author: FULMER, Judge.

text:
    Emilio DOTTIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3419.
    District Court of Appeal of Florida, Second District.
    July 17, 2009.
   FULMER, Judge.

Emilio Dottin appeals the denial of his pro se motion for return of property. The circuit court denied the motion because under section 705.105(1), Florida Statutes (2006), the property had been seized as evidence by a law enforcement agency and title to the property vested in that agency when Dottin did not seek timely return of the property within sixty days after the proceedings were concluded against him. We conclude that the circuit court properly determined that the property was seized as evidence by the Tampa Police Department. However, the circuit court did not attach any records demonstrating when the proceedings against Dottin had concluded. Therefore, we reverse the order of denial and remand for the circuit court to attach further records demonstrating that the motion was untimely or to consider the motion on the merits. See Stevens v. State, 929 So.2d 1197,1198 (Fla. 2d DCA 2006).

Reversed and remanded.

DAVIS and SILBERMAN, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4429.
    District Court of Appeal of Florida, Second District.
    July 22, 2009.
   PER CURIAM.

John Williams challenges the postconviction court’s order denying his motion filed under Florida Rule of Criminal Procedure 3.800(a). We reverse as to one subclaim but affirm the denial of the remaining claims without comment.

Williams originally pleaded guilty to three third-degree felonies in exchange for five years’ probation. He admitted to violating his probation on May 29, 2007, and in exchange was sentenced to five years in prison. One subclaim contained within claim two of his motion was not specifically addressed by the postconviction court. Williams alleged that when the 131 days he served in jail when originally charged is added to the five-year sentence imposed after revocation, his sentence exceeds the statutory maximum. See § 921.161(1), Fla. Stat. (2006). Williams appears to have been alleging somewhat inartfully that he was not given credit for the time he spent in jail prior to the original disposition on the charges. A jail credit claim is cognizable under rule 3.800(a). State v. Mancino, 714 So.2d 429, 433 (Fla.1998). Furthermore, a probation violator sentenced to prison is entitled to credit for time served in jail awaiting the original probationary sentence. Walker v. State, 543 So.2d 343, 344 (Fla. 1st DCA 1989); Kirkman v. Wainwright, 465 So.2d 1262, 1263 (Fla. 5th DCA 1985); see also § 921.161(1) (“[T]he court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence.”). We therefore reverse and remand for the postconviction court to address this subclaim and either correct the sentencing documents to reflect credit for time spent in jail awaiting disposition of the original charges, as well as time in jail awaiting disposition of the probation violation, or attach those portions of the record that conclusively refute the subclaim.

Affirmed in part, reversed in part, and remanded with instructions.

DAVIS, WALLACE, and KHOUZAM, JJ., Concur.


text:
    In re Richard J. GARRETT.
    No. 2008-B-2513.
    Supreme Court of Louisiana.
    May 5, 2009.
    Rehearing Denied June 19, 2009.

      Charles Bennett Plattsmier, Bernadine Johnson, Baton Rouge, for applicant.
    Hulse & Wanek, Stuart Glen Richeson, Randall Leland Kleinman, Richard J. Garrett, New Orleans, for respondent.
    Wanda Lynn Theriot and Jeffrey Walter Bennett, for amicus curiae, Marcia D. Jordan.
   | ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Richard J. Garrett, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Respondent is a solo practitioner handling primarily plaintiffs personal injury cases. In July 1999, respondent hired Marcia Jordan to work in his office as a legal assistant. At the time he employed Ms. Jordan, respondent knew that she had graduated from law school in 1996 and passed the Louisiana bar examination, but had not been admitted to the practice of law.

After hiring Ms. Jordan, respondent separated his client’s files into so-called “Garrett files,” those for which he retains primary responsibility, and “Jordan” or “J files,” those for which Ms. Jordan maintains primary day-to-day responsibility. | ¡¿Pursuant to the employment agreement between respondent and Ms. Jordan, her compensation differs depending on whether she is working on a “Garrett file” or a “J file.” The agreement provides:

8. The terms of payment for the services of Jordan for Garrett are as follows:
a. On Garrett’s files where he has chosen to do all of the work to conclusion himself [the “Garrett files”], he may assign hourly work in those files to Jordan. Jordan may bill Garrett for any tasks that he assigns to Jordan in those files and be paid for those tasks at the end of each work week.
b. The tasks assigned by Garrett to Jordan in #8(a) may include preparing drafts of interrogatories, scheduling recorded statements and performing legal research.
c. Garrett will assign files to Jordan to handle to a conclusion under his supervision.
d. On files which Garrett assigns to Jordan [the “J files”] to perform any of the tasks listed above in # 6,[] Jordan will provide Garrett with the total number of hours worked each week at the end of each week.
e. On those cases referred to in # 8(c), Jordan will be paid out of Garrett’s net income from the cases referred to in # 8(c) when each such case is negotiated to a final disposition.
f. Garrett will apply up to 1/3 of his net income for each of those eases referred to in # 8(c) against the total number of hours worked to date.
g. Jordan’s hourly rate of pay will be $40 per hour.

