author: WETHERELL, J.

text:
    Ann Marie SABATINI, Former Wife, Appellant, v. Vincent Coi WIGH, Former Husband, Appellee.
    No. 1D11-6481.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2012.
    Jonathan J. Luca of Muench & Luca, PLLC, Jacksonville, for Appellant.
    Dana Price of Law Office of Denise Watson, Jacksonville, for Appellee.
   WETHERELL, J.

Appellant, the former wife, seeks review of a civil contempt order resulting from her failure to comply with the shared parental responsibility requirements in the consent final judgment dissolving her marriage to Appellee, the former husband. Appellant contends that the trial court erred in finding her in contempt and imposing a “sanction” that required her to re-enroll the parties’ child in a Jacksonville school if instructed to do so by the former husband. We agree that the trial court abused its discretion in imposing this sanction, but we affirm the finding of contempt.

The parties’ marriage was dissolved in 2008. Appellant was awarded primary residential custody of the parties’ child. The final judgment of dissolution directed the parties to share parental responsibility and jointly determine major decisions affecting the welfare of the child, such as her education. The judgment required the parties to work cooperatively to resolve any disputes, and if they were unable to do so on their own, they were required to consult with a reasonably qualified third party in an effort to resolve the dispute.

In September 2011, the former husband filed a motion for contempt, alleging among other things that Appellant enrolled the child in a school in Palm Coast without consulting with him. At the evi-dentiary hearing on the motion, the former husband testified that the parties agreed to enroll the child in a Jacksonville school near the former husband’s home; that he enrolled the child in the agreed-upon school and notified Appellant of the enrollment; that two days prior to the start of the school year, Appellant informed him that she had enrolled the child in a Palm Coast school approximately 70 miles from the former husband’s home; and that this adversely affected his time with the child because it was more difficult for him to attend school events and his after-school visitations started later because of the drive time between Palm Coast and Jacksonville.

The former husband did not seek an order directing Appellant to re-enroll the child in the Jacksonville school agreed upon by the parties because he recognized such a change may not be in the child’s best interests in the middle of the school year. Instead, he sought an order finding Appellant in contempt and requiring her to pay attorney’s fees, which he argued was “necessary in order to hopefully have some effect on her future decision making.”

The trial court found that Appellant failed to comply with the shared parental responsibility requirements of the dissolution judgment by unilaterally enrolling the child in the Palm Coast school in contravention of the parties’ agreement that the child would be enrolled in the Jacksonville school near the former husband’s home. The court further found that Appellant’s actions were “willful acts intended to interfere with [the former husband’s] parental responsibilities and his time with the minor child.” As a “sanction” for Appellant’s actions, the trial court gave the former husband the option to decide whether to re-enroll the child in the Jacksonville school, and to that end, the Order of Contempt entered by the trial court stated that “upon the Former Husband’s instructions, [Appellant] shall be required to re-enroll the child in [the Jacksonville school].” Appellant timely appealed the order to this court.

Where, as here, the judgment of contempt is based on noncompliance with a clear directive in a prior court order, the judgment “comes to the appellate court clothed with a presumption of correctness and will not be overturned unless a clear showing is made that the trial court either abused its discretion or departed so substantially from the essential requirements of law as to have committed fundamental error.” Harris v. Hampton, 70 So.Bd 747 (Fla. 4th DCA 2011) (quoting DeMello v. Buckman, 914 So.2d 1090, 1098 (Fla. 4th DCA 2005)); see also Jaffe v. Jaffe, 17 So.Bd 1251,1253 (Fla. 5th DCA 2009) (“We review for an abuse of discretion the trial court’s decision to exercise its power to find a party in civil contempt.”); Thurman v. Thurman, 637 So.2d 64 (Fla. 1st DCA 1994) (reviewing a civil contempt order resulting from the former husband’s failure to pay child support for an abuse of discretion).

Here, the trial court’s finding that Appellant willfully failed to comply with the requirement in the dissolution judgment that she jointly decide issues related to the child’s education with the former husband is supported by competent substantial evidence, as is the finding that the child’s enrollment in the Palm Coast school adversely impacts the former husband’s time and relationship with the child. Accordingly, the court did not abuse its discretion in finding Appellant in contempt. The trial court did, however, abuse its discretion in imposing a “sanction” for Appellant’s contempt that directly impacted the parties’ child without making any findings as to whether the change in schools ordered by the court was in the child’s best interests.

The paramount concern in family law cases involving a child is the best interests of the child. See generally § 61.13(2)(c), Fla. Stat. (requiring the court to determine all matters relating to parenting of the child in accordance with the best interests of the child), § 61.13(3), Fla. Stat. (stating that the best interests of the child is the “primary consideration” when establishing or modifying a parenting plan). Thus, when crafting an order to sanction a parent’s contumacious conduct in such cases, the trial court must be mindful of how the sanction will impact the child. See Cheek v. Hesik, 73 So.3d 340 (Fla. 1st DCA 2011) (reversing an order imposing makeup time-sharing because the trial court failed to make findings regarding the best interests of the child); Berger v. Berger, 795 So.2d 113, 118 (Fla. 5th DCA 2001) (“The purpose of a civil contempt proceeding is to obtain compliance with the court’s initial order. The sanction of changing custody or visitation does not coerce compliance. In fact, it may penalize the children for their parents’ contumacious conduct, a result opposite from their best interests.”). Likewise, when making decisions that impact a child’s education, the trial court must consider the best interests of the child. See Otto-Jones v. Jones, 69 So.3d 986 (Fla. 2d DCA 2011) (reversing an order requiring the parties’ child to spend half the school year in private school and half in public school because such a rotating schedule was not in the best interests of the child); Norris v. Norris, 926 So.2d 485 (Fla. 2d DCA 2006) (reversing an order regarding the placement of the parties’ children in school because the record did not support the contention that the public school was in the children’s best interests).

Here, the trial court did not find that requiring the parties’ child to be moved to the Jacksonville school in the middle of the school year was in the best interests of the child. Indeed, the only evidence on this issue was the former husband’s testimony that a change in schools in the middle of a school year may not be “the best thing” for the child. Accordingly, the trial court abused its discretion in imposing a sanction on Appellant that would require her to re-enroll the child in the Jacksonville school at the direction of the former husband.

In sum, we affirm the finding of contempt because it is supported by competent substantial evidence, but we reverse the sanction ordered by the trial court and remand for further proceedings consistent with this opinion.

AFFIRMED in part; REVERSED in part; REMANDED for further proceedings.

ROBERTS and SWANSON, JJ., concur.

      . The contempt order gave the former husband 15 days from the date of the order to instruct Appellant to re-enroll the child in the Jacksonville school, but the record does not reflect whether he did so.

      . In light of this disposition, we need not consider Appellant’s argument that the contempt order was invalid because it did not provide her an opportunity to purge the contempt sanction. But cf. In re Amendments to the Florida Family Law Rules of Procedure, 723 So.2d 208, 213 (Fla. 1998) (discussing the differences between civil and criminal contempt and explaining that any coercive sanction ordered in a civil contempt proceeding must afford the contemnor an opportunity to purge or the contempt will be considered criminal in nature). Of course, the absence of a purge provision would likely be harmless if the former husband did not timely exercise the option provided by the contempt order to instruct Appellant to re-enroll the child in the Jacksonville school.

      . We do not address the other sanction in the order — that Appellant "contribute to the Former Husband’s attorney's fees and costs in bringing this action” — because that issue is not yet ripe for appellate review since the trial court did not determine the amount of the award. See Winkelman v. Toll, 632 So.2d 130 (Fla. 4th DCA 1994); see also Dep't of Children & Families v. Monroe, 744 So.2d 1163, 1164 (Fla. 1st DCA 1999) (holding that although the trial court’s failure to determine amount of fees does not render underlying order nonfinal, the fee award itself is not reviewable until the amount is determined).

      . In response to the trial court's question as to whether he was seeking an order requiring that the child be re-enrolled in the Jacksonville school, the former husband stated:
      I have not really thought about that, sir. Just — I’m not sure if that would be — because she’s already familiar with that school and she’s got friends and events, Christmas plays, and teachers. I don't know if that would be the best thing.

      .The former husband also requested that the trial court give him full authority over educational decisions going forward, but the trial court properly recognized at the hearing on the former husband’s motion for contempt that this relief would constitute a modification of the dissolution judgment, which was not appropriately pled or noticed for the hearing.


source: Caselaw Access Project

author: per Curiam.

license: Public Domain

text:
    Curtis Lee KING, Appellant, v. STATE of Florida, Appellee.

    No. 1D12-1918.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2012.
    Curtis Lee King, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   per Curiam.

