author:
PER CURIAM.
     JOHNSON, Justice, WEIMER, J.,

text:
    In re Brian D. FERGUSON.
    No. 2006-OB-2387.
    Supreme Court of Louisiana.
    May 5, 2009.
    Rehearing Denied May 29, 2009.

    R. Gray Sexton, Baton Rouge, for applicant.
    Richard Anthony Goins, New Orleans, Monique Rene Drake, Scott Thomas Whit-taker, New Orleans, for respondent.

       Johnson, Knoll, and Weimer, JJ., would grant rehearing.

   ]_J)N APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

The Committee on Bar Admissions (“Committee”) opposed the application of petitioner, Brian D. Ferguson, to sit for the Louisiana Bar Examination based on character and fitness concerns. In its correspondence to petitioner, the Committee cited two issues, specifically, petitioner’s delinquent credit accounts and a stipulated judgment rendered against him on a petition for domestic abuse protection filed by his former wife. We subsequently granted petitioner permission to sit for the bar exam, with the condition 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: Ferguson, 05-0918 (La.5/6/05), 901 So.2d 1079.

Petitioner thereafter successfully passed the essay portion of the bar exam, and upon his application, we appointed a commissioner to take evidence and report to this court whether petitioner possesses the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana. We also authorized the Office of Disciplinary Counsel (“ODC”) to conduct an investigation into petitioner’s qualifications to be admitted to the bar.

The commissioner conducted a character and fitness hearing in June 2008, pui’suant to Supreme Court Rule XVII, § 9(D)(6). The commissioner received documentary evidence and heard testimony given by petitioner and his witnesses on \9a variety of issues in addition to those raised by the Committee when petitioner was initially denied permission to sit for the bar exam, including allegations of misconduct by petitioner during law school as well as during his subsequent employment as a judicial law clerk.

At the conclusion of the hearing, the commissioner filed his report with this court, recommending that petitioner be conditionally admitted to the practice of law. The Committee objected to that recommendation, and oral argument was conducted before this court pursuant to Supreme Court Rule XVII, § 9(D)(11).

After hearing oral argument, reviewing the evidence, and considering the law, we conclude petitioner has failed to meet his burden of proving that he has “good moral character” to be admitted to the Louisiana State Bar Association. See Supreme Court Rule XVII, § 5(D).

Accordingly, it is ordered that the application for admission be and hereby is denied.

ADMISSION DENIED.

JOHNSON, Justice,

dissents and assigns reasons.

|,1 respectfully dissent from the Court’s denial of Petitioner’s application for admission to the bar.

The Court has denied Petitioner’s application for admission to the bar, finding that the Petitioner failed to meet his burden of proving that he has “good moral character” to be admitted to the Louisiana State Bar association pursuant to Supreme Court Rule XVII, § 5(D). The Court’s decision is primarily based on two allegations: academic misconduct relating to the remaining one credit hour Petitioner needed in order to obtain his law degree; and, misconduct during his employment as a judicial law clerk with former Judge Allen A. Krake.

According to the Commissioner’s report, Petitioner participated in graduation ceremonies at Mississippi College School of Law (“MCSOL”) in May of 2004, but lacked four credit hours to graduate. By August of 2004, Petitioner had competed three credit hours, and he was allowed to write a research paper to obtain the last credit hour.

Regarding the allegation of academic misconduct, Petitioner admittedly resisted and procrastinated in writing the paper supervised by Professor Shelton Hand When he finally submitted a first draft, Professor Hand found it to be poorly written and unacceptable. After more delay, Petitioner completed the assignment to Professor Hand’s satisfaction, obtained the one credit hour and graduated.

The allegation of misconduct arose from a call Professor Hand subsequently 12received from Jimmy White, a MCSOL graduate, who was then employed as the first assistant district attorney (“ADA”) in Colfax, Louisiana. Mr. White reported to Professor Hand that he had learned from another ADA that petitioner had tried to pay him to write his paper. The ADA in question, Scott Prudhomme, testified that he was asked by petitioner several times for advice on writing a paper, and that petitioner finally said, “Why don’t you just write it for me? I’ll give you $500.” Mr. Prudhomme did not accept the offer, and he acknowledged that petitioner probably did not even have $500, considering he was working as a law clerk. Petitioner testified that he did not recall the conversation with Mr. Prudhomme, but if it did occur, it was said solely in a joking manner.

Professor Hand passed along the information from Mr. White to others at the law school, including Assistant Dean Philip McIntosh, via email. Although Professor Hand never raised concerns about whether Petitioner wrote the paper prior to the call from Mr. White, at his deposition Professor Hand testified that he questioned whether Petitioner wrote the paper, since the final product bore no resemblance to the first draft, or other work Petitioner had done in the past. However, Professor Hand admitted that he did not actually know whether someone else had written the paper.

I agree with the Commissioner’s finding that the record fails to prove that Petitioner’s conversation with Scott Prudhomme was a serious negotiation, and was most likely a conversation in jest. Furthermore, Mr. Prudhomme did not testify that he wrote the paper, and there is no proof, outside of speculation and hearsay, that anyone other than Petitioner wrote the paper. In concluding that Petitioner lacks the honesty, trustworthiness, diligence and reliability required by Section 5(B) of Rule XVII, the majority apparently finds credence in the hearsay and unsupported allegations that Petitioner did not write the paper. In my view, the best evidence on | sthe issue of academic misconduct is the certification letter signed by Dean Phillip McIntosh. As Assistant Dean in charge of academic affairs, it was Dean McIntosh’s job to certify character and fitness, which he did on behalf of Petitioner.

Dean McIntosh testified that he had no specific knowledge of any improper acts by Petitioner. Further, McIntosh was fully aware of the allegations brought to his attention by Professor Hand, but other than this hearsay, he testified that he had no independent knowledge of anything evidencing a lack of character in the manner in which Petitioner competed his education. Dean McIntosh’s recommendations are based on his personal knowledge of Petitioner and the contents of his academic file, not on hearsay and unsupported allegations.

I also find no reliable evidence of Petitioner’s misconduct during his employment with former Judge Krake. Petitioner began working for Judge Allen Krake as law clerk in August 2004. Petitioner was terminated in June 2005, effective July 31, 2005. Judge Krake’s position was that petitioner was terminated for misconduct for claiming that he possessed a law degree when he was hired, and for allegedly forging Judge Krake’s signature on a letter increasing Petitioner’s salary. Petitioner denied the allegations, and asserted that his termination was pretextual and in retaliation for his cooperation with the Judiciary Commission’s investigation against Judge Krake arising out of the Judge’s alcoholism. Petitioner believed that he was terminated because he twice testified under subpoena in the Judiciary Commission proceedings against Judge Krake.

|4I find no reliable proof that Petitioner signed the pay raise letter. Rather, I agree with the Commissioner’s finding that Judge Krake actually signed the letter. The Bar Committee apparently chose not to call Judge Krake to testify about whether his signature appeared on the letter. No other credible evidence was presented to prove that this was not the Judge’s signature. More importantly, the Commissioner noted that it was only after Petitioner cooperated with the Judiciary Commission that the pay raise letter was questioned.

The evidence against Petitioner consists primarily of hearsay and speculation. With no actual proof of the alleged misconduct, I cannot agree with the majority’s decision to deny Petitioner admission to the bar. A review of the record, and lack of credible evidence supporting the allegations, leads me to agree with the Commissioner that the Petitioner’s problems arose not due to actual misconduct, but, rather, out of his actions in reporting Judge Krake to the Judiciary Commission and his willingness to cooperate with the Judiciary Commission. The testimony reflects that some court personnel were covering up for Judge Krake, and that although petitioner fully cooperated, he was very fearful of retaliation. The testimony reflects that the information Petitioner provided was absolutely essential to the investigation and to this Court’s subsequent actions against Judge Krake. Notably, petitioner was fired after his sworn testimony taken by the Judiciary Commission.

For these reasons, I respectfully dissent.

KNOLL, J., dissents.

| ]With all due respect, I dissent and would conditionally admit petitioner.

WEIMER, J.,

dissenting.

| [Based on the report of the commissioner who conducted the hearing and recommended that the petitioner be conditionally admitted to the practice of law, I would conditionally admit the petitioner to the practice of law subject to a five-year period of probation.

       Guidry, J., on panel; Calogero, C.J., retired, recused.

