normal use,” what constitutes a reasonably anticipated use is ascertained from the point of view of the manufacturer at the time of manufacture. Daigle v. Audi of America, Inc., 598 So.2d 1304, 1307 (La.App. 3d Cir.), unit denied, 604 So.2d 1306 (La.1992). Unlike its “normal use” counterpart, though, the use of the words “reasonably anticipated” effectively discourages the fact-finder from using hindsight. Id.

“Reasonably anticipated use” also effectively conveys the important message that “the manufacturer is not responsible for accounting for every conceivable foreseeable use” of its product. Blanchard v. Midland Risk Ins., 01-1251, p. 3 (La.App. 3 Cir. 5/8/02), 817 So.2d 458, 460, writs denied, 02-1517, 1594 (La.9/20/02), 825 So.2d 1178, 1181; Dunne v. Wal-Mart Stores, Inc., 95-2047, p. 4 (La.App. 1 Cir. 9/10/96), 679 So.2d 1034, 1037; Delphen v. Department of Transp. and Development, 94-1261 (La.App. 4 Cir. 5/24/95), 657 So.2d 328, 333, writs denied, 95-2116, 2124 (La.11/17/95), 663 So.2d 716, 717. Likewise, “knowledge of the potential and actual intentional abuse of its product does not create a question of fact on the question of reasonably anticipated use.” Butz v. Lynch, 99-1070 (La.App. 1 Cir. 6/23/00), 762 So.2d 1214, 1218, writ denied, 00-2660 (La.11/17/00), 774 So.2d 980; see also, Kelley v. Hanover Ins. Co., 98-506 (La.App. 5 Cir. 11/25/98), 722 So.2d 1133, writ denied, 98-3168 (La.2/12/99), 738 So.2d 576; Peterson v. G.H. Bass and Co., Inc., 97-2834 (La.App. 4 Cir. 5/20/98), writ denied, 98-1645 (La.10/16/98), 727 So.2d 441.

Accordingly, under La.Rev.Stat. 9:2800.54, plaintiff had to make a sufficient evidentiary showing that, at the time of manufacture, Lufkin should have reasonably expected an ordinary consumer or user of its pumping unit would use its product as a “ride.” However, through its exhibits, namely its Statement of Undisputed Material Facts and the deposition of Jon Tarver, which established the pumping unit was manufactured solely for the purpose of extracting oil from the ground, and not for an amusement park ride, Lufkin satisfactorily “point[ed] out to the court that there is an absence of factual support for” a finding that Henry’s accident arose from a reasonably anticipated use of the pumping unit. See La.Code Civ. Proc. art. 966(C)(2). Moreover, all evidence and jurisprudence relied upon by the appellate court and plaintiff to establish that the intentional misuse in this case, ie., the riding, could be considered a reasonably anticipated use as encompassed by the applicable statute involved occurrences well after the date the pump was manufactured.

Consequently, because plaintiff failed to produce factual support sufficient to establish she will be able to satisfy her eviden-tiary burden of proof at trial, La.Code Civ. Proc. art. 966(C)(2), and because, on the state of the evidence, reasonable 1 ¡¡persons could reach only one conclusion, ie., riding the pumping unit was not a reasonably anticipated use of the unit at the time it was manufactured, there is no need for a trial on this issue. See Smith v. Our Lady of the Lake Hospital, 93-2512, pp. 63-64 (La.7/5/94), 639 So.2d 730, 751. Therefore, Lufkin is entitled to judgment as a matter of law, La.Code Civ. Proc. art. 966(B), and the Court of Appeal erred in its reversal.

Accordingly, we reversed the judgment of the Court of Appeal and reinstate the judgment of the District Court, granting Lufkin’s motion for summary judgment and dismissing plaintiffs claim with prejudice.

DECREE

For the foregoing reasons, the judgment of the Court of Appeal is hereby reversed, and the judgment of the District Court is hereby reinstated.

WRIT GRANTED; REVERSED and DISTRICT COURT JUDGMENT REINSTATED.

WERNER, J. concurs.

       Kimball, C.J., did not participate in the deliberation of this opinion.

      . Lufkin also filed copies of the depositions of Henry Goudeau and Brett Gardner, a gauger for the well.

      . Titus v. Bethlehem Steel Corp., 91 Cal. App.3d 372, 154 Cal.Rptr. 122 (Cal.App.2d Dist.1979), Burk Royalty Co. v. Pace, 620 S.W.2d 882 (Tx.App. 12th Dist.1981), Knowles v. Tripledee Drilling Co., Inc., 1989 OK 40, 771 P.2d 208 (1989). Plaintiff also filed duplicate copies of the depositions filed by Luf-kin, her own deposition, the deposition of Maurine Noone, the owner of the property on which the oil well was drilled, and a photo of the pumping unit.