Upon consideration of the appellant’s “Motion to Dismiss Without Prejudice,” which this Court treats as a response to this Court’s August 17, 2012, show cause order, the appeal is hereby DISMISSED.

.PADOVANO, THOMAS, and CLARK, JJ., concur.


author: WALLACE, Judge.

text:
    Joseph PULEO and Florida Pool Finishers, Inc., Appellants, v. Alan MORRIS and Performance Materials, Inc., Appellees.
    No. 2D08-4924.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 2012.
    Brett Wadsworth of Brett Wadsworth, L.C., Tampa, for Appellants.
    No appearance for Appellees.
   WALLACE, Judge.

Joseph Puleo and Florida Pool Finishers, Inc. (FPF), challenge a postjudgment order awarding them $146,500 in attorney’s fees, $1500 in expert witness fees, and $1753.66 in costs against Alan Morris. The circuit court’s award for attorney’s fees was for an amount substantially less than that sought by Mr. Puleo and FPF. Because the circuit court substantially reduced the amount of the fees requested without making findings concerning the number of hours compensable, the reasonable hourly rate, and any other factors considered in arriving at the amount of the award, we reverse the order and remand for the entry of a new order.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

The litigation in the circuit court involved a claim by Mr. Morris and Perform-anee Materials, Inc. (Performance), for the enforcement of a covenant not to compete. Mr. Puleo and FPF ultimately obtained a final summary judgment against Mr. Morris and Performance. Thereafter, Mr. Pu-leo and FPF moved to tax attorney’s fees and costs, asserting that they were entitled to an award of attorney’s fees for defending the action under section 542.335(l)(k), Florida Statutes (2001), among other grounds. Section 542.335(l)(k) provides, in pertinent part, that “[i]n the absence of a contractual provision authorizing an award of attorney’s fees and costs to the prevailing party, a court may award attorney’s fees and costs to the prevailing party in any action seeking enforcement of, or challenging the enforceability of, a restrictive covenant.”

At the hearing on the motion to tax attorney’s fees and costs, the circuit court first determined that as the prevailing parties, Mr. Puleo and FPF were entitled to recover their reasonable attorney’s fees and costs under section 542.335(l)(k). Next, Mr. Puleo and FPF introduced into evidence the detailed time and billing records prepared by their counsel, Brett Wadsworth, P.A., and Gatlin & Birch, P.A., as Exhibits A and B respectively. Mr. Wadsworth requested a total of $204,310 in attorney’s fees; the amount requested for Mr. Gatlin of Gatlin & Birch was $18,555. Mr. Wadsworth, Mr. Puleo, and an expert witness testified in support of the fees requested. Counsel for Mr. Morris cross-examined Mr. Wadsworth and the mov-ants’ expert witness, but she did not offer any evidence in opposition to the fee motion.

At the conclusion of the hearing, the circuit court awarded all of the costs requested. However, with regard to the attorney’s fees, the court ruled as follows:

I don’t doubt that you expended all those hours in the case. I have to make a determination what I think is reasonable in light of this case. I know it stretched over several years.
A reasonable fee will be $135,000 for Mr. Wadsworth. And Mr. Gatlin—
$11,500. Looking at the Exhibit A and B and that’s what I determined is a reasonable fee in this case. And I’m not questioning the time you put in, I’m not questioning your rate, it’s reasonable. I think with this litigation, three volumes, court files, that’s what I think is reasonable.

After the hearing, the circuit court entered an amended final order awarding Mr. Pu-leo and FPF $135,000 in attorney’s fees for Mr. Wadsworth’s services and $11,500 in attorney’s fees for Mr. Gatlin’s services. The order does not contain any findings concerning the reasonable number of hours expended by each attorney, reasonable hourly rates for their services, or any other factors considered by the circuit court in its ruling substantially reducing the requested attorney’s fees. This appeal followed.

II. DISCUSSION

On appeal, Mr. Puleo and FPF argue that the circuit court erred in entering an order significantly reducing the requested amounts of attorney’s fees without making any findings concerning the reasonable hours expended, the reasonable hourly rates, or the specific reasons for reducing the requested fees. We agree. See Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985); see also Riveiro v. J. Cheney Mason, P.A., 82 So.3d 1094, 1098 (Fla. 2d DCA 2012) (holding that the trial -court erred in making a fee award without making findings concerning the reasonable hourly rate and the amount of hours reasonably expended); Pridgen v. Agoado, 901 So.2d 961, 962 (Fla. 2d DCA 2005) (“Florida law requires a trial court to support an award of attorney’s fees with specific findings as to a reasonable hourly rate and the hours reasonably expended litigating the issues.”); Highlands Carpentry Serv., Inc. v. Connone, 873 So.2d 611, 613 (Fla. 2d DCA 2004) (“When determining an hourly rate and the number of hours reasonably expended, a trial court is required to set forth specific findings.”). “Failure to identify the precise hourly rate and the number of hours reasonably expended constitutes an abuse of discretion and will result in reversal of a fee award.” Pridgen, 901 So.2d at 962. Here, the circuit court’s omission to make the required findings requires reversal of the order under review.

Mr. Puleo and FPF ask that on remand we direct the circuit court to award them attorney’s fees in amounts consistent with the uncontroverted evidence presented at the hearing. Although the evidence presented by Mr. Puleo and FPF at the hearing was uncontroverted, the circuit court is not bound by the time and billing records presented or by the expert witness’s testimony about the reasonableness of the fees requested. A trial court may reduce attorney’s fees that it determines to be excessive if it makes the requisite findings to support that determination. Parton v. Palomino Lakes Prop. Owners Ass’n, 928 So.2d 449, 453 (Fla. 2d DCA 2006). This court has noted that a trial judge is “not bound by the expert opinions or attorney affidavits in setting the award” but may not drastically reduce the number of hours agreed-upon by the expert witnesses without making specific findings. D’Alusio v. Gould & Lamb, LLC, 36 So.3d 842, 846-47 (Fla. 2d DCA 2010); see also Southpointe Homeowners Ass’n v. Segarra, 763 So.2d 1186, 1187 (Fla. 4th DCA 2000) (noting that trial judges are not bound by unrebutted expert testimony and can determine that some of the work performed was unnecessary). Here, the circuit judge’s comments suggest that he found some of the time expended by the attorneys to be excessive based on the nature and extent of the litigation.

III. CONCLUSION

For the foregoing reasons, we affirm the circuit court’s order to the extent that it determines that Mr. Puleo and FPF are entitled to their reasonable attorney’s fees under section 542.335(l)(k). We also affirm the awards of expert witness fees and costs. We reverse the order to the extent that it determines the amount of reasonable attorney’s fees for the services of Mr. Wadsworth and Mr. Gatlin. We remand for the circuit court to make the requisite findings concerning the reasonable hourly rate, the hours reasonably devoted to the case, and any other pertinent factors and to enter an amended order determining the reasonable attorney’s fees based on those findings.

We note that the hearing on the motion for attorney’s fees was held in March 2008, over four years ago. Although we do not require that the circuit court hold a new evidentiary hearing, the circuit court may do so if it deems such a hearing necessary.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and CRENSHAW, JJ., Concur.

      . Mr. Morris has not filed a brief with this court.


author: PER CURIAM.

text:
    Steven Tyrone HUMPHREY, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4108.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 2012.
    James Marion Moorman, Public Defender, and Jean Marie Henne, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

We affirm without prejudice to Steven Humphrey’s rights, if any, to file a timely motion pursuant to Florida Rule of Criminal Procedure 3.850.

SILBERMAN, C.J., and NORTHCUTT and WALLACE, JJ., Concur.


author: CASANUEVA, Judge.

text:
    STATE of Florida, Appellant, v. Christopher MANN, Appellee.
    No. 2D11-5345.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellee.
   CASANUEVA, Judge.

The State of Florida appeals the dismissal of its prosecution of Christopher Mann for possession of a controlled substance, possession of drug paraphernalia, and petit theft. The trial court had dismissed the case upon a finding that the relevant statute, section 893.13, Florida Statutes (2010), was unconstitutional. See Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla. 2011), rev’d, 691 F.3d 1348 (11th Cir.2012). The statute has since been found constitutional in State v. Adkins, 96 So.3d 412 (Fla.2012). We therefore reverse with instructions to vacate the order of dismissal and reinstate the cause.

Reversed and remanded for further proceedings.

ALTENBERND and KHOUZAM, JJ., Concur.


author: SAWAYA, J.

text:
    Bertha SANCHEZ and International Restaurants Corporation, Appellants, v. SOLEIL BUILDERS, INC., Appellee.
    Nos. 5D11-2349, 5D11-2495.
    District Court of Appeal of Florida, Fifth District.
    Oct. 5, 2012.

