text:
    Laq Lamar SWANIGAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1203.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2011.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, LaQ Lamar Swanigan [“Appellant”] appeals his judgment and sentences after he was found guilty, by a jury of attempted second-degree murder with a firearm (count I), burglary of a dwelling (count II), aggravated battery with a firearm (count III), simple battery (count IV), and possession of a firearm by a convicted felon (count V). Appellant raises several issues on appeal; however, we find error in only one. We agree that imposition of a consecutive sentence for count V was error.

Section 775.087(2), Florida Statutes (2007) governs the imposition of sentences for specified offenses that involve the use of a firearm. Included among those crimes is possession of a firearm by a convicted felon. See § 775.087(2)(a)l.r., Fla. Stat. (2008). In this case, the Appellant and an accomplice burst into a home, looking for money, kicking and hitting one person and then shooting a second person.

The general rule that has emerged from a series of decisions rendered by the Florida Supreme Court is that the imposition of consecutive minimum mandatory sentences under section 775.087(2), Florida Statutes (2008), is improper where the offenses occurred during a single criminal episode unless the defendant discharges the firearm and injures multiple victims or causes multiple injuries to one victim. Valentin v. State, 963 So.2d 317, 319-20 (Fla. 5th DCA 2007) (citing State v. Christian, 692 So.2d 889 (Fla.1997); State v. Thomas, 487 So.2d 1043 (Fla.1986); Palmer v. State, 438 So.2d 1 (Fla.1983)).

In Irizarry v. State, 946 So.2d 555 (Fla. 5th DCA 2006), this Court determined that State v. Sousa, 903 So.2d 923 (Fla.2005), made clear that Christian and Thomas still apply in determining when minimum mandatory sentences for 10-20-life offenses may be consecutively imposed. Applying the principles enunciated in those cases to the facts in Irizarry, this Court concluded that each of Irizarry’s offenses was a 10-20-life offense, that each offense arose from a single criminal episode, and that during this criminal episode, Irizarry did not injure multiple victims or cause multiple injuries to any one victim. Nor did Irizarry fire his weapon. As a result, the consecutively imposed sentences were reversed. 946 So.2d at 558. Similarly, in this case, there is no authority for imposition of a consecutive sentence for the conviction of possession of a firearm by a convicted felon in the course of the single criminal episode. We accordingly vacate this sentence and remand for imposition of a concurrent sentence.

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIFFIN, ORFINGER and LAWSON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles BONFIGLIO, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-218.
    District Court of Appeal of Florida, Second District.
    April 6, 2011.
    John E. Hendry, Regional Counsel, Second District, and Jeffrey Sullivan, Special Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

In this appeal from a criminal judgment and sentence, the only order Charles Bon-figlio challenges is the trial court’s denial of the motion to suppress his confession. Because there had been no determination by the trial court that the motion to suppress was dispositive, this court relinquished jurisdiction for the trial court to make a finding in that regard. Upon receipt of the trial court’s order determining that the motion to suppress was not dis-positive, this court issued an order to show cause why this appeal should not be dismissed for lack of jurisdiction, citing White v. State, 661 So.2d 40 (Fla. 2d DCA 1995). White held that because there had been no express finding that the motion to suppress was dispositive, no issue had been preserved for appellate review and the court was required to dismiss for lack of jurisdiction. Id. at 40.

Upon further examination of the applicable law, the court discharges its order to show cause. Rather than dismiss this appeal for lack of jurisdiction, we summarily affirm pursuant to Florida Rule of Appellate Procedure 9.315(a) because the only issue on appeal is not reviewable on the merits. See M.N. v. State, 16 So.3d 280, 282 (Fla. 2d DCA 2009) (en banc) (citing Leonard v. State, 760 So.2d 114, 119 (Fla.2000), for the proposition that “district courts should not dismiss appeals from pleas upon a determination that they do not present a dispositive issue that was reserved for review but should summarily affirm such decisions”).

Affirmed.

WHATLEY, NORTHCUTT, and BLACK, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Louis Stanley ORLOFF and Matrix Group Limited, Inc., Appellants, v. Joyce Lynn ORLOFF, Appellee.
    No. 2D10-2090.
    District Court of Appeal of Florida, Second District.
    April 6, 2011.
    Timothy W. Weber and Joseph P. Kenny of Battaglia, Ross, Dieus & Wein, P.A., St. Petersburg, for Appellants.
    Michael J. Park of Park, Ossian, Bar-naky & Park, P.A., Clearwater, for Appel-lee.
   ALTENBERND, Judge.

Louis Stanley Orloff and Matrix Group Limited, Inc., appeal two orders that are essentially enforcement orders entered after the entry of the final judgment of dissolution between Mr. Orloff and his former wife, Joyce Lynn Orloff. This court recently reversed a portion of that final judgment. See Orloff v. Orloff, — So.3d -, 2011 WL 1136434 (Fla. 2d DCA 2011). That reversal affects the equitable distribution between the Orloffs. Because the two orders on appeal in this case were intended to enforce that equitable distribution, we must also reverse these orders.

Reversed and remanded.

SILBERMAN and BLACK, JJ., Concur.


text:
    Jose DIAZ and Ivette Gonzalez, Appellants, v. Jose Felix CABEZA and La Dorada Coral Gables, Inc., Appellees.
    No. 3D09-3523.
    District Court of Appeal of Florida, Third District.
    April 6, 2011.
    Ivette Gonzalez, Miami, for appellants.
    Jorge L. Piedra, Miami, for appellees.
    Before RAMIREZ, C.J., and CORTÍÑAS and ROTHENBERG, JJ.
   PER CURIAM.

Jose Diaz and Ivette Gonzalez appeal a final judgment of attorney’s fees and costs, pursuant to section 57.105, Florida Statutes (2010). For the reasons that we stated in case number 3D09-2954, we reverse the final judgment and remand for further proceedings.


author: SCHWARTZ, Senior Judge.

text:
    Alejandro BALLADARES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1984.
    District Court of Appeal of Florida, Third District.
    April 6, 2011.
    Joseph P. George, Jr., Criminal Conflict and Civil Regional Counsel, Third Region, and Abe A. Bailey and Dan Hallenberg, Assistant Regional Counsels, for appellant.
    Pamela Jo Bondi, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   CONFESSION OF ERROR

SCHWARTZ, Senior Judge.

While defendant’s convictions are affirmed, the defendant argues, the State concedes,' and we agree, that the concurrent sentences imposed below upon him as a (properly designated) Prison Releasee Reoffender, § 775.082, Fla. Stat. (2008), of thirty years for strong arm robbery, a second degree felony, and ten years for tampering with a witness, a third degree felony, are unlawfully excessive. The trial court’s apparent reliance on the habitual felony offender statute which would permit this sentence, § 775.084, Fla. Stat. (2008), was, as all agree, unjustified because, although the defendant may have qualified for that status, the trial court did not so declare him or otherwise comply with the requirements of the statute.

Therefore the sentences are vacated and the cause remanded for resentencing without regard to the habitual felony offender statute.

Affirmed in part, vacated in part, and remanded.


author: RAMIREZ, C.J. GERSTEN, J.

text:
    Johnny WADE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-490.
    District Court of Appeal of Florida, Third District.
    April 6, 2011.
    Andrew F. Rier, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   ON MOTION FOR REHEARING

RAMIREZ, C.J.

Johnny Wade’s Motion for Rehearing is granted to the extent that the opinion dated December 22, 2010, is withdrawn and the attached opinion is substituted in its place.

Johnny Wade appeals his conviction and sentence for robbery and burglary. He complains that the State did not prove that the photographic line-up the victim saw was relevant because no one testified that the photograph which the witness identified was the photograph of him. As Ehrhardt states: “[Pjhotographs, when properly authenticated, are admissible to prove a material fact in the lawsuit.” See Charles W. Ehrhardt, Florida Evidence § 401.2 (2007 ed.). Here, the witness viewed a photographic line-up. She testified that she identified photograph number 3. The State then moved to introduce into evidence the photographic lineup. The court allowed the admission without objection.

We agree with Wade that the line-up is relevant only if that is the photograph of him. The line-up is not relevant to this case unless the officer that prepared the line-up testifies so as to establish the identity of the individual who was actually portrayed in photograph number 3. However, once Wade allowed the line-up into evidence without objection, it became unnecessary for the State to call the police officer who prepared the line-up.

Wade also has raised the issue that the prosecutor repeatedly vouched for the credibility of the witnesses during the opening statement and closing argument, without objection. Because these comments, although improper, were not objected to, the trial court never had the opportunity to sustain them and instruct the jury to disregard them.

Finally, the dissent would deny relief because Wade never filed a timely motion for rehearing, but only filed a motion for rehearing en banc. However, it has long been the policy of this Court to dispose of motions for rehearing en banc on the merits, even when they are not filed with an accompanying motion for rehearing. Our Manual of Internal Operating Procedures provides:

When a motion for rehearing en banc is filed unaccompanied by a motion for rehearing, the motion for rehearing en banc will be treated as to include a motion for rehearing. It will then be ruled upon by the panel with the en banc request to be noted or ruled upon by the court.

In Romero v. State, 870 So.2d 816 (Fla.2004), the Florida Supreme Court cited to our policy with approval and stated:

By treating motions for rehearing en banc as including motions for rehearing, the Third District adheres to the spirit of Florida Rule of Appellate Procedure 9.040(d), which is to “disregard any procedural error or defect that does not adversely affect the substantial rights of the parties.”

Id. at 818. We therefore treat the motion for rehearing en banc as including a motion for rehearing.

For these reasons, we affirm.

SALTER, J., concurs.

GERSTEN, J.

(dissenting).