      . One of the ODC's witnesses was a law professor who was subpoenaed to testify regarding the allegations of academic misconduct. Petitioner objected to the professor's testimony. The commissioner ruled that the professor would not be permitted to testify at the hearing, but that the ODC could proffer the testimony in deposition form. However, the commissioner then submitted his report to this court, along with the record of the matter, without waiting for the proffer to be obtained. Consequently, after taking the professor's deposition and obtaining the transcript from the court reporter, the ODC filed a "Motion to File Proffer Into the Record.” We subsequently granted the motion and allowed the parties to file supplemental briefs addressing the professor’s testimony. The purpose of the commissioner process in bar admission proceedings is to develop a record upon which this court can make a determination whether the applicant possesses good moral character and fitness to practice law. Strict adherence to the evidentiary and procedural codes is not required in such proceedings; the commissioner should "admit any material and relevant evidence which ... is probative and which may be useful to the Court for its consideration and review.” Supreme Court Rule XVII, § 9(D)(7). Furthermore, any evidence excluded by the commissioner "may be proffered for review by the Court.” Id.

      . In the Spring of 2005, Petitioner placed an anonymous call to the Judiciary Commission to report drunkenness and misconduct on the part of Judge Krake. The Commission identified Petitioner’s number from the Caller ID. Petitioner was instructed to file a complaint, and he reluctantly agreed to cooperate with the Judiciary Commission.

      . Petitioner stated that Judge Krake cut off communication with him around the time of the testimony (during the Spring and early Summery of 2005) In addition, he was forced to sign a resignation letter by Judge Krake, who told him he "should have been smart.”

      . In November of 2005, this Court formally disqualified Judge Krake from exercising judicial functions on an interim basis. In re: Krake, 05-2213 (La. 11/16/05), 914 So.2d 1112. Subsequently, the Judiciary Commission instituted proceedings against Judge Krake, at which time Petitioner testified as a witness concerning Judge Krake's conduct in the office. These proceedings ultimately resulted in this Court suspending Judge Krake until the end of his term, with all but six months deferred. In re: Krake, 06-1658 (La. 10/27/06), 942 So.2d 18. Judge Krake later failed to comply with the conditions of probation, and this Court ordered that the deferred portion of the suspension be made executory. In re: Krake, 06-1658 (La.2/26/08), 976 So.2d 162.


source: Caselaw Access Project

author: GUIDRY, Justice.

license: Public Domain

text:
    Arsenio ARIAS and Lorena Arias v. STOLTHAVEN NEW ORLEANS, L.L.C., ABC Insurance Company, Stolt-Nielsen Transportation Group, Inc. a/k/a Stolt-Nielsen S.A., DEF Insurance Company, Certified Coating Inc, GHI Insurance Company, Kenneth R. Hebert, et al.
    No. 2008-C-1111.
    Supreme Court of Louisiana.
    May 5, 2009.

      Gieger, Laborde & Laperouse, Robert Irwin Siegel, Andrew A. Braun, David Brian Wilson, Daniel Gibbons Rauh, New Orleans, for applicant.
    Baker, Donelson, Bearman, Caldwell & Berkowitz, James H. Roussel, New Orleans, Dennis Spurling, PLLC, Dennis Da-monn Spurling, Johnson, Stiltner & Rah-man, Musa Rahman, David Keith Johnson, Deborah A. Pearce, LLC, Deborah Ann Pearce, Wolfe, Begoun & Pick, Michael Jay Begoun, New Orleans, for respondent.
   GUIDRY, Justice.

hThe issue presented in this case is whether the evidence introduced by the plaintiffs, Arsenio and Lorena Arias, against an insurance carrier to confirm a default judgment was sufficient to establish a prima facie case under Louisiana Code of Civil Procedure article 1702. After reviewing the record and the applicable law, we find that the plaintiffs failed to sustain their burden of proof for confirmation of the default judgment. Accordingly, we reverse the decision of the court of appeal and vacate the trial court judgment. The matter is remanded to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

On January 12, 2004, Arsenio Arias and his wife, Lorena Arias, instituted a personal injury suit alleging Mr. Arias was injured during his employment with Certified Coating, Inc. (hereafter, “Certified Coating”). Specifically, the plaintiffs asserted Mr. Alias was exposed to acryloni-trile, a dangerous and potentially fatal chemical, while working at the facilities of Stolthaven New Orleans, L.L.C. (hereafter, “Stolthaven”). Among others, the suit was filed against Stolthaven and its 12unknown insurer, referenced as ABC Insurance Company. In response, Stoltha-ven filed exceptions, an answer and defenses to the plaintiffs’ suit. Several months later, on October 27, 2004, Stolthaven filed a motion for an extension of time to respond to the plaintiffs’ discovery requests. The request for three additional weeks to answer was granted.

On August 22, 2005, the plaintiffs filed a First Amending and Supplemental Petition for Damages, wherein they added a claim on behalf of their five minor children and named additional defendants. Specifically, the plaintiffs included American Home Assurance Company (hereafter, “American”) as a defendant alleging that it provided a policy of liability insurance covering Stolthaven during the period of Mr. Arias’s alleged exposure. Service of process was effectuated on American through its agent, the Louisiana Secretary of State.

On June 22, 2006, following American’s failure to answer the amending petition, the plaintiffs filed a Motion for Preliminary Default against the insurer, which was granted by the trial court on June 26, 2006. Seven months later, on January 31, 2007, a hearing was conducted for confirmation of the default where the plaintiffs submitted documentary evidence to sustain their burden of establishing a prima facie case against American under Louisiana Code of Civil Procedure article 1702. Particularly, as evidence of the insurance carrier’s liability and in lieu of a | opolicy of insurance, the plaintiffs produced a memorandum of insurance, which suggested that a general liability policy was issued to Stolthaven by American covering the period of the alleged acrylonitrile exposure. The memorandum was directed, with accompanying correspondence, on two separate occasions to plaintiffs’ counsel by Stol-thaven’s attorneys during the course of discovery. As proof of causation, the plaintiffs submitted the reported decision of Arias v. Certified, Coating, Inc., 05-446 (La.App. 5 Cir. 2/14/06), 924 So.2d 298, which was rendered by an appellate court in Mr. Arias’s related workers’ compensation action filed in connection with the acrylonitrile exposure at Stolthaven. Finally, the plaintiffs produced as evidence of Mr. Arias’s damages, his medical records certified under Louisiana Revised Statute 13:3714. Based on the evidence as a whole, the trial court rendered judgment in favor of the plaintiffs and against American confirming the default in the total amount of $3,711,079.17, plus legal interest and court costs. American timely sought appellate relief.

On appeal, American alleged the trial court erred in confirming the default judgment in favor of the plaintiffs, citing the insufficiency of the evidence. More specifically, American argued that the evidence was deficient in four respects: (1) proof of liability was insufficient without admission of the insurance policy into evidence; (2) proof of causation in the form of an appellate decision from another circuit in Mr. Arias’s workers’ compensation case was not sufficient; (3) medical records, certified under Louisiana Revised Statute 13:3714, were inadmissible to prove damages; and (4) proof of general damages was not supported by the admitted | ¿evidence. American also maintained the trial court erred in ignoring the limits of liability specified in the submitted evidence.

The court of appeal rendered a decision affirming in part, and reversing in part. Arias v. Stolthaven New Orleans, L.L.C., 07-0650 (La.App. 4 Cir. 3/19/08), 980 So.2d 791. The court concluded that the memorandum of insurance along with the accompanying cover letters produced during discovery were sufficient to establish coverage and, thus, a prima facie case for American’s liability. The court of appeal also held that submission of Mr. Arias’s reported workers’ compensation decision adequately proved causation. Finally, the court of appeal determined that the production of medical records, certified under Louisiana Revised Statute 13:3714, constituted adequate proof of Mr. Arias’s damages, with the exception of his medical expenses. Based on its finding that the record failed to demonstrate prima facie evidence of Mr. Arias’s medical costs, the court of appeal remanded the case to the lower court for a trial on the medical damages award. American sought supervisory relief in this court.