      Adam M. Bird and Alec D. Russell, of GrayRobinson, P.A., Melbourne, for Appellant Bertha Sanchez.
    Christina Sanchez, of Sanchez Law Firm, P.A., Melbourne, for Appellant International Restaurants Corporation.
    Allan P. Whitehead, of Frese, Hansen, Anderson, Anderson, Heuston & Whitehead, P.A., Melbourne, for Appellee.
   SAWAYA, J.

The issue we must resolve is whether the trial court erred in entering two summary judgment orders and the resulting Final Judgment of Foreclosure against Bertha Sanchez when numerous affirmative defenses and counterclaims filed by her were not properly considered by the trial court. Those judgments emanate from what began as a simple breach of contract and lien foreclosure case filed by Soleil Builders, Inc. after Bertha and her husband failed to pay Soleil Builders for remodeling work it performed on a commercial building Sanchez originally claimed to own.

A detailed rendition of the facts and circumstances of this case is not necessary to resolve the issue we address. Suffice it to say that Soleil Builders was hired by Sanchez to remodel a restaurant in Cocoa, Florida, to bring it up to the City’s code. Sanchez terminated Soleil Builders upon its submission of an invoice seeking a total of $64,113.15, which Sanchez claimed was well above the amount called for under the provisions of the written contract. Hence Sanchez paid all but $23,827.37, which is the amount shown on the Claim of Lien Soleil Builders filed on the property.

Soleil Builders filed a Complaint against Sanchez seeking to recover the $23,827.37 owed under the contract. Count I sought to foreclose a construction lien on the real property, Count II alleged a breach of contract, and Count III asserted a claim for libel and slander (Count III was later dropped). The Complaint was met with various iterations of an answer, numerous affirmative defenses, and numerous counterclaims included in the initial Answer and culminating in the Third Amended Answer filed by Sanchez.

Soleil Builders filed a Motion for Summary Final Judgment. Several months later, the parties convened for the hearing on the Motion, which resulted in a Partial Summary Final Judgment in favor of So-leil Builders for the total amount it sought. This judgment is the first reference to Soleil Builders’ motion as having sought only a partial summary judgment: the court reserved jurisdiction to determine pre-judgment interest and attorney’s fees and “all issues that remain pending before the Court, including deciding the issues raised in the counterclaim filed by the SANCHEZES.” Sanchez subsequently filed for rehearing of the Partial Summary Final Judgment, contending, among other things, that her affirmative defenses had not been considered at the hearing; Sanchez wanted her defenses heard and the counterclaims considered. Sanchez argued that since Soleil Builders had failed to refute her affirmative defenses or address the counterclaims, summary judgment was improper. Shortly thereafter, Soleil Builders filed its Motion for Summary Final Judgment on Sanchez’s counterclaims.

The trial court denied the Motion for Rehearing and the parties convened once again, this time for a hearing to determine whether summary judgment should be entered on the affirmative defenses and counterclaims. Remarkably, Soleil Builders essentially contended that the issues raised in the affirmative defenses and counterclaims had been resolved in the Partial Summary Final Judgment when the court found in favor of Soleil Builders for the total sum it had sought. The trial court entered a Final Summary Judgment on all affirmative defenses and counterclaims without comment. Sanchez moved for rehearing, which was denied, and the trial court rendered its Final Judgment of Foreclosure, awarding a principal amount of $21,304.01, prejudgment interest of $3,706.89, attorney’s fees of $38,275.81, and costs of $1,257.81, for a total judgment of $64,544.52.

Sanchez appeals, arguing that the two summary judgments and the Final Judgment of Foreclosure entered in favor of Soleil Builders must be reversed because the matters that were asserted in her affirmative defenses and counterclaims were not properly considered. We agree.

A troubling aspect of this case is the bifurcation of the claims raised in the Complaint from those asserted in Sanchez’s affirmative defenses. The record does not provide any clue as to how it came to pass that the court rendered only a partial summary final judgment when there was nothing in Soleil Builders’ Motion that would have restricted its Motion to only the counts of its Complaint. Nothing occurred at the summary judgment hearing that suggested that it was agreed or understood that only the claims of the Complaint would be decided and, given the interwoven nature of all of the issues in the Complaint and affirmative defenses, they all should have been decided before summary judgment was entered. It is well settled that, “[i]n order to be entitled to summary judgment as a matter of law, the party seeking summary judgment must not only establish that no genuine issues of material fact exist as to the party’s claims but must also either factually refute the affirmative defenses or establish that they are legally insufficient.” Jones v. State ex rel. City of Winter Haven, 870 So.2d 52, 55 (Fla. 2d DCA 2003) (citations omitted); see also Kimmick v. U.S. Bank Nat’l Ass’n, 83 So.3d 877, 879 (Fla. 4th DCA 2012); Stop & Shoppe Mart, Inc. v. Mehd% 854 So.2d 784, 786 (Fla. 5th DCA 2003) (“Furthermore, the moving party must disprove the affirmative defenses or establish that they are insufficient as a matter of law. Where the movant merely denies the affirmative defenses and the affidavit in support of summary judgment only supports the allegations of the complaint and does not address the affirmative defenses, the burden of disproving the affirmative defenses has not been met.” (citations omitted)). The entry of summary judgment where affirmative defenses are extant is error. Stop & Shoppe Mart, Inc., 854 So.2d at 787; Wendt v. Laske, 760 So.2d 1125 (Fla. 5th DCA 2000), (reversing summary judgment where affirmative defenses were raised that were not addressed in trial court’s order); Fla. Dep’t of Agrie, v. Go Bungee, Inc., 678 So.2d 920, 921 (Fla. 5th DCA 1996) (holding trial court’s failure to address affirmative defenses before granting summary judgment was error).

As for the counterclaims, the trial court was required to consider them to determine if no genuine issue of material fact exists and if the moving party is entitled to a judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); see also Fleming v. Peoples First Fin. Sav. & Loan Ass’% 667 So.2d 273, 274 (Fla. 1st DCA 1995) (“In seeking summary judgment as to Fleming’s counterclaims, Peoples presented evidence of the lack of any genuine issue of material fact with respect to the counterclaims. Fleming failed to demonstrate the existence of issues of fact by countervailing evidence.”), review denied, 669 So.2d 250 (Fla.1996). Here, the trial court did not make that determination.

The problem in entering the Partial Summary Final Judgment and leaving for another day the issues raised in the affirmative defenses and counterclaims was made all the more apparent when Soleil Builders used the entry of the Partial Summary Final Judgment to successfully argue at the subsequent hearing that the affirmative defenses and counterclaims had already been decided adversely to Sanchez. In short, the case below was a muddle and reversal is required because of the error that occurred when the trial court entered the two summary judgments without properly addressing the issues raised by the affirmative defenses and counterclaims filed by Sanchez. Accordingly, the judgments under review are reversed and this case is remanded for further proceedings.

REVERSED and REMANDED.

LAWSON and BERGER, JJ., concur.

      . Bertha's husband, Miguel, although a party initially, died during the proceedings and no estate was opened for him. Reference to “Sanchez” hereafter includes Bertha individually and her deceased husband until the date of his death. An issue raised by Sanchez is the trial court’s refusal to consider an affidavit executed by Miguel prior to his death in opposition to the first Motion for Summary Final Judgment filed by Soleil Builders. We will not address that issue in detail other than to say that his affidavit was properly sworn and was proper for consideration by the trial court.
      Consolidated with this appeal is that of International Restaurants Corporation (IRC), a company wholly owned by Bertha Sanchez, which is appealing the Final Judgment of Foreclosure on the basis that because it, not Bertha, owns the real property on which the lien attached, it should have been permitted to intervene in the lien foreclosure proceeding below. The trial court ruled that the Motion to Intervene was filed too late in the proceedings, as it was filed well after the summary judgment hearings had concluded. Because we reverse the two summary judgments and Judgment of Foreclosure, the timeliness issue is rendered moot and the motion may be decided on the merits during the proceedings on remand.


text:
    James Kevin ZELENAK, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6447.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412 (Fla.2012).

PADOVANO, MARSTILLER, and SWANSON, JJ., concur.


text:
    Timothy Lee HARRISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-336.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412 (Fla.2012).

PADOVANO, RAY, and MAKAR, JJ., concur.


text:
    Timothy Lee HARRISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-337.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2012.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412 (Fla.2012).

PADOVANO, RAY, and MAKAR, JJ., concur.


text:
    Timothy Lee HARRISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-338.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412 (Fla.2012).

