author: LEVINE, J.

text:
    Ernesto CROCE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4712.
    District Court of Appeal of Florida, Fourth District.
    May 18, 2011.

      Carey Haughwout, Public Defender and James W. Melntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

The issue presented is whether the trial court erred by failing to strike a juror for cause. We find the trial court erred in refusing to strike the juror under the particular facts of this case, and we reverse and remand for a new trial.

Appellant was charged with possession of cocaine. At trial, during voir dire, the counsel for appellant questioned the jury venire about the presumption of innocence. Appellant’s counsel stated that “right now, without hearing any evidence, does everybody agree ... that [appellant] is not guilty or does anybody have a problem with that idea?” One juror (“Juror One”) voiced concerns, stating that she had been a victim of a rape with a deadly weapon in the past. Juror One stated that she understood appellant was presumed not guilty but that she had a “problem” since she had been a victim. She said she did not think it was going to “bias” her, but she explained, “I know he is not guilty, but in my head I want to be like, oh ... he is here, you know.”

When defense counsel inquired if she could put aside her past experience as a victim, Juror One stated:

To be honest, I’m not sure. Coming here and hearing it was a criminal trial — I mean it’s a little hard for me to be in a courtroom as it is....
My last experience was not a good one. So I have been trying knowing that this is — it has nothing to do with my personal case, but I don’t know if I can be one hundred percent open minded....
The question you proposed, rather than listening to the prosecution where — like, it took me on a different spin where I was like, oh, I know what I’m supposed to say but I don’t feel that way.

Defense counsel challenged Juror One for cause based on the fact that she stated that she was afraid of letting her own “traumatic experience ... filter in.” The state pointed to Juror One’s own statement that she could be fair and impartial. The trial court denied the challenge for cause, and defense counsel used a peremptory challenge to strike Juror One.

Later, after the defense had used all of its peremptory challenges, defense counsel moved for an additional peremptory challenge to strike another juror (“Juror Two”), claiming that the defense was forced to use a peremptory challenge for Juror One, because the trial court denied the defense’s cause challenge. The trial court denied the additional peremptory challenge for Juror Two. The jury was accepted, subject to the objections regarding the failure to strike Juror One for cause and the failure to give defense counsel an additional preemptory challenge to strike Juror Two. The defendant was convicted by this jury and this appeal ensues.

The Florida Supreme Court has stated that “[wjhere an appellant claims he was wrongfully forced to exhaust his peremptory challenges because the trial court erroneously denied a cause challenge, both error and prejudice must be established.” Conde v. State, 860 So.2d 930, 941 (Fla.2003). The test for determining if a potential juror can serve is “whether the juror can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and- the instructions on the law given to him by the court.” Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984). The supreme court has instructed lower courts as follows:

When a party seeks to strike a potential juror for cause, the trial court must allow the strike when “there is basis for any reasonable doubt” that the juror had “that state of mind which w[ould] enable him to render an impartial verdict based solely on the evidence submitted and the law announced at the trial.” Courts have held that ambiguities or uncertainties about a juror’s impartiality should be resolved in favor of excusing the juror.

Carratelli v. State, 961 So.2d 312, 318 (Fla.2007) (citations omitted). In order to preserve the denial of a cause challenge of a prospective juror for appellate review, the defendant must first challenge the prospective juror for cause and then object again before the jury is sworn. Id. In the present case, appellant challenged Juror One for cause and renewed the objection prior to the jury being sworn.

Therefore, the question for our review is whether Juror One’s stated concerns that she could not remove her own experience as a victim from her potential service as a juror compromised her competence to serve on the jury. Juror One stated that she hoped she could be fair and would abide by the court’s instructions to the jury. The “mere fact that a juror gives equivocal responses does not disqualify that juror for service.” Kopsho v. State, 959 So.2d 168, 170 (Fla.2007). If the juror’s responses are equivocal enough that the prospective juror “cannot presume the defendant to be innocent until proven guilty,” then the prospective juror should be excused for cause. Id. at 172.

We find that the statements by Juror One were such that appellant’s objection for cause should have been granted by the trial court. In the present case, Juror One stated in great detail her concerns about serving as a juror, emanating from the fact that she was previously a victim of a brutal crime. Though she later nodded when asked if she could be fair and impartial, this answer did not constitute sufficient rehabilitation under the circumstances, and we find that her responses were, at best, ambiguous. We believe that Juror One’s concerns raised a reasonable doubt about her ability to be impartial in this case, and we hold that the trial court’s denial of the cause challenge was error.

Appellant also established prejudice from the failure to strike Juror One for cause. A defendant demonstrates prejudice from the “expenditure of a peremptory challenge to cure the trial court’s improper denial of a cause challenge ... if a defendant exhausts all remaining peremptory challenges and can show that an objectionable juror has served on the jury.” Busby v. State, 894 So.2d 88, 96-97 (Fla.2005). “This juror must be an individual who actually sat on the jury and whom the defendant either challenged for cause or attempted to challenge peremptorily or otherwise objected to after his peremptory challenges had been exhausted.” Trotter v. State, 576 So.2d 691, 693 (Fla.1990).

In this case, appellant was compelled to use a peremptory challenge to strike Juror One, who should have been stricken for cause. Appellant was compelled to use all of his peremptory challenges and request additional peremptory challenges which were denied by the trial court. Appellant also specifically moved for an additional peremptory challenge to strike Juror Two, which the trial court denied. Appellant was compelled to accept the jury, including Juror Two, due to the failure of the trial court to strike the first prospective juror for cause.

In summary, we find that the trial court erred in not granting appellant’s cause challenge for Juror One. Appellant has demonstrated prejudice from this error by the fact that Juror Two was seated on the jury, and appellant was denied the opportunity to strike that juror peremptorily due to the fact that appellant was forced to use a preemptory strike for Juror One, who should have been struck for cause by the trial court. We therefore reverse and remand for a new trial.

Reversed and remanded.

WARNER and CONNER, JJ„ concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Erin DEDMON and Madeline Kelly, Appellants, v. Kevin Lee KELLY, Appellee.
    No. 4D09-3572.
    District Court of Appeal of Florida, Fourth District.
    May 18, 2011.

      John T. David of Law Offices of John T. David, P.A., Fort Lauderdale, for appellants.
    Nancy A. Hass of Nancy A. Hass, P.A., Hallandale Beach, for appellee.
   PER CURIAM.

Appellants, Erin Dedmon and Madeline Kelly, appeal from an order of dismissal of their complaint for failure to appear at a case management conference pursuant to Florida Rule of Civil Procedure 1.200(c) and for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e). The trial court erred in both respects.

After a clerk’s default was entered in favor of appellants, the trial court referred appellants’ motion for default final judgment and appellee, Kevin Lee Kelly’s, motion to set aside default to the magistrate. The magistrate recommended that the motion to set aside the default be denied and the trial court approved the magistrate’s report in an order filed on September 3, 2008. On July 1, 2009, appellants’ new counsel filed their Motion for Approval of Stipulation for Substitution of Counsel and sent copies to appellee’s counsel and to appellants’ former counsel at an address different from the one used by former counsel in his earlier pleadings.

On July 13, 2009, the trial court entered an Order Setting Case Management Conference for July 30, 2009, which stated that there had been no record activity since September 3, 2008. The order also notified the parties that a failure to appear may result in dismissal or other sanctions. The order was sent to appellants' former counsel at the address used in his pleadings, not the address given in appellants’ new counsel’s motion.

Before the date of the case management conference, appellants’ counsel twice set the motion for approval of the stipulation of counsel for a hearing at 8:45 A.M., but their motion was not heard at either hearing due to lack of time. On July 30, 2009, appellants’ counsel failed to appear at the case management conference. The trial court entered its Order of Dismissal on that date, stating that appellants failed to comply with its order of July 13, 2009 by failing to appear and there was no record activity since September 2, 2008. Upon motion of appellee’s counsel, the matter was dismissed without prejudice for appellants to refile.

Florida Rule of Civil Procedure 1.200(a) provides that the trial court may order a case management conference and shall specify in the order the matter to be considered. Rule 1.200(c) states in pertinent part:

(c) Notice. Reasonable notice shall be given for a case management conference .... On failure of a party to attend a conference, the court may dismiss the action, strike the pleadings, limit proof or witnesses, or take any other appropriate action....