I respectfully dissent. Neither party has filed a motion for rehearing within the time allowed under the appellate rules. See Fla. R. App. P. 9.330(a); Hoenstine v. State Farm Fire & Cas. Co., 742 So.2d 853 (Fla. 5th DCA 1999). Therefore, I would adhere to the original opinion of the Court.


author: SHEPHERD, J. SCHWARTZ, Senior Judge

text:
    LBC DESIGN AND CONSTRUCTION, etc., et al., Appellants, v. Samuel SERRUYA, et al., Appellees.
    No. 3D10-2554.
    District Court of Appeal of Florida, Third District.
    April 6, 2011.

      Bilzin Sumberg Baena Price & Axelrod, and Melissa C. Pallett-Vasquez and Mitchell E. Widoxn, Miami, for appellants.
    Rosenthal Rosenthal Rasco Kaplan, and Steve M. Bimston and Eduardo Rasco, Aventura, for appellees.
    Before SHEPHERD and LAGOA, JJ„ and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

Affirmed. See Gen. Impact Glass & Windows Corp. v. Rollac Shutter of Tex., Inc., 8 So.3d 1165, 1167 (Fla. 3d DCA 2009) (finding no valid written arbitration agreement existed when the arbitration provision was not incorporated into all’ of the parties’ documents); Rolls-Royce PLC v. Royal Caribbean Cruises LTD., 960 So.2d 768 (Fla. 3d DCA 2007); Steve Owren, Inc. v. Connolly, 877 So.2d 918, 920 (Fla. 4th DCA 2004) (“[N]o party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate.”).

LAGOA, J., concurs.

SCHWARTZ, Senior Judge

(dissenting in part).

Of the two contractual arrangements involved in this case, I disagree that that the set of disputes arising from the first one is not arbitrable. While the arbitration clause is rendered somewhat uncertain by an apparently contrary provision, I think that the ambiguity should be resolved in accordance with the usual rule that favors arbitration. See BallenIsles Country Club, Inc. v. Dexter Realty, 24 So.3d 649, 652 (Fla. 4th DCA 2009) (“Arbitration is a preferred method of dispute resolution, so any doubt regarding the scope of an arbitration clause should be resolved in favor of arbitration.”); Morales v. Perez, 952 So.2d 605, 607 (Fla. 3d DCA 2007) (“[W]e are mindful of the policy favoring arbitration and recognize that any doubts concerning the scope of arbitration should be resolved in favor of arbitration.”); Royal Caribbean Cruises, Ltd. v. Universal Employment Agency, 664 So.2d 1107, 1108 (Fla. 3d DCA 1995) (“[A]rbitration clauses like this are to be given the broadest possible interpretation to accomplish the salutary purpose of resolving controversies out of court.”); see also Land O’Sun Realty Ltd. v. REWJB Gas Invs., 685 So.2d 870, 872 (Fla. 3d DCA 1996) (concluding trial court properly resolved conflicting contract terms). Moreover, the fact that the agreement, which was otherwise fully performed and which was even sued upon, by the appellee, was not formally signed by the other side, is no bar to that relief. See Kolsky v. Jackson Square, LLC, 28 So.3d 965 (Fla. 3d DCA 2010).

The second arrangement involves no arbitration clause and is not “interrelated” to the first. Compare Ceradini v. IGT Servs., Inc., 959 So.2d 348, 351 (Fla. 3d DCA 2007). Therefore, I agree' that, as to that set of controversies, arbitration was properly denied.


text:
    Mario Andres MORENO, Appellant, v. Martha Lucia MORENO, n/k/a Martha Lucia Socarras, Appellee.
    No. 3D10-935.
    District Court of Appeal of Florida, Third District.
    April 6, 2011.

      Greene Smith & Associates and Cynthia L. Greene, Carlos M. Muniz, Miami, for appellant.
    Elena Vigil-Farinas, Key Largo, for ap-pellee.
    Before ROTHENBERG, LAGOA, and EMAS, JJ.
   PER CURIAM.

The former husband, Mario Andres Moreno, appeals from a post-dissolution order denying his motion for civil contempt against his former wife, Martha Lucia Socarras. We reverse and remand for further proceedings.

Moreno and Socarras were divorced by final judgment of dissolution of marriage in July 2002. Subsequently, in February 2003, the trial court entered an agreed order for non-harassment, which stated, in part, that each party was “enjoined from harassing and making disparaging statements against the [other] to the parties’ minor children, employers and other third parties.” The agreed order also provided that “the parties understand that violation of this paragraph shall subject the offending party to sanctions being imposed upon them by the Court.”

It is undisputed that in October 2009, Socarras released a book purportedly telling the “real story” of the break-up of the parties’ marriage. Between August and September of 2009, she also appeared on television shows and granted interviews to publications, all with respect to the book. As a result, Moreno filed a motion for civil contempt, seeking to have Socarras held in contempt because she had “blatantly violated the Court’s orders and has ignored this Court’s authority.” After an eviden-tiary hearing, the trial court denied the motion, and this appeal ensued.

We conclude that given the mandatory language contained in the agreed order, the trial court was without discretion to deny the motion for civil contempt. Accordingly, we reverse and remand with instructions to the trial court to find Socar-ras in contempt of the agreed order, and for the imposition of sanctions.

Reversed and remanded.

      . We note, however, that although the parties agreed that any violation of the order would result in the imposition of sanctions, the parties did not agree what form those sanctions would take. Accordingly, the trial court is free to craft any legally appropriate sanction, including, for example, the imposition of a fine in a nominal amount.


author: CASANUEVA, Chief Judge.

text:
    Louis Stanley ORLOFF, Appellant, v. Joyce Lynn ORLOFF, Appellee.
    No. 2D09-5513.
    District Court of Appeal of Florida, Second District.
    April 8, 2011.
    Timothy W. Weber and Joseph P. Kenny of Battaglia, Ross, Dicus & Wein, P.A. St. Petersburg, for Appellant.
    Michael J. Park of Park, Ossian, Bar-naky & Park, P.A., Clearwater, for Appel-lee.
   CASANUEVA, Chief Judge.

Louis Stanley Orloff appeals the trial court’s order finding him in contempt and awarding a monetary judgment in the amount of $76,249.60 to his former wife, Joyce Lynn Orloff, for his failure to transfer certain assets that were awarded to her as equitable distribution. Based upon the pleadings, the record, and the representations of the parties at oral argument, we reverse the finding of contempt. The facts proven by Ms. Orloff did not amount to contemptuous conduct. We must also revei'se the monetary judgment because it is based upon the equitable distribution scheme which we have reversed in the related appeal of the final judgment of dissolution. See Orloff v. Orloff — So.3d -, 2011 WL 1136434 (Fla. 2d DCA 2011).

Reversed and remanded.

DAVIS and WALLACE, JJ., Concur.


author: CRENSHAW, Judge.

text:
    Pamela D. PEAK, as Personal Representative of the Estate of Dillon Peak, Deceased, Appellant, v. OUTWARD BOUND, INC., and Paul Cronin, Appellees.
    No. 2D09-5980.
    District Court of Appeal of Florida, Second District.
    April 13, 2011.

      Celene H. Humphries and Tyler K. Pitchford of Brannock & Humphries, Tampa; and R. Gene Odom of Guarnieri Martinez & Odom, P.A., for Appellant.
    Bruce M. Stanley, Sr. and Traci T. McKee of Henderson, Franklin, Starnes & Holt, Fort Myers, for Appellee Outward Bound, Inc.
    No appearance for Appellee Paul Cronin.
   CRENSHAW, Judge.

Pamela D. Peak, as the personal representative of the estate of the deceased, Dillon Peak, appeals the final order dismissing her wrongful death action against Outward Bound, Inc. Peak filed the action against Outward Bound and Paul Cronin for the wrongful death of her son which occurred when he was a resident of an Outward Bound facility in the summer of 2006. The trial court granted Outward Bound’s motion to dismiss, concluding that Outward Bound was shielded from liability based upon the sovereign immunity provision of section 768.28, Florida Statutes (2005). However, the complaint does not conclusively demonstrate that Outward Bound is entitled to sovereign immunity under the statute. We therefore reverse the dismissal of the complaint and remand for further proceedings.

Outward Bound operates the Peace River Outward Bound facility in DeSoto County under a contractual agreement with the Department of Juvenile Justice (the Department). Dillon Peak, who resided at the facility from November 2005 to May 2006, became ill and was sent to DeSoto Memorial Hospital. He was discharged back to the Outward Bound facility, again became ill, and returned to DeSo-to Memorial Hospital. Dillon was then transferred to All Children’s Hospital in Pinellas County where he later died.

Pamela Peak, Dillon’s mother and personal representative of the estate of Dillon Peak, filed a second amended complaint on January 26, 2009, alleging wrongful death claims against Outward Bound and Paul Cronin. Outward Bound filed a motion to dismiss the complaint. In support of its motion, Outward Bound argued it was entitled to sovereign immunity as a statutory agent of the Department. In May 2009, the trial court entered its order granting Outward Bound’s motion to dismiss, concluding that Outward Bound was entitled to sovereign immunity under section 768.28. A final order of dismissal was entered in December 2009, and this appeal timely followed.

We review de novo a trial court’s final order of dismissal. See Gomez v. Fradin, 41 So.3d 1068, 1070 (Fla. 4th DCA 2010). When ruling on a motion to dismiss, “the trial court must accept the material allegations as true and is bound to a consideration of the allegations found within the four corners of the complaint.” Murphy v. Bay Colony Prop. Owners Ass’n, 12 So.3d 924, 926 (Fla. 2d DCA 2009). “Sovereign immunity generally is an affirmative defense that may justify granting a motion to dismiss only when the complaint itself conclusively establishes its applicability.” Sierra v. Associated Marine Insts., Inc., 850 So.2d 582, 590 (Fla. 2d DCA 2003).