PADOVANO, RAY, and MAKAR, JJ., concur.


text:
    Marty R. GODWIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-797.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412 (Fla.2012).

PADOVANO, MARSTILLER, and SWANSON, JJ., concur.


author: BENTON, C.J.

text:
    Thomas GIDDENS, Appellant, v. Theresa TLSTY, Appellee.
    No. 1D11-2941.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2012.
    Thomas Giddens, pro se, Appellant.
    Theresa Tlsty, pro se, Appellee.
   ON APPELLANT’S MOTION FOR REVIEW OF LOWER TRIBUNAL’S DENIAL OF APPELLANT’S MOTION TO TAX APPELLATE COSTS

BENTON, C.J.

Thomas Giddens seeks review of the order denying the motion to tax appellate costs he filed in circuit court pursuant to Florida Rule of Appellate Procedure 9.400(a). We grant his motion for review, reverse the circuit court’s order, and remand for further proceedings.

In the main appeal, Mr. Giddens challenged a final injunction for protection against repeat violence, entered against him at the behest of Theresa Tlsty pursuant to section 784.046(2), Florida Statutes (2011). On grounds that competent, substantial evidence did not support the final injunction, we reversed. Giddens v. Tlsty, 87 So.3d 843 (Fla. 1st DCA 2012). Four days after the mandate issued, Mr. Gid-dens filed a motion in the trial court to tax appellate costs pursuant to Florida Rule of Appellate Procedure 9.400(a). In the order under review, the trial court denied the motion, on the mistaken ground that it was without jurisdiction to award appellate costs. We now grant the motion for review of the order denying appellate costs. See Fla. R.App. P. 9.400(c).

In granting the motion for review, we reverse the trial court’s July 25, 2012 order denying the motion to tax appellate costs. Motions to tax “appellate costs cannot be filed in the district court but must be filed in the lower tribunal after jurisdiction has been returned to that body by our mandate.” Superior Prot., Inc. v. Martinez, 930 So.2d 859, 860 (Fla. 2d DCA 2006). So long as the motion to tax appellate costs is timely, costs must be taxed in favor of the party who prevailed on the appeal. See Martin v. Hialeah Hous. Auth., 972 So.2d 1113, 1114 (Fla. 3d DCA 2008) (“Under Florida Rule of Appellate Procedure 9.400(a), a party may serve a motion to tax costs within thirty days after the issuance of the mandate. Thus, by its terms, rule 9.400(a) authorizes proceedings for appellate costs to take place after the mandate has issued.”); Moran Towing of Fla., Inc. v. Mays, 623 So.2d 850, 850 (Fla. 1st DCA 1993) (noting the trial court has jurisdiction pursuant to rule 9.400(a) for consideration of a motion for taxation of appellate costs “for 30 days following issuance of mandate without an order or directions from this court”); Jackson v. Dade Cnty. Sch. Bd., 433 So.2d 1367, 1368 (Fia. 1st DCA 1983) (concluding the lower tribunal had jurisdiction to entertain a motion to tax appellate costs because the motion to tax appellate costs was served within thirty days after the issuance of the mandate). We remand for proceedings pursuant to Florida Rule of Appellate Procedure 9.400(a), to fix and tax the costs of the appeal against Theresa Tlsty, the unsuccessful appellee.

Reversed and remanded.

WETHERELL and RAY, JJ., concur.

      . Florida Rule of Appellate Procedure 9.400(a) provides, in part:
      (a) Costs. Costs shall be taxed in favor of the prevailing party unless the court orders otherwise_ Costs shall be taxed by the lower tribunal on motion served within 30 days after issuance of the mandate.

      . Florida Rule of Appellate Procedure 9.400(c) provides, in part:
      (c) Review. Review of orders rendered by the lower tribunal under this rule shall be by motion filed in the court within 30 days of rendition.


author: NORTHCUTT, Judge.

text:
    Willie Stancil WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5594.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 2012.
    Willie Stancil Williams, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   ORDER

NORTHCUTT, Judge.

Willie Stancil Williams complains of the circuit court’s denial of his “motion requesting the court directing the clerk of the court to process indigent criminal defendant’s appeal without cost.” We set the order aside and direct that Williams shall pay no costs associated with the preparation of the record in this case.

Williams is an indigent prisoner serving a sentence imposed after his convictions on drug charges. He filed a motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a), raising two claims for relief. The postconviction court granted the motion in part and denied it in part. When Williams appealed, the Pinel-las County Clerk of Circuit Court asserted that Williams was obligated to pay the cost of preparing the appellate record. Williams moved for an order directing the clerk to prepare the record without cost. The circuit court denied the motion, reasoning that although there were no costs associated with the filing of the postconviction appeal, Williams’ indigence “is of no consequence to his financial obligation to pay for preparation of the appellate record.”

Williams brought the issue to this court by petitioning for a writ of mandamus or a writ of prohibition directed to the circuit court clerk and the chief judge of the circuit. We have determined that the matter is more appropriately addressed pursuant to our authority to control the preparation of the record and other procedural aspects of Williams’ underlying appeal. See Fla. R.App. P. 9.600(a) (granting lower tribunal concurrent jurisdiction to issue orders on certain procedural matters “subject to the control of the court”); see also Fla. R.App. P. 9.040(c) (providing that “the cause- shall be treated as if the proper remedy had been sought”).

Turning to the merits of the issue, in this court the State has conceded that Williams is entitled to have the record on appeal prepared at no cost, citing section 57.081(1), Florida Statutes (2011). That statute provides in relevant part:

Any indigent person, except a prisoner as defined in s. 57.085, who is a party or intervenor in any judicial or administrative agency proceeding or who initiates such proceeding shall receive the services of the courts, sheriffs, and clerks, with respect to such proceedings, despite his or her present inability to pay for these services.

As can be seen, the statute excludes prisoners “as defined in s. 57.085.” In turn, that statute provides that it “does not apply to a criminal proceeding or a collateral criminal proceeding.” § 57.085(10). Therefore, because Williams is appealing an order denying one of his claims in a collateral criminal proceeding, he is not excluded from the benefit of section 57.081(1). See Schmidt v. Crusoe, 878 So.2d 861, 367 n. 7 (Fla.2003) (holding that postconviction motions are collateral criminal proceedings, that as such they are outside the reach of section 57.085, and that section 57.081 applies); Alexander v. Bamash, 814 So.2d 1211, 1212 (Fla. 4th DCA 2002) (applying section 57.081 to an appeal filed by an indigent incarcerated appellant and directing the clerk to prepare the appellate record without charge).

Having discerned that Williams is indigent, the clerk of circuit court was obliged by section 57.081 to produce the record associated with Williams’ appeal at no cost to him. To do otherwise “would result in an unlawful chilling of a criminal defendant’s right to appeal or otherwise challenge the propriety or constitutionality of the conviction or sentence.” Schmidt, 878 So.2d at 367 (internal quotations marks omitted). Accordingly, we quash the circuit court’s order and direct that Williams shall not be charged the cost of preparing the record on appeal in this case.

Order quashed; remanded with directions.

VILLANTI and LaROSE, JJ., Concur.

      . We note that this does not entitle Williams to a personal copy of the record on appeal without cost. See Fla. R.App. P. 9.141(b)(2)(B).


text:
    Erin WRIGHT, f/k/a Milner, Appellant, v. James MILNER, Appellee.
    No. 1D12-1600.
    District Court of Appeal of Florida, First District.
    Oct. 8, 2012.
    Lori Ré, Orange Park, for Appellant.
    Cindy Lasky and Tawny L. Rountree of the Lasky Law Firm, Jacksonville, for Ap-pellee.
   PER CURIAM.

We reverse the trial court’s order denying Appellant’s Petition to Relocate, as the order’s relevant factual findings are not supported by competent, substantial evidence. We remand with directions to grant Appellant’s petition to relocate, incorporating Appellant’s proposed revised agreement to facilitate time-sharing with the children by transporting the children to Jacksonville, Florida. In addition, the trial court shall require Appellant to provide Appellee’s lodging expenses in Virginia to facilitate time-sharing in Virginia, as agreed by Appellant.

REVERSED AND REMANDED.

PADOVANO, THOMAS, and CLARK, JJ., concur.


text:
    Paul BRANCH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4254.
    District Court of Appeal of Florida, First District.
    Oct. 8, 2012.
    Paul Branch, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied as premature.

BENTON, C.J., LEWIS and ROWE, JJ., concur.


text:
    Juan R. ACHURRA, Petitioner, v. Esperanza (Loretta) ACHURRA, Respondent.
    No. 1D12-4021.
    District Court of Appeal of Florida, First District.
    Oct. 8, 2012.
    Juan R. Achurra, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for writ of prohibition is denied.