In applying this rule, this court held in First Fairway Condominium I Ass’n, Inc. v. Gulfstream Roofing, Inc., 701 So.2d 652 (Fla. 4th DCA 1997):

Florida Rule of Civil Procedure 1.200(c) allows a trial court to dismiss a complaint as a sanction if the plaintiff fails to appear at a court-ordered status conference. However, where a trial court seeks to dismiss a lawsuit [pursuant] to rule 1.200(c) — dismissal being the harshest of all sanctions — the trial court must find that the party’s conduct was “willful and contumacious.” Here, the trial court’s order failed to include an express finding of willful and contumacious behavior. By imposing the harsh sanction of dismissal without an express finding of willful and contumacious behavior that is supported by the record, the trial court abused its discretion.

Id. at 653 (internal citations omitted); see also Camerota v. Kaufman, 666 So.2d 1042 (Fla. 4th DCA 1996) (if the court exercises its authority under Rule 1.200(c) for failure to appear at status conference ordered by court, a finding that party’s conduct was willful and contumacious is necessary); Zeigler v. Huston, 626 So.2d 1046 (Fla. 4th DCA 1993) (same).

The trial court did not include an express finding of willful and contumacious behavior in its order. Further, such a finding is not supported by the record. The trial court abused its discretion by dismissing appellants’ case on this ground.

The trial court also dismissed appellants’ case on July 30, 2009, because there was no record activity sinee September 3, 2008. Florida Rule of Civil Procedure 1.420(e) provides:

(e) Failure to Prosecute. In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

The period of time between September 3, 2008, and the date the trial court dismissed the action, July 30, 2009, is under eleven months. Without considering the lack of notice to appellants, appellants’ alleged inaction for less than one year was not sufficient cause for the dismissal of their action.

We reverse the order of dismissal and remand for further proceedings.

Reversed and Remanded.

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

      . According to the record, the last record activity was the trial court’s approval of the magistrate’s report on September 3, 2008. In the Order of Dismissal, the trial court mistakenly wrote September 2, 2008.


author: POLEN, J.

text:
    Eric WILEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3272.
    District Court of Appeal of Florida, Fourth District.
    May 18, 2011.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   POLEN, J.

Appellant, Eric Wiley, appeals his judgment, convicting him of second-degree and third-degree murder, and sentencing him to life in prison. We vacate Wiley’s conviction for second-degree murder and remand for resentencing on Wiley’s conviction for third-degree murder.

Wiley was charged by information with: Count I (second-degree murder of Dwight Starks); Count II (third-degree murder of Dwight Starks); Count III (aggravated battery of Aaron Stoudemire with a firearm); Count IV (aggravated assault of Aaron Stoudemire with a firearm); and Count V (possession of a firearm by a convicted felon). On January 11, 2008, Wiley learned that his sister Rosica (“CC”) Mosely and Aaron Stoudemire were involved in a domestic dispute. Karen Dar-velle, a member of Wiley’s church, testified that on the day in question she was at church, and that Wiley was at the church with a man named Peter Clark. She was talking to Wiley when he received a phone call. She then heard Wiley say, he “don’t like no trouble.” Wiley and Clark then left in Wiley’s SUV. Upon arriving at CC’s house, Wiley got out of the SUV and confronted Stoudemire with a gun in his hand. Subsequently, the gun discharged resulting in the death of Dwight Starks. Three eyewitnesses to the shooting testified: Wiley, Aaron Stoudemire (the first cousin of Starks), and Brandon Christie (Stoude-mire’s friend).

Stoudemire testified to the following. He and CC had an argument about a cell phone and it became physical. The argument then continued outside, and about five minutes later, he saw Wiley running at him with a gun in his right hand. Wiley told' him, “lay down, I’m going to kill you.” Wiley then hit him in the head with the gun and the gun went off. Stoudemire testified that when Wiley struck him in the head with the gun, Wiley’s finger was on the trigger. Christie testified that when he saw Wiley hit Stoudemire on the side of the head with the gun, the gun went off. Christie further testified that he did not see anyone struggle over the gun.

On the same day, Detective Gerwan spoke with Wiley in an interview room at the Stuart Police Department. At trial, the recording from the interview was admitted into evidence. During the interview, Wiley stated that Stoudemire was punching CC when he arrived, that he saw blood on CC’s shirt, and that CC’s mouth was bleeding. However, Wiley did state that CC was going inside when he pulled up to the house. Wiley also admitted that he didn’t see a gun in Stoudemire’s hand. Regarding the shooting, Wiley stated that while he and Stoudemire were fighting, the gun fell out, and when he retrieved the gun, it discharged while Stoudemire was trying to take the gun from him. When he heard Starks was dead, Wiley said he felt bad and turned himself in.

Other testimony was also presented at trial. CC testified that she was in the house watching TV for five to ten minutes when she heard about the shooting; she did not see what happened outside. She did testify, however, that Wiley and Stoud-emire were friendly and never saw them argue. Michael James Duhart testified that he was doing lawn work on his mother’s property with his son, when he noticed a man emerge from a tan SUV. with a black semi-automatic in his hand and heard the man say: “What the F is the problem here?” As he saw the man raise the gun up, he made a rapid exit. He then heard three rapid gun shots. Duhart’s son testified that he saw a man take a gun from behind his back and raise it up. A couple of minutes, after he lost sight of the man, he heard gun shots.

Mark Chapman, Firearm Examiner, Indian River Crime Laboratory, testified that the firearm has three safeties, and in order for this weapon to accidently fire, all three would have to malfunction. Chapman further testified that assuming that all the safeties were working properly, one would have to pull the trigger for the firearm to discharge. Chapman found no reason to believe that the safeties were not working properly and testified that the gun would not discharge from being dropped or from blunt trauma.-

Wiley moved for a judgment of acquittal as to Count I and Count II, arguing that the State failed to negate that the death of Starks was an accident. The trial court denied the motion. Wiley was then convicted on all five counts and sentenced to life in prison on Count I. No sentence was imposed for Count II.

On appeal, Wiley argues the trial court erred in denying his motion for judgment of acquittal because the State failed to establish that the killing was not accidental or that Wiley acted with a depraved mind. We agree with Wiley that his conviction for second-degree murder should be reversed. However, as we find no error in Wiley’s conviction for third-degree murder, we remand for the trial court to re-sentence Wiley for third-degree murder.

The standard of review on a motion for judgment of acquittal is de novo. Johnston v. State, 863 So.2d 271, 283 (Fla.2003). Generally, an appellate court will not reverse a conviction that is supported by competent substantial evidence. Id. A motion for judgment of acquittal should be granted in a circumstantial evidence case if the State fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt. Id. In meeting its burden, the State is not required to “rebut conclusively, every possible variation of events” which could be inferred from the evidence, but must introduce competent evidence which is inconsistent with the defendant’s theory of events. Id. Once the State meets this threshold burden, it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt. Id. However, “[t]he United States Constitution requires that criminal convictions must rest upon a determination that the defendant is guilty beyond a reasonable doubt of every element of the crime with which he has been charged.” Michelson v. State, 805 So.2d 983, 985 (Fla. 4th DCA 2001) (citing State v. Harbaugh, 754 So.2d 691, 694 (Fla.2000)).

Section 782.04(2), Florida Statutes (2008), provides:

The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree ....

In the context of second-degree murder, an act is imminently dangerous to another and evinces a “depraved mind” if it is an act or series of acts that: (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another; and (2) is done from ill will, hatred, spite or an evil intent; and (8) is of such a nature that the act itself indicates an indifference to human life. Bellamy v. State, 977 So.2d 682 (Fla. 2d DCA 2008); Michelson, 805 So.2d at 985. However, “extremely reckless behavior itself is insufficient from which to infer any malice. Moreover ... an impulsive overreaction to an attack or injury is itself insufficient to prove ill will, hatred, spite, or evil intent.” Light v. State, 841 So.2d 623, 626 (Fla. 2d DCA 2003); McDaniel v. State, 620 So.2d 1308 (Fla. 4th DCA 1993); Williams v. State, 674 So.2d 177, 178 (Fla. 2d DCA 1996). Further, “[ajlthough exceptions exist, the crime of second-degree murder is normally committed by a person who knows the victim and has had time to develop a level of enmity toward the victim,” and “[h]atred, spite, evil intent, or ill will usually require more than an instant to develop.” Light, 841 So.2d at 626.