We granted certiorari in this matter to address American’s claim that the evidence used to support the confirmation of the default judgment was not sufficient to establish a prima facie case under Louisiana Code of Civil Procedure article 1702 against the insurer. Arias v. Stolthaven New Orleans, L.L.C., 08-1111 (La.9/26/08), 992 So.2d 972. Specifically, at issue is whether an insurance carrier’s coverage and liability can be proven under Louisiana Code of Civil Procedure article 1702 without admission into evidence of the actual contract of insurance between the insurer and its insured.

| ¡¡DISCUSSION

Applicable Law

The appellate jurisdiction of courts of appeal extends to both law and facts. La. Const, art. V, § 10(B). A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that was manifestly erroneous or clearly wrong. Stobart v. State, Dept. of Transp, and Development, 617 So.2d 880, 882, n. 2, (La.1993). When the court of appeal finds that a reversible legal error or manifest error of material fact was made in the trial court, it is required to redetermine the facts de novo from the entire record and render a judgment on the merits. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In reviewing default judgments, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment. Bordelon v. Sayer, 01-0717, p. 3 (La.App. 3 Cir. 3/13/02), 811 So.2d 1232, 1235, writ denied, 02-1009 (La.6/21/02), 819 So.2d 340. This determination is a factual one governed by the manifest error standard of review. Id.

A defendant’s failure to comply with Louisiana Code of Civil Procedure articles 1001 and 1002 exposes the party to a judgment of default. The law and procedure relative to default judgments is set forth in Louisiana Code of Civil Procedure article 1701, et seq. Specifically, in an ordinary proceeding, such as the instant one, a defendant is generally required to file an answer within fifteen (15) days after service of citation upon him. La. C.C.P. art. 1001. A delay is afforded when an exception is filed prior to answer or the trial court grants additional time for | ^answering upon motion. La. C.C.P. art. 1001. Notwithstanding the specified delay periods for answering, a defendant may file his answer at any time prior to confirmation of a default judgment against him. La. C.C.P. art. 1002. However, when the defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him. La. C.C.P. art. 1701(A). 1 Frank L. Maraist, Louisiana Civil Law Treatise: Civil Procedure § 12.3, at 451 (2d ed.2008).

The process for obtaining a default judgment when the defendant has failed to answer a petition timely is uncomplicated. It may be obtained by oral motion in open court or by written motion, entered in the minutes of the court, and the judgment consists merely of a minute entry. La. C.C.P. art. 1701(A); Power Marketing Direct, Inc. v. Foster, 05-2023, p. 10 (La.9/6/06), 938 So.2d 662, 669. A judgment of default is sometimes referred to as a “preliminary default.” Power Marketing Direct, 05-2023 at 10, 938 So.2d at 669.

Thereafter, the judgment of default may be confirmed after two days, exclusive of holidays, from the entry of the judgment of default, that is, on the third “judicial day” after the lapse of two days, which are not judicial holidays, from the entry of the preliminary default La. C.C.P. art. 1702(A).

| ./Confirmation of a default judgment is similar to a trial and requires, with admissible evidence, “proof of the demand sufficient to establish a prima facie case.” La. C.C.P. art. 1702(A); Power Marketing Direct, 05-2023 at 10, 938 So.2d at 670; Maraist, supra, at 452-453. The elements of a prima facie case are established with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant. Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254, 1258 (La.1993); Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989). In other words, the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail at trial on the merits. Thibodeaux, 538 So.2d at 1004. A plaintiff seeking to confirm a default must prove both the existence and the validity of his claim. A default judgment cannot be different in kind from what is demanded in the petition and the amount of damages must be proven to be properly due. La. C.C.P. art. 1703.

At the hearing, the rules of evidence generally apply. La. C.E. art. 1101(A); IsMaraist, supra, at 452-453. The plaintiff must follow the rules of evidence even though there is no opponent. “Because at a default confirmation there is no objecting party, to prevent reversal on appeal, both plaintiff and the trial judge should be vigilant to assure that the judgment rests on admissible evidence” that establishes a prima facie case. George W. Pugh, Robert Force, Gerald A. Rault, Jr., & Kerry Triche, Handbook on Louisiana Evidence Law 677 (2007). Thus, inadmissible evidence, except as specifically provided by law, may not support a default judgment even though it was not objected to because the defendant was not present. 19 Frank L. Maraist, Civil Law Treatise: Evidence and Proof § 1.1, at 5 (2d ed.2007).

There is a presumption that a default judgment is supported by sufficient evidence, but this presumption may be rebutted by the record upon which the judgment is rendered. Ascension Builders, Inc. v. Jumonville, 262 La. 519, 527, 263 So.2d 875, 878 (1972). Finally, a defendant against whom a default judgment is confirmed may not assert an affirmative defense on appeal. Galland v. Nat’l Union Fire Ins. Co. of Pittsburg, Pa., 452 So.2d 397, 398-99 (La.App. 3d Cir.1984); Romero v. Sunsen, 359 So.2d 305, 308 (La.App. 4th Cir.1978).

Evidence of American’s Liability

In addressing the threshold issue of liability, the court of appeal concluded the correspondence directed by Stolthaven’s defense counsel to plaintiffs’ attorney during the course of discovery, coupled with the same memorandum of insurance which accompanied the two letters, constituted sufficient proof to confirm the default judgment under Louisiana Code of Civil Procedure article 1702, in the absence of the |flsubmission of the actual policy of insurance between American and Stoltha-ven. The first letter, dated May 24, 2005, provides:

Please find enclosed the Memorandum of Insurance received from insurance broker Jardine Lloyd Thompson LLC which shows Stolthaven New Orleans LLC is insured with American Home Assurance Company. This Memorandum of insurance should answer your additional discovery requests.
If you have any further questions, please do not hesitate to contact me.

Thereafter, as evidenced by a change of address notice filed in the record, defense counsel for Stolthaven appears to have changed law firms and, on August 4, 2005, a different signatory sent another letter to plaintiffs attorney, which states:

As requested, enclosed is a copy of the Memorandum of Insurance dated May 10, 2005.
If you have any questions, please do not hesitate to let me know. With kindest regards, I am

The memorandum of insurance at issue in these proceedings is dated May 10, 2005, and allegedly executed by Jardine Lloyd Thompson L.L.C., an insurance broker. Specifically, the memorandum of insurance provides:

The policies of insurance listed below have been effected for the insured named below for the policy period indicated. Notwithstanding any requirement, term or condition of any contract or other document with respect to which this memorandum may be issued or may pertain, the insurance afforded by the policies described herein is subject to all the terms, exclusions and conditions of such policies. Limits shown may have been reduced by paid claims.
This memorandum of insurance is issued as a matter of information only and confers no rights upon the Memorandum Holder. This | ^Memorandum of Insurance does not amend, extend or alter the coverage afforded by the policyfies) shown hereon.

The memorandum specifies Stolthaven as the insured and American as the insurer for General Liabilities Policy No. ARS-3054. The memorandum lists the “Type of Insurance” as “Commercial General Liabilities,” with a “Policy Period” of “1 Dec 2001[,] 1 Sep 2003,” and the “Agreed Value or Limits of Liability” as “US$1,000,000 per occurrence!,] US$2,000,000 general aggregate!,] excess of US$250,000 per occurrence!.]” Nothing further is provided. Specifically, there is no indication on the memorandum of insurance of its connection to any party or on whose authority the document was issued. Finally, there is a disclaimer that provides: “Jardine Lloyd Thompson LLC are not insurers hereunder, and Jardine Lloyd Thompson LLC are not nor shall be in any way or to any extent liable for loss or claim whatsoever in connection with the policies evidenced hereon.”

Application of Law

Our jurisprudence holds that when an obligation is based on a writing, prima facie proof of the obligation requires introduction of the writing into evidence. In Ascension Builders, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875, (1972), we set aside a default judgment entered by a trial court finding “a right is nothing without proof of the juridical act or material fact which it has as its origin.” Id,., 262 La. at 529, 263 ■ So.2d at 878. This Court held that “a plaintiff who knows of a writing which is the principal basis for his claims must produce it when it is the best evidence of the facts at issue.” Id. (emphasis added).

As to the case at hand, the American insurance policy is deemed the “principal basis” for the plaintiffs’ claims against the insurance carrier in securing a default [^judgment. Therefore, following Ascension Builders, Inc., it is essential that the insurance policy must be included in the submission of evidence to support a prima facie showing of liability coverage of Stol-thaven that would extend to Mr. Arias for the occurrence that caused his injuries.

Furthermore, a plaintiff seeking to confirm a default must not only prove the existence of his claim, but the validity of his claim. Specifically, the plaintiffs must also establish their right to bring the action directly against American. Louisiana Revised Statute 22:1269, which gives injured persons the right to bring a direct action against an insurer, provides in pertinent part:

B. (1) The injured person or his or her survivors or heirs mentioned in Subsection A, at their option, shall have a right of direct action against the insurer within the terns and limits of the policy; ....
C. It is the intent of this Section that any action brought under the provisions of this Section shall be subject to all of the lawful conditions of the policy or contract and the defenses which could be urged by the insurer to a direct action brought by the insured, provided the terms and conditions of such policy or contract are not in violation of the laws of this state.
D .... it is the purpose of all liability policies to give protection and coverage to all insureds, whether they are named insured or additional insureds under the omnibus clause, for any legal liability said insured may have as or for a tortfeasor within the tewns and limits of said policy. (Emphasis added.)