Here the trial court’s order dismissing the complaint against Outward Bound was based on its conclusion that Outward Bound was entitled to sovereign immunity as an agent of the Department under section 768.28. Section 768.28(ll)(a) provides in pertinent part:

Providers or vendors, or any of their employees or agents, that have contractually agreed to act on behalf of the state as agents of the Department of Juvenile Justice to provide services to children in need of services, families in need of services, or juvenile offenders are, solely with respect to such services, agents of the state for purposes of this section while acting within the scope of and pursuant to guidelines established in the contract or by rule.

Although the complaint against Outward Bound establishes a contractual relationship between Outward Bound and the Department, it fails to conclusively demonstrate that at the time of the alleged negligence, Outward Bound was “acting within the scope of and pursuant to guidelines established in the contract or by rule.” And as this court stated in Sierra,

It is not enough, however, to demonstrate simply that the provider contracted to act on behalf of the state in the furnishing of the mentioned services. Rather, to enjoy agent’s statús under the statute, the provider must have acted “within the scope of and pursuant to guidelines established in the contract or by rule.”

850 So.2d at 591 (quoting § 768.28(ll)(a), Fla. Stat. (1997)). Instead, the complaint alleges Outward Bound was not acting as an agent of the Department “as it relates to the incident giving rise to the complaint,” nor did Outward Bound conform to its duties in the contract. . We therefore conclude that the complaint did not conclusively demonstrate Outward Bound was entitled to sovereign immunity, and the trial court erred in dismissing the complaint on sovereign immunity grounds.

Accordingly, we reverse the trial court’s final order dismissing the complaint against Outward Bound and remand for further proceedings.

Reversed and remanded.

ALTENBERND and KHOUZAM, JJ„ Concur.


text:
    M.H., the mother, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    Nos. 4D10-3196, 4D10-3540, 4D10-5164.
    District Court of Appeal of Florida, Fourth District.
    April 13, 2011.

      Kenneth B. Williams, Coral Springs, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Fort Lauderdale, for respondent.
    Hillary Kambour, Tavares, for Guardian Ad Litem Program.
   PER CURIAM.

We sua sponte consolidate these three cases, redesignate them as petitions for writ of certiorari, and deny.

GROSS, C.J., POLEN and DAMOORGIAN, JJ., concur.


text:
    Michael A. WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3786.
    District Court of Appeal of Florida, Fourth District.
    April 13, 2011.
    Michael A. Wilson, Sneads, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the trial court’s order striking the appellant’s first postconviction relief motion, filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court struck the motion for postconviction relief based upon the court’s prior orders prohibiting the appellant from filing future pro se pleadings. The order was entered pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999). Spencer permits a court to prohibit a litigant who has filed repetitious and frivolous pleadings and papers from filing further attacks on his or her conviction and sentence, after notice and opportunity to be heard. In this case, the appellant had filed repetitious pleadings and papers while his case was on direct appeal from his conviction and sentence. He has not had the opportunity to file any motion for postconviction relief.

While we can sympathize with the frustration of the circuit court, we do not believe that Spencer was ever intended to be used to prohibit a prisoner from filing at least a first motion for postconviction relief. See Bivins v. State, 35 So.3d 67 (Fla. 1st DCA 2010). Spencer and its progeny seek to prevent a prisoner from flooding the courts with repetitious, successive, and frivolous pleadings. Here, appellant is being prohibited from filing his first, non-successive motion for postconviction relief. We conclude that he is entitled to file that motion.

Although we permit the filing of this first postconviction motion, we caution the appellant that, should he abuse the process by continually filing additional pleadings, he may face the same prohibition again.

GROSS, C.J., WARNER and HAZOURI, JJ., concur.


author: DAMOORGIAN, J.

text:
    Rose Marie GOODMAN, individually and as Co-Trustee of the Adolph and Herman Goodman Family Trust, Appellant, v. Pauline JOFFE n/k/a Pauline Goodman, as Successor Co-Trustee of the Adolph and Herman Goodman Family Trust, David Joffe, Successor Co-Trustee of the Adolph and Herman Goodman Family Trust, and Herman Goodman, individually and as Co-Trustee of the Adolph and Herman Goodman Family Trust, Appellees.
    No. 4D10-4663.
    District Court of Appeal of Florida, Fourth District.
    April 13, 2011.
    Shelly J. Stirrat of Fox, Wackeen, Dun-gey, Beard, Sobel, Bush & McCluskey, L.L.P., Stuart, for appellant.
    Gary Brookmyer of Brookmyer, Hoch-man & Probst, P.A., Palm Beach Gardens, for appellees, Pauline Joffe n/k/a Pauline Goodman, as Successor Co-Trustee of the Adolph and Herman Goodman Family Trust, and David Joffe, Successor Co-Trustee of the Adolph and Herman Goodman Family Trust.
   DAMOORGIAN, J.

Rose Marie Goodman appeals an order denying her motion to vacate a default final judgment. Goodman contends that, as a matter of law, the trial court should have ruled on her pending motion to vacate the default entered against her before entering a default final judgment. We agree. See Vacation Escape, Inc. v. Mich. Nat’l Bank, 735 So.2d 528, 529 (Fla. 4th DCA 1999) (reversing entry of a final default judgment where the trial court failed to hear the motion to vacate the clerk’s default); see also Punta Gorda Ready Mixed Concrete, Inc. v. Green Manor Constr. Co., 166 So.2d 889, 890 (Fla.1964); Lakeview Auto Sales v. Lott, 753 So.2d 723, 724 (Fla. 2d DCA 2000) (reversing default final judgment because the trial court failed to rule on the pending motions to set aside the default). Goodman also appeals the order denying her motion to quash service of process. We affirm that order.

Our holding should not be read to mean that a party may ignore the time requirements imposed by Florida Rule of Civil Procedure 1.540, or that we countenance the practice of filing a motion and then allowing it to languish. The civil practice of law would benefit from a rule which provides that motions not pursued to resolution by the movant within a fixed period of time should be deemed denied. Cf. Sewell Masonry Co. v. DCC Constr., Inc., 862 So.2d 893, 899 (Fla. 5th DCA 2003) (“Litigants have an affirmative obligation to move their cases to resolution a,nd not sit back and rely on the trial court to set their hearings for them.”).

We reverse the default final judgment and remand for further proceedings consistent herewith.

Reversed and Remaoided.

GROSS, C.J., and POLEN, J., concur.


author:
GUIDRY, Justice
     JOHNSON, J., WEIMER, J.,

text:
    Sharon SCHULTZ et al., v. Janos GUOTH, M.D., and Khaled F. Rabie, M.D.
    No. 2010-CC-0343.
    Supreme Court of Louisiana.
    Jan. 19, 2011.
    Rehearing Denied March 4, 2011.

      Sooter & Associates, LLC, Elizabeth Brown Hilburn, Victor Herbert Sooter, Alexandria, for Applicant.
    Dalrymple & Ledet, Joseph Texada Dal-rymple, Alexandria; Judice & Adley, APLC, Marc W. Judice, for Respondent.
   GUIDRY, Justice

|, We granted the defendant physician’s writ application in this medical malpractice action to determine whether he is entitled to summary judgment on the ground that the plaintiff is unable to produce any expert witness evidence in support of her claims the physician breached the applicable standard of care and this breach caused her injuries. The trial court denied the defendant’s motion for summary judgment, stating that expert medical evidence was not necessary under Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228, for the plaintiff to prove her medical malpractice claim, despite the fact that the defendant’s motion was supported by the unanimous opinion of the medical review panel and an affidavit of one of its members. The court of appeal denied the defendant’s writ application. On our de novo review of the defendant’s motion for summary judgment, the accompanying exhibits, and the applicable law, we conclude there were no genuine issues of material fact and the defendant was entitled to summary judgment as a matter of law. Accordingly, for the reasons set forth below, we reverse the lower courts’ rulings and render summary judgment in favor of the defendant.

| .FACTS

In April 2002, Leanne Brow, then age fourteen and eleven months, consulted Dr. Janos Guoth, an obstetrician-gynecologist, complaining of cramps and having missed her period. Ms. Brow was diagnosed with oligomenorrhea (infrequent menstruation) and instructed to return for a pregnancy test in one week. Ms. Brow returned to Dr. Guoth on October 29, 2002, and was then determined to be 28.4 weeks pregnant. On November 3, 2002, Ms. Brow presented at Oakdale Community Hospital (hereinafter, “Oakdale”) complaining of severe abdominal cramping. The emergency room physicians found her to have been in labor for two hours and noted that she was bleeding, but her vital signs were normal. Dr. Guoth and Dr. Chaftari, an emergency room physician, both examined her. Fetal' heart beats were recorded at 143 beats per minute.

Because Ms. Brow was deemed to be six months pregnant and Oakdale lacked sufficient monitoring and surgical equipment, Dr. Guoth issued a transfer order, directing that Ms. Brow be transferred to Rap-ides Women’s and Children’s Hospital (hereinafter, “RWCH”) for a higher level of neonatal care. Dr. Guoth’s order indicated the plaintiff was suffering from a placental tear. The transfer form, signed at 5:30 a.m., indicated there was no material deterioration of the patient’s condition likely to result from the transfer. Dr. Khaled F. Rabie, an obstetrician-gynecologist on call at RWCH, accepted the transfer. During the transfer, the fetal heart rate was recorded at 170.

Ms. Brow arrived at RWCH at 6:29 a.m. Upon her arrival, fetal heart tones could not be detected, and the fetus was found to be in a breech position. Dr. Rabie was notified of her arrival, and he issued orders by telephone at 6:35 a.m. Prior to Dr. Rabie’s arrival at the hospital, fetal heart rates ranging between 160-180 were | .¡recorded. Dr. Rabie arrived at 6:55 a.m. and performed an ultrasound, but was unable .to detect any fetal heart tones. At 7:13 a.m., a fetal scalp electrode (hereinafter, “FSE”) was applied, and a fetal heart rate fluctuating from 60-144 was found. Dr. Rabie ordered a C-section at 7:14 a.m. The C-section was commenced at 7:25 a.m. At 7:33 a.m., Dr. Rabie delivered a stillborn fetus.