The State relies on Gibbs v. State, 904 So.2d 432, 435 (Fla. 4th DCA 2005). In Gibbs, this court held that pointing a loaded gun at the head of the victim and then firing is an act imminently dangerous to another and evincing a depraved mind regardless of human life and sufficient evidence to prove second-degree murder. However, this case is factually distinguishable from Gibbs. Here, the evidence failed to prove that Wiley acted with a depraved mind and with an indifference to human life, the second and third prongs under Bellamy.

First, CC testified that she considered Wiley and Stoudemire to be friendly with one another, there was no other evidence to establish the hatred and spite requirements of a depraved mind. Second, although Gibbs holds that pointing a gun at an individual and then firing evinces a depraved mind, according to the three eyewitnesses to the shooting, this is not what happened in this case. Stoudemire and Christie both testified that Wiley hit Stoudemire over the head with the gun and the gun discharged. Wiley claimed that there was a scuffle and that the gun discharged in Wiley’s attempt to secure the gun. In either situation, the factual scenario does not establish that Wiley acted with a depraved mind or with an indifference to human life, two requirements necessary to sustain a conviction for second-degree murder. Although a person of ordinary judgment would know that hitting another over the head with a loaded gun is reasonably certain to do serious bodily injury to another, it is not an action evincing a depraved mind or of such a nature that the act itself indicates an indifference to human life. Thus, we hold that Wiley’s conduct was less a result of malice and more of extremely reckless behavior, which is insufficient from which to infer any malice.

The jury also convicted Wiley of third-degree murder. If an aggravated battery results in death, it can be third-degree murder. Sheridan v. State, 799 So.2d 223, 225 (Fla. 2d DCA 2001); see also Elkin v. State, 636 So.2d 570 (Fla. 3d DCA 1994); Garcia v. State, 574 So.2d 240, 241 (Fla. 1st DCA 1991); Johnson v. State, 423 So.2d 614, 615 (Fla. 1st DCA 1982). We find the evidence sufficient to sustain Wiley’s conviction for third-degree murder. Therefore, we vacate Wiley’s conviction for second-degree murder, and remand this matter to the trial court to sentence Wiley for his conviction of third-degree murder.

Reversed and remanded for further proceedings consistent with this opinion.

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

      . There is no dispute that Starks had nothing to do with the dispute between Wiley, Stoude-mire and Mosely, and was standing some distance away when Wiley struck Stoudemire with the gun.

      . A Glock model 23 .40 caliber semi-automatic pistol.


text:
    UNITED PROPERTY AND CASUALTY INSURANCE COMPANY, Appellant, v. Alfred TUFF, Appellee.
    No. 3D10-2598.
    District Court of Appeal of Florida, Third District.
    May 18, 2011.
    Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow, & Schefer and Shannon P. McKenna, Hollywood, for appellant.
    Alvarez, Carbonell, Feltman, Jimenez & Gomez and Jorge L. Carbonell and Paul B. Feltman, for appellee.
    Before RAMIREZ, C.J., and WELLS and CORTINAS, JJ.
   ON CONFESSION OF ERROR

PER CURIAM.

Based on Appellee’s proper confession of error and our own independent review of the record, we reverse the trial court’s non-final order compelling appraisal and remand for an evidentiary hearing to determine whether post-loss requirements were sufficiently complied with under the policy. See Citizens Prop. Ins. Corp. v. Gutierrez, 59 So.3d 177 (Fla. 3d DCA 2011); Citizens Prop. Ins. Corp. v. Mango Hill Condo. Ass’n 12, 54 So.3d 578 (Fla. 3d DCA 2011); Citizens Prop. Ins. Corp. v. Maytin, 51 So.3d 591 (Fla. 3d DCA 2010); Citizens Prop. Ins. Corp. v. Galeria Villas Condo. Ass’n, 48 So.3d 188 (Fla. 3d DCA 2010).

Reversed and remanded.


text:
    JACOM COMPUTER SERVICES, INC. d/b/a Jacom Leasing, Appellant, v. Carol Ann AARDEMA, Lynda Schnurr a/k/a Lynda Cecile Macaluso, Appellees.
    No. 4D10-2424.
    District Court of Appeal of Florida, Fourth District.
    May 18, 2011.
    James J. Webb of Mitrani, Rynor, Adamsky & Toland, P.A., Weston, for appellant.
    Mary Jean Navaretta and Stephen Na-varetta of Navaretta & Navaretta, Attorneys at Law, P.A., Port St. Lucie, for appellees.
   PER CURIAM.

Affirmed. See § 55.10(1), Fla. Stat. (2004); Hott Interiors, Inc. v. Fostock, 721 So.2d 1236 (Fla. 4th DCA 1998).

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


text:
    Ron WOLTEN and Karin Wolten, Appellants, v. 3P DELIVERY, INC., a foreign corporation and Trevor Terry, Appellees.
    No. 4D10-1438.
    District Court of Appeal of Florida, Fourth District.
    May 18, 2011.
    Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Fort Lauderdale, and Benjamin Y. Saxon, II of Saxon & Cha-khtoura, P.A., Melbourne, for appellants.
    John S. Penton, Jr. and Paula J. Phillips of Cole, Scott & Kissane, P.A., West Palm Beach, for appellees.
   PER CURIAM.

Affirmed. See Cox v. Seaboard Coast Line R. Co., 360 So.2d 8 (Fla. 2d DCA 1978).

WARNER, POLEN and CONNER, JJ., concur.


author: PER CURIAM. KIMBALL, Chief Justice, KNOLL, J.,

text:
    Jeanine PRYOR v. IBERIA PARISH SCHOOL BOARD.
    No. 2010-C-1683.
    Supreme Court of Louisiana.
    March 15, 2011.
    Rehearing Denied April 29, 2011.

      Provosty, Sadler, Delaunay, Fiorenza & Sobel, John Dexter Ryland, Ronald J. Fiorenza, Alexandria, for Applicant.
    M. Terrance Hoychick, APLC, Mark Terrance Hoychick, Eunice, for Respondent.
   PER CURIAM.

|, We granted certiorari in this case to determine whether the bleachers in a high school stadium constituted an unreasonable risk of harm to plaintiff. For the reasons that follow, we conclude the district court properly held the bleachers do not present an unreasonable risk of harm under the facts of this case.

UNDERLYING FACTS

On October 29, 2004, plaintiff, Jeanine Pryor, attended a football game between Barbe High School and New Iberia High School to watch her grandson, who played on the Barbe High School team. The game was played at Lloyd G. Porter Stadium, a facility owned and maintained by the Iberia Parish School Board (“school board”), which served as the home stadium for New Iberia High School. At the time of the game, plaintiff was sixty-nine years old, and was recovering from hip surgery performed approximately one year earlier.

Spectator seating is positioned on both the east and west sides of the football field. On the west side of the field, which is traditionally where the home team’s fans sit, the seating consists of uniform and symmetrical wood board seats with concrete |2risers. This facility sits well off the ground, and has entrance and exit ramps leading to the seats. The west side seating was also equipped with disability access ramps and handicap-accessible seating.

On the east side of the field, which is where the visiting team’s fans traditionally sit, there is a metal frame bleacher approximately fifteen feet high and two hundred fifty feet long. Spectators are seated on nine wood seat boards with nine wood foot boards. The bleachers have rails around the sides and rear, but do not have rails in the front, and do not have aisles to facilitate entrance or exit. The seat boards are uniform and symmetrical, with the exception of the space between the first and second seat boards, which are positioned approximately eighteen inches apart. All of the other seat boards are approximately eight inches apart in height.

When plaintiff and her family arrived at the stadium, they ascended the wooden bleachers on the east side of the stadium, or the visitors’ side. Plaintiff testified “the first seat board was unusually high,” and she could not step up the eighteen inches from the first row to the second, so she grabbed the second board and lay on her side so she could swing one leg up at a time. She then stood up, and her daughter assisted her for the remainder of the way up the rows.

At halftime, plaintiff had to use the restroom, and she descended the bleachers with her daughter’s assistance. When they came to the eighteen-inch gap between the first and second row, instead of lying on her side and swinging her legs over the gap as she had done earlier, plaintiff attempted to simply step down. In the process, plaintiff fell and sustained injuries.