The statute affords a victim the right to sue the insurer directly on a claim that the insurer maintains a liability policy that covers the risk involved. The statute does not, however, extend the protection of the liability policy to risks that were not covered by the policy or were excluded thereby (at least in the absence of some mandatory coverage provisions in other statutes). Anderson v. Ichinose, 98-2157, p. 9 (La. 19/8/99),12 760 So.2d 302, 307. The statute also specifies limited circumstances when an action can be brought against the insurer alone, generally when the insured is not available. La. R.S. 22:1269 B(l)(a-f).

Louisiana Revised Statute 22:1269 only affords the plaintiffs the right to sue American directly “within the terms and limits of the policy.” Thus, in a case such as this, where the plaintiffs are seeking a default judgment against the insurer, although the insured has answered the petition and denied liability, the terms and conditions of the insurance policy are part of the principal basis for the claims and critical to establishing a prima facie case of the insurer’s liability, as well as the plaintiffs’ right to pursue the insurer alone by default.

As stated, the elements of a prima facie case are established with competent evidence that convinces the court that it is probable that the plaintiff would prevail at trial on the merits. Sessions & Fishman, 616 So.2d at 1258. The plaintiffs contend that the evidence introduced herein, in lieu of the insurance contract, was sufficient to establish a prima facie case with “admissions of insurance and prima facie proof that named the insured and insurer, type of insurance coverage, duration of coverage and coverage amount.” We disagree.

| ^The documentary evidence produced by the plaintiffs at the confirmation hearing did not constitute adequate proof under Louisiana Code of Civil Procedure article 1702 of American’s liability. The memorandum of insurance and the accompanying correspondence were deficient in several respects. Neither the memorandum of insurance, nor the two letters from Stolthaven’s counsel, provided any information about the specific terms of the policy. To the contrary, the memorandum expressly stated that its application was limited by the terms and conditions of the policy, providing that “the insurance afforded by the policies described herein is subject to all the terms, exclusions and conditions of such policies.” The memorandum even expressly warned of its inaccuracy, because the policy limits referenced therein might have been reduced by claims made subsequent to its issuance.

Additionally, the May 24, 2005 letter from Stolthaven’s attorney accompanying transmission of the memorandum of insurance informed counsel for the plaintiffs that any questions regarding the matter could be further addressed upon inquiry. The subsequent correspondence, dated August 4, 2005, contained a similar provision. We find no indication from either of the letters or the memorandum of insurance that the information contained therein was provided as, or intended to be, a complete disclosure of the terms and conditions of the policy. Thus, we find that the evidence introduced to confirm the default judgment was not sufficient to establish a prima facie case of coverage and liability by American for the plaintiffs’ damages in the absence of. the admission of the insurance policy itself.

Moreover, we find no merit in the plaintiffs’ reliance on Succession of Rock v. Allstate Life Ins. Co., 340 So.2d 1325 (La. 1976), to overcome their mandatory burden to produce the contract of insurance at issue. The only exception to the rule | uset out in Ascension Builders, Inc. and followed herein, requiring that the written instrument upon which a default judgment is premised be introduced into evidence, was articulated by this Court in Succession of Rock. In affirming a default judgment entered against an insurer, this Court recognized that, although the insurance policy at issue was not introduced into evidence in confirming the default judgment, all of the salient insurance contract provisions upon which the plaintiffs suit was based were part of the request for admissions made by the plaintiff to the insurer. The Court noted that, under the law, each matter of which an admission is requested is deemed admitted unless the party to whom the request was directed, timely answers the request denying the matters and setting forth the reasons why he cannot truthfully admit or deny the matters, or objecting on the grounds of privilege or irrelevance.

In Succession of Rock, the insurer did not timely respond to the request for admissions, so the matters therein were deemed admitted. The Court therein expressly distinguished Ascension Builders, Inc. noting that the terms and conditions of the contract forming the basis of the cause of action in that case were not admitted. Accordingly, the Court carved out an exception to the written instrument mandate set forth in Ascension Builders, Inc. for those limited instances where the admission of all essential contract provisions upon which a suit is based has been requested of the opposing party and, upon that party’s failure to answer, they have been deemed admitted.

Relying on Succession of Rock, the plaintiffs contend that, since they submitted discovery requests for policy information and received only the attorney letters and a memorandum of insurance in response, any deficiencies or omissions in the responses should be deemed admitted. The plaintiffs urge, in light of Stolthaven’s incomplete responses to discovery requests propounded to it, the balance of the 11sadmissions and documents requested should be deemed admitted and the admission considered as evidence to confirm the default.

Contrary to the plaintiffs’ assertions, we find Succession of Rock clearly distinguishable from the instant case. First, and foremost, there is nothing in the record to indicate that any discovery was directed to the insurer, American. The only discovery found in the record relating to Stolthaven or American was propounded by the plaintiffs to Stolthaven in the form of interrogatories, not requests for admissions. The memorandum of insurance was introduced into evidence as part of an exhibit with Stolthaven’s objections and answers to the plaintiffs’ first set of interrogatories. We know of no code article, statute or case, and none has been cited, that allows a failure to respond, or an inadequate response, to discovery by one party to result in an admission of facts to the detriment of another party.

Additionally, the discovery requests that were made, and upon which the plaintiffs rely, were in the form of interrogatories and not requests for admissions. While both written interrogatories and requests for admissions are methods of discovery, there are important differences between them. Of particular relevance, the remedy for failing to timely or adequately answer written interrogatories is for the party submitting the interrogatories to move for an order to compel. La. C.C.P. art. 1458. Following such motion and a hearing, the court may grant the order to compel 11(iand require the party whose conduct necessitated the motion to pay to the moving party the reasonable expenses incurred, including attorney’s fees. La. C.C.P. art. 1469. If the party fails to comply with the court order compelling discovery, the court may, among other options, thereafter order that the matters subject to the motion be taken as established. La C.C.P. art. 1471. On the other hand, when a request for an admission is made, “[t]he matter is admitted unless, within fifteen days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter.... ” La. C.C.P. art. 1467.

CONCLUSION

Accordingly, we conclude the plaintiffs failed to sustain their burden of proof under Louisiana Code of Civil Procedure article 1702 for purposes of confirming the default judgment against American. The insurance agreement between American and Stolthaven, with its terms and conditions, was the principal basis for the assertion of plaintiffs’ claims against American. Therefore, without the admission of the insurance policy into evidence at the hearing to confirm the default judgment, the plaintiffs did not establish a prima facie case of American’s liability under the facts. We do not find the exception to the written instrument mandate articulated in Succession of Rock, applicable to these proceedings. Finding the plaintiffs failed to sustain their burden in this regard, any discussion of American’s remaining assignments regarding adequate proof of causation and damages is pretermitted and does not warrant our further consideration.

DECREE

For the foregoing reasons, we reverse the decision by the court of appeal and vacate the default judgment rendered and confirmed by the trial court in favor of 1 i7Arsenio and Lorena Arias and against American Home Assurance Company. The matter is remanded to the trial court for further proceedings.

COURT OF APPEAL JUDGMENT REVERSED; TRIAL COURT JUDGMENT VACATED; CASE REMANDED.

      . The name of Stolthaven’s insurer was unknown to the plaintiffs when suit was filed. Also named as defendants, but not relevant to the issues pending before this Court, were Stolt-Nielsen Transportation Group Inc. a/li/a Stolt-Nielsen, its unknown insurer, DEF Insurance Company, Certified Coating, Inc., its unknown insurer, GHI Insurance Company, Kenneth Hebert, Per Voy, and Kirk Skiles.

      . Mr. Arias represented the interests of his minor children: Joseph, Jeremy, Natalie, Mayra, and David Arias.

      . While not subject of the instant proceedings, the additional defendants named in the litigation were the Louisiana Workers' Compensation Corporation (hereafter, "LWCC”), Joe Woods, and Barbara Gilchrist. The LWCC had already filed a motion for intervention in the lawsuit.