Applying these terms to the practices of the parties, for tasks that she is asked to perform on one of the “Garrett files,” Ms. Jordan bills respondent an hourly fee of $40. For example, if Ms. Jordan spends three hours drafting discovery responses for a “Garrett file,” she gives respondent an invoice for $120. For this type of work, Ms. Jordan collects a check at the end of each week, drawn on respondent’s operating | .¡account. The sum paid to Ms. Jordan is attributed to the particular “Garrett file” on which she worked and reduces the amount respondent receives as attorney’s fees when the case ultimately settles.

By contrast, Ms. Jordan is not paid for the work she does on her “J files” until the cases are settled. Ms. Jordan keeps a running tally of the number of hours that she works on “J file” cases. When a “J file” case finally settles, respondent compensates Ms. Jordan for her time by paying her up to one-third of the contingency fee he receives on the case. If the one-third amount is not sufficient to cover all of the hours Ms. Jordan has accumulated, then the remaining hours “roll over” until the next “J file” settles.

Respondent and the ODC stipulated that from 1999 until some time in 2004, the payments made to Ms. Jordan on the “J files” came from respondent’s client trust account. Respondent admitted this practice constituted fee sharing but asserted that his violation was inadvertent. The payments to Ms. Jordan on the “J files” are now made from respondent’s operating account.

DISCIPLINARY PROCEEDINGS

In June 2006, the ODC filed one count of formal charges against respondent, alleging that he facilitated Ms. Jordan’s unauthorized practice of law, in violation of Rule 5.5(a) of the Rules of Professional Conduct, and improperly shared legal fees with a nonlawyer, in violation of Rule 5.4(a).

Respondent answered the formal charges and denied any misconduct. He contended that he maintained ultimate responsibility for all files in his office, regardless of whether the files were designated as “Garrett files” or “J files.” ^Respondent contended that Ms. Jordan had no property interest in the “J files,” did not enter into separate agreements with the clients under her own name, and was limited concerning the activities she was able to perform because she was not a licensed attorney. Respondent also denied that he deferred to Ms. Jordan’s judgment concerning the evaluation of the client’s claims, permitted her to negotiate with insurance adjusters, or authorized her to negotiate personal injury settlements. With regard to Ms. Jordan’s compensation, respondent denied that Ms. Jordan received a contingency fee, asserting that “the value of her services was always measured by the hour. The limitation to one-third of Mr. Garrett’s fee was made merely as a convenience to Mr. Garrett so that he would not incur additional overhead expense.” Respondent continued:

While Mr. Garrett acknowledges that the up-to-one-third of his fee payment to Ms. Jordan upon settlement was made out of his own fee, he also maintains that he was unfortunately ignorant concerning the possibility that he might be creating ethical issues by doing so. When he was made aware that an interpretation of the ethical precepts may preclude him from paying Ms. Jordan on “Jordan files” from the fee he earned, he ceased doing so. She is now paid strictly out of an Operational Account. It is notable that no client was ever prejudiced in this respect, and that Ms. Jordan’s compensation was always ultimately measured on an hourly basis on all cases. [Emphasis in original.]

Formal Hearing

Most of the documentary evidence introduced at the hearing was obtained by the ODC in the course of its investigation of Ms. Jordan’s bar admission proceeding. In that matter, the ODC took sworn statements from Ms. Jordan, from respondent, and from respondent’s wife, Anne Garrett, who is the bookkeeper and office manager for her husband’s law firm. These three witnesses also testified at the hearing before the commissioner in Ms. Jordan’s bar admission proceeding. The transcripts of all of the Rsworn statements, and of the hearing before the commissioner, were introduced into evidence at respondent’s formal charge hearing.

Regarding the “J files,” Ms. Jordan testified during her sworn statement that she takes calls from prospective clients (typically individuals who have been involved in an automobile accident) when respondent is unavailable. Ms. Jordan interviews the caller and then prepares a written memo for respondent relating the details of the matter. Respondent reviews the memo and decides whether to accept the case. If he does accept the case, respondent signs a letter of representation which is sent to the insurer and schedules a meeting with the new client to sign the medical release forms and a contingent fee agreement. The client’s file is then assigned to Ms. Jordan and is designated a “J file.” Ms. Jordan testified that of the 250 or so files respondent’s firm opens each year, approximately 90 of these are assigned to her as “J files.”

Ms. Jordan testified that she always works under respondent’s supervision, but she has the primary day-to-day responsibility for handling the “J” files. She orders the accident report, maintains contact with the clients, responds to inquiries from third parties for additional information concerning the case, and does legal research. She drafts correspondence, pleadings, and discovery for respondent to review and sign. Ms. Jordan also participates in the taking of recorded statements of the client by an insurance adjuster.