As a result of the accident, plaintiff filed suit against the school board, alleging the bleachers were defective. The matter proceeded to a bench trial before the district court. At the conclusion of trial, the district court rendered judgment in favor of the | .¡school board, dismissing plaintiffs suit with prejudice. In reasons for judgment, the district court determined that under a risk/utility analysis, the condition of the bleachers was not unreasonably dangerous.

Plaintiff appealed. The court of appeal reversed and rendered judgment in favor of plaintiff. Pryor v. Iberia Parish School Board., 2010-28 (La.App. 3 Cir. 6/16/10), 42 So.3d 1015. In rejecting the district court’s reasoning, the court of appeal found there was “no utility or social value in exposing visiting patrons to an eighteen-inch vertical differential between the seat boards in question.” 2010-23 at p. 6, 42 So.3d at 1020. The appellate court then rendered judgment apportioning 70% fault to the school board, and 30% fault to plaintiff. It awarded plaintiff damages in the amount of $530,745.79, consisting of $300,000 in general damages, and $230,745.79 in special damages.

Upon the school board’s application, we granted certiorari to consider the correctness of this ruling. Pryor v. Iberia Parish School Board, 2010-1683 (La.11/5/10), 50 So.3d 822. The narrow issue presented for our consideration is whether the bleachers are unreasonably dangerous.

DISCUSSION

The general rule is that the owner or custodian of property has a duty to keep the property in a reasonably safe condition. The owner or custodian must discover any unreasonably dangerous condition on the premises, and either correct the condition or warn potential victims of its existence. Smith v. The Runnels Schools, Inc., 04-1329 (La.App. 1 Cir. 3/24/05), 907 So.2d 109, 112. Nonetheless, we have recognized that defendants generally have no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained-of | condition should be obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff. Eisenhardt v. Snook, 08-1287 (La.3/17/09), 8 So.3d 541; Dauzat v. Curnest Guillot Logging, Inc., 08-0528 (La.12/2/08), 995 So.2d 1184. It is the court’s obligation to decide which risks are unreasonable based upon the facts and circumstances of each case. Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1371 (La.1984). The ultimate determination of unreasonable risk of harm is subject to review under the manifest error standard. Reed v. Wal-Mart, Inc., 97-1174 (La.3/4/98), 708 So.2d 362.

In determining whethér a defect presents an unreasonable risk of harm, the trier of fact must balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair. Reed, 97-1174 at p. 5, 708 So.2d at 365; Boyle v. Board of Supervisors, 96-1158 (La.1/14/97), 685 So.2d 1080, 1083; Entrevia v. Hood, 427 So.2d 1146, 1149 (La.1983); Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971). In determining whether a condition is unreasonably dangerous, courts have adopted a risk-utility balancing test. This test encompasses four factors: (1) the utility of the thing; (2) the likelihood and magnitude of harm, which includes the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiffs’ activities in terms of its social utility, or whether it is dangerous by nature. Pitre v. Louisiana Tech University, 95-1466 (La.5/10/96), 673 So.2d 585, cert. denied, 519 U.S. 1007, 117 S.Ct. 509, 136 L.Ed.2d 399 (1996).

For purposes of the first factor, it is undisputed that the bleachers serve a social utility purpose by providing seating for patrons of the stadium. However, in a brief to this court, plaintiff argues we should focus on the hazard which caused her injury|fi — the eighteen-inch gap between the first and second seat — which she claims provides no social utility.

Our jurisprudence has not been entirely consistent on this point. There is language in Reed suggesting the “trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify, its potential harm to others[.]” Reed, 97-1174 at p. 5, 708 So.2d at 365 (quoting W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 31 (5th ed.1984)). However, other decisions focused on the social utility of the thing as a whole, notwithstanding the presence of the defect. See Dauzat, 08-0528 at p. 5, 995 So.2d at 1187 (“it is undisputed that the logging road has a strong social utility for purposes of the first factor, as it is the only method for removing harvested timber from Lake Pearl’s land”); Boyle, 96-1158 at p. 6, 685 So.2d at 1083 (“[t]he utility of sidewalks on university campuses is clear as pointed out by the court of appeal.”); Pitre, 95-1466 at p. 12, 673 So.2d at 591 (“[w]e begin our analysis by examining the utility of the light pole”).

Moreover, we note the eighteen-inch gap between the first and second seat is not a defect in the bleachers per se, but simply part of their design. The evidence indicates the bleachers were installed in 1969 or 1970, before the adoption of any building or fire code regulations. No other accidents involving the bleachers were reported. The testimony of Robert Barras, a licensed architect who evaluated the bleachers, indicated they did not present an unreasonably dangerous condition with regard to entry or exit. Under these circumstances, we conclude the bleachers as a whole provide social utility.

The second factor focuses on the likelihood and magnitude of harm, which includes the obviousness and apparentness of the condition. With regard to this factor, the district court made a factual finding that plaintiff was aware of the gap | ^between the first and second seat board, yet chose to straddle the second seat board to ascend the bleachers. This factual determination is supported by evidence in the record, including plaintiffs own testimony that she realized the first seat board was “unusually high.”

The third factor focuses on the cost of preventing the harm. The record establishes the condition could have been corrected at the cost of approximately $1,500 to $2,000. On the other hand, the evidence also indicates plaintiff could have avoided the harm at no cost to her by choosing to sit on the west side of the stadium, where disability access ramps and handicap-accessible seating were provided.

Finally, we look to plaintiffs activities in terms of social utility, or whether the activities are dangerous by nature. Obviously, the act of attending a high school football game carries a social utility, and is not inherently dangerous. Nonetheless, as discussed above, plaintiffs decision to sit on the east side of the stadium rather than the west side of the stadium, where disability access ramps and handicap-accessible seating were provided, effectively increased the risk to her, given her physical impairment.

In summary, we conclude the district court’s factual determination that the bleachers were not unreasonably dangerous is not clearly wrong. Specifically, the evidence in the record supports the finding that the social utility of the bleachers outweighed any minimal risk posed by the eighteen-inch gap between the first and second seat boards. The evidence establishes plaintiff was aware of this open and obvious risk. She could have easily avoided any risk by using additional care (as she did when she first ascended the bleachers), or by choosing to sit on the west side of 17the stadium where suitable accommodations for persons with physical impairments were provided.

Accordingly, we find the court of appeal erred in reversing the district court’s judgment, and we now reinstate that judgment. Because of this conclusion, we pretermit any consideration of fault or damages.

DECREE

For the reasons assigned, the judgment of the court of appeal reversing the district court’s judgment is reversed. The district court’s judgment dismissing plaintiffs suit with prejudice is reinstated.

KIMBALL, C.J., concurs and assigns reasons.

JOHNSON, J., dissents.

KNOLL, J., dissents and assigns reasons.

KIMBALL, Chief Justice,

concurs and assigns reasons.

hi agree with the result reached by the majority opinion and the legal conclusions therein. However, I write separately to express my dismay with the policy decision of the Iberia Parish School Board to provide handicap and disabled seating and accommodations only on the home side of the stadium. Essentially, this arrangement offers proper accommodations only to those handicapped, elderly, or disabled people who choose to sit on the home side of the stadium, and not to such supporters of athletics who may choose to sit on the visiting side of the field to show their support for loved ones or children who play for another school.

KNOLL, J.,

dissents.

| ,The court of appeal, acting in its error correcting function, recognized the trial court failed to correctly perform a balancing test in determining whether the bleachers’ defect or design presented an unreasonable risk of harm. I agree with the court of appeal that the trial court clearly erred in failing to apply a risk-utility balancing test, thus the trial court erred as a matter of law. Under these circumstances, the court of appeal was not confined to the manifest error doctrine and I agree with its reversal of the trial court. While we can arguably disagree as to the apportionment of fault, in re viewing the court of appeal opinion I do not find it manifestly erroneous and would affirm.

No one disputed the 18 inch gap in the bleachers posed a dangerous situation. Even defendant’s expert, Mr. Robert Bar-ras, admitted the design posed a danger; he just did not find the design unreasonably dangerous when used as bleachers and not steps. I find Mr. Barras’s opinion flawed because the bleachers were used both as seats and steps. The trial court recognized the bleachers were “defective,” but found the defect was not unreasonably harmful because there was “a safe and accessible location for persons with disabilities on the west side of the football field.” The trial court made this finding notwithstanding there were no signs upon entering the stadium or on the visitor’s side notifying patrons of |2disability seating on the west side. Mrs. Pryor was not familiar with this stadium, as it was her first time there. I find this fact weighs heavily against the defendant.