      . In this decision, the court of appeal affirmed the Office of Workers' Compensation ruling that Mr. Arias was entitled to compensation benefits as a result of the acrylonitrile exposure at issue in these proceedings, but amended the amount of the award.

      . Damages were apportioned as follows: $2,338,140.10 in general damages; $439,512.07 in medical specials; $858,427.00 in lost wages; $50,000.00 for Mrs. Arias and $5,000.00 for each of the five children representing loss of consortium and financial support.

      . Louisiana Code of Civil Procedure article 1001 provides:
      A defendant shall file his answer within fifteen days after service of citation upon him, except as otherwise provided by law.
      When an exception is filed prior to answer and is overruled or referred to the merits, or is sustained and an amendment of the petition ordered, the answer shall be filed within ten days after the exception is overruled or referred to the merits, or ten days after service of the amended petition.
      The court may grant additional time for answering.

      . Louisiana Code of Civil Procedure article 1701(A) provides:
      A. If a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him. The judgment may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes.

      . Louisiana Code of Civil Procedure article 1702 provides in pertinent part:
      A. A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default. When a judgment of default has been entered against a party that is in default after having made an appearance of record in the case, notice of the date of the entry of the judgment of default must be sent by certified mail by the party obtaining the judgment of default to counsel of record for the party in default, or if there is no counsel of record, to the party in default, at least seven days, exclusive of holidays, before confirmation of the judgment of default.
      B. (1) When a demand is based upon a conventional obligation, affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment.
      (2) When a demand is based upon a del-ictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in tire form of oral testimony before entering judgment.

      D. When the demand is based upon a claim for a personal injury, a sworn narrative report of the treating physician or dentist may be offered in lieu of his testimony.

      .Louisiana Code of Civil Procedure article 1703 provides:
      A judgment by default shall not be different in kind from that demanded in the petition. The amount of damages awarded shall be the amount proven to be properly due as a remedy.

      . Louisiana Code of Evidence article 1101(A) provides, in pertinent part:
      Except as otherwise provided by legislation, the provisions of this Code shall be applicable to the determination of questions of fact in all contradictory judicial proceedings and in proceedings to confirm a default.

      . There are two statutory exceptions to this rule when the demand is based upon a conventional obligation, proof by affidavit can be sufficient, and when the demand is in tort, the plaintiff must testify but affidavits can be used for corroborating evidence. See La. C.C.P. art. 1702(B).

      . When introduced at the hearing to confirm the default, the August 4, 2005 letter was introduced as part of Exhibit 27, noted as "Stolthaven’s discovery responses,” which contains both the questions and the answers for interrogatories directed by the plaintiffs to Stolthaven. The May 10, 2005 document was introduced as Exhibit 32.

      . The memorandum of insurance contains a paragraph, not relevant here, concerning the "Several Liability” of subscribing insurers, noting that their obligations are several and not joint and limited solely to the extent of their individual subscriptions.

      . Prior to the numerical redesignation by Acts 2008, No. 415 § 1, effective January 1, 2009, Louisiana Revised Statute 22:1269 was designated as Louisiana Revised Statute 22:655. No change was made in the substance of the statute.

      . Louisiana Revised Statute 22:1269(B)(1) provides in pertinent part:
      [SJuch action may be brought against the insurer alone only when:
      (a) The insured has been adjudged a bankrupt by a court of competent jurisdiction or when proceedings to adjudge an insured a bankrupt have been commenced before a court of competent jurisdiction;
      (b) The insured is insolvent;
      (c) Service of citation or other process cannot be made on the insured;
      (d) When the cause of action is for damages as a result of an offense or quasi-offense between children and their parents or between married persons;
      (e)When the insurer is an uninsured motorist carrier; or (0 The insured is deceased.
      We note that following the addition of this section, generally requiring the inclusion of the insured in any action against the insurer, there may be a question of whether a default judgment can be pursued against the insurer alone, where the insured has answered the suit.

      . There is no indication in the record that the memorandum of insurance was attached to the answers to interrogatories submitted by Stolthaven to plaintiffs' first set of interrogatories. It is clear they were introduced into evidence as part of exhibit 27, which was referenced on the exhibit list as Stolthaven Discovery Responses. Included in the answers, but not relevant herein, were those of Stolt-Nielsen Transportation Group Inc., Per Voie (erroneously named Voy in the petition) and Kirk Skiles.

      . It is also noted that the interrogatories propounded to Stolthaven, even if considered, did not request information with the same degree of particularity as did the questions considered in Succession of Rock, infra. Only two interrogatories referenced insurance policies, Interrogatories 5 and 8, and both asked for any insurance company that "maybe [sic] liable to satisfy part or all of the judgment." An admission that an insurance company might be liable for part of the judgment would not be prima facie proof of that company’s liability by default for all of the plaintiffs’ damages as alleged.


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

text:
    Monique Bossiere DEJOIE v. The Honorable Lloyd J. MEDLEY, Jr., et al.
    No. 2008-C-2223.
    Supreme Court of Louisiana.
    May 5, 2009.
    Rehearing Denied May 29, 2009.

      James D. Caldwell, Attorney General, Hymel, Davis & Petersen, L.J. Hymel, Jr., Michael Reese Davis, Baton Rouge, Tim Paul Hartdegen, Special Assistant Attorneys General, for applicant.
    Moore, Walters, Thompson, Thomas, Pa-pillion & Cull, David Abboud Thomas, Charles Roger Moore, Baton Rouge, for respondent.
   WEIMER, Justice.

|, This matter is before this court following a motion for summary judgment filed by the State of Louisiana, the sole remaining defendant, seeking dismissal of plaintiffs suit alleging gender and pregnancy discrimination based on the Louisiana Employment Discrimination Law (LEDL). LSA-R.S. 23:301, et seq. The appellate court reversed the trial court judgment in favor of the State. The State applied for writ of certiorari which this court granted.

For reasons that follow, we reverse the ruling of the court of appeal and reinstate the decision of the trial court granting the State’s motion for summary judgment and dismissing plaintiffs suit. We find that for the purposes of the LEDL, plaintiff is not a state employee because the State did not provide compensation to the plaintiff.

FACTS AND PROCEDURAL HISTORY

Monique Bossiere Dejoie began working as a clerk in the Civil District Court (CDC) for the Parish of Orleans on October 23, 1995. Initially she worked with Judge Niles Hellmers. In January 1997, plaintiff was assigned to Division D as a 12minute clerk and worked with Judge Lloyd Medley, Jr. At all times pertinent to this litigation, Ms. Dejoie was paid through the Judicial Expense Fund (JEF). In January 2000, she took a maternity leave of absence. In early 2003 she again became pregnant. On May 21, 2003, the employees who were paid through the JEF were notified by letter that paid short-term disability benefits would be discontinued subject to one exception. Any employee having a surgical procedure prior to July 1, 2003, and any employee delivering a baby before year-end would be permitted to exercise a one-time short-term disability option provided the request was submitted on or before May 30, 2003. Ms. Dejoie complied and was granted a sixty-day leave.

Having experienced complications with her pregnancy, Ms. Dejoie submitted a request that her paid short-term disability be extended an additional 60 days. During the October 2003 meeting, the court sitting en banc denied that request. However, Ms. Dejoie was granted an extended unpaid leave of absence.

During the time Ms. Dejoie was on extended leave, Judge Medley restructured his office. Upon her return, Ms. Dejoie was notified that the position of minute clerk had been eliminated.

Plaintiff filed a claim alleging gender and pregnancy discrimination based on the provisions of the LEDL, naming as defendants, the Honorable Lloyd J. Medley, Jr., the Judicial Expense Fund of the CDC for the Parish of Orleans, and the State of Louisiana through the CDC for the Parish of Orleans. An amended petition added the judges of the CDC for the Parish of Orleans and the First and Second City Courts of New Orleans sitting “En Banc,” as well as numerous individual judges.

Following a series of motions, exceptions, and trial court rulings, the parties filed for supervisory writs. After all the judges of the Fourth Circuit Court of Appeal |3recused themselves, this court reassigned the case to the Second Circuit Court of Appeal. The writs were converted to an appeal. The appellate court reversed the granting of the exception of lack of procedural capacity of the State through the CDC, reversed the denial of the exception of lack of procedural capacity of the JEF, affirmed the granting of the exception of lack of procedural capacity to the Judges en banc, and, on its own motion, held that plaintiff failed to state a cause of action as to the individual judges. The district court judgment was affirmed in part, reversed in part, and remanded for further proceedings. Dejoie v. Medley, 41,333 (La.App. 2 Cir. 12/20/06), 945 So.2d 968. Following that decision by the Second Circuit, the State of Louisiana was the only remaining defendant in the lawsuit.