When the client is released from treatment by his medical provider, Ms. Jordan begins the process of drafting the settlement proposal. She obtains the client’s medical reports, wage loss information, and the like, does a quantum study, and then [(¡drafts a settlement demand letter to the insurance company. Ms. Jordan gives the letter with the attached documentation to respondent for his review and signature, then sends it to the insurance adjuster. Respondent and Ms. Jordan frequently disagree when it comes to the quantum analysis; asked whether he defers to Ms. Jordan’s judgment in that regard, respondent agreed that he does.

Ms. Jordan testified that she generally speaks with the insurance adjuster about the settlement of a client’s case; however, the adjuster always knows that Ms. Jordan is not a lawyer. She explained that respondent establishes a minimum settlement amount for each case and notes that information on the inside of the client’s file. When the adjuster calls to discuss settlement, Ms. Jordan rejects the insurer’s offer if it is below the minimum amount and makes a counteroffer. Ms. Jordan testified that ultimately she will accept “anything over the minimal amount,” but “there is no authority to accept less than that.” Ms. Jordan admitted that respondent has given her the authority to handle the settlement negotiations with the adjuster “so long as the discussion stays within the range of the low and the high,” with the caveat that respondent has to approve the final settlement amount before she can formally accept it on the client’s behalf.

After the case is settled, respondent’s secretary prepares a settlement disbursement statement and gives it to respondent along with the release and the settlement check. Respondent discusses the breakdown of the settlement with the client by phone, then makes an appointment for the client to come into the office to |7meet with Ms. Jordan and sign the settlement documents. Ms. Jordan reviews the settlement documents with the client, provides copies of the documents, obtains the client’s endorsement on the settlement check, and then gives the client a postdated check for his share of the settlement.

Regarding Ms. Jordan’s compensation on the “J files,” she offered the following explanation in her March 2005 sworn statement:

... Mrs. Garrett has a tablet in the front [of the file] and I’ll say, you know, “This week I worked ‘X’ amount of hours on this, ‘X’ amount of hours on that” and I’ll keep it up in front of the file so that, at the end, once the file settles, I have all these hours that I’ve worked that I’ve not been compensated for. Once the case has settled, then, once — she’s the bookkeeper. She does the disbursement sheets on it. After I’ve put everything through, when she’s sending out checks to the doctors, when she’s sending out checks to whoever, then she’ll take a third of Richard’s fee and apply it to the hours that are owed. Now, I can never say that — it was supposed to work out where, let’s say that, they didn’t owe me that much money, they wouldn’t apply the one-third fee. You know, if the one-third fee was like $500 but they didn’t owe me $500 worth the work, then, she would only pay me what was owed, but that’s never the case. I mean, because I work seven days a week. You know, I’m there all hours of the night so I always have an overage so it, in reality, comes out where each one of the “J” files that I work on, one third of the fee is given to me, which is applied to what work is done. [Emphasis added.]

At the hearing before the commissioner in November 2005, Ms. Jordan gave a slightly different version of the process:

Well, the way it works out is at the end of every week, I have to give Mrs. Garrett an accounting of how many hours I worked on “J” files for that week. So she keeps a catalog in the front of the office that will say, “The week ending November 7th, Marcia has worked 45 hours.” Any time that a “J” file settles, up to one-third of the fee will be attributed to any hours that I’m owed. But it’s not |Rnecessarily the entire one-third fee .... well, that’s theoretically. In reality at this point, the amount of hours that I am owed, it turns out that one-third of the fee of the “J” files will be, essentially, given to me, because I have all these hours that have gone not paid. [Emphasis added.]

Respondent’s testimony was similar:

Q. ... she keeps track of her hours on those, but she does not submit that to you on a weekly basis?
A. Correct.
Q. She’s only going to get paid when that case settles?
A. Correct.
Q. Okay, and if the ease settles, as I understand it, up to a third of whatever fee that you’re entitled to is designated as the funds from which her pay will come?
A. Correct. Well—
Q. And to the extent that her hours exceed one third of the fee, it’s capped at one third?
A. Correct.
Q. Okay. What happens to those extra hours; let’s say she worked an additional hour but didn’t have enough — one third of the fee wasn’t enough to fully compensate her?
A. She gets paid at a later time, out of other cases.
Q. So there is a rolling tally, so to speak?
A. Correct.
Q. All right, so, obviously, in reality, the better the settlement value of the case, the more funds there are to perhaps compensate her for her time?
A. That’s correct. Yes. [Emphasis added.]

|9Witness Testimony

Ms. Jordan, respondent, and Mrs. Garrett testified in person before the hearing committee at the hearing on the formal charges. Respondent confirmed that he agreed with the testimony of his wife and Ms. Jordan in all respects.

Ms. Jordan largely reiterated her prior testimony regarding her compensation. She noted that the “J files” are “where I actually make my money.” Ms. Jordan testified:

I will hand in — let’s say this week I work 60 hours. Next week I work 40 hours. I hand in the hours. I get paid for those hours that I hand in for being at the office whenever a Jordan file settles. What happens with that, when a Jordan file settled, Mr. Garrett gets his fees. Out of his fee, one-third of his fee would then come to me to cover the hours I worked in the office.