CLARK, MARSTILLER, and MAKAR, JJ., concur.


text:
    J.C., father of J.M.T., a child, Appellant, v. CATHOLIC CHARITIES OF CENTRAL FLORIDA, Appellee.
    No. 5D12-621.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 2012.
    Ryan Thomas Truskoski, Special Assistant Regional Counsel and Jeffrey Deen, Office of the Criminal and Civil Regional Counsel, Casselberry, for Appellant.
    Richard S. Jackson, Deland, for Appel-lee.
   PER CURIAM.

The trial court terminated the parental rights of J.C., the father of J.M.T., pending adoption. At the time of the hearing, J.C. was in prison in Illinois and was indigent. As an indigent, J.C. is entitled to the preparation of a sufficiently complete record to permit proper appellate review. In this case, there is no record of the proceeding. There was no court reporter present, and as a consequence, there is no transcription of the hearing. Under these circumstances, there can be no meaningful appellate review. See W.T. v. K.F.Y., 59 So.3d 1216 (Fla. 5th DCA 2011). In addition, J.C. timely requested the appointment of counsel. As an indigent, he is entitled to counsel. See M.E.K. v. R.L.K, 921 So.2d 787, 791 (Fla. 5th DCA 2006). Accordingly, the matter is reversed and remanded for a new trial.

REVERSED and REMANDED for NEW TRIAL.

ORFINGER, C.J., JACOBUS, J., and HARRIS, C.M., Senior Judge, concur.


text:
    SUNBIRD OF PANAMA CITY BEACH OWNER’S ASSOCIATION, INC., Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, a Domestic, Statutory Insurance Company, Appellee.
    No. 1D12-3461.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2012.
    Mark D. Dreyer, Panama City, for Appellant.
    Jonathan D. Franklin, Miami, for Appel-lee.
   PER CURIAM.

The appellee’s Motion to Dismiss, filed on August 3, 2012, is granted and this appeal is dismissed as premature. See Hickox v. Taylor, 933 So.2d 675 (Fla. 1st DCA 2006).

BENTON, C.J., LEWIS, and ROWE, JJ., concur.


text:
    Janis Ann BENBOW, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6318.
    District Court of Appeal of Florida, First District.
    Oct. 12, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant pled no contest to several felony drug offenses and was sentenced to 18 months in prison. On appeal, she challenges the constitutionality of section 893.101, Florida Statutes (2009), based on the reasoning in Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011). That decision was recently reversed on appeal, see Shelton v. Secretary, Department of Corrections, 691 F.3d 1348 (11th Cir.2012), and the Florida Supreme Court expressly upheld the constitutionality of section 893.101 in State v. Adkins, 96 So.3d 412 (Fla.2012). Accordingly, we reject Appellant’s constitutional challenge and affirm her convictions and sentences.

AFFIRMED.

LEWIS, WETHERELL, and MAKAR, JJ., concur.


text:
    TOWN OF DAVIE, Appellant, v. Monica SANTANA, Appellee. Town of Davie, Appellant, v. Larry Pasko, Appellee. Town of Davie, Appellant, v. Roberta Quinones, Appellee.
    Nos. 1D11-5696, 1D11-5697, 1D11-5698.
    District Court of Appeal of Florida, First District.
    Oct. 12, 2012.
    Joan Carlos Wizel, Onier Llopiz, Stephanie Pidermann, and Jason B. Trauth of Lydecker Diaz, Miami, for Appellant.
    Christopher McShane and Kansas R. Gooden of Boyd & Jenerette, PA, Jacksonville, and George Franklin and Erik Nelson of Nelson & Franklin, PLLC, Miami Beach, for Appellee.
   PER CURIAM.

These appeals, which were consolidated for briefing purposes, are hereby consolidated for opinion purposes as well. Appellant, the Town of Davie, contends that the administrative law judge (“ALJ”) erred in concluding that he lacked jurisdiction to adjudicate Appellant’s motion for attorney’s fees and costs filed pursuant to section 120.595(1), Florida Statutes, after he closed the cases and relinquished jurisdiction to the Florida Commission on Human Relations. We reject this argument along with Appellant’s contention that the ALJ’s ruling deprived it of its substantive right to attorney’s fees and costs without due process.

As the ALJ noted in his order denying Appellant’s motion to re-open the cases, there were no pending motions for attorney’s fees when Appellees voluntarily dismissed their cases and when the ALJ closed the files and relinquished jurisdiction. Cf G.E.L. Corp. v. Dep’t of Envtl. Prot., 875 So.2d 1257, 1263 (Fla. 5th DCA 2004) (holding that an ALJ has jurisdiction to award fees under section 120.595(1) when a petition has been dismissed but noting that the motion for fees was filed prior to the voluntary dismissal). Appellant’s argument that it had no basis to file a motion for fees prior to the voluntary dismissals is refuted by its assertions below and on appeal that Appellees engaged in conduct prior to the voluntary dismissals that was intended to harass and cause unnecessary delay. See § 120.595(l)(b), Fla. Stat. (2011) (providing that an ALJ may award attorney’s fees to the prevailing party if he or she determines that the nonprevailing party participated in the proceeding for an improper purpose).

Accordingly, we AFFIRM.

DAVIS, VAN NORTWICK, and ROWE, JJ., concur.


text:
    Leon Christopher PAIGE, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1227.
    District Court of Appeal of Florida, First District.
    Oct. 12, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela J. Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412 (Fla.2012).

PADOVANO, MARSTILLER, and SWANSON, JJ., concur.


text:
    In re OFFICE OF CHIEF JUSTICE, Louisiana Supreme Court.
    No. 2012-O-1342.
    Supreme Court of Louisiana.
    June 13, 2012.
    Amending Order July 20, 2012.
   ORDER

| feting under the authority of Article V of the Louisiana Constitution of 1974, and the inherent power of this Court, and considering that contrary legal positions have been expressed on the issue of who will succeed to the office of Chief Justice of the Louisiana Supreme Court upon the retirement of present Chief Justice Catherine D. Kimball on January 31, 2013,

And further considering that the administration of justice requires a legal determination of who will assume the position of Chief Justice on February 1, 2013,

IT IS HEREBY ORDERED THAT

Any sitting Justice interested in a legal determination of this matter may file with the Clerk of Court, no later than July 31, 2012, on the following issue:

In consideration of Chief Justice Catherine D. Kimball’s retirement on January 31, 2013, for purposes of determining who is Chief Justice of the Louisiana Supreme Court as of February 1, 2013, which Justice is the “judge oldest in point of service on the supreme court” under Article V, Section 6 of the Louisiana Constitution of 1974?

Factual matters, if any, shall be submitted by affidavit filed with the Clerk of Court no later than July 31, 2012. Any responses by a sitting Justice shall be filed with the Clerk of Court by August 15, 2012. This matter shall be assigned for written opinion.*

/s/ Catherine D. Kimball Catherine D. Kimball, Chief Justice.

AMENDING ORDER

L The Court amends its June 13, 2012 Order to provide as follows:

Any sitting Justice interested in a legal determination of this matter may file a brief with the Clerk of Court no later than August 31, 2012. Factual matters raised in a brief, if any, shall be submitted by affidavit filed with the Clerk of Court no later than August 31, 2012. Any responses by a sitting Justice shall be filed with the Clerk of Court no later than September 14, 2012.

       Chief Judge Burrell J. Carter, Court of Appeal, First Circuit, Chief Judge Henry N. Brown, Jr., Court of Appeal, Second Circuit, and Chief Judge Ulysses Gene Thibodeaux, Court of Appeal, Third Circuit, participating as justices ad hoc. Johnson, Knoll and Victory, JJ., recused.


author: /s/ John L. Weimer Justice,

text:
    In re Raymond CANZONERI, Jr.
    No. 2012-B-1804.
    Supreme Court of Louisiana.
    Aug. 7, 2012.
   ORDER

|, Considering the Joint Petition for Interim Suspension filed by respondent, Raymond Canzoneri, Jr., and the Office of Disciplinary Counsel,

IT IS ORDERED that Raymond Can-zoneri, Jr., Louisiana Bar Roll number 27742, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

FOR THE COURT:

/s/ John L. Weimer Justice,

Supreme Court of Louisiana


author:
PER CURIAM
     VICTORY, J.,

text:
    In re Rene ROCHA, III.
    No. 2011-OB-2237.
    Supreme Court of Louisiana.
    Aug. 7, 2012.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM

hThe Committee on Bar Admissions (“Committee”) opposed the application of petitioner, Rene F. Rocha, III, to sit for the Louisiana Bar Examination based on character and fitness concerns relating to honor board proceedings pending against petitioner at his law school. 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: Rocha, 11-1506 (La.7/12/11), 67 So.3d 470.