In my view the facts of this case present a classical situation of comparative fault. Because the defect was open and obvious, and Mrs. Pryor clearly was aware of it and her limited ability to climb or descend the 18 inch gap, these are contributing factors of her fault. I am impressed with the fact that notwithstanding her daughter’s assistance in descending the 18 inch gap, she fell. While this open and obvious defect is not necessarily dangerous for able-bodied folks, it certainly presents an unreasonable risk of harm to the disabled. The record is void of any evidence that supports the social utility of the defect.

For these reasons I respectfully dissent and would affirm the court of appeal.

      . Plaintiff had a host of physical impairments prior to the accident. In 2000, she underwent ankle surgery, and lumbar surgery and a total left hip replacement in 2003. In February 2004, her doctor declared her to be mobility impaired. She walked with an abnormal gait, and used a cane.

      . We acknowledge handicap-accessible seating was only available on the west side of the stadium, which was traditionally identified as the home-field side of the stadium. It would have been preferable if the stadium provided comparable handicap accommodations for visitors, such as plaintiff, who would logically seek seating on the east, or visiting team side of the stadium. Nonetheless, the fact remains that handicapped seating was available for plaintiff.


text:
    STATE of Louisiana v. Matthew ARNOLD.
    No. 2011-KK-0626.
    Supreme Court of Louisiana.
    April 27, 2011.
   PER CURIAM.

| lAfter review, we find the trial court erred in granting the motions to suppress the evidence and the statements on the basis of Arizona v. Gant, — U.S. -, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), which we find to be distinguishable. The facts of this case indicate there was no search incident to arrest as in Gant; rather, after arresting defendant for a traffic violation, one officer entered defendant’s vehicle for the purpose of securing it by rolling up the windows and turning off the engine. In the process of performing this “caretaking” function, the officer observed, in plain view, an unzipped backpack behind the passenger seat containing three plastic bags of marijuana. Because (1) there was prior justification for the police intrusion into the vehicle for purposes of turning off the engine and rolling up the windows, and (2) it was immediately apparent to the officer without close inspection that the backpack contained contraband, the “plain view” exception to the warrant requirement applies, and the seizure of the contraband was permissible. See Horton v. California, 496 U.S. 128, 135-136, 110 S.Ct. 2301, 2307, 110 L.Ed.2d 112 (1990); State v. Leger, 205-0011, p. 65 (La.7/10/06), 936 So.2d 108, 155, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007).

In any event, the testimony establishes that upon their initial approach, the officers detected a “strong odor” of marijuana emanating from the rolled-down windows of the vehicle, which, viewed objectively, provided the officers with probable cause to search the passenger compartment pursuant to the automobile exception to the warrant requirement. See State v. Allen, 10-1016, p. 1 (La.5/7/10), 55 So.3d 756; State v. Waters, 00-0356, p. 7 (La.3/12/01), 780 So.2d 1053, 1058.

Finally, because the seizure was proper and probable cause existed for defendant’s arrest, the statements made by defendant, after being advised of his Miranda rights, are admissible.

The rulings suppressing the evidence and the statements are reversed, and defendant’s motions to suppress are denied. This matter is remanded to the trial court for further proceedings.

WRIT GRANTED; REVERSED AND REMANDED; STAY DENIED AS MOOT.

JOHNSON, J., and KNOLL, J., would deny.

      . Kimball, C.J., not participating in the decision.

      . In Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973), the Supreme Court recognized that police officers, particularly in dealing with vehicular traffic, do have safety and welfare duties apart from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.


text:
    Carrie Burse MERRILL v. GREYHOUND LINES, INC.
    No. 2010-C-2827.
    Supreme Court of Louisiana.
    April 29, 2011.
   PER CURIAM.

|TCarrie Burse Merrill, a bus driver, filed the instant disputed claim for compensation against her employer, Greyhound Lines, Inc. (“Greyhound”), seeking indemnity benefits resulting from a work-related accident. After a trial on the merits, the Office of Workers’ Compensation (“OWC”) dismissed Ms. Merrill’s claim with prejudice.

Ms. Merrill appealed in a pro-se capacity. Although Ms. Merrill’s pro-se brief failed to make specific assignments of error, the court of appeal, sua sponte, reviewed the record under a manifest error standard. Thereafter, the court of appeal reversed the OWC’s judgment, finding the medical evidence clearly demonstrates Ms. Merrill’s work-related accident caused an aggravation of a pre-existing condition in her back which necessitates surgery.

Greyhound now seeks review in this court. Greyhound argues it was prejudiced by the court of appeal’s action because it was not allowed to respond to the errors identified by the court of appeal. Greyhound asserts the court of appeal | ^should have ordered Ms. Merrill to assign errors or allow the parties an opportunity to brief the issues identified by the court of appeal.

Pursuant to La.Code Civ. P. art. 2129, an assignment of errors is not necessary in any appeal. Additionally, La.Code Civ. P. art. 2124 gives the appellate court authority to “render any judgment which is just, legal, and proper upon the record on appeal.” Based on these codal authorities, we have held that an appellate court has the authority to consider an issue even when there is no assignment of error. Nicholas v. Allstate Ins. Co., 99-2522, pp. 7-8 (La.8/31/00), 765 So.2d 1017, 1022-1023; Georgia GulfCorp. v. Board of Ethics for Public Employees, 96-1907, pp. 5-6 (La.5/9/97), 694 So.2d 173, 176.

Nonetheless, commentators have suggested that in the event an appellate court decides to consider an issue not raised by the parties, it should afford the parties an opportunity to brief the issue before rendering judgment:

An appellate court, vested with the authority to render any judgment that is just, legal and proper upon the record, may consider an issue raised for the first time on appeal or may even consider an issue not raised by the parties if is resolution is necessary for a proper judgment on the record. However, in the latter case the appellate court should notify the parties and afford them an opportunity to brief the un-raised issue before rendering a judgment based on that issue, [emphasis added]
1 FRANK L. MARAIST & HARRY T. LEMMON, LOUISIANA CIVIL LAW TREATISE — CIVIL PROCEDURE § 14.9 (2d ed.2008)

In our recent decision in Wooley v. Lucksinger, 09-0571 (La.4/1/11), 61 So.3d 507, 2011 WL 1205136, we found it was error for the court of appeal to reach an issue not briefed by the litigants, without giving the litigants notice of its sua sponte determination or ^providing the litigants with an opportunity to be heard on the issue. Wooley, 09-0571 at 65-66.

Applying this reasoning to the instant case, we find no error in the decision of the court of appeal to review issues not raised by the parties. However, having made the determination to review these issues, the court of appeal should have invited additional briefing from the parties prior to rendering judgment.

Accordingly, we will vacate the judgment of the court of appeal, and remand the case to the court of appeal to permit the parties to brief the question of whether the medical evidence demonstrates Ms. Merrill’s work-related accident caused an aggravation of a pre-existing condition in her back which necessitated surgery.

DECREE

For the reasons assigned, the judgment of the court of appeal is vacated and set aside. The case is remanded to the court of appeal for further proceedings consistent with this judgment.

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

      . Apparently, Ms. Merrill's primary contention was she did not have adequate counsel at trial.

      . See also Rule 1.3 of the Uniform Rules of the Courts of Appeal, which provides the court of appeal "will review only those issues which were submitted to the trial court and which are contained in specification or assignments of error, unless the interest of justice clearly requires otherwise" [emphasis added].


text:
    In re Triscelyn Landor McDONALD.
    No. 2011-B-0706.
    Supreme Court of Louisiana.
    April 29, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that converted client funds to her own use, neglected a legal matter, and failed to communicate with a client. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Triscelyn Landor McDonald, Louisiana Bar Roll number 24507, be suspended from the practice of law for one year and one day. It is further ordered that respondent make restitution to Samantha Brown in the amount of $7,800.

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.