Ms. Jordan conceded this arrangement has been lucrative for her. She testified that in 2004, she made $102,000. In 2005, the year prior to the disciplinary hearing, her compensation rose to $168,000.

Concerning the settlement of the “J files,” Ms. Jordan testified that respondent is responsible for setting “the final number,” which she then puts into a settlement demand letter to the insurance company. Respondent also sets a settlement range for the case and notes that information on the inside of the client’s file. Ms. Jordan testified that if an insurance adjuster calls when respondent is not available, she tells the adjuster that she will relay the settlement offer to respondent. Asked whether she has ever accepted settlement offers that were in the pre-approved range without consulting with respondent, Ms. Jordan replied, “No.”

Notably, this testimony was inconsistent with the testimony Ms. Jordan gave during her bar admission proceeding regarding her authority to negotiate with insurance adjusters, in which she stated that she was authorized to handle settlement | innegotiations independently “so long as the discussion stays within the range of the low and the high.” Questioned about this inconsistency at the hearing, Ms. Jordan retreated from her earlier sworn statements:

A.... I think that the way I described it at that time, it was perceived that I was actually given the authority to negotiate with insurance adjusters without [respondent] knowing what was going on. That would be the only thing I want to clarify.
Q.... Maybe you misspoke in that statement?
A. I think that after I read the statement I think that I did not explain that very well.
Q. Okay. So now you’re saying what?
A. Well, now I just want everyone to know Mr. Garrett has to be involved in every step of a settlement proceeding or settlement negotiations with an insurance adjuster.

On cross-examination, Ms. Jordan testified that she is paid on the “J file” system for working in the office, regardless of whether that work is legal work on the file or not. For example, if Ms. Jordan is updating the firm’s library, or going to court to file a pleading, she counts those hours just like she counts the hours that she works on a “J file,” i.e., these hours are accumulated and she is paid when a “J file” settles, up to one-third of the sum respondent receives as his attorney’s fee. Once again, this testimony differed in some respects from the testimony Ms. Jordan gave during her bar admission proceeding, in which she testified that she kept track of her hours and charged them to each particular “J file” on which she worked (the March 2005 sworn statement) or, alternatively, that she kept track of how many hours she worked on “J files” for a given week (the November 2005 hearing before the commissioner).

| nHearing Committee Report

With regard to the alleged violation of Rule 5.5(a), the ODC contends that respondent allowed Ms. Jordan to handle personal injury cases and negotiate settlements, thereby facilitating the unauthorized practice of law. Considering the hearing testimony of Ms. Jordan, Mrs. Garrett, and respondent, the hearing committee found that respondent was at all times supervised in her work by respondent and that she essentially acted only as an assistant or paralegal in the handling of the files. Further, and again based upon the hearing testimony, the committee found that Ms. Jordan did not ever present herself as an attorney, either to clients or other parties. Ms. Jordan prepared pleadings and correspondence which were at all times reviewed, and in some instances modified, and signed by respondent. In the hearing testimony, Ms. Jordan stated that she relayed messages regarding settlements but was at no time left to negotiate settlements on her own for any files, including those designated internally as the “J files.” However, the committee noted this testimony conflicted to some degree with Ms. Jordan’s testimony in the bar admission proceeding in which she testified that she discussed “high and low” ranges with respondent, and that she had on occasion settled a case with the adjuster if the offer fell within the range.

In addition, while the issue was not addressed at respondent’s hearing by either party, the committee pointed out Ms. Jordan’s testimony during the bar admission proceeding concerning her attendance at recorded statements. Ms. Jordan testified that she attended probably half of the recorded statements taken of respondent’s clients. If the statement was taken over the telephone, it was only Ms. Jordan and the client in the room, and she did not ask questions or object to questions which she thought were inappropriate or unfair; rather, she would stop the statement to get respondent. The committee noted that in that respect, Ms. Jordan was left to make the determination as to what was objectionable or inappropriate.

112Based on these factual findings, the committee concluded that respondent “made substantial effort to avoid the appearance that Ms. Jordan was acting as an attorney, with his supervision of files and the apparent adherence to the practice that all letters and pleadings were signed by him. However, with regard to the settlement negotiations and the recorded statements of his clients, Mr. Garrett appears to have delegated a great deal of discretion to Ms. Jordan in the handling of the Jordan files in these areas, which should be reserved to licensed attorneys.”