Subsequently, the State filed a motion for summary judgment alleging that pursuant to the definition of “employer” contained in the LEDL, the State was not plaintiffs employer as it did not give compensation to plaintiff and did not receive services from plaintiff. The trial court conducted a hearing on the motion for summary judgment, granted the State’s motion and dismissed plaintiffs suit. Plaintiff appealed. Because of the recusal of the judges of the Fourth Circuit Court of Appeal, this court again transferred the case to the Second Circuit Court of Appeal.

The appellate court found that the judges of the CDC, as members of the state judiciary, paid plaintiffs salary from the JEF for work performed for the court. Thus, the court reasoned that the State received services from the plaintiff and in return gave her compensation. Finding the State was plaintiffs employer for purposes of the LEDL, the court of appeal reversed. Dejoie v. Medley, 43,448 (La.App. 2 Cir. 8/13/08), 990 So.2d 1291.

The State applied for a writ of certiorari which this court granted to determine the propriety of the decision of the court of appeal. Dejoie v. Medley, 08-2223 (La. [11/26/08),4 997 So.2d 540.

DISCUSSION

In brief to this court, the State argues the appellate court erred in holding the State gave plaintiff compensation and in concluding the State was plaintiffs employer for the purposes of the LEDL. The State argues it did not provide plaintiff with wages, benefits, or any other form of compensation.

The plaintiff argues, consistently with the court of appeal’s finding, that the source of the funds used to pay her compensation is irrelevant. The plaintiff argues the judges of the CDC are part of the state judiciary and each judge is an agent of the State. By providing services to the judiciary, plaintiff claims she is providing services to the State. Since the judges control expenditure of the funds in the JEF, plaintiff contends it is the State through the CDC that gives her compensation.

We are called upon to determine whether plaintiff, who was employed to work with a judge of the CDC of the Parish of Orleans and who was paid compensation from funds in the JEF, is an employee of the State based on the provisions of the LEDL, now LSA-R.S. 23:301, et seq. We look to the following definitions in LSA-RS. 23:302:

(1) “Employee” means an individual employed by an employer.
| ñ(2) “Employer” means a person, association, legal or commercial entity, the state, or any state agency, board, commission, or political subdivision of the state receiving services from an employee and, in return, giving compensation of any kind to an employee. The provisions of this Chapter shall apply only to an employer who employs twenty or more employees within this state for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. “Employer” shall also include an insurer, as defined in R.S. 22:46, with respect to appointment of agents, regardless of the character of the agent’s employment.

The courts, in deciding cases under the prior definition of “employer,” recognized that determination of the existence of an employer-employee relationship ordinarily relates to the right of control; however, the legislature assigned a specific definition for “employer” for purposes of the discrimination statute. In determining whether an employer provides compensation to an employee, Louisiana courts have considered such factors as: who paid the employee’s wages; who withheld federal, state, unemployment, or social security taxes; whether the employee’s name appeared on the employer’s payroll; and whether the employee participated in the employer’s benefit plans. See Duplessis v. Warren Petroleum, Inc., 95-1794 (La.App. 4 Cir. 3/27/96), 672 So.2d 1019, 1023; Onyeanusi v. Times-Picayune Publishing Corporation, 485 So.2d 622, 623 (La.App. 4 Cir.1986).

The critical language of LSA-R.S. 23:302(2) is the phrase “receiving services from an employee and, in return, giving compensation of any kind to an employee.” The narrow issue presented for review is whether the State received services from plaintiff and gave compensation of any kind to plaintiff.

| ,;The starting point for the interpretation of any statute is the language of the statute itself. SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695, p. 12 (La.6/29/01), 808 So.2d 294, 302; Cat’s Meow, Inc. v. City of New Orleans, Department of Finance, 98-0601, p. 15 (La.10/20/98), 720 So.2d 1186, 1198. When a statute is clear and unambiguous and its application does not lead to absurd consequences, the statute is applied as written, and no further interpretation may be made in search of legislative intent. See LSA-C.C. art. 9; LSA-R.S. 1:4.

We begin with an analysis of the statutory definition of “employer” contained in the LEDL. The legislature gave “employer” a specific definition which governs in an action alleging discrimination in employment based on the LEDL. To be an employer for the purposes of the LEDL one must 1) receive services from an employee and in return give compensation to that employee and 2) must meet the requirement of a minimum number of employees (currently twenty or more).

In determining whether an employer gave compensation, factors to consider include: who paid the employee’s wages; who withheld federal, state, unemployment, or social security taxes; whether the employee’s name appeared on the employer’s payroll; and whether the employee participated in the employer’s benefit plans. Central to the determination of whether one is an employer for purposes of the LEDL is whether the defendant paid the plaintiffs wages and withheld federal, state, unemployment, or social security taxes from his check. Onyeanusi, 485 So.2d at 623. In evaluating each factor, we find it was the JEF which gave compensation.

17The parties do not dispute the fact that Ms. Dejoie was originally employed as a minute clerk for Judge Hellm-ers and later assigned to Judge Medley. Also undisputed is the fact that plaintiff received compensation and benefits through the JEF. The record indicates, and plaintiff has admitted, that she was paid through the JEF. Plaintiffs paychecks were processed through the JEF account. Federal and state tax forms, such as the W-2, listed the JEF as plaintiffs employer, indicating a federal employer’s identification number and a State employer’s identification number for the JEF.

In determining whether the State gave the plaintiff compensation and was thus the plaintiffs employer pursuant to the LEDL, it is necessary to consider the source of the funds used to compensate the plaintiff. The legislature granted authority for each judge of the CDC to appoint one minute clerk to be paid wages fixed by the court en banc. LSA-R.S. 13:1211. Additionally, the judges of the CDC and First and Second City Courts for the Parish of Orleans, en banc, were granted authority to appoint court personnel and “fix and pay all or any part of the salaries of such personnel out of the monies in the judicial expense fund.” LSAR.S. 13:1312(C).

The funds contained in the JEF are not State funds but are self-generated funds collected pursuant to the provisions of LSA-R.S. 13:1312. All monies received by|8the State or by any state board, agency, or commission shall be deposited immediately upon receipt in the state treasury, according to La. Const, art. 7, § 9. The funds received by the JEF are not placed in the state treasury.

A statute addressing state funds is LSA-R.S. 49:308, which provides, in part:

A. All money received by the state or by any state board, commission, or agency shall be deposited immediately upon receipt in the state treasury, except that received:
(7) By a levee district or political subdivision, unless the full faith and credit of the state is pledged to the payment of the bonds of the levee district or political subdivision.
E. (1) “State or state board, agency, or commission”, as used in Subsection A of this Section, means any state office, department, board, commission, institution, division, officer, or other person or functional group authorized to exercise or that does exercise any functions of the government of the state.
(2) The term does not include:
(a) Offices and officers referred to in Article V [Judicial Branch] of the constitution of Louisiana.
F. “Political subdivision” as used in Paragraph (7) of Subsection A of this Section means any judicial circuit, judicial district, office of public defender within a judicial district, school board, parish, municipality, or any other unit of local government, including a special district authorized by law to perform governmental functions. The term special district includes a parishwide special district, a special district within a parish, multi-parish districts, and all port authorities, boards, commissipns and districts.

Thus, the statute provides for immediate deposit of state funds, but the funds of the judicial branch, as designated in the Louisiana Constitution, and the political | subdivisions, as described in the statute, are excepted by the statute from the deposit requirement. Considering the above referenced provisions, we conclude the funds in the JEF are not state funds.

The court of appeal held that the source of the funds for the payment of the plaintiffs salary was irrelevant. We disagree. Based on the language of the definition of “employer” utilized in the statute, the source of the funds is essential to the analysis. In this instance, the State did not give compensation as required by the LEDL because no state funds were involved in compensating the plaintiff. This determination is consistent with the narrow and specific definition of “employer” in the LEDL. All of the funds used to compensate the plaintiff were self-generated funds deposited into the JEF account and were not state funds.

Simply stated, the State, for purposes of the LEDL, is not the plaintiffs employer because the State did not give compensation of any kind to her.

In light of this analysis, we consider whether summary judgment is appropriate. A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. The summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action and shall be construed to accomplish these ends. LSA-C.C.P. art. 966(A)(2). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Sehroeder v. Board of Supervisors ofLoui- siana State University, 591 So.2d 342, 345 (La.1991). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. LSA-C.C.P. art. 966(B).

| inWhen a motion for summary judgment has been made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits oí-as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967(B).