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. During its investigation, the Committee learned that petitioner had defaulted on a debt owed to his bank. Following a hearing in the matter, the commissioner filed his report with this court, recommending admission be granted, subject to a two-year period of probation. Neither petitioner nor the Committee objected to that recommendation.

Considering the commissioner’s recommendation, and the absence of any objection from the Committee, we conclude petitioner is eligible to be admitted to Lthe practice of law in Louisiana on a conditional basis. The term of this conditional admission shall be for two years, 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 provide evidence to the ODC, on at least a quarterly basis, demonstrating that he has made a good faith effort to satisfy his financial obligations. Should petitioner fail to make a good faith effort to satisfy his financial obligations, 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.

VICTORY, J., dissents with reasons.

VICTORY, J.,

dissenting.

hi respectfully dissent from the majority’s decision in granting conditional admission and would have docketed the matter for oral argument.

       Chief Justice Kimball not participating in the opinion.


author: /s/ Greg G. Guidry Justice,

text:
    In re Don L. SIMMONS, Jr.
    No. 2012-B-1824.
    Supreme Court of Louisiana.
    Aug. 10, 2012.
   ORDER

| ¶ Considering the Joint Petition for Interim Suspension filed by respondent, Don L. Simmons, Jr., and the Office of Disciplinary Counsel,

IT IS ORDERED that Don L. Simmons, Jr., Louisiana Bar Roll number 26117, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

FOR THE COURT:

/s/ Greg G. Guidry Justice,

Supreme Court of Louisiana


text:
    In re Bambi F. WALTERS.
    No. 2012-B-0974.
    Supreme Court of Louisiana.
    Sept. 12, 2012.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

1 pursuant to Supreme Court Rule XIX, § 21, the Office of Disciplinary Counsel (“ODC”) has filed a petition seeking the imposition of reciprocal discipline against respondent, Bambi F. Walters, an attorney licensed to practice law in the States of Louisiana and North Carolina.

The procedural history of this matter is more complex than the ordinary reciprocal discipline matter. A full explanation is set forth below, but simply stated, these proceedings began when respondent was suspended in Virginia for two years, based upon allegations that she practiced law in Virginia without being licensed to do so and converted client funds. The ODC notified this court of respondent’s suspension on April 30, 2012, and suggested that reciprocal discipline should be imposed. Two days later, the ODC informed us that respondent had been disbarred in North Carolina for the same act of conversion that had previously been considered in Virginia. The ODC now urges that we consider both the Virginia judgment and the North Carolina judgment in this reciprocal discipline proceeding.

| .UNDERLYING FACTS AND PROCEDURAL HISTORY

Respondent was licensed to practice law in Louisiana in 1997 and in North Carolina in 2000. She has never been licensed to practice law in Virginia. Nevertheless, on August 19, 2008, respondent formed and registered with the Virginia State Corporation Commission the professional corporation Walters, PC, Bambi Faivre. On May 8, 2009, respondent’s law firm was registered with the Virginia State Bar as a professional law corporation.

From September 5, 2008 through April 10, 2009, respondent maintained a law office, Bambi Faivre Walters, PC, in Williamsburg, Virginia. On April 5, 2009, respondent entered into a lease for another location in Williamsburg. Neither the signage at respondent’s office nor her letterhead stationery disclosed that she is not licensed to practice law in Virginia.

On December 20, 2009, Linda Quigley, a Virginia attorney, filed a complaint with the Virginia State Bar alleging that respondent had been practicing law in Virginia without a license and that she had lied to Ms. Quigley and to her clients about being licensed by the Virginia State Bar. In connection with its investigation of the complaint, the Virginia State Bar learned that respondent had provided legal services in Virginia matters and that she represented parties in Virginia state court and before the Virginia State Corporation Commission without having been admitted to practice law in that state. Respondent signed and filed pleadings on behalf of parties, identifying herself as counsel for the party and listing her Virginia address, with no identification that she was not licensed to practice law in Virginia. In addition, respondent falsely represented that she was a Virginia lawyer in the printed brochures for her law firm and in her profile contained on two websites.

lain a separate matter, the Virginia State Bar found that respondent had misappropriated $6,000 in funds belonging to her client, the Virginia chapter of the Police Unity Tour (“PUT”), by making two withdrawals of $3,000 each from her client trust account and transferring the funds to her firm’s operating account. Respondent also failed to keep appropriate trust account records and commingled client funds with non-client funds in her firm’s operating account.

Based upon these findings, the Virginia State Bar instituted disciplinary proceedings against respondent. On January 18, 2012, a panel of the Circuit Court for James City County/the City of Williams-burg accepted an Agreed Disposition and suspended respondent for two years with conditions. Virginia State Bar ex rel. Sixth District Committee v. Walters,' No. CL11-1027, 2012 WL 911327.

On January 26, 2012, the North Carolina State Bar charged respondent with misappropriating $6,000 in funds belonging to PUT. On April 24, 2012, respondent filed an affidavit with the Disciplinary Hearing Commission indicating that she “desire[d] to resign as an attorney and hereby tender my license to practice law in North Carolina.” Respondent further acknowledged that she had misappropriated her client’s funds and that she wished to resign from the practice of law “because I believe that I cannot successfully defend against the charges that I misappropriated $6,000 of entrusted client funds from my firm’s trust account and because I believe that taking this to trial is inefficient and wastes resources.” On April 30, 2012, the Disciplinary Hearing Commission accepted the surrender of | ¿respondent’s law license and entered an order disbarring her in North Carolina. The North Carolina State Bar v. Walters, No. 12 DHC 9.

After receiving notice of the Virginia order of discipline, the ODC filed a motion to initiate reciprocal discipline proceedings in Louisiana, pursuant to Supreme Court Rule XIX, § 21. A certified copy of the decision and order of the Virginia court was attached to the motion. On May 1, 2012, this court rendered an order giving respondent thirty days to demonstrate why the imposition of identical discipline in this state would be unwarranted.

On May 2, 2012, the ODC filed a supplement attaching a copy of the North Carolina judgment. The ODC acknowledged that this was an “unusual development,” but it nevertheless urged the court to consider both the Virginia judgment and the North Carolina judgment in this reciprocal discipline proceeding. On May 15, 2012, we rendered a second order specifically referencing the judgment disbarring respondent in North Carolina and giving her thirty days to demonstrate why the imposition of identical discipline in this state would be unwarranted.

Respondent failed to file any response in this court.

DISCUSSION

The standard for imposition of discipline on a reciprocal basis is set forth in Supreme Court Rule XIX, § 21(D), which provides:

Upon the expiration of thirty days from service of the notice pursuant to the provisions of paragraph B, this court shall impose the identical discipline or disability inactive status unless disciplinary counsel or the lawyer demonstrates, or this court finds that it clearly appears upon the face of the record from which the discipline is predicated, that
(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
|b(2) Based on the record created by the jurisdiction that imposed the discipline, there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) The imposition of the same discipline by the court would result in grave injustice or be offensive to the public policy of the jurisdiction; or
(4) The misconduct established warrants substantially different discipline in this state; or
(5) The reason for the original transfer to disability inactive status no longer exists.

In the instant case, respondent has made no showing of infirmities in the North Carolina proceeding, nor do we discern any from our review of the record. Furthermore, we find no reason to deviate from the sanction imposed in North Carolina. Although we are not required to impose the same sanction as that imposed by our sister state, nevertheless, only under extraordinary circumstances should there be a significant variance from the sanction imposed by the other jurisdiction. In re: Aulston, 05-1546 (La.1/13/06), 918 So.2d 461. See also In re Zdravkovich, 831 A.2d 964, 968-69 (D.C.2003) (“there is merit in according deference, for its own sake, to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory authority”).

Here, there is little doubt that respondent’s conversion of client funds would warrant discipline in Louisiana. The proceedings in Virginia alleging that she engaged in the unauthorized practice of law simply reinforce our view that serious discipline is appropriate. Under these circumstances, we wifi impose the same discipline against respondent as was imposed in North Carolina and order that respondent be disbarred.

|fiDECREE

Considering the Petition to Initiate Reciprocal Discipline Proceedings filed by the Office of Disciplinary Counsel and the record filed herein, it is ordered that Bambi Faivre Walters, Louisiana Bar Roll number 25289, be and she hereby is disbarred. Her name shall be stricken from the roll of attorneys, and her license to practice law in the State of Louisiana shall be revoked.

       Chief Justice Kimball not participating in the opinion.