With regard to the alleged violation of Rule 5.4(a), the ODC contends that the compensation arrangement between respondent and Ms. Jordan created a pool of funds for payment of her hourly wages which would constitute fee splitting with a nonlawyer. Considering the hearing testimony of Ms. Jordan, Mrs. Garrett, and respondent, the committee found that with the exception of the preparation of settlement statements, for which Ms. Jordan was paid a flat fee, all other services which she performed for respondent were based upon an hourly rate. All three witnesses were consistent in their hearing testimony, as well as in the sworn statements and in the commissioner’s hearing, as to the description of the distinction between the “J files” and the “Garrett files.” With regard to the “J files,” Ms. Jordan was paid based upon an hourly rate, but the timing of the payments was in conjunction with the resolution of other “J files” and she was paid out of and limited to a one-third portion of respondent’s fee or net income from those files. Ms. Jordan’s compensation is not dependent upon the success of a particular “J file” and if there is no fee income derived for some reason, she is nevertheless guaranteed eventual payment of her hourly compensation from other “J files.”

Ms. Jordan testified at the commissioner’s hearing that because of the significant number of hours she has generated in the “J file” cases, there is always an overage or running balance that is owed to her. She admitted that the practical effect 113of this is that she is paid one-third of every attorney’s fee generated on a “J file” case, not necessarily because of the work which she performs on that file but because of the running balance and the one-third cap.

Because of the issues which were presented in Ms. Jordan’s bar admission proceeding, Ms. Jordan is now paid her hourly compensation from respondent’s operating account, rather than his client trust account, as had previously occurred.

Based on these factual findings, the committee concluded that notwithstanding respondent’s apparent efforts “to avoid a violation of Rule 5.4(a), the practical effect of the running totals due Ms. Jordan is that, although the funds are not earmarked, the result is a de facto sharing of fees because the cap limits the amount paid to her for the accrued hourly time charges which results in her payment being tied to the fee generated on each Jordan case.”

In reviewing the prior decisions of this court, the committee considered In re: Cornish, 04-1453 (La.12/13/04), 889 So.2d 236, in which the court explained the supervision which lawyers must exercise over their paralegals and other nonlawyer assistants. In Cornish, the court found that the respondent violated the Rules of Professional Conduct by giving his paralegal a free hand to correspond with insurance adjusters and negotiate settlements. However, the committee found Cornish is distinguishable from the instant case because it involved much more egregious conduct than respondent’s. In Cornish, the insurance adjuster was under the mistaken impression that the paralegal was an attorney, an impression which neither Cornish nor the paralegal did anything to correct. There is no evidence of a similar mistaken identity in this present case; conversely, Ms. Jordan testified that the insurance adjuster knew he was dealing with a paralegal, rather than an attorney. Moreover, in Cornish, the “free hand” given to the paralegal also included the authority to meet with clients, handle legal fees, and render legal opinions. While Ms. Jordan actively | Mmet with clients and was praised by respondent as being beneficial to the attorney-client relationship, both parties asserted that she did not discuss fees with clients.

Turning to the case law dealing with an attorney’s delegation of representation at a sworn statement, the committee considered In re: Williams, 02-2698 (La.4/9/03), 842 So.2d 353. In Williams, the court found that the non-attorney engaged in the practice of law by participating in the sworn statements of two clients. Notably, the non-attorney indicated that he was an attorney and advised the clients how to answer questions posed by counsel for the insurance company. In the present matter, Ms. Jordan testified that in a “good many instances” she is the only individual present with the client during the sworn statement. She asserted, however, that she does not ask questions during the process, but simply takes notes. She further stated that she does not object to questions that she deems inappropriate or unfair. The committee found these facts distinguish this matter from Williams, in that Ms. Jordan is not holding herself out as an attorney during the sworn statements. However, Ms. Jordan also testified that if she finds a question inappropriate or unfair, she stops the process to ask respondent his opinion. Referring to her role at the recorded statement, respondent testified that “she is my eyes and ears.” The committee suggested this behavior may be “suspect,” as respondent has essentially delegated to Ms. Jordan the authority to use her judgment to determine whether a question is objectionable, in which case she will find respondent. Conversely, if in Ms. Jordan’s judgment there is no objection, there is no one present to object on behalf of the client.

The committee noted that there does not appear to be a bright-line rule for what constitutes fee sharing. In In re: Watley, 01-1775 (La.12/7/01), 802 So.2d 593, the court found the respondents guilty of violating Rule 5.4(a) by entering into a fee sharing contract with a non-attorney. Specifically, the parties created an arrangement whereby the respondents’ law firm agreed to pay a paralegal service 40% of the | ^attorney’s fees earned on personal injury cases and 60% of the fees earned on cases referred by the paralegal service. The court found the agreement to constitute intentional fee sharing, illustrated by the fact that the firm attempted to hide the arrangement through misleading invoices. Although the court found no indication of direct harm to a client, it cautioned that the arrangement had the potential to cause harm “because once non-lawyers were given a financial interest in respondents’ legal fees, there was a possibility they could interfere with respondents’ independent judgment in the case.” The court concluded this potential harm to clients and to the legal profession warranted discipline.

For respondent’s misconduct, but considering that there was no evidence of harm to any of his clients, the committee recommended that he be publicly reprimanded.

Respondent filed a brief with the disciplinary board objecting to the hearing committee’s findings and recommended sanction. In its brief to the board, the ODC asserted that the baseline sanction for respondent’s misconduct is disbarment.