The State argues it met its burden under LSA-C.C.P. art. 966(C)(2) by showing that all compensation and benefits provided to plaintiff came from the JEF and were not state funds. The burden, therefore, shifted to plaintiff to prove that the State gave her compensation. The State argues that plaintiff submitted no evidence showing that the State gave compensation. Since there was no issue of material fact regarding compensation, the State argues it was entitled to summary judgment.

We find that the State has met its burden of proof that the funds used to compensate plaintiff are JEF funds. The plaintiff failed to rebut this factually. Additionally, based on the legal analysis conducted above, the funds in the JEF are not state funds. Thus, the facts and law establish that the State did not give plaintiff compensation and, thus, was not her employer for purposes of the LEDL. The trial court judgment granting the State’s motion for summary judgment was correct.

Under the terms of the LEDL, the employer must both receive services from an employee and, in return, give compensation of any kind to an employee. Finding that the State did not provide compensation to plaintiff and was, thus, not her employer for purposes of the LEDL, we pretermit the issue of whether the State received plaintiffs services.

|n CONCLUSION

For the foregoing reasons, we reverse the ruling of the court of appeal and reinstate the judgment of the trial court granting the State’s motion for summary judgment and dismissing plaintiffs suit.

REVERSED. TRIAL COURT JUDGMENT REINSTATED.

JOHNSON and VICTORY, JJ., dissent and assign reasons.

JOHNSON, Justice,

dissents.

Li respectfully disagree with the majority’s decision to reverse the ruling of the court of appeal and reinstate the trial court’s decision to grant the State’s motion for summary judgment.

In analyzing whether the State of Louisiana is the Plaintiffs employer under the Louisiana Employment Discrimination Law, LSA-R.S. 23:302 provides in pertinent part that:

(1) “Employee” means an individual employed by an employer.
(2) “Employer” means a person, association, legal or commercial entity, the state, or any state agency, board, commission, or political subdivision of the state receiving services from an employee and, in return, giving compensation of any kind to an employee. The provisions of this Chapter shall apply only to an employer who employs twenty or more employees within this state for each working day in each of twenty or more calendar weeks in the current or preceding....

The abovementioned statute provides that there are two requirements needed to be classified as an “employer,” i.e., the entity must receive services and give compensation. In this matter, Plaintiff was hired or appointed as a minute clerk by Judge Lloyd Medley, a member of the state’s judiciary, and received compensation from the Court’s Judicial Expense Fund for her duties which expedited the | .¿functioning of the Civil District Court.

Pursuant to LSA-Const. Art. 5, Sec. 1, the judicial power of the state is constitutionally vested in the courts. I agree with the appellate court’s determination that the judiciary, although a separate branch of state government, is an agency of the state. The judges created the Judicial Expense Fund, by statute to collect fees, and pay the salaries of employees, and other expenses of operating the civil courts. According to LSA-R. S. 13:1211, “each judge of Civil District Court shall appoint one minute clerk, who shall be sworn as deputy clerk, and shall receive a salary as the court en banc may fix.”

The Judicial Expense Fund is controlled and disbursed by the judges of Civil District Court en banc. Contrary to the representations made, the Civil Court’s Judicial Expense Fund employs more than 25 persons, and would be subject to a claim for discrimination under LSA-R.S. 23:302 and LSA-R.S. 23:341(A). The source of the funds should not be the determining factor in deciding whether Plaintiff is a state employee. The State argues that Plaintiffs claim is defeated because she was paid with self generated filing fees, rather than with monies from the State Treasury. In my view, Plaintiff provided services for a state agency, and was therefore a state employee, despite the fact that she was paid directly by the Judicial Expense Fund.

VICTORY, J.,

dissenting.

U dissent from the majority opinion holding that the State is not the plaintiffs employer for purposes of the Louisiana Employment Discrimination Law (“LEDL”), La. R.S. 23:301, et seq. La. R.S. 23:303 gives a plaintiff who has a cause of action under the LEDL the right to sue his or her “employer” for damages. In this case, the plaintiff alleged gender and pregnancy discrimination against Judge Medley (in whose section of court she was assigned), the Judicial Expense Fund of the Civil District Court of Orleans Parish (“JEF”) (the fund that issued her paycheck), and the State through the CDC for Orleans Parish, as well as numerous individual and groups of judges. At the time this motion for summary judgment was filed, the State was the only remaining defendant.

La. R.S. 23:302(2) defines “employer,” in pertinent part, as “a person, association, legal or commercial entity, the state, or any state agency, board, commission, or political subdivision of the state receiving services from an employee and, in return, giving compensation of any kind to an employee.” The majority opinion concludes that the State is not the plaintiffs employer because the source of the funds used to pay her wages, the JEF, are not state funds. I disagree with this analysis.

The plaintiff in this case was hired by judges of the CDC, and those judges are part of the state judiciary. The state pays the salaries of all state judges. The plaintiff | .¿provided services to the judges, i.e., the state. In return, the plaintiff was paid compensation by these state judges through the JEF. Pursuant to La. R.S. 13:1312(A), the judges, en banc, of the CDC and the First and Second City Courts of the City of New Orleans “shall have control over the fund and all disbursement made therefrom.” La. R.S. 13:1312(C) gives the judges the power to “appoint such secretarial, clerical, research, administrative, or other personnel as they deem necessary to expedite the business and function of the court and fix and pay all or any part of the salaries of such personnel out of the monies in the judicial expense fund.” There is no doubt that the funds in the JEF are self-generated funds that are not required to be deposited in the state treasury. However, that does not mean that they are not state funds, for the judges of the CDC are members of the state judiciary and they have control over these funds. Further, the majority’s holding suggests that this plaintiff can never sue anyone under the LEDL for gender discrimination because she has no employer at all under the LEDL. The majority opinion says that although she is paid through the JEF, she does not provide services to the JEF as required by La. R.S. 23:302(2). Finally, the plaintiff has sued “the State of Louisiana through the CDC for the Parish of Orleans.” Surely, the CDC is her employer as the CDC is “receiving services from [the plaintiff] and, in return giving compensation” to her through the JEF. The CDC cannot logically be “the State” for the purposes of receiving services, but not “the State” for the purpose of giving compensation. Because this opinion results in the unfair and illogical holding that the plaintiff has no employer at all for purposes of the LEDL, I respectfully dissent.

      . LSA-R.S. 23:301, et seq.

      . Prior to 1997, Louisiana’s employment discrimination law was found in LSA-R.S. 23:1006-1008. LSA-R. S. 23:1006-1008 was repealed by 1997 La. Acts, No. 1409 § 4, eff. Aug. 1, 1997. Under Section 1 of the same act, the current statute, LSA-R.S. 23:301, et seq., was added.
      Former LSA-R.S. 23:1006 provided in part:
      A. (1) For the purpose of this Part, "employer” means and includes a person, association, legal or commercial entity, labor union, employment agency, the state, its agencies, boards, commissions, or political subdivisions receiving services from an individual and in return giving compensation of any kind to said individual and who employs more than fifteen employees.
      This language is virtually identical to the current provision.

      . Several federal district court cases have addressed the issue of determining who the "employer” was for purposes of a discrimination claim in Louisiana. See Dorgan v. Foster, 2006 WL 2457118 (E.D.La.2006); Seal v. Gateway Companies, Inc., 2002 WL 10456 (E.D.La.2002); Langley v. Pinkerton's Inc., 220 F. Supp.2d 575 (M.D.La.2002); McKee v. Gulf States Specialties, Inc., 2001 WL 1143167 (E.D.La.2001). These courts adopted the same analysis and considered the same factors as the state courts in determining who is an employer for the purpose of the LEDL.

      . In argument before this court, the State did not contest whether the plaintiff provided services to the State.

      . LSA-R.S. 13:1312 provides, in pertinent part:
      A. The clerk of the Civil District Court, the clerks of the First and Second City Court, the register of conveyances, and the recorder of mortgages shall place all sums collected or received under this Section in a separate account to be designated as the Judicial Expense Fund for the Civil District Court for the Parish of Orleans. The judges, en banc, of the Civil District Court for the Parish of Orleans and the First and Second City Courts of the city of New Orleans shall have control over the fund and all disbursements made therefrom....
      B. The judges of the Civil District Court for the Parish of Orleans and the First and Second City Courts of the city of New Orleans, sitting en banc, shall have control over the judicial expense fund for the parish of Orleans, accruing and accrued, and to this end shall fix and regulate from time to time the number of deputies and employees of the offices of the clerk of the Civil District Court, the city courts, register of conveyances, and recorder of mortgages of said parish and their expenses, and also shall have the power to fix the tariff of costs and charges to be paid for official services in said offices, which are paid into, and constitute said fund.