Subsequently, Ms. Brow, hereinafter the plaintiff, filed a medical malpractice complaint against Dr. Rabie, hereinafter the defendant. The matter proceeded to a medical review panel, which rendered a unanimous opinion finding the evidence did not support the conclusion that the defendant failed to meet the applicable standard of care as charged in the complaint. In its opinion, the medical review panel stated:

Dr. Rabie accepted the transfer of the patient who was determined at the time of the transfer to be stable. He responded to take care of the patient in a timely fashion, within 26 minutes of her arrival to Rapides General [sic]. It is not the standard of care to be waiting at the hospital for the transfer of a patient who is deemed to be stable at the time of the transfer. It is unfortunate that when Dr. Rabie first examined the patient, the baby was probably already dead, as determined by the absence of fetal cardiac activity on ultrasound exam. Once the order for C-section was given, the baby was delivered in an appropriate amount of time. It would have been inappropriate for Dr. Rabie to order a C-section sooner with the facts he was given earlier. It is most probable that this baby went into distress and died during the transfer. Any earlier intervention on Dr. Rabie’s part would not have affected the outcome.

Following the rendition of the medical review panel’s opinion, the plaintiff filed the instant medical malpractice suit against the defendant. In her suit, the plaintiff sought damages for the death of her unborn child. In response, the defendant filed a motion for summary judgment. Relying on the opinion of the medical review panel, as well as an affidavit from Dr. Charles Padgett, one of the panel members, the defendant argued his actions did not fall below the applicable standard of care.

RThe plaintiff opposed the motion- for summary judgment. Although she was unable to produce any expert evidence supporting her claim, she relied on this court’s opinion in Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228, for the proposition that the medical and factual issues were such that a lay jury could perceive negligence in the defendant’s actions. Specifically, she argued the facts contradicted the medical review panel’s finding the fetus was dead on arrival, as the medical records indicated the fetus had a heartbeat at 7:13 a.m.

After a hearing, the trial court denied the defendant’s motion for summary judgment. In written reasons for judgment, the trial court stated it “believe[d] that the factual issues are such that a lay person can perceive negligence in the physician’s conduct. There are genuine issues of material fact (i.e., whether Dr. Rabie timely arrived at the hospital to respond to the emergency, whether Dr. Rabie waited too long before'performing the Cesarean section, and whether his delay caused the death of plaintiffs unborn child).” The trial court went on to find that “the Medical Review Panel opinion and the individual affidavits from the members of the panel alone are not sufficient to succeed at summary judgment.” The trial court reasoned “the plaintiff need not present her own expert to defeat the defendant’s motion” because “the medical and factual issues are such that a jury can reasonably infer whether negligence occurred.”

The court of appeal initially denied the defendant’s application for supervisory writs, with one judge dissenting. The dissenting judge stated: “Given the complex medical issues involved in this case, without expert testimony the Plaintiff will be unable to sustain her burden of proving at trial that [the defendant’s] conduct constituted a breach in the applicable standard of care, and that this breach resulted in damages sustained.” Upon the defendant’s application to this court, we summarily [ ¿granted the writ and remanded the case to the court of appeal for briefing, argument, and opinion. Schultz v. Rabie, 09-1384 (La.10/2/09), 18 So.3d 119.

On remand, a 2-1 majority of the court of appeal again denied the writ application, but gave reasons for its ruling. The majority stated in part:

The hearing on the motion for summary judgment was not recorded, and we are unable to determine what evidence, if any, was submitted by Ms. Brow. However, it is possible that Ms. Brow will rely on the testimony of the defendant doctors themselves as to the standard of care, and on Dr. Rabie’s testimony regarding his alleged breach of that standard of care. In addition, as noted in Pfiffner, 643 So.2d 1228, the facts of this case could demonstrate that Dr. Rabie’s failure to respond timely, to the patient’s emergency is an example of obvious negligence that requires no expert testimony to show his fault.
After reviewing the evidence in this case and hearing arguments of counsel, the trial court determined that the jury could infer negligence from the facts of the case. The Louisiana Supreme Court noted in Pfiffner that a physician’s delay in responding to an emergency is an example of obvious negligence that would require no expert testimony.' In addition, it is possible that Dr. Rabie’s testimony in his deposition could provide Ms.' Brow with proof of a breach of the standard of care. Based on the information provided to this court, we deny Dr. Rabie’s writ application, finding ■ that there are genuine issues of material fact that warrant trial on the merits. We find that pursuant to the Pfiffner case, expert testimony is not required in'order for Ms. Brow to prove her malpractice claim.

We granted the defendant’s writ application to review the correctness of the denial of the motion for summary judgment. Shultz v. Rabie, 10-0343 (La.6/04/10), 38 So.3d 290.

LAW

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83; Duncan v. U.S.A.A. Ins. Co., 06-363, p. 3 (La.11/29/06), 950 So.2d 544, 546, see La. Code Civ. Proc. art. 966. “A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of j ¿whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.” Samaha v. Rau, 07-1726, pp. 3-4, 977 So.2d at 882-83.

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. art. 966(B). This article provides that “the summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action .... The procedure is favored and shall be construed to accomplish these ends.” La.Code Civ. Proc. art. 966(A)(2). La.Code Civ. Proc. art. 966(C)(2) sets forth the burden of proof in summary judgment proceedings, providing:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

This provision initially places the burden of producing evidence at the hearing on the motion for summary judgment on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. Samaha v. Rau, 07-1726, p. 4, 977 So.2d at 883. “At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial.... Once the motion l7for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.” Id. (quoting Wright v. Louisiana Power & Light, 06-1181, p. 16 (La.3/9/07), 951 So.2d 1058, 1069-70).

The motion for summary judgment at issue here arises in the context of a suit for medical malpractice. To establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) the defendant breached that standard of care; and (3) there was a causal connection between the breach and the resulting injury. La.Rev. Stat. 9:2794. Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Samaha v. Ran, pp. 5-6, 977 So.2d at 888; Pfiffner v. Correa, 94-0924, 94-0968, 94-0992 (La.10/17/94), 643 So.2d 1228.

In Pfiffner v. Correa, the court recognized that expert testimony is not always required, but noted that, in most cases, the plaintiff will be unable to sustain her Isburden of proof without such evidence:

We hold that expert testimony is not always necessary in order for a plaintiff to meet his burden of proof in establishing a medical malpractice claim. Though in most cases, because of the complex medical and factual issues involved, a plaintiff will likely fail to sustain his burden of proving his claim under LSA-R.S. 9:2794’s requirements without medical experts, there are instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician’s conduct as well as any expert can, or in which the defendant/physician testifies as to the standard of care, and there is objective evidence, including the testimony of the defendant/physician which demonstrates a breach thereof. Even so, the plaintiff must also demonstrate by a preponderance of the evidence a causal nexus between the defendant’s fault and the injury alleged.

Pfiffner v. Correa, 643 So.2d at 1234.

As examples of obvious negligence that could be inferred by a lay person, the Pfiffner court cited instances “where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body....” 643 So.2d at 1233-34. Other examples posited by the. Pfiffner court include “[fjailure to attend a patient when the circumstances demonstrate the serious consequences of this failure, and failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary....” Id.

DISCUSSION

The defendant contends he has presented sufficient evidence to support a prima facie case for summary judgment. He points out that he has introduced the unanimous opinion of the medical review panel, which concluded he did not fail to meet the applicable standard of care, as well as an affidavit of a member of the panel who clearly stated the defendant did not breach the applicable standard of care.

Once he satisfied his burden, the defendant contends the burden shifted to the plaintiff to show there are genuine issues of material fact. The defendant points out |9that the plaintiff has not produced an expert witness qualified in the field of obstetrics and gynecology during the two years this claim has been pending.

The defendant argues the plaintiffs reliance on Pfiffner v. Correa is misplaced. He contends the instant case does not involve obvious negligence; rather, he asserts this case involves complex medical issues, such as the significance of fluctuating fetal heart tones, decisions regarding the infant’s viability, and questions of whether an immediate C-section was appropriate. The defendant argues a layman could not infer negligence under the facts of this case, or determine whether the fetus was ever even viable.

The defendant further maintains the evidence he submitted establishes he did not breach the applicable standard of care in his treatment of the plaintiff, and there was no causal connection between his alleged breach and the death of the infant. In the absence of any countervailing evidence from the plaintiff, the defendant argues he is entitled to summary judgment.

The plaintiff does not contest the defendant’s account of the salient facts from the medical records as presented in the motion for summary judgment. However, the plaintiff rejects the defendant’s characterization of the case as “complex” and, instead, she views the case as one of obvious negligence. Similarly, the plaintiff rejects any suggestion the fetus was already dead at the time she arrived at the hospital. She contends the medical review panel’s conclusions are unreliable because they fail to comport with the evidence. The plaintiff notes that during the transfer the fetus’s heart rate was 170, but upon arrival, a heart beat could not be detected; however, at 6:50 a.m. and again at 7:13 a.m., a heart beat was measured. The plaintiff questions the panel’s conclusion that the fetus was probably already dead on arrival, wondering, if that were so, how the baby could have had a heart rate and why would 1 inthe defendant would have ordered an emergency C-section at 7:14 a.m. The plaintiff posits the fetus was still alive and viable upon arrival at 6:29 a.m., though certainly a “patient in extremis.”