      . The parties also proposed that respondent's suspension be followed by a period of probation with conditions. However, such issues, along with any other relevant factors, may be addressed if and when respondent applies for reinstatement. See In re: Welcome, 02-2662 (La. 1/24/03), 840 So.2d 519; In re: Harris, 99-1828 (La.9/17/99), 745 So.2d 1172.


text:
    STATE of Louisiana v. Sandra WELCH.
    No. 2011-KK-0274.
    Supreme Court of Louisiana.
    April 29, 2011.
   PER CURIAM.

hBased on the totality of the evidence presented at the hearing on the motion to suppress, we find no abuse of discretion in the district court’s denial of the defendant’s motion to suppress drug paraphernalia seized during a vehicle inventory search made in connection with her arrest. State v. Burkhalter, 428 So.2d 449, 455 (La.1983) (“In reviewing the trial court’s ruling on defendant’s motion to suppress, this Court looks to the totality of the evidence presented at the motion to suppress hearing and the trial.”); State v. Montejo, 06-1807, p. 21 (La.5/11/10), 40 So.3d 952, 967 (“The trial court is afforded great discretion in ruling on a motion to suppress, and its ruling will not be disturbed absent an abuse of that discretion.”).

The flight of the defendant’s husband, coupled with his criminal history and prior pseudoephedrine purchases, both of which the police officers were aware, reasonably justified his apprehension and a search of his person, which revealed his possession of methamphetamine. His statements implicating the defendant in criminal activity were freely offered. These statements, combined with the defendant’s flight and her prior pseudoephedrine purchases, provided justification to order the defendant to pull into her driveway for police questioning. Her lack of |2compliance and subsequent flight, during which she engaged in numerous traffic infractions, justified her apprehension and the search of her vehicle.

For these reasons, we find the court of appeal erred in substituting its findings for those of the district court. Accordingly, the court of appeal ruling is reversed, and the district court’s judgment denying the motion to suppress is reinstated. The case is remanded to the district court for further proceedings in light of this order.

REVERSED; DISTRICT COURT RULING REINSTATED; REMANDED.

      . Chief Justice Catherine D. Kimball not participating.


author: CLARK, J.

text:
    In re Eddie Douglas AUSTIN, Jr.
    No. 2011-OB-0729.
    Supreme Court of Louisiana.
    May 3, 2011.
   ORDER

CLARK, J.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into numerous complaints of serious professional misconduct filed against respondent. These matters involve allegations that respondent converted client funds to his own use, failed to communicate with his clients and neglected them legal matters, and charged excessive fees. 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 Eddie Douglas Austin, Jr., Louisiana Bar Roll number 19877, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Eddie Douglas Austin, Jr. 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 Eddie Douglas Austin, Jr. 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.


author: KNOLL, J.

text:
    In re Gary E. JENKINS.
    No. 2011-OB-0754.
    Supreme Court of Louisiana.
    May 3, 2011.
   ORDER

KNOLL, J.

Considering the Petition for Resignation from the Practice of Law filed by petitioner, Gary E. Jenkins,

IT IS ORDERED that the petition of Gary E. Jenkins, Louisiana Bar Roll number 17407, seeking to voluntarily resign from the practice of law in the State of Louisiana pursuant to Supreme Court Rule XVIII, § 5 be and is hereby granted.


text:
    In re Eldon R. HARRALL, Jr.
    No. 2011-OB-0807.
    Supreme Court of Louisiana.
    May 4, 2011.
   ORDER

CLARK, J.

Considering the Petition for Transfer to Disability Inactive Status filed by respondent, and the response thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED that Eldon R. Har-rall, Jr., Louisiana Bar Roll number 14986, be and he hereby is transferred to disability inactive status pursuant to Supreme Court Rule XIX, § 22(B). Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.


text:
    In re Matthew C. RAPPOLD.
    No. 2011-OB-0846.
    Supreme Court of Louisiana.
    May 4, 2011.
   ON APPLICATION FOR ADMISSION TO THE BAR.

PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, Matthew C. Rappold, is immediately eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of two years. The probationary period shall commence from the date petitioner, the Office of Disciplinary Counsel, and the probation monitor execute a formal probation plan. During the probationary period, petitioner shall comply with all of the terms and conditions of the consent agreement executed by him with the Louisiana Supreme Court Committee on Bar Admissions, and such other conditions as may be imposed upon him by the Office of Disciplinary Counsel. 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 Tyler P. GRAY.
    No. 2011-OB-0847.
    Supreme Court of Louisiana.
    May 4, 2011.
   ON APPLICATION FOR ADMISSION TO THE BAR.

PER CURIAM.

| jOn his application to sit for the Louisiana Bar Examination, petitioner, Tyler Gray, disclosed that he has been diagnosed as alcohol dependent. After petitioner successfully passed the bar exam, he and the Committee on Bar Admissions (“Committee”) filed a joint petition for conditional admission, in which it was represented that petitioner has maintained sobriety for the last two years. Nevertheless, the parties acknowledged that petitioner did not execute a recovery agreement with the Lawyers Assistance Program (LAP) until January 15, 2011.

Our jurisprudence holds that an applicant suffering from alcohol dependence will not be considered for admission until he or she has demonstrated at least a one-year period of sobriety, has entered into a recovery contract with LAP, and has complied with the terms and conditions of that contract. See, e.g., In re: Gulick, 09-0869 (La.5/15/09), 8 So.3d 555 (“[pursuant to Supreme Court Rule XVII, § 9(D)(13), petitioner may not re-apply for admission until he can demonstrate at least a one-year period of sobriety and compliance with the terms and conditions of his contract with the Lawyers Assistance Program, and in no event less than one year 12irom the date of this judgment”). Because petitioner has not satisfied these requirements, he is not eligible for admission at this time.

Accordingly, it is ordered that the joint petition for conditional admission be and hereby is denied. Pursuant to Supreme Court Rule XVII, § 9(D)(13), petitioner may. not re-apply for admission until he can demonstrate at least a one-year period of sobriety and compliance with the terms and conditions of his contract with the Lawyers Assistance Program.

ADMISSION DENIED.

       Chief Justice Kimball not participating in the opinion.

      . We acknowledge petitioner has produced some anecdotal evidence of sobriety. However, in cases of alcohol dependence, the minimal one year period of sobriety must be established through objective means, such as a LAP contract or other approved rehabilitation procedures which include random testing and consistent monitoring.


text:
    In re James S. ANDES.
    No. 2011-OB-0865.
    Supreme Court of Louisiana.
    May 4, 2011.
   ON APPLICATION FOR ADMISSION TO THE BAR.

PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, James S. Andes, is immediately eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of two years. The probationary period shall commence from the date petitioner, the Office of Disciplinary Counsel, and the probation monitor execute a formal probation plan. During the probationary period, petitioner shall comply with all of the terms and conditions of the consent agreement executed by him with the Louisiana Supreme Court Committee on Bar Admissions, and such other conditions as may be imposed upon him by the Office of Disciplinary Counsel. 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:
    Janis Losey JOHNSON v. LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY.
    No. 2011-C-0476.
    Supreme Court of Louisiana.
    May 6, 2011.
   PER CURIAM.

I, We granted certiorari in this matter in order to resolve a conflict between the circuits as to whether La. R.S. 22:1335 (formerly La. R.S. 22:636.6) requires a notice of nonrenewal of a homeowner’s insurance policy to be simply mailed to the insured at the address shown in the policy, or whether it must be actually delivered in order to be effective. Because the plain language of the statute requires only that such notice be mailed, we find that La. R.S. 22:1335 requires only that a notice of nonrenewal of a homeowner’s insurance policy be mailed to the insured, and reverse the rulings of the courts below.

The facts of this case show that plaintiffs Farm Bureau policy was due to expire on July 10, 2007. Because the house had become an unacceptable risk, Farm Bureau mailed a notice of nonrenewal to the plaintiff on May 2, 2007, at the mailing address on her policy. On November 7, 2007, plaintiffs house burned. Farm Bureau denied plaintiffs claim, and plaintiff filed suit, arguing that she had not received a notice of nonrenewal. At trial, the jury found that Farm Bureau had Improperly mailed the notice to plaintiffs post office box, but that the post office had failed to deliver it. The trial court issued a judgment in favor of the plaintiff, adjudging full coverage for the home and personal property destroyed in the fire.