      . It should be noted not every employee is statutorily entitled to bring a cause of action for discrimination pursuant to the LEDL. For example, an employer which does not meet the requisite minimum number of employees prescribed by the statute does not fit within the statute.


author: JOHNSON, J.,

text:
    STATE of Louisiana v. Christopher BROWDER.
    No. 2009-KK-1060.
    Supreme Court of Louisiana.
    May 13, 2009.
    JOHNSON, J., would grant the writ application and assigns reasons.
   JOHNSON, J.,

would grant the writ application and assigns reasons.

| Jfhe trial court erred in denying Christopher Browdei*’s (Browder) request for Subpoena Duces tecum based on the possibility that the requested documents might contain confidential material. The state has the burden to file a motion to quash a Subpoena Duces Tecum if it believes that the requested information is confidential, or would be unduly burdensome, or unreasonable.

In the case at bar, Browder, a defendant in a capital murder case, sought to subpoena SID information sheets for use at a hearing on a Motion to Suppress Identification. The SID information sheets were used in a photo lineup to create filler photographs in a lineup that included Brow-der. The SID information sheets were generated using a computer program that automatically generates five filler photographs based on parameters, or physical characteristics, which are manually input by a requesting police officer. Browder alleged that the parameters inputted by the detective, called SID information sheets, which reflect physical characteristics such as age, race, weight, skin color, hair color, etc., did not match the significant characteristics from the witness’ description of the gunman. In particular, the skin tone that the witness described was very dark, while the information input by Detective Harbin was allegedly a person of medium skin tone.

|20n April 20, 2009, Browder filed a motion for a Subpoena Duces Tecum to produce the SID information sheets for the fillers used in the photo lineup. On May 4, 2009, the trial Court denied the motion ruling that the defense would have an opportunity to question the detective about the parameters used in creating the photo lineup, and stated that the requested information might be confidential. Browder moved for an in camera inspection of the SID information to redact any confidential information and the trial court denied that motion as well.

There has been no showing by the state that the information sought is unduly burdensome, unreasonable or confidential. Rather, the trial court expressed concern that the information sought might be confidential and that the ability of Defendant to question the Detective who input the SID information would suffice. It is the State’s burden to show confidentiality and/or that a request for Subpoena Duces tecum should be quashed. State v. Phillips, 465 So.2d 794, 795 (La.App. 4th Cir.1985). Accordingly, I would grant the writ application.


author: PER CURIAM.

text:
    In re Nancy Eileen JOHNSON.
    No. 2009-B-0057.
    Supreme Court of Louisiana.
    May 22, 2009.
   | ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

UNDERLYING FACTS

In 2001, respondent advised the Louisiana State Bar Association (“LSBA”) that she wished to assume inactive status. On July 1, 2001, the LSBA placed respondent on inactive status. As a result, respondent was no longer eligible to practice law “until and unless the lawyer requests and is granted reinstatement to the active rolls.” To date, respondent has made no such request, and thus she has never been reinstated to the roll of attorneys who are permitted to practice law in Louisiana.

Nonetheless, in July 2006, respondent began representing Barbara Johnson Craig in a divorce, community property, and child custody matter captioned Kendall Eugene Craig v. Barbara Johnson Craig, No. 148564 on the docket of the 32nd Judicial District Court for the Parish of Terrebonne. During the representation, respondent filed an answer and re-conventional demand on behalf of Ms. Craig, as well as interrogatories, a request for production of documents, and a subpoena duces tecum. On July 28, 2006, attorney Eldon Harrall, who represented the plaintiff in the case, filed a motion to remove respondent as Ms. Craig’s counsel of record due to her inactive status. He also filed a complaint against respondent with the ODC. Respondent failed to cooperate with the ODC in its investigation of the complaint.

DISCIPLINARY PROCEEDINGS

Formal Charges

In February 2008, the ODC filed two counts of formal charges against respondent, alleging she violated Rules 5.5(a) (engaging in the unauthorized practice of law), 8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct. Respondent failed to answer or otherwise respond to 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 determined that the formal charges are deemed admitted and proven by clear and convincing evidence. Thus, the committee found that respondent violated the Rules of Professional Conduct as alleged in the formal charges. The committee determined that respondent knowingly and intentionally violated duties owed as a professional. She caused harm to her client and the legal system and caused serious harm to the public and the legal profession. The committee determined that the applicable baseline sanction is a period of suspension.

In aggravation, the committee found bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, submission of false evidence, false statements, or other deceptive practices during the disciplinary process, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim, and substantial experience in the practice of law (admitted 1988). The only mitigating factor found by the committee is the absence of a prior disciplinary record.

Considering the court’s prior jurisprudence in matters involving similar misconduct, the committee recommended that respondent be suspended from the practice of law for one year and one day.

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

Disciplinary Board Recommendation

After review, the disciplinary board found that the hearing committee’s factual findings are supported by the factual allegations asserted in the formal charges, which 14are deemed admitted, and/or by the documentary evidence submitted in support of the allegations. The board also determined that the committee correctly concluded respondent violated the Rules of Professional Conduct as charged.

Based on these findings, the board determined that respondent knowingly and intentionally violated duties owed to her client, the legal system, and the legal profession. Respondent’s conduct caused actual harm to her client, the public, and the legal system. Moreover, there was a potential for serious harm because the Craig case involved child custody issues. Because of this potential for serious harm, the board determined that the baseline sanction is disbarment under the ABA’s Standards for Imposing Lawyer Sanctions.

The board agreed with the aggravating and mitigating factors found by the committee. However, the board noted that, while respondent has substantial experience in the practice of law, she has been inactive during some of her many years as an attorney. Furthermore, the board determined that, even if the baseline sanction was suspension, the numerous aggravating factors present would justify an upward deviation to disbarment.

Based on this reasoning, the board recommended that respondent be disbarred. One board member dissented and would recommend permanent disbarment.

Although neither respondent nor the ODC filed an objection to the board’s recommendation, on April 13, 2009, this court ordered briefing addressing the issue of an appropriate sanction.

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: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992).

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 supports a finding that respondent engaged in the unauthorized practice of law by filing pleadings in the Craig case while her status with the LSBA was inactive. She also failed to cooperate with the ODC’s investigation of Mr. Har-rall’s complaint against her. This conduct violated the Rules of Professional Conduct as alleged in the 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).

Respondent knowingly, if not intentionally, violated duties owed to her client, the legal system, and the legal profession. Her conduct caused actual harm to her client, the legal system, and the disciplinary system.

The record supports the aggravating factors of bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim, and substantial experience in the practice of law (admitted 1988). The only mitigating factor present is the absence of a prior disciplinary record.

The disciplinary board has recommended that respondent be disbarred for practicing law while she was inactive. Without minimizing the seriousness of respondent’s misconduct, we find disbarment is unduly harsh under the circumstances. Instead, taking into account all the interests to be served by the lawyer discipline system, we find a one year and one day suspension from the practice of law is adequate discipline in this case.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record and the brief filed by the ODC, it is ordered that Nancy Eileen Johnson, Louisiana Bar Roll number 19008, be and she hereby is suspended from the practice of law for a period of one year and one day. |7AI1 costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thii’ty days from the date of finality of this court’s judgment until paid.

      . See Supreme Court Rule XVIII, which provides in pertinent part as follows:
      Section 3. Application for Transfer to Inactive Status. A lawyer in good standing who has not retired or is not engaged in practice shall advise the Louisiana State Bar Association in writing that the lawyer desires to assume inactive status and discontinue the practice of law. Upon the filing of the notice, the Louisiana State Bar Association shall inform the Court and the lawyer shall no longer be eligible to practice law. A lawyer who is retired or on inactive status shall not be obligated to pay the annual fee imposed by Rule XIX upon active practitioners. A lawyer on inactive status shall be removed from the roll of those classified as active until and unless the lawyer requests and is granted reinstatement to the active rolls.

      . The hearing committee also found the aggravating factor of submission of false evidence, false statements, or other deceptive practices during the disciplinary process. We find no support for this factor in the record.