The plaintiff argues that laymen could infer from these facts that this was an emergency, that the defendant was negligent for not readying the operating room for an emergency C-section upon arrival, that the defendant was negligent for failing to order the C-section at 6:35 a.m. and was certainly so when he failed to order the C-section at 6:55. The plaintiff additionally questions why the defendant ordered an FSE after he had detected no heart beat using the supposedly superior ultrasound. Finally, the plaintiff points to the inherent contradiction between the panel’s finding that ordering a C-section earlier in the crisis would not have been appropriate when it also found that ordering a C-section at 7:14 a.m. was appropriate. The plaintiff notes the defendant apparently thought the baby was alive when he ordered the C-section. In the plaintiffs view, laymen could infer from the non-expert evidence that, had the C-section been performed between 6:29 a.m. and 7:13 a.m., it would have been a viable birth.

Our review of the motion for summary judgment, the opinion of the medical review panel, and the affidavit of Dr. Pad-gett, the obstetrician-gynecologist and member of the medical review panel, convinces us that the defendant is entitled to summary judgment. We disagree with the plaintiff that this is a Pfiffiier case of obvious negligence, which requires no expert testimony to prove the elements of her malpractice claim. Despite the plaintiffs arguments that this case is not a difficult one, whether the defendant breached the applicable standard of care and whether that breach caused the plaintiffs injuries will turn on complex medical issues, including, as the defendant pointed out, the significance of fluctuating fetal heart tones; Inquestions regarding the interpretations of readings from an ultrasound, a heart rate monitor, and an FSE; decisions regarding the fetus’s viability; and questions regarding whether an immediate C-section was appropriate. Indeed, even the questions raised by the plaintiff herself would require the assistance of expert testimony to resolve. Thus, we agree with the defendant that such issues are simply beyond the province of a lay person to assess without the aid of expert testimony.

The defendant produced the medical review panel opinion and Dr. Padgett’s affidavit, which both conclude the defendant did not breach the applicable standard of care and that any earlier intervention in performing the C-section would not have affected the outcome. As in Pfiffner, there was medical testimony regarding the absence of a breach of the applicable standard of care and the absence of causation. Although the plaintiff asserts the panel’s findings are unreliable, even “silly,” the plaintiff has not produced expert medical testimony to counter the uncontradicted expert opinions of Dr. Padgett and the other panel members, who all agreed “the baby was probably already dead as determined by the absence of fetal cardiac activity on ultrasound exam.” Although the plaintiff argues the panel members ignored the medical evidence, the medical review panel opinion specifically stated that the evidence did not support the conclusion that Dr. Rabie failed to meet the applicable standard of care. Furthermore, Dr. Padgett attested that he had reviewed all of the pertinent evidence and medical records submitted to him, and, based on this review, he found the defendant had “rendered care and treatment commensurate with the appropriate applicable standards of care and that he committed no malpractice or professional negligence.”

In ruling on a motion for summary judgment, we are not free to simply disregard the movant’s unopposed expert medical evidence. The trial court believed | igthere were genuine issues suitable for trial. However, with regard to whether the defendant timely arrived at the hospital, the uncontradicted medical testimony on the standard of care was that the defendant was not required to be waiting at the hospital for the plaintiffs arrival based on the information available to the defendant at the time. As to whether the defendant waited too long to order the C-section and whether that alleged delay caused the death of the plaintiffs unborn infant, the expert medical evidence- was unanimous that the defendant did not breach the applicable standard of care- and that any earlier intervention of the defendant would not have affected the outcome. Given this expert medical testimony, ■ the trial court erred in finding this case was one of obvious negligence, which does not require expert medical evidence pursuant to the exception created in Pfiffner.

We therefore decline to apply the exception created in Pfiffner to the instant case, which does not involve “an obvious act of malpractice,” but instead involves the determination of fetal viability and whether an emergent situation was presented. Thus, we find the plaintiff was required to produce evidence from a medical expert to establish a breach of the standard of care, as well as causation. Even in Pfiffner, this court held that a causal nexus between delayed treatment and a patient’s death is not obvious and requires expert testimony. 643 So.2d at 1234. The Pfiffner court held that the plaintiff was required to establish, either through her own experts, the defendants, or the defense experts, that the physicians breached the applicable standard of care and that this breach caused the patient’s death or loss of a chance of survival. Id. As a result, the Pfiffner court held the plaintiff failed to carry his burden of proof on causation. Id.

Here, the plaintiff was required to present medical evidence to establish the defendant’s actions fell below the standard of care and caused her injuries. Without Jisthis evidence, the plaintiff has, in our view, failed to show that she will be able to carry her burden of proof at trial. The majority of the court of appeal merely speculated as to what evidence the plaintiff might be able to produce at trial to prove her claim or what elements of her case, including the standard of review and a breach thereof, she might be able to establish at trial based on the trial or deposition testimony of the defendant himself. We conclude the plaintiff, upon the defendant’s prima facie showing in his motion for summary judgment, was required to produce expert medical evidence sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial. Accordingly, we find the plaintiff did not satisfy her burden of persuasion with regard to the defendant’s motion, and thus she has failed to establish a genuine issue of material fact. See La. Civ.Code art. 966(C)(2).

CONCLUSION

On our de novo review of the defendant’s motion for summary judgment, the accompanying exhibits, and the applicable law, we conclude there were no genuine issues of material fact and the defendant was entitled to summary judgment as a matter of law. Accordingly, for the reasons set forth above, we reverse the lower courts’ rulings and render summary judgment in favor of the defendant, dismissing the plaintiffs claims with prejudice.

REVERSED and RENDERED

JOHNSON, Justice, dissents and assigns reasons.

WEIMER, Justice, dissents and assigns reasons.

JOHNSON, J.,

dissents and assigns reasons.

hi dissent from the majority’s determination that the defendant physician, Dr. Khaled F. Rabie, is entitled to summary judgment. Defendant’s main contention is that Plaintiff cannot prevail because she has no expert witness, and that she will not sustain her burden of proof without expert medical testimony. Dr. Rabie relies on the opinion of the Medical Review Panel as evidence in support of his motion for summary judgment where the panel stated, “It is unfortunate that when Dr. Rabie first examined the patient, (at 6:55 a.m.) the baby was probably already dead, as determined by the absence of fetal cardiac activity on ultrasound exam.”

This conclusion is rebutted by the hospital medical records which document the infant’s heartbeat was detected when Dr. Rabie examined the patient at 7:13 a.m. This conflicting evidence presents a factual dispute which could lead a reasonable jury to conclude that the baby was not dead at 6:55 a.m. Expert testimony would not be required to explain to a jury that a living infant has a heartbeat, while a deceased infant does not.

In medical malpractice claims, Louisiana jurisprudence has recognized that |2there are situations where expert testimony is not necessary. The leading case addressing this issue is Pfiffner v. Coma, 94-0924 (La.10/17/94), 643 So.2d 1228. In Pfiffner, we concluded that expert testimony is not always required to defeat a defendant’s motion for summary judgment in a medical malpractice case.

We hold that expert testimony is not always necessary in order for a plaintiff to meet his burden of proof in establishing a medical malpractice claim. Though in most cases, because of the complex medical and factual issues involved, a plaintiff will likely fail to sustain his burden of proving his claim under LSA-R.S. 9:2794’s requirements without medical experts, there are instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician’s conduct as well as any expert can, or in which the defendant/physician testifies as to the standard of care, and there is objective evidence, including the testimony of the defendant/physician which demonstrates a breach thereof. Even so, the plaintiff must also demonstrate by a preponderance of the evidence a causal nexus between the defendant’s fault and the injury alleged.

The Pfiffner court held that obvious negligence may be inferred by a lay person from “[fjailure to attend a patient when the circumstances demonstrate the serious consequences of this failure, and failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary....” Pfiffner, 94-0992, 643 So.2d 1228 (La.1994). The facts of this case fit squarely within this definition of obvious negligence which may be inferred by a lay person.

This teenaged patient arrived at Oak-dale Community Hospital’s Emergency Room at 4:00 a.m., in labor, with contractions occurring every three to four minutes. At 4:08 a.m., her membranes ruptured and a large quantity of yellow fluid was noted, followed by a small amount of bright red blood. She was evaluated by the ER physician, Dr. Chaftari, at 4:22 a.m., who performed a pelvic examination which revealed that Ms. Brow’s cervix was dilated 3 to 4 cm. Fetal heart tones were approximately 143 beats per minute. An ultrasound was performed and the uterine |3size indicated she was 28.4 weeks pregnant. Dr. James Guoth was notified at home of Ms. Brow’s condition, and he recommended that Ms. Brow be transferred to Rapides Women’s and Children’s Hospital (RWCH) because that hospital had a level three nursery and could provide a higher level of neonatal care, and deliver a baby who was in a breech presentation.

When Ms. Brow arrived at RWCH at 6:29 a.m., this was obviously a medical emergency. According to Dr. Rabie, he arrived at the hospital at 6:55 a.m., performed an ultrasound at the patient’s bedside at 7:00 a.m., and was unable to detect any fetal heart tones or fetal heart activity. Yet, at 7:13 a.m., when he applied a Fetal Scalp Electrode (FSE) to the exposed part of the baby, a fetal heart rate fluctuating from 60-144 beats per minute was found. At that point, Dr. Rabie declared the medical emergency and ordered a Caesarean section at 7:14 a.m., which was performed at 7:25 a.m. At 7:33 a.m., Dr. Rabie delivered a stillborn infant with no audible heartbeat, no palpable heart rate, and no respiratory effort.

In my view, the medical providers breached the standard of care with regard to this young mother and her baby. With a three hour window, there was adequate time to deliver this baby. A jury should be allowed to determine: (1) whether Dr. Rabie appeared at the hospital timely, in response to Ms. Brow’s labor, (2) whether Dr. Rabie’s delay in performing the Cesarean . section was unreasonable, and (3) whether his delay caused the death of the plaintiffs unborn child or deceased the infant’s chance of survival.