Disciplinary Board Recommendation

The disciplinary board found there was no clear and convincing evidence that respondent facilitated Ms. Jordan’s unauthorized practice of law by allowing her to participate in client statements or in settlement negotiations. The only evidence of such comes from the documentary evidence submitted at the hearing as exhibits. As to client statements, the board noted that the ODC did not inquire during its questioning of respondent what involvement Ms. Jordan had in taking recorded statements of his clients. Likewise, no testimony was elicited about whether | ^respondent directed Ms. Jordan to exercise her judgment to determine if insurance adjusters were posing objectionable questions, or whether she ever exercised such judgment and respondent thereafter failed to instruct her not to judge whether questions were objectionable. Additionally, although the burden of proof calls for evidence that is clear and convincing, the board found the record devoid of any specific line of questioning by an insurance adjuster from which it could be ascertained what, if any, professional judgment may have been required. The board also found no evidence of Ms. Jordan making a judgment call about a client’s statement, which respondent knew or should have known to be a misjudgment, but for which he later failed to rectify the consequences. Accordingly, the board not only found the documented testimony ambiguous as to whether Ms. Jordan was exercising the judgment properly exercised only by a lawyer, but also found that the inquiries posed to Ms. Jordan during the commissioner’s hearing cannot satisfy the need for clear and convincing evidence to impute complicity upon respondent for any transgression(s) by Ms. Jordan. Instead, the board concluded that from all that appears in the record, in many instances when an adjuster wanted to take a client’s recorded statement in person or over the phone, respondent made the professional decision to allow his client to give an unsworn statement to the adjuster outside the presence of a lawyer, with Ms. Jordan present to take notes. Finding this is a permissible exercise of professional judgment under the Rules of Professional Conduct, the board determined the hearing committee “manifestly erred by concluding that Respondent had assisted Ms. Jordan in the unauthorized practice of law.”

117The board likewise rejected the committee’s finding that respondent assisted Ms. Jordan in the unauthorized practice of law relating to her involvement in settling cases. The board found the committee’s conclusion is based only upon its observation that “ ‘high and low" ranges were discussed between Ms. Jordan and Mr. Garrett” and that Ms. Jordan conveyed acceptance to the adjuster “if the offer fell within the range.” The board commented that when “[vjiewed at an elemental level, these observations cannot support the legal conclusion that Ms. Jordan ‘settled a case.’ Likewise, these observations do not compel the legal conclusion that Respondent failed to meet his ethical obligations as an attorney.” The board found the hearing testimony reflects that respondent maintained a direct relationship with his clients, and that he supervised Ms. Jordan’s involvement in negotiations. Because respondent maintained ultimate control as to what was an acceptable settlement value, and obtained client consent to compromise the case, respondent maintained complete professional responsibility for the end result. The board determined this is consistent with the requirements set forth by the court in In re: Sledge, 03-1148 (La.10/21/03), 859 So.2d 671, and accordingly, found the hearing committee erred as a matter of law in finding that Ms. Jordan’s involvement in settlement negotiations equates to respondent’s failure to meet his ethical obligations.

Turning to the issue of respondent’s pay arrangement with Ms. Jordan, and whether such constituted an impermissible sharing of his fees, the board recounted the testimony reflecting that under the written agreement between the parties, and in practice, respondent was liable for all hours Ms. Jordan worked, even for work that |iswas not directly related to any given case, such as office work. This was so whether or not respondent and his client recovered on any given case. Under respondent’s written agreement with Ms. Jordan, she was not an employee, but a contractor. Because she was not regarded as an employee, there was apparently no requirement to pay her with the regularity required of an employee. Instead, one effect of the written independent contractor agreement was that Ms. Jordan acquiesced to waiting for some of her compensation until the cases on which she had significantly assisted actually bore fruit.

The board concluded that under these facts, there was not clear and convincing evidence that respondent improperly shared his attorney’s fees with a nonlaw-yer. The board conceded, however, that there were periods of time in which respondent had relatively large numbers of hours for which he owed Ms. Jordan, and that he never became wholly current in paying her for the period of time examined during the hearing. Nevertheless, the board concluded that Ms. Jordan does not share respondent’s risk of loss, because her compensation is not contingent upon any particular case(s). Consequently, respondent is not engaged in fee sharing with Ms. Jordan.

Based on this reasoning, the board recommended that the formal charges against respondent be dismissed.

Three board members dissented, noting that when the “J files” settled, Ms. Jordan was paid one-third of the legal fees directly from respondent’s client trust account. This practice continued until formal charges were instituted. Thereafter, the only change in the arrangement was that Ms. Jordan was paid from respondent’s operating account. The dissenting board members observed that this arrangement “may have started innocently, but it quickly became a fee sharing arrangement as Ms. Jordan took full advantage of the opportunity to devote as much time as necessary toJjcjinsure that she would always be paid one third of the legal fee on as many of the ‘J’ files as possible, because ‘Jordan files are where I actually make my money.’ ” The year before her hearing testimony, Ms. Jordan’s compensation had risen to $168,000. While such sizeable annual earnings by a legal assistant might not prove up a case of fee sharing, the dissenting board members noted that in the context of all the other evidence, “it removes all reasonable doubt in a case subject to a lower standard of proof, i.e., clear and convincing evidence.” Therefore, the board majority erred in finding there was no fee sharing between respondent and Ms. Jordan. Moreover, respondent’s continuation of his fee sharing practices after formal charges were instituted against him underscores that his conduct was knowing and intentional.