      . Respondent has been the subject of a prior reciprocal discipline proceeding. On October 15, 2010, this court suspended respondent from the practice of law for nine months based upon discipline imposed by the Superi- or Court of North Carolina. In re: Walters, 10-1801 (La.10/15/10), 45 So.3d 1016.

      . In late December 2009, respondent's firm profile appeared on Nolo.com and Linked-In.com. Both profiles indicated that respondent was a member of the Virginia State Bar, and the Nolo.com profile also listed her "bar roll number” and indicated that she had been licensed in Virginia since 1986. In fact, the bar roll number belongs to another Virginia lawyer who also practices law in Williams-burg. Respondent corrected the Internet profiles after Ms. Quigley filed her complaint.

      . Pursuant to the Rules of the Supreme Court of Virginia, the term "suspension,” when applied to a lawyer not admitted or authorized to practice law in Virginia, "means the temporary or indefinite exclusion from the admission to, or the exercise of any privilege to, practice law in Virginia.”


text:
    In re Margrett FORD.
    No. 2012-B-1016.
    Supreme Court of Louisiana.
    Sept. 12, 2012.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

I iThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Margrett Ford, an attorney licensed to practice law in Louisiana, but currently suspended from practice.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1968. In 2005, this court considered a joint petition for consent discipline filed by respondent and the ODC, wherein the parties stipulated that respondent neglected a legal matter, failed to communicate with a client, and failed to refund an unearned fee. The court accepted the petition for consent discipline and suspended respondent from the practice of law for one year and one day, fully deferred, subject to two years of supervised probation with conditions. In re: Ford, 05-1328 (La.6/24/05), 905 So.2d 287 (“Ford I”). In 2008, respondent and the ODC submitted a joint motion to extend respondent’s probation based on her failure to comply with the terms of her probation and her failure to cooperate with the ODC in its investigation of a disciplinary complaint. The court granted the motion and ordered that respondent’s probation be extended for one year. In re: Ford, 08-0274 (La.4/4/08), 978 So.2d 287 (“Ford II ”). In March 2010, the court suspended respondent for one year and one day for neglecting a legal matter, failing to communicate with clients, failing to refund an unearned fee, making false statements to the disciplinary board and the ODC, and failing to cooperate with the ODC in its investigation. In re: Ford, 09-2524 (La.3/26/10), 30 So.3d 742 (“Ford III”), reh’g denied May 21, 2010. Respondent has not yet filed an application for reinstatement from Ford III. Accordingly, she remains suspended from the practice of law.

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

UNDERLYING FACTS AND PROCEDURAL HISTORY

In 2011, the ODC filed two separate sets of formal charges against respondent, encompassing a total of three counts of misconduct. In each count, the ODC alleged that respondent violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(f)(5) (failure to refund an unearned fee), 1.16(a)(1) (a lawyer shall withdraw from the representation of a client if the representation will result in a violation of the rules of professional conduct or other law), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(a) (violation of the Rules of Professional Conduct) of the Rules of Professional Conduct.

Respondent failed to answer either set of formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held in either matter, but the parties were given an opportunity to file with the respective hearing committees written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing |scommittees’ consideration, and both committees recommended that she be disbarred. Thereafter, the formal charges were consolidated by the disciplinary board, which subsequently filed in this court a single recommendation of discipline encompassing both sets of formal charges.

ll-DB-018

Count I — The Kennedy Matter

In May 2008, Amos P. Kennedy, Sr. hired respondent to handle his mother’s succession, for which he paid her a flat fee of $1,000 plus court costs of $400. Respondent obtained the decedent’s death certificate and sent correspondence to the children of Mr. Kennedy’s brother, but she did no other work on the succession. By letter dated January 22, 2009, Mr. Kennedy informed respondent that he needed the succession completed immediately as he had an opportunity to lease the land that was part of the estate. Mr. Kennedy heard nothing from respondent and lost the lease opportunity.

In July 2009, Mr. Kennedy sent respondent a letter demanding that she either complete the succession or refund his money by August 1, 2009. Thereafter, Mr. Kennedy heard nothing from respondent. In December 2009, Mr. Kennedy filed a disciplinary complaint against respondent. Respondent failed to answer the complaint, necessitating the issuance of a subpoena for her sworn statement. Despite being personally served with the subpoena, respondent failed to appear for the sworn statement as scheduled on October 26, 2010.

Count II — The Stewart Matter

In August 2009, Charles and Theresa Stewart hired respondent to defend them in a lawsuit involving a dispute over succession property, paying her a 14total of $2,600. Some eight months after she was retained, respondent received from opposing counsel a copy of a cash sale deed for the disputed property, which respondent had failed to discover in the public records. On the day of trial, opposing counsel notified the trial court that respondent was suspended from practicing law. At that time, respondent informed her clients that she could not represent them, and as a result, the trial was continued. Thereafter, respondent failed to return any portion of the fee paid to her by the Stewarts.

In July 2010, the Stewarts filed a disciplinary complaint against respondent. Respondent failed to answer the complaint, necessitating the issuance of a subpoena for her sworn statement. Attempts by the Caddo Parish Sheriffs Office to serve respondent with the subpoena were unsuccessful.

ll-DB-059

The Shelton Matter

In October 2008, Sylvester and Rose Shelton hired respondent to represent them in an ongoing civil suit, paying $1,800 towards her $2,500 fee. According to the Sheltons, respondent performed no work in the matter after she was retained, and as a result, the trial court dismissed their claims against some defendants on motion for summary judgment granted in February 2010. Respondent did not withdraw from the case following her suspension in Ford III, nor did she contact her clients to advise that she could no longer represent them.

In January 2011, the Sheltons filed a disciplinary complaint against respondent. Respondent failed to answer the complaint, necessitating the issuance of a subpoena for her sworn statement. Despite being personally served with the |ssubpoena, respondent failed to appear for the sworn statement as scheduled on March 30, 2011.

Disciplinary Board Recommendation

ll-DB-018 & ll-DB-059

After reviewing these consolidated matters, the disciplinary board determined that the hearing committees’ factual findings are supported by the factual allegations in the formal charges, which were deemed admitted, and/or by the evidence submitted in support of the allegations. The board determined that respondent’s conduct violated the rules as charged.

The board found that respondent knowingly, if not intentionally, violated duties owed to her clients and the legal profession. She caused actual injury to her clients by failing to complete their legal matters and by failing to refund a total of $5,300 in unearned fees and/or unused costs. Her failure to cooperate with the ODC caused that office to expend additional resources. The board determined that the baseline sanction for respondent’s misconduct is disbarment.

The board found no mitigating factors are present. In aggravation, the board found: prior disciplinary offenses, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, substantial experience in the practice of law (admitted 1968), and indifference to making restitution.

Considering respondent’s prior disciplinary history and the absence of mitigating factors, the board recommended that respondent be disbarred. The board also recommended that respondent be ordered to make restitution to her clients, and that she be assessed with the costs and expenses of this proceeding.

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

[fiDISCUSSION

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

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

The record in this deemed admitted matter supports a finding that respondent neglected legal matters, failed to communicate with her clients, failed to return unearned fees and costs, failed to withdraw from the representation of her clients after her suspension in Ford III, and failed to cooperate with the ODC in its investigation. Based on these facts, respondent has violated the Rules of Professional Conduct as alleged in both sets of formal charges.

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

We agree with the board that respondent knowingly, if not intentionally, violated duties owed to her clients and to the legal profession. We also agree that her misconduct caused actual harm to her clients. The applicable baseline sanction in this matter is disbarment.

The aggravating factors found by the disciplinary board are supported by the record. There are no mitigating factors present.

Considering that respondent has been suspended in the past for the identical misconduct at issue here, and considering the absence of mitigating circumstances, we find that no deviation from the baseline sanction is warranted in this matter. Accordingly, we will adopt the board’s recommendation and impose disbarment.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, it is ordered that Margrett Ford, Louisiana Bar Roll number 5690, be and she hereby is disbarred. Her name shall be stricken from the roll of attorneys and her license to practice law in the State of Louisiana shall be revoked. It is further ordered that respondent make full restitution to her clients subject of the formal charges. 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.

      . Although the formal charges allege that the Stewarts paid respondent $2,500, the exhibits in the record indicate that respondent received $2,600.

      . The trial date is not specified in the formal charges; however, it appears from the complaint that the Stewarts’ case was set for trial in May 2010.


text:
    In re Hugh E. McNEELY.
    No. 2012-B-1324.
    Supreme Court of Louisiana.
    Sept. 14, 2012.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

FORMAL CHARGES

Count I — The Lee Matter

In June 2009, Delores Perkins Lee retained respondent to handle a succession matter, paying him a total of $1,900. Respondent did not complete the succession, despite his assurances that he would do so, and failed to communicate with Ms. Lee.