WEIMER, J.,

dissenting.

hi respectfully dissent. In this matter, medical evidence of a recorded fetal heartbeat after arrival at the hospital contradicts a factual finding of the medical review panel that the fetus probably died during transfer. As such, I believe there remains a genuine issue of material fact which precludes a motion for summary judgment.

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

      . Ms. Brow was a minor at the time, so the complaint was originally filed on her behalf by her mother, Sharon Schultz. When Ms. Brow subsequently reached the age of majority, she was substituted as the plaintiff. Dr. Guoth was also the subject of the medical review panel complaint and the plaintiffs suit; he was later dismissed from the suit on summary judgment.

      . Revised Statute 9:2794(A) sets forth the burden of proof imposed upon the plaintiff in establishing his malpractice claim. The plaintiff must prove by a preponderance of the evidence:
      (1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, or chiropractic physicians within the involved medical specialty.
      (2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
      (3) That’as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.


author: JOHNSON, Justice.

text:
    STATE of Louisiana v. Vincent M. CASTILLO.
    No. 2009-KK-1358.
    Supreme Court of Louisiana.
    Jan. 28, 2011.
    Rehearing Denied April 29, 2011.
    Jefferson Parish Indigent Defender Board, Michael James Rocks, for Applicant.
    James D. Caldwell, Attorney General, Paul D. Connick, Jr., District Attorney, Louisiana State University Law Clinic, Paul R. Baier, Robert Edward Lancaster, Vincent M. Castillo, for Respondent.
   JOHNSON, Justice.

hWe granted certiorari in this case to determine whether the State is required to provide counsel to an indigent defendant to assist in the preparation of an application for discretionary writ review following convictions for misdemeanor traffic violations. For the reasons that follow, we reverse the decision of the Court of Appeal, Fifth Circuit, which ordered appointment of counsel.

FACTS AND PROCEDURAL HISTORY

Vincent M. Castillo (“Castillo”) was charged in First Parish Court of Jefferson Parish with speeding, in violation of La. R.S. 32:63(A); driving with a suspended driver’s license, in violation of La. R.S. 32:415; and driving with an expired license, in violation of La. R.S. 32:412. Castillo was represented at trial by appointed counsel from the Jefferson Parish Indigent Defender Board (“Board”). He was found guilty on all charges on January 4, 2008, and ordered to pay fines totaling $275.00, a sentence of thirty (30) days in parish prison, suspended, and six months of inactive probation. Castillo, acting pro se, twice moved the Parish Court for review of his 12convictions, and requested the assistance of counsel for the preparation of his writ application. These requests were denied by the Parish Court.

The Court of Appeal ordered that counsel be assigned following a showing by Castillo that he was indigent. Citing Williams v. Oklahoma, 395 U.S. 458, 89 S.Ct. 1818, 23 L.Ed.2d 440 (1969) (per curiam), and Mayer v. Chicago, 404 U.S. 189, 92 S.Ct. 410, 415 30 L.Ed.2d 372 (1971), the appellate panel concluded that the holdings in Williams and Mayer, read in conjunction with the Equal Protection Clause, mandated appointment of counsel for review of defendant's misdemeanor convictions.

On remand, the Parish Court ordered the Board to represent Mr. Castillo. The Board sought review of this order, arguing that there is no legislative or constitutional mandate requiring appointment of counsel from a conviction where a discretionary application for writ review is the only avenue for relief. The court of appeal denied the writ application, finding no basis to depart from its earlier ruling.

The Board, sought a supervisory writ from this Court, which we granted. This Court appointed the Law Clinic at the Louisiana State University Law Center (“Law Clinic”) to represent Castillo. When the students from the Law Clinic met with Castillo, he refused their representation. The Law Clinic, thereafter, filed a motion to withdraw as counsel, and requested permission to file an amicus curiae brief to assist the Court in evaluating this writ application.

DISCUSSION

First, we find the court of appeal’s initial reliance on Williams and Mayer as the mandate for appointment of counsel is misplaced. Neither Williams nor Mayer |.^addressed the issue of the right to appointed counsel post-verdict. Rather, these cases considered whether those defendants should be provided transcripts of the trial proceedings at the public’s expense for their appeal.

We must determine whether Louisiana or federal law provides a basis for support of the lower courts’ actions. In Louisiana, a criminal defendant only has a right of direct appeal from his conviction if his case is triable by a jury. La. Const. Art. V, § 10; La. C. Cr. P. art. 912.1. Misdemeanors punishable by more than six months imprisonment are triable by a jury, but all other misdemeanors are tried by the court. La. C. Cr. P. art. 779. Because Castillo was charged with misdemeanor j4offenses punishable by imprisonment of not more than six months, and thus not triable by a jury, Castillo had no right of direct appeal from his convictions. However, Castillo is afforded a right to discretionary judicial review of his convictions by Louisiana’s Constitution. Specifically, Article 1, § 19 of the Louisiana Constitution provides:

Right to Judicial Review
§ 19. No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. This right may be intelligently waived. The cost of transcribing the record shall be paid as provided by law.

In denying the Board’s writ application challenging the trial court’s order appointing counsel to represent Castillo in his discretionary review of the convictions, the court of appeal relied on La. Const. Art. I, § 13 to find that the Louisiana Constitution guarantees a defendant the right to assistance of counsel at each stage of the proceedings when he is charged with an offense punishable by imprisonment. Article I, § 13 of the Louisiana Constitution provides:

§ 13. Rights of the Accused
When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel. In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by | ¿imprisonment. The legislature shall provide for a uniform system for securing and compensating qualified counsel for indigents. (Emphasis added). ■

The Board asserts that the right to appellate counsel is not guaranteed under Louisiana law where the punishment is less than six months imprisonment, because defendants charged with these types of petty misdemeanors, such as Castillo, have only an opportunity to apply for discretionary review based on Article I § 19 of the Louisiana Constitution. The Board further maintains that Article I § 13 of the Louisiana Constitution has never been interpreted to hold that an application for discretionary review from a petty misdemeanor conviction is a critical stage of a criminal proceeding requiring appointment of counsel for an indigent defendant.

The Board asserts that the right to counsel is not required by the Louisiana or United States Constitutions on application for discretionary review. The Board points out that the Louisiana legislature has created separate categories of misdemeanors, some of which are triable by jury where punishment may exceed six months, and where appellate jurisdiction attaches upon conviction. In such cases, the legislature has provided for an indigent defendant’s right to counsel on appeal by creating, via the Louisiana Public Defender Board, the Louisiana Appellate Project. Thus, the Louisiana legislature has made reasoned distinctions regarding the right to appointed counsel for appeals of right versus discretionary review. Citing Duncan v. State of Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the Board argues that the State has made reasoned offense classifications, which protect a defendant’s right to a jury trial, and appointment of counsel, where it is constitutionally mandated.

The Law Clinic contends that the right to counsel is extended to all cases involving “first tier review,” whether discretionary or not, via application of the principles set forth in Halbert v. Michigan, 545 U.S. 605, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005). The Law Clinic urges that we equate Castillo’s request for discretionary review of his misdemeanor traffic convictions with an appeal of right because it is Castillo’s first avenue of review of the trial court’s action.

The Law Clinic additionally asserts that Castillo has a right to court-appointed counsel under the United States and Louisiana Constitutions, and argues that the phrase “each stage of the proceedings” contained in Article I, § 13 of the Louisiana Constitution should be interpreted to include writ applications, by which review of misdemeanor convictions are sought. The Law Clinic urges that the right to appointed counsel applies to discretionary review since it is a “stage in the proceedings,” and the right to counsel is triggered whenever a defendant faces the possibility of incarceration under Article I, § 13 which encompasses all “offenses punishable by imprisonment.” We find no mandate under the Louisiana Constitution to provide court-appointed counsel in Castillo’s situation. Section 13 of the Louisiana Constitution is entitled “Rights of the Accused,” and is included in the part of the Constitution addressing pre-trial or trial proceedings. The Law Clinic’s argument that the words “stage of the proceeding” referenced therein includes appellate and post-verdict procedures is not convincing, particularly because the rights of the convicted do not appear in the Constitution until Section 19. Thus, the sequence of rights in Article I suggests that Section 13 refers only to pre-trial and trial procedures, providing for the right to counsel through trial. See, Lee Hargrave, The Declaration of Rights of th,e Louisiana Constitution of 1971, 35 La. L.Rev. 1, GO-61 (1974).

Our review of federal law yields the same result. The United States Supreme Court has held that when a state provides a first appeal as of right, it must also provide counsel. Douglas v. California, 372 U.S. 353, 83 S.Ct, 814, 9 L.Ed.2d 811 (1963). In Douglas, California law granted an initial appeal as of right to all convicted |7criminal defendants, but appointed counsel for indigent defendants only after determining whether counsel would be useful to the defendant or the court. The Court in Douglas acknowledged the states’ discretion to regulate the appointment of counsel on appeal:

[A] State can, consistently with the Fourteenth Amendment, provide for differences [as to appointment of counsel on appeal] so long as the result does not amount to a denial of due process or an ‘invidious discrimination.’ Absolute equality is not required; lines can be and are drawn and we often sustain them.

Douglas, 372 U.S. at 356-57, 83 S.Ct. 814 (citations omitted). However, the Court ruled that the defendant was entitled to appointment of counsel to pursue this first appeal as of right. Limiting its decision to first appeals granted as a matter of right from a criminal conviction, the Court reasoned that “where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.” Id. at 357, 83 S.Ct. 814. Douglas is the landmark decision limiting a state’s discretion as to when state-provided counsel is required.

In Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), the Supreme Court held that states were not required to appoint counsel for indigents seeking discretionary review in the state’s highest court or in the United States Supreme Court. The Court declined to extend the holding of Douglas to second-tier discretionary review because neither the state supreme court nor United States Supreme Court were “error-correcting” courts. Defendants in those cases had already benefitted from the.aid of appointed counsel in a first-tier appeal and would have had “at the very least, a transcript or other record of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims or error, and in many cases an opinion by the Court of Appeals disposing of his case.” Ross, 417 U.S. at 615, 94 S.Ct. 2437. In so holding, |sthe Court reaffirmed “that a State is not obliged to provide any appeal at all for criminal defendants.” Id. at 606, 94 S.Ct. 2437 (citing McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894)). The Court concluded that “[t]he Fourteenth Amendment ‘does not require absolute equality or precisely equal advantages,’ ... nor does it require the State to ‘equalize economic conditions.’ ” Id. at 611— 12, 94 S.Ct. 2437 (citations omitted). The Court stated that the issue of whether or not state-provided counsel is required at every stage of a criminal proceeding is a constitutional question that “is not one of absolutes, but one of degrees.” Id. The Court explained that there is a “legislative choice” afforded to the States to determine whether or not to make counsel available to convicted defendants in such appeals.

[S]ome States which might well choose to do so as a matter of legislative policy may conceivably find that other claims for public funds within or without the criminal justice system preclude the implementation of such a policy at the present time .... Our reading of the Fourteenth Amendment leaves these choices to the State.

Id. at 618-19, 94 S.Ct. 2437.

To support its position, the Law Clinic relies on Halbert v. Michigan, supra, a more recent Supreme Court case addressing the right to counsel relative to discretionary, but merit-based review. In Hal-bert, the Court examined a Michigan law which generally required a defendant who pleaded guilty, or nolo contendere, to request leave of court in order to pursue a discretionary appeal. The defendant in Halbert challenged this system on grounds that he was entitled to have appointed appellate counsel assist him with his application to the court of appeal for leave to take an appeal from his conviction and sentence by way of a guilty plea to a felony sex offense. Halbert, 545 U.S. at 609, 125 S.Ct. 2582. To reach its decision, the Court looked to the 19framework provided in Douglas and Ross, and determined that the Michigan court of appeal’s review of an application for leave to appeal in such a case ranked as first-tier review requiring the appointment of counsel under Douglas, rather than discretionary review under Ross. Id. at 610, 125 S.Ct. 2582. The Court based its decision on two factors. First, the Michigan intermediate appellate court had to look to the merits of the claims made in the application to determine whether to grant leave to appeal. Thus, although the appeal was discretionary, the error correcting function of the intermediate appellate court more closely resembled the first-tier review as of right in Douglas. Id. at 611, 618-619, 125 S.Ct. 2582. Second, the Court noted that indigent defendants pursuing first-tier review in the court of appeals are generally ill-equipped to represent themselves, as the vast majority of those convicted are incarcerated; lack education, including the most basic literacy skills; or have learning disabilities or mental impairments. Id. at 617-621,125 S.Ct. 2582.

While the instant case does involve discretionary first-tier review before an intermediate court, we find Halbert can be distinguished. Unlike Castillo, the defendant in Halbert was convicted of a felony. We find no compelling reason to extend the holding of Halbert to Castillo’s discretionary review of his petty misdemeanor traffic convictions. We find it notable that one of the key considerations for the Court’s decision in Halbert was its concern that appeals can involve complex and technical legal issues, and persons in Halbert’s position (i.e. indigent defendants pursuing first tier review) were “particularly handicapped as self-representatives” due to incarceration, lack of education, learning disability or mental impairments. In this case, however, there is no evidence that Castillo or other indigent defendants convicted of petty misdemeanor offenses, particularly traffic offenses, are similarly situated. There is no reason to assume that such offenders are incarcerated, illiterate, or otherwise disabled, and such serious underlying concerns seem misplaced when | inaddressing traffic offenses. Castillo’s contentions and arguments on appeal will presumably be less factually and legally complex than those presented in Halbert, presenting Castillo with a far less daunting task than a defendant convicted of a felony.

Moreover, Halbert should not be applied by courts to expand the scope of the right to court appointed counsel to all discretionary review. The Halbert decision did not significantly expand the scope of the right to court-appointed counsel on first-tier review that was initially established in Douglas. Following Douglas, the Supreme Court made clear that its decision was not applicable to every case involving appellate review. For example, in Smith v. Robbins, 528 U.S. 259, 278, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000), the Court stated that although indigents generally have a right to counsel on a first appeal as of right, “it is equally true that this right does not include the right to bring a frivolous appeal and, concomitantly, does not include the right to counsel for bringing a frivolous appeal.” Additionally, the Court had declined to require appointed counsel on collateral attack of a final conviction in post-conviction proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Even after Halbert, courts have not interpreted the Halbert decision to require counsel be appointed for an indigent defendant who seeks post-conviction collateral relief. For example, see State v. Lopez, 156 N.H. 193, 931 A.2d 1186 (2007); Pinker v. State, 17 So.3d 181 (Miss.App.2009); Hnatiuk v. Rapelje, 2010 WL 2720878 (E.D.Mich.2010); Martinez v. Schriro, 623 F.3d 731 (9th Cir.2010).

We also feel compelled to consider the impact on the justice system if we were to require appointed counsel in discretionary review of all .misdemeanor convictions. In a similar case, a California court noted economic considerations in refusing to appoint counsel on appeal for an indigent defendant who was convicted of a nonmov-ing misdemeanor traffic offense, and who received only a small fine and |npenalty. In denying the defendant’s request for counsel, the court in People v. Wong, 93 Cal.App.3d 151, 155 Cal.Rptr. 453 (1979), noted that to allow such appointment would result in a major increase in the appeal of minor traffic convictions, whether meritorious or not. The court stated that it was not basing its decision on the potential increased economic cost to the state, but rather the court’s concern with ensuring a speedy and reasoned determination of appeals. In a concurring opinion, Judge Files pointed out the potential costs to the justice system of reviewing such cases, and noted that “[t]he economic cost of litigation is a significant factor in our justice system and we should not be reluctant to discuss it.” Wong, 93 Cal.App.3d at 155-156, 155 Cal.Rptr. 453.

We find that Louisiana’s interest in limiting the burden imposed on taxpayers by state-paid counsel provides a rational basis for limiting access to state-provided counsel in discretionary review of traffic and petty misdemeanor convictions. Louisiana’s statutory scheme, which does not provide for court-appointed counsel in review of petty misdemeanor offenses, is an exercise of legislative choice based on difficult policy considerations and the allocation of scarce financial resources.

CONCLUSION

For the reasons assigned, we reverse the decision of the court of appeal, which ordered appointment of counsel in a case involving discretionary review of petty misdemeanor traffic offenses. We find no mandate in the Louisiana or United States Constitutions requiring the State to provide counsel in these cases. We recognize the Supreme Court’s holding in Halbert v. Michigan, supra, but find that the facts of this case necessarily distinguish it from Halbert, and support a different result.

DECREE

REVERSED.

KNOLL, WEIMER and VICTORY, JJ., concur in the result.

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

      . State v. Castillo, 08-KH-1172 (La.App. 5 Cir. 01/28/09), unpub., (Castillo, I).

      . State v. Castillo, 09-0291 (La.App. 5 Cir. 5/29/09), unpub., (Castillo II).

        .State v. Castillo, 09-1358 (La. 11/6/09), 21 So.3d 296.

      . La. Const, art. V, § 10 provides, in pertinent part:
      A) Jurisdiction. Except as otherwise provided by this constitution, a court of appeal has appellate jurisdiction of ... (3) all criminal cases triable by a jury, except as provided in Section 5, Paragraph (D)(2) of this Article.

      (C) Other Criminal Matters. In all criminal cases not provided for in Paragraph (D)(2) or Paragraph (E) of Section 5 or Paragraph (A)(3) of this Section, a defendant has a right of appeal or review, as provided by law.

      . La. C. Cr. P. art. 912.1 provides, in pertinent part:
      A. (1) The defendant may appeal to the supreme court from a judgment in a capital case in which a sentence of death actually has been imposed.

      B. (1) The defendant may appeal to the court of appeal from a judgment in a criminal case triable by jury, except as provided in Paragraph A or Subparagraph (2) of this Paragraph.
      (2) An appeal from a judgment in a criminal case triable by jury from a city court located in the Nineteenth Judicial District, except as provided in Paragraph A of this Article, shall be taken to the Nineteenth Judicial District in the parish of East Baton Rouge.
      C.(1) In all other cases not otherwise provided by law, the defendant has the right of judicial review by application to the court of appeal for a writ of review. This application shall be accompanied by a complete record of all evidence upon which the judgment is based unless the defendant intelligently waives the right to cause all or any portion of the record to accompany the application.

      .La. C. Cr. Pr. art. 779 provides:
      A. A defendant charged with a misdemeanor in which the punishment, as set forth in the statute defining the offense, may be a fine in excess of one thousand dollars or imprisonment for more than six months shall be tried by a jury of six jurors, all of whom must concur to render a verdict.
      B. The defendant charged with any other misdemeanor shall be tried by the court without a jury.