The court of appeal affirmed, stating that “[p]roof of mailing creates a prima facie rebuttable presumption that the notice was delivered to the insured,” that “[t]he burden then shifts to the insured to prove ‘by affirmative evidence, nondelivery,’ ” and that “[t]he presumption of delivery is overcome when the insured provides affirmative proof that the notice was not delivered.” Johnson v. Louisiana Farm, Bureau Casualty Ins. Co., 10-979, p. 4 (La.App. 8 Cir. 2/2/2011), 55 So.3d 1024, 1027.

The Fourth Circuit, in Collins v. State Farm, a case factually similar to this one, had held previously that “[t]he mailing of a notice of nonrenewal to the insured’s address, as listed on the policy, at least thirty days before the expiration of the policy satisfies the burden placed upon the insurer” by statute. Collins v. State Fami, 2010-0769 (La.App. 4 Cir. 1/26/11), - So.3d -, 2011 WL 241955, p. 2.

The statute at issue, La. R.S. 22:1335, reads in pertinent part:

§ 1335. Homeowner’s insurance; cancellation, nonrenewal
A. An insurer that has issued a policy of homeowner’s insurance shall not fail to renew the policy unless it has mailed or delivered to the named insured, at the address shown in the policy, written notice of its intention not to renew. The notice of nonrenewal shall be mailed or delivered at least thirty days before the expiration date of the policy. If the notice is mailed less than thirty days before expiration, coverage shall remain in effect under the terms and conditions until thirty days after the notice is mailed or delivered. Any earned premium for the period of coverage extended beyond the expiration date shall be considered pro rata based upon the rate of the previous year.
B. The notice of nonrenewal shall not be required if the insurer or a company within the same insurance group has offered to issue a renewal policy, or if the named insured has provided written notification to the insurer of the intention of the insured not to renew.

This Court recently examined the “mailing or delivery” requirement of LaL R.S. 22:1335 in relation to whether an insurer had notified the insured of its willingness to renew the policy by mailing the insured the policy renewal notice in the case of Nolan v. Mabray, 2010-0373 (La.11/30/10), 51 So.3d 665. In that case, the Court analogized the notice requirement of La. R.S. 22:1335 to the similar notice requirement contained in La. R.S. 22:636.1. The Court said:

[A]n insurer has a prima facie burden to prove that it mailed a required renewal notice, which creates a presumption the insured received the notice. However, the insured may rebut this presumption, typically by testifying the notice was never delivered. This is a factual determination to be made by the trial court.

Mabray, 51 So.3d at 671.

Here, although the notice to be mailed was a notice of nonrenewal rather than a notice of renewal, the principle is the same. The key is that the statute requires only mailing, not proof of receipt. Any evidence of non-delivery is relevant only as far as it is evidence of non-mailing or improper mailing, which is an issue for the fact finder to resolve.

In this case, the jury found that Farm Bureau had properly mailed the notice of nonrenewal, even after taking into consideration that the plaintiff did not receive the notice. This finding ended the jury’s fact finding duty, and the fact that the plaintiff did not receive the notice was otherwise irrelevant. Farm Bureau did all that it was required to do under La. R.S. 22:1335 in order to give notice of nonre-newal of the homeowner’s insurance policy.

For the reasons set out above, we find that the homeowner’s policy was not renewed and that Farm Bureau did not provide homeowner’s coverage to plaintiff at the time of the loss.

REVERSED AND RENDERED.

KNOLL, J., and WEIMER, J., would grant and docket.

      . Chief Justice Kimball not participating in the opinion.

      . The legislature can alter the statute to require proof of receipt, but that is for the legislature, not the courts, to decide.


text:
    In re Leonard CARDENAS, III.
    No. 2011-B-0031.
    Supreme Court of Louisiana.
    May 6, 2011.
   PER CURIAM.

11 This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Leonard Cardenas, III.

UNDERLYING FACTS

On July 19, 2006, respondent was arrested and booked with domestic abuse battery and domestic abuse child endangerment following an incident at the home he shared with his wife. On September 12, 2006, the East Baton Rouge Parish District Attorney’s Office filed a bill of information charging respondent with one misdemeanor count of domestic abuse battery (child endangerment), a violation of La. R.S. 14:35.3(I). Specifically, the bill of information alleged that on July 19, 2006, respondent “committed a battery upon Belinda Cardenas, another member of |2the same household, while a minor child, twelve years of age or younger, was present at the residence at the time ■ of the commission of the offense.”

The case proceeded to a bench trial on April 4, 2007, during which the State presented other crimes evidence relating to a physical altercation between respondent and Ms. Cardenas occurring in February 2006 in Las Vegas, Nevada. Following the trial, respondent was found guilty as charged. On November 14, 2007, respondent was sentenced to serve six months in parish prison, with credit for time served. The court suspended all but sixty days of the jail portion of the sentence, to be served as home incarceration. Respondent was also fined $500 plus court costs and placed on active supervised probation for one year with special conditions, including the requirement that he (1) serve two days in parish prison, (2) perform 40 hours of community service work, (3) attend and complete a court-approved domestic abuse prevention program, (4) not own or possess any firearm during the probationary period, (5) have no contact with the victim or the victim’s family, (6) remain alcohol and drug free during the probationary period, and (7) submit to random alcohol and drug testing during the probationary period.

DISCIPLINARY PROCEEDINGS

In December 2007, following respondent’s criminal conviction, the ODC filed a petition for interim suspension in this court. On January 3, 2008, the court declined to impose an interim suspension. In re: Cardenas, 07-2389 (La.1/3/08), 973 So.2d 722 (Kimball, J., and Traylor, J., recused).

In May 2009, the ODC filed one count of formal charges against respondent, alleging that by his actions as set forth above he has committed a criminal act in | ¿violation of Rule 8.4(b) of the Rules of Professional Conduct. At the time the formal charges were filed, respondent’s appeal of his conviction was still pending. Respondent answered the formal charges in June 2009 and denied he committed a criminal act, citing the pending appeal.

Following the filing of respondent’s answer, this matter was set for a formal hearing before a hearing committee. However, prior to the hearing, respondent moved for a stay of the disciplinary proceeding until such time as the appeals of his criminal conviction were exhausted. This request was granted by the hearing committee chair over the ODC’s objection.

On January 29, 2010, this court denied the writ application filed by respondent in his criminal case. State v. Cardenas, 09-2467 (La.1/29/10), 25 So.3d 827. The formal charge matter was then reset for hearing on May 21, 2010. Respondent appeared at the hearing and was the only witness to testify in person before the hearing committee.

Hearing Committee Report

After consideration of the evidence and testimony presented at the hearing, the hearing committee found respondent’s conviction for domestic abuse battery (child endangerment) is conclusive proof of his commission of the essential elements of the offense. Respondent stipulated at the hearing to his conviction and his violation of Rule 8.4(b). The committee noted that all appeals have been exhausted from respondent’s conviction, and that respondent met the requirements of his sentence. The committee further noted that one of the elements of La. R.S. 14:35.3(1) is the intentional use of force, as opposed to a negligent act. Accordingly, the committee found that by statute, “the circumstances indicate that Respondent actively desired the |4prescribed criminal consequences to follow his actions and, in the ordinary course of human experience, he must have adverted to the prescribed criminal consequences as were reasonably certain to result from his actions.”

The committee determined that by his conduct, respondent violated duties owed to the public, the legal system, and the profession. He acted intentionally and caused injury to the victim that was not insignificant, but fortunately he did not cause any serious physical injuries. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the applicable baseline sanction in this matter is suspension.

The committee found the following aggravating factors are present: vulnerability of the victim and substantial experience in the practice of law (admitted 1987). In mitigation, the committee recognized the following factors: absence of a prior disciplinary record, absence of a dishonest or selfish motive, a cooperative attitude toward the proceedings, character or reputation, and the imposition of other penalties or sanctions. The committee specifically refused to find remorse as a mitigating factor, noting that although respondent testified he was remorseful, he still appeared to resist the wrongful nature of his conduct.

In formulating its recommendation for an appropriate sanction, the committee observed that respondent’s actions leading to his conviction demonstrated extremely poor judgment. Respondent testified that he had been depressed after his first divorce and sought psychological counseling off and on for a period of time, but as of the date of the hearing, respondent had not seen the psychologist for over a year. Meanwhile, in the same year, respondent began and ended a third marriage. Although respondent |stestified that he believed he had exhausted the benefits of counseling, the committee disagreed, stating, “Questions remain about the potential recurrence of Respondent’s depression and related issues involving judgment and decision making skills.”