The dissenting board members agreed with the ODC that the baseline sanction for respondent’s misconduct is disbarment under the ABA’s Standards for Imposing Lawyer Sanctions. However, in view of the mitigating factors present, most notably respondent’s unblemished legal career of 54 years, the dissenting board members would recommend the imposition of a two-year suspension, with all but one year and one day deferred, subject to the condition that “Ms. Jordan’s continued employment and method of payment with Respondent’s firm be addressed in the readmission process.”

The ODC appealed the board’s ruling to this court. We ordered the parties to submit briefs addressing the issue of whether the record supports the disciplinary board’s report. After reviewing the briefs filed by the parties, we ordered the case docketed for oral argument.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. Y, § 5(B). Consequently, we act as triers of fact and conduct an|2nindependent 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). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

We find the record, taken as a whole, supports the conclusion that respondent facilitated Ms. Jordan’s unauthorized practice of law by allowing her to negotiate personal injury settlements on behalf of his clients and in representing clients during recorded statements taken by insurance companies. In this regard, it is significant to note that Ms. Jordan’s testimony has changed markedly from one proceeding to the next concerning the extent of her participation in these activities. In her most recent hearing testimony, Ms. Jordan indicated that she worked strictly under respondent’s supervision and did not have any independent contact with insurance adjusters. However, a review of Ms. Jordan’s earlier testimony suggests that she clearly testified that she was authorized by respondent to handle settlement negotiations independently so long as she stayed within a pre-determined “high and low” range, and that she frequently participated in the taking of recorded client statements.

In rejecting the hearing committee’s finding that respondent facilitated the unauthorized practice of law, the board concluded that Ms. Jordan’s testimony was “inherently ambiguous” and could not constitute clear and convincing evidence of misconduct. However, the fact that Ms. Jordan has presented several different versions of events does not lead to the conclusion that her testimony may not be considered. Rather, the hearing committee, which was presented with both versions of the testimony, made a factual finding that Ms. Jordan’s earlier testimony in her bar 1^ admission proceeding (in which she admitted to attending recorded statements and settling cases if the offer fell within a range selected by respondent) was more credible. Considering the record as a whole, we cannot say this factual finding is clearly wrong. Moreover, we have previously held that these tasks constitute the practice of law and may not be performed by a nonlawyer. See Cornish, supra; see also Rule 5.5 of the Rules of Professional Conduct, which specifically defines the “practice of law” to include “appearing as a representative of the client at a deposition or other discovery matter” and “negotiating or transacting any matter for or on behalf of a client with third parties.” Accordingly, respondent has facilitated the unauthorized practice of law by his assistant, Ms. Jordan, in violation of Rule 5.5(a).

Respondent has also committed misconduct by sharing his legal fees with Ms. Jordan. Ms. Jordan and respondent describe her compensation arrangement as “complex” and “convoluted,” but we find it simple: under their agreement, respondent and Ms. Jordan share a predetermined percentage of his legal fees as compensation for her work on the “J files.” Such an arrangement clearly violates the letter and spirit of Rule 5.4(a) of the Rules of Professional Conduct, which provides that a lawyer “shall not share legal fees with a nonlawyer” except under limited circumstances not relevant to this case. Furthermore, respondent admitted that he engaged in impermissible fee sharing with Ms. Jordan for a period of at least five years. It is interesting to note that the board’s reasoning rejecting the ODC’s allegation of fee sharing leads to the conclusion that respondent never engaged in fee sharing, a fact which is contrary to respondent’s own admission that he did engage in fee sharing until the bar admission proceeding was brought against Ms. Jordan.

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 12gstandards 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).

The baseline sanction for the facilitation of the unauthorized practice of law by a nonlawyer is disbarment. See Sledge, supra; In re: Brown, 01-2863 (La.3/22/02), 813 So.2d 325; Louisiana State Bar Ass’n v. Edwins, 540 So.2d 294 (La.1989). In cases involving fee sharing with a nonlawyer, we have imposed a suspension of one year and one day. In re: Watley, 01-1775 (La.12/7/01), 802 So.2d 593. For respondent’s misconduct involving both facilitation of the unauthorized practice of law and fee sharing, the overall baseline sanction is disbarment.

As aggravating factors, we recognize a pattern of misconduct, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law. In mitigation, we find respondent has no prior disciplinary record.