      . The Court in Ross held that a State may not "arbitrarily cut off' appeal rights for indigents, " and must structure an appellate sys-tern "free of unreasoned distinctions” that result in a "meaningful appeal” for persons with resources, while providing merely a "meaningless ritual” for indigents defendants. Id. at 612, 94 S.Ct. 2437 (citation omitted).


text:
    In re Barry S. RANSHI.
    No. 2009-OB-2722.
    Supreme Court of Louisiana.
    March 25, 2011.
   PER CURIAM.

hThe Committee on Bar Admissions (“Committee”) opposed the application of petitioner, Barry S. Ranshi, to sit for the Louisiana Bar Examination based on character and fitness concerns relating to his DWI arrests in August 2005 and October 2008 as well as his lack of candor in failing to disclose the'2005 arrest when he applied to law school. The Committee also cited the reported findings of a substance abuse evaluation by the Lawyers Assistance Program (LAP) which indicated the need for an intensive outpatient treatment program and ongoing monitoring by LAP as a result of petitioner’s history of alcohol abuse. We subsequently granted petitioner permission to sit for the bar exam, with the provision that upon his successful completion of the exam, he apply to the court for the appointment of a commissioner to take character and fitness evidence. In re: Ranshi 09-1344 (La.6/24/09), 11 So.3d 491.

Petitioner thereafter successfully passed the essay portion of the bar exam, and upon' his application, we remanded this matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence. The commissioner conducted a hearing in December 2010, at which petitioner introduced evidence demonstrating that he had enrolled in and successfully-completed an intensive outpatient program li>for the treatment of substance abuse, as well as a one-year continuing care program. Petitioner also introduced evidence demonstrating his compliance with the terms and conditions of his recovery agreement with LAP.

Following the proceedings, the commissioner filed his report with this court. The commissioner made a factual finding that petitioner carried his burden of proving rehabilitation not only from his alcohol-related issues, but also from the lack of candor he demonstrated in his admitted omission from his law school application. Based on these findings, the commissioner recommended that petitioner be conditionally admitted to the practice of law, subject to the terms and conditions of his LAP agreement. Neither petitioner nor the Committee objected to that recommendation.

Considering the commissioner’s recommendation, particularly his credibility findings, and the entire record of this proceeding, we conclude petitioner is eligible to be admitted to the practice of law in Louisiana on a conditional basis. The term of this conditional admission shall be for the remaining period of petitioner’s LAP agreement, and shall commence from the date petitioner, the Office of Disciplinary Counsel (“ODC”), and the probation monitor execute a formal probation plan. During the probationary period, petitioner shall comply with all of the terms and conditions of his LAP agreement. Within thirty days prior to the expiration of the conditional admission, and after consultation with the Executive Director of LAP, the ODC shall file a report in this court in which it shall recommend to the court that the conditional admission be allowed to terminate or be extended. Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be [..¡terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

       Chief Justice Kimball not participating in the opinion.


text:
    In re Russell O. BRABHAM.
    No. 2011-B-0367.
    Supreme Court of Louisiana.
    April 1, 2011.
   PER CURIAM.

Respondent pled guilty to the charge of driving while intoxicated and pled no contest to the charge of improper telephone communications. Thereafter, respondent and the Office of Disciplinary Counsel (“ODC”) submitted a joint petition for consent discipline, in which the parties stipulated respondent has violated Rule 8.4(b) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Russell 0. Brabham, Louisiana Bar Roll number 3362, be suspended from the practice of law for a period of one year and one day. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a five-year period of probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period; may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

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

       Chief Justice Kimball not participating in the opinion.


text:
    In re Alexander D. BATES.
    No. 2008-OB-0551.
    Supreme Court of Louisiana.
    April 1, 2011.
   ORDER

Considering the “Termination of Conditional Admission” fried by the Office of Disciplinary Counsel,

IT IS ORDERED that the probationary period imposed by this court in In re; Bates, 08-0551 (La.3/19/08), 976 So.2d 1272, be and hereby is terminated, as the court finds petitioner has successfully complied with all terms of probation. ■


text:
    In re Raven Matthews PILLETTE.
    No. 2011-B-0368.
    Supreme Court of Louisiana.
    April 1, 2011.
   PER CURIAM.

hThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent mishandled her client trust account by maintaining personal funds in the account and allowing the account to become overdrawn as the result of her use of a debit card associated with the account. Prior to the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Raven Matthews Pillette, Louisiana Bar Roll number 28286, be suspended from the practice of law for a period of one year and one day, with all but ninety days deferred, followed by a two-year period of supervised probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline,- as appropriate.

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

       Chief Justice Kimball not participating in the opinion.


text:
    In re Clevis Eugene BROUSSARD.
    No. 2011-B-0385.
    Supreme Court of Louisiana.
    April 1, 2011.
   PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent notarized a will which had not been signed in his presence by the testator or the witnesses. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in. which the parties stipulated that respondent has violated Rule 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Clevis Eugene Broussard, Louisiana Bar Roll number 3509, be and he hereby is suspended from the practice of law for six months. It is further ordered that all but sixty days of this suspension shall be deferred, subject to the condition that any additional misconduct by respondent within six months from the finality of this judgment may be grounds for making the deferred portion of the suspension execu-tory, or imposing additional discipline, as appropriate.

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

       Chief Justice Kimball not participating in the opinion.


text:
    In re David Charles WILLARD.
    No. 2011-OB-0437.
    Supreme Court of Louisiana.
    April 1, 2011.
   ORDER

The Office of Disciplinary Counsel (“ODC”) has under investigation nineteen separate complaints of professional misconduct by respondent, alleging that he neglected his clients’ legal matters, failed to communicate with his clients, failed to refund unearned fees, and converted client funds. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Permanent Resignation from the Practice of Law filed by David Charles Willard, Louisiana Bar Roll number 20420, and the concurrence thereto filed by the ODC,

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

IT IS FURTHER ORDERED that David Charles Willard shall make restitution to the Louisiana State Bar Association’s Client Assistance Fund as set forth in his request for permanent resignation.

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

WEIMER, J., recused.


text:
    STATE ex rel. Rickie BRUMFIELD v. STATE of Louisiana.
    No. 2010-KH-0405.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Brumfield, Rickie; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. A, No. 95-CR2-60089; to the Court of Appeal, First Circuit, No. 2009 KW 1610.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE of Louisiana v. Julius LAMAR.
    No. 2011-KK-0340.
    Supreme Court of Louisiana.
    Feb. 22, 2011.
   In re Lamar, Julius; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 499-578; to the Court of Appeal, Fourth Circuit, No. 2011-K-0176.

Stay denied; writ denied.


text:
    STATE of Louisiana v. Bobby D. HIGGINBOTHAM.
    No. 2011-KK-0375.
    Supreme Court of Louisiana.
    Feb. 24, 2011.
   In re Higginbotham, Bobby D.; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Tensas, Div. B, No. 79,152; to the Court of Appeal, Second Circuit, No. 46401-KW.

Denied.


text:
    STATE ex rel. Christopher T. FULLER, v. STATE of Louisiana.
    No. 2010-KH-0421.
    Supreme Court of Louisiana.
    Feb. 25, 2011.
   In re Fuller, Christopher T.; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 05-3763; to the Court of Appeal, Fifth Circuit, No. 10-KH-9.

Denied.


text:
    STATE ex rel. Victor O. STEWART v. STATE of Louisiana.
    No. 2010-KH-0422.
    Supreme Court of Louisiana.
    Feb. 25, 2011.
   In re Stewart, Victor O.; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. A, No. 483283; to the Court of Appeal, First Circuit, Nos. 2009 KW 2224, 2009 KW 2224.

Denied.


text:
    STATE ex rel. Odis David SMITH v. STATE of Louisiana.
    No. 2010-KH-0423.
    Supreme Court of Louisiana.
    Feb. 25, 2011.
   In re Smith, Odis David; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 333759; to the Court of Appeal, First Circuit, No. 2009-KW1213.

Denied.


text:
    STATE ex rel. Kenneth MONTGOMERY v. STATE of Louisiana.
    No. 2010-KH-0439.
    Supreme Court of Louisiana.
    Feb. 25, 2011.
   In re Montgomery, Kenneth; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 18150-08; to the Court of Appeal, Third Circuit, No. KH 09-01511.

Denied.


text:
    STATE ex rel. Clifton G. CONLEY v. STATE of Louisiana.
    No. 2010-KH-0471.
    Supreme Court of Louisiana.
    Feb. 25, 2011.
   In re Conley, Clifton’ G.; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Webster, 26th Judicial District Court Div. C, No. 61,512; to the Court of Appeal, Second Circuit, No. 45316-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Wilfred GREENUP v. STATE of Louisiana.
    No. 2010-KH-0472.
    Supreme Court of Louisiana.
    Feb. 25, 2011.
   In re Greenup, Wilfred; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. John, 40th Judicial District Court Div. B, No. 85-7; to the Court of Appeal, Fifth Circuit, No. 09-KH-999.

Denied.


text:
    STATE ex rel. Kendrick TURNER v. STATE of Louisiana.
    No. 2010-KH-0481.
    Supreme Court of Louisiana.
    Feb. 25, 2011.
   In re Turner, Kendrick; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 00-4939; to the Court of Appeal, Fifth Circuit, No. 08-WR-882.

Denied.


text:
    STATE ex rel. Edwin J. STARK v. STATE of Louisiana.
    No. 2010-KH-0484.
    Supreme Court of Louisiana.
    Feb. 25, 2011.
   In re Stark, Edwin J.; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 391-426; to the Court of Appeal, Fourth Circuit, No. 2009-K-1514.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. William PERRY v. STATE of Louisiana.
    No. 2010-OK-0485.
    Supreme Court of Louisiana.
    Feb. 25, 2011.
   In re Perry, William; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Claiborne, 2nd Judicial District Court Div. A, No. 22214; to the Court of Appeal, Second Circuit, No. KH 10-45422.

Denied.


text:
    STATE ex rel. Marcus BATTS v. STATE of Louisiana.
    No. 2010-KH-0499.
    Supreme Court of Louisiana.
    Feb. 25, 2011.
   In re Batts, Marcus Donell; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. D, No. 289,592; to the Court of Appeal, Second Circuit, No. 45,-353-KH.

Denied.