In June 2010, Ms. Lee filed a complaint against respondent with the ODC. Respondent failed to respond to the complaint, necessitating the issuance of a subpoena compelling him to appear on January 19, 2011 with his entire file in the succession matter. Despite being personally served with the subpoena, respondent failed to appear for the sworn statement as scheduled.

19Count II — The Gayden Matter

In September 2009, Glenda Veal Gayden paid respondent $800 to represent her in a divorce proceeding. Respondent did not complete the divorce, despite his assurances that he would do so, and failed to communicate with Ms. Gayden.

In July 2010, Ms. Gayden filed a complaint against respondent with the ODC. Respondent failed to respond to the complaint, necessitating the issuance of a subpoena compelling him to appear on January 19, 2011 with his entire file in the Gayden matter. Despite being personally served with the subpoena, respondent failed to appear for the sworn statement as scheduled.

Count III — The Spriggins Matter

In December 2008, Leo and Linda Spriggins retained respondent to handle a medical malpractice claim. Respondent accepted the representation on a contingency fee basis. In August 2009, respondent informed Mrs. Spriggins that he had submitted the claim to a medical review panel, but he failed to provide her with any documentation of the filing. From January 2010 through May 2010, Mrs. Sprig-gins repeatedly tried to contact respondent regarding the matter, to no avail. Accord-mg to Mrs. Spriggins, she finally met with respondent at his office sometime in June 2010 to provide him with documents relevant to the medical malpractice case. Thereafter, when Mrs. Spriggins was able to reach respondent by telephone, he informed her that he would be out of state and would not be able to work on the file until he returned. In August 2010, Mrs. Spriggins terminated ^respondent’s representation and requested that he send her file to her new attorney.

In October 2010, Mr. and Mrs. Spriggins filed a complaint against respondent with the ODC. When notice of the complaint was returned to the ODC unclaimed, deputy disciplinary counsel spoke to respondent by telephone on December 14, 2010, and he promised that Mrs. Spriggins’ file would be returned to her by December 17, 2010. Deputy disciplinary counsel confirmed the conversation in writing and faxed the letter to respondent. Respondent did not return the file by December 17th, so deputy disciplinary counsel sent him a second letter reminding him of his obligation to return the file. Nevertheless, he still did not do so.

On December 23, 2010, respondent was personally served with a subpoena compelling him to appear on January 19, 2011 with his entire file in the Spriggins matter. Respondent failed to appear for the sworn statement as scheduled, and he has not returned Mrs. Spriggins’ file.

DISCIPLINARY PROCEEDINGS

In March 2011, the ODC filed three counts of formal charges against respondent, alleging that his conduct in the Lee, Gayden, and Spriggins matters violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(f)(5) (failure to refund an unearned fee), 1.16(d) (obligations upon termination of the representation), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(a) (violation of the Rules of Professional Conduct).

|4Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee adopted the deemed admitted factual allegations of the formal charges as its factual findings. Based on those facts, the committee determined respondent violated the Rules of Professional Conduct as charged.

The committee determined that respondent violated duties owed to his clients, the public, and the profession. His misconduct was knowing, and likely was intentional. Respondent has caused and continues to cause actual injury to his clients, as the resolution of their legal matters has been delayed. The applicable baseline sanction in this matter ranges from a lengthy suspension to disbarment.

In aggravation, the committee found a pattern of misconduct, multiple offenses, vulnerability of the victims, substantial experience in the practice of law (admitted 1979), and indifference to making restitution. The sole mitigating factor found by the committee is the absence of a prior disciplinary record.

Turning to the issue of an appropriate sanction, the committee noted that in prior cases involving misconduct similar to that at issue here, this court has imposed suspensions of two or three years. Considering these cases, and the aggravating and mitigating factors present, the committee recommended that respondent be suspended from the practice of law for three years. The committee |5also recommended that respondent be required to make restitution to his clients and that he be required to return their files within thirty days.

Neither respondent nor the ODC filed an objection to the hearing committee’s report. Respondent subsequently sent an e-mail to deputy disciplinary counsel to advise that he is no longer living in the United States, and that he would waive his appearance at the board panel arguments. Respondent also indicated that he does not oppose the three-year suspension recommended by the committee.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings in this deemed admitted matter are supported by the factual allegations in the formal charges and/or by the evidence submitted in support of those allegations. The board also found respondent violated the Rules of Professional Conduct as alleged in the formal charges, with two exceptions. First, the board found that respondent did not fail to refund an unearned fee in the Spriggins matter, as he accepted that representation on a contingency fee basis. Second, the board found no evidence that respondent failed to return his clients’ files in the Lee and Gayden matters, as neither complaint makes that allegation and the ODC did not submit any evidence indicating that respondent failed to return these files.

The board determined that respondent knowingly violated duties owed to his clients and the profession. Respondent caused actual injury to his clients by failing to complete any substantive work on their legal matters and by failing to return unearned fees and client files. By failing to respond to or cooperate with the ODC, respondent caused the agency to expend additional time and expense investigating this matter. The applicable baseline sanction in this matter is suspension.

| Jn aggravation, the board found multiple offenses, substantial experience in the practice of law, and indifference to making restitution. The sole mitigating factor found by the board is the absence of a prior disciplinary record.

Turning to the issue of an appropriate sanction, the board noted that in prior cases, this court has imposed suspensions of two to three years for multiple counts of misconduct involving neglect, failure to communicate, and failure to return unearned fees and client files. Considering these cases, and the aggravating and mitigating factors present, the board recommended that respondent be suspended from the practice of law for three years. The board also recommended that respondent be required to refund all unearned fees paid by his clients. Finally, the board recommended that respondent be assessed with the costs and expenses of this matter.

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

DISCUSSION

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

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(8). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC 17seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donman, 01-3058 (La.1/10/03), 838 So.2d 715.

The record in this deemed admitted matter supports a finding that respondent neglected the legal matters of three clients, failed to communicate with them, and failed to properly terminate the representation of the clients by refunding unearned fees (to Ms. Lee and Ms. Gayden) and returning client files (to Mrs. Sprig-gins). Respondent also failed to cooperate with the ODC in its investigation of the complaints filed against him. Based on these facts, respondent has violated the Rules of Professional Conduct as found by the disciplinary board.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987).

We find that respondent knowingly violated duties owed to his clients and the legal profession, causing actual harm. The applicable baseline sanction in this matter is suspension.

The following aggravating factors are present: a pattern of misconduct, multiple offenses, vulnerability of the victims, substantial experience in the practice of law (admitted 1979), and indifference to making restitution. The sole mitigating factor present is the absence of a prior disciplinary record.

Turning to the issue of an appropriate sanction, case law indicates that this court has imposed substantial suspensions for multiple counts of neglect, failure to |scommunicate, and failure to refund unearned fees. Based on these cases, we agree that the three-year suspension recommended by the board is reasonable.

Accordingly, we will adopt the board’s recommendation and suspend respondent from the practice of law for three years. We will also order respondent to return Mrs. Spriggins’ file and refund the unearned portion of the legal fees paid by Ms. Lee and Ms. Gayden.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Hugh E. McNeely, Louisiana Bar Roll number 10628, be and he hereby is suspended from the practice of law for three years. It is further ordered that respondent return the file of Leo and Linda Spriggins to his clients and that he refund the unearned portion of the legal fees paid to him by Delores Perkins Lee and Glenda Veal Gayden. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . On September 9, 2011, respondent was declared ineligible to practice law for failure to pay his bar dues and the disciplinary assessment, and for failure to file a trust account registration statement.

      . It appears that respondent did submit the claim to the medical review panel, as he subsequently forwarded to Mrs. Spriggins a copy of the defendant's interrogatories filed with the Patient’s Compensation Fund in In re: Medical Review Panel of Linda Spriggins and her husband, Leo Spriggins v. Ochsner Clinic Foundation and Dr. Michael Townsend, PCF No.2008-00906.

      . Notably, the file in respondent's possession contains original videotapes and photographs taken before and after the surgery that is at issue in the malpractice case.

      . See, e.g., In re: Roy, 04-0635 (La.4/30/04), 872 So.2d 464 (three-year suspension); In re: Szuba, 01-1877 (La.10/5/01), 797 So.2d 41 (two-year suspension); In re: Boudreau, 00-3158 (La. 1/5/01), 776 So.2d 428 (three-year suspension); In re: Powers, 99-2069 (La.9/24/99), 744 So.2d 1275 (three-year suspension).