Considering the foregoing findings, the committee recommended respondent be suspended from the practice of law for ninety days, with all but thirty days deferred, followed by an eighteen-month period of probation. The committee further recommended that during the probationary period, respondent shall remain “arrest and conviction free” and shall participate in at least monthly counseling with a psychiatrist or psychologist “for personal judgment and decision making skills.”

Both respondent and the ODC objected to the hearing committee’s report.

Disciplinary Board Recommendation

, After reviewing the record of this matter, the disciplinary board found the facts of respondent’s conviction for domestic abuse battery (child endangerment) have been conclusively proven against him, and that respondent violated Rule 8.4(b) of the Rules of Professional Conduct. The board determined respondent violated duties owed to the public, and that by its very nature, his conduct was knowing and intentional. Although respondent’s criminal actions did not result in serious physical harm, the board found this fact does not diminish the potentially serious psychological and emotional harm perpetrated upon the victims of the crime. The reputation of the legal profession is likewise harmed whenever a lawyer commits a crime of violence. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the applicable baseline sanction in this matter is suspension.

The board found the following aggravating factors are present: prior disciplinary offenses, vulnerability of the victim, substantial experience in the | (¡practice of law, and illegal conduct. In mitigation, the board recognized the following factors: absence of a dishonest or selfish motive, a cooperative attitude toward the proceedings, character or reputation, and the imposition of other penalties or sanctions.

Reviewing the prior jurisprudence of this court, the board noted that cases involving violent conduct by a lawyer have generally resulted in at least a one year and one day suspension, without any portion of the suspension deferred. However, the board found the facts of the prior cases to be more egregious than the facts of this matter, which involves one instance of battery which occurred in respondent’s private residence. Moreover, the record contains sufficient evidence that respondent’s relationship with his former wife was volatile, which the board found “leaves sufficient ambiguity as to the circumstances and stress-factors that led to the unfortunate instance of domestic battery.”

Considering the foregoing findings, and the prior jurisprudence of this court, the board determined it is appropriate to deviate downward from the baseline sanction of a one year and one day suspension. Accordingly, the board recommended respondent be suspended from the practice of law for one year. The board further recommended that six months of the suspension be deferred in consideration of the mitigating factors present in this case. The board also recommended that respondent be placed on supervised probation for two years, subject to the conditions recommended by the hearing committee.

Neither respondent nor the ODC filed a timely objection in this court to the disciplinary board’s recommendation. However, after the expiration of the time for filing objections under Supreme Court Rule XIX, § 11(G)(1), respondent sought to file a “late” objection. On March 2, 2011, we issued an order rejecting respondent’s 17objection as untimely and therefore procedurally improper, but permitting the filing of briefs, without oral argument. Respondent and the ODC both filed briefs in response to the court’s order.

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). When the disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990). The discipline to be imposed depends on the seriousness of the offense and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

In this matter, respondent has been convicted of one misdemeanor count of domestic abuse battery (child endangerment). He concedes his conduct constitutes a violation of Rule 8.4(b) of the Rules of Professional Conduct, as charged in the formal charges. Therefore, the only issue before the court is the appropriate sanction for respondent’s misconduct.

By its very nature, respondent’s criminal conduct was intentional. He violated duties owed to the public, the legal system, and the legal profession, causing actual harm. Considering Standard 5.12 of the ABA’s Standards for Imposing Lawyer Sanctions, the baseline sanction in this matter is suspension.

|sThe record supports the following aggravating factors: prior disciplinary offenses, vulnerability of the victim, substantial experience in the practice of law, and illegal conduct. The following mitigating factors are supported by the record: a cooperative attitude toward the proceedings, character or reputation, and the imposition of other penalties or sanctions.

Sanctions in cases dealing with attorneys who have engaged in violent conduct range from a year and a day suspension to disbarment. For example, in In re: Willis, 09-0211 (La.5/13/09), 8 So.3d 548, Mr. Willis was waiting with his girlfriend in a vehicle at the drive-up window of a fast food restaurant. Before their food arrived, Mr. Willis and his girlfriend began arguing. This led to a physical altercation between them wherein Mr. Willis hit and grabbed his girlfriend. He also poured beer on her and hit her over the head with the empty beer bottle. Mr. Willis was ultimately charged with two counts of simple battery, which charges were still pending at the time of the disciplinary matter. He was also charged with other professional misconduct, including neglecting a client’s bankruptcy matter, failing to refund an unearned fee and unused costs, failing to return the client’s documents upon the termination of the representation, and practicing law while ineligible to do so. For this misconduct, Mr. Willis was disbarred.

In In re: Sterling, 08-2399 (La.1/30/09), 2 So.3d 408, Mr. Sterling kicked in the door of his girlfriend’s apartment and then pushed and shoved her around the apartment. He was subsequently convicted of unauthorized entry of an inhabited Indwelling, a felony, and placed on probation. Mr. Sterling was also charged with other professional misconduct, including failure to properly notify his clients of the interim suspension that followed his criminal conviction, failure to return a client’s file after he was placed on interim suspension, and transferring a client matter to another attorney without the consent of the client. For this misconduct, we imposed a two-year suspension from the practice of law.

In In re: Estiverne, 99-0949 (La.9/24/99), 741 So.2d 649, Mr. Estiverne became involved in an altercation with opposing counsel during a deposition. At some point, opposing counsel suggested to Mr. Estiverne that the two of them “step outside” and settle the matter “man to man.” Mr. Estiverne left the office and reappeared a few minutes later with an unloaded gun, allegedly threatening to kill opposing counsel. Finding Mr. Esti-verne’s use of a dangerous weapon created a clear potential for harm, we suspended him from the practice of law for one year and one day.

Based on these cases, we find the board’s recommendation of a one-year suspension from the practice of law, with six months deferred, is appropriate. Respondent’s conduct is most similar to Sterling, although less egregious given that Mr. Sterling was convicted of a felony criminal charge in connection with his domestic incident, and the disciplinary proceeding involved additional lawyer misconduct not seen in the instant matter. Therefore, we will adopt the disciplinary board’s recommendation and suspend respondent from the practice of law for one 110year, with six months deferred, followed by a two-year period of supervised probation governed by the conditions suggested by the hearing committee.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record and the briefs filed by the parties, it is ordered that Leonard Cardenas, III, Louisiana Bar Roll number 18162, be and he hereby is suspended from the practice of law for one year. Six months of the suspension shall be deferred, subject to respondent’s successful completion of a two-year period of supervised probation governed by the conditions set forth in the hearing committee’s report. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. 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.

KIMBALL, C.J., recused.

       Kimball, C.J., recused.

      . La. R.S. 14:35.3 provides in pertinent part as follows:
      A. Domestic abuse battery is the intentional use of force or violence committed by one household member upon the person of another household member without the consent of the victim.

      I. This Subsection shall be cited as the "Domestic Abuse Child Endangerment Law.” When the state proves, in addition to the elements of the crime as set forth in Subsection A of this Section, that a minor child thirteen years of age or younger was present at the residence or any other scene at the time of the commission of the offense, of the sentence imposed by the court, the execution of the minimum mandatory sentence ... shall not be suspended, ...

      . Respondent testified at the formal charge hearing that his probation was satisfactorily terminated in May 2010.

      . Respondent was previously the subject of a complaint alleging that he failed to obtain a signed contingent fee agreement from his client in a personal injury matter. The ODC referred the complaint to diversion, which respondent successfully completed. Supreme Court Rule XIX, § 10A(9) provides that a diversion may be used as evidence of prior discipline in a subsequent proceeding.

      . Under Standard 5.12, suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice law. Cf. Standard 5.11, which provides for disbarment when: (a) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or (b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice law.

      . Following his arrest, Mr. Sterling sent telephone text messages to the victim which were found to be "intimidating and boastful" of his "ability to navigate the legal process,” but which were specifically found not to violate the Rules of Professional Conduct.

      . But see In re: Greenburg, 08-2878 (La.5/5/09), 9 So.3d 802, in which Mr. Greenburg was convicted of the misdemean- or offense of simple battery after he attacked another attorney in open court. The court suspended Mr. Greenburg for six months, with all but thirty days deferred, subject to the condition that he complete an anger management counseling program.