Having considered these factors in light of the record in its entirety, we decline to deviate from the baseline sanction of disbarment. As Ms. Jordan has become more proficient in the practice of law, respondent has abdicated his responsibilities to his clients. We observed in Sledge that such conduct falls far below that expected of lawyers in this state and is an affront to those lawyers who strive to provide competent and ethical representation to their clients. Therefore, respondent must be disbarred.

laJDECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Richard J. Garrett, Louisiana Bar Roll number 5946, be and he hereby is disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. 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.

      . In 1999, we denied Ms. Jordan's application for admission to the bar, finding she had not satisfied her burden of proving her good moral character. In re: Jordan, 97-1564 (La.2/12/99), 730 So.2d 873 ("Jordan J ”). In 2000, Ms. Jordan filed a second application for admission, which we denied because she made no showing of facts relating to her character and fitness to practice law that changed after the denial of her application in Jordan I. In re: Jordan, 00-3006 (La. 12/15/00), 775 So.2d 1065 {‘‘Jordan II"). In 2004, Ms. Jordan filed a third application for admission {"Jordan II ”). Finding she had demonstrated a change in circumstances, we appointed a commissioner to take evidence in the matter. The commissioner ultimately recommended to this court that the application be denied because Ms. Jordan had engaged in the unauthorized practice of law while employed by respondent and participated in a fee-sharing arrangement prohibited by the Rules of Professional Conduct. We held the commissioner’s recommendation under advisement awaiting the outcome of the instant proceeding. In a separate opinion rendered this day in In re: Jordan, 04-0542 (La.5/5/09), 12 So.3d 346, 2009 WL 1385932, we now deny Ms. Jordan’s application for admission to the practice of law.

      . These tasks include, for example, meeting with clients, preparing drafts of letters, ordering copies of police reports and medical records, setting up doctor's appointments, preparing settlement packages, "relaying] settlement figure counter-offers to an adjuster with Garrett's permission," preparing discovery, performing legal research, and the like,

      . Respondent suggested the division of the fíles was “merely a convenience."

      . Ms. Jordan stated that she sits with the client and takes notes during these statements but does not ask any questions or make objections. During her sworn statement, Ms. Jordan testified that respondent is generally not present at the time the client statement is taken, and in fact, he may not even be in the office. However, Ms. Jordan retreated from this testimony at the hearing before the commissioner, during which she claimed that she never does client statements if respondent is not in the office.

      . During the character and fitness hearing, Mrs. Garrett commented that Ms. Jordan and respondent are “very competitive" with each other. Asked what Mrs. Garrett might have meant by her comment, Ms. Jordan explained that she is better at evaluating the worth of a case than is respondent, whom she believes "low balls” settlement demands. Ms. Jordan proudly testified that she usually obtains better settlements on the "J files” than respondent does on the "Garrett files.”

      .Mrs. Garrett explained that Ms. Jordan processes all client settlements (for which she is paid a separate flat fee of $50 each) because she is very good at making sure that the clients don’t talk respondent into reducing his attorney's fees. Mrs. Garrett described her husband as a "pussycat" in that regard.

      . Respondent subsequently withdrew his objection to the public reprimand recommended by the hearing committee.

      . The board expressly noted that this finding does not imply that it had reached any conclusion as to whether Ms. Jordan herself has any culpability for her actions, as that issue is not before the board.

      . Sledge involved an attorney whose nonlaw-yer employees were involved in negotiating settlements for clients. While the court did not draw a bright line limiting the extent of nonlawyer involvement, the court did articulate minimum factors which must be present for the attorney's delegation of responsibility to the nonlawyer to be proper: maintaining a direct relationship with the client, supervising the delegated work, and having complete professional responsibility for the work product.


author: PER CURIAM

text:
    In re Marcia Denise JORDAN.
    No. 2004-OB-0542.
    Supreme Court of Louisiana.
    May 5, 2009.
    Rehearing Denied June 19, 2009.
    Mariateresa Paolozzi Bankerd-Barnett, Jeffrey Walter Bennett, Wanda Lynn Theriot, for applicant.
    Daniel A. Webb, Richard Anthony Goins, New Orleans, for respondent.
   JjON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM

In 1999, we denied the application filed by petitioner, Marcia Denise Jordan, seeking admission to the practice of law, finding she had not satisfied her burden of proving her good moral character. In re: Jordan, 97-1564 (La.2/12/99), 730 So.2d 873 (“Jordan I ”). In 2000, petitioner filed a second application for admission, which we denied because she made no showing of facts relating to her character and fitness to practice law that changed after the denial of her application in Jordan I. In re: Jordan, 00-3006 (La.12/15/00), 775 So.2d 1065 (“Jordan II”). In 2004, petitioner filed a third application for admission. Finding she had demonstrated a change in circumstances, 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 to conduct an investigation into petitioner’s qualifications to be admitted to the bar.

The commissioner conducted a hearing and thereafter recommended that petitioner be admitted to the practice of law. The Committee on Bar Admissions (“Committee”) objected to the commissioner’s recommendation.

We heard oral argument in the matter in November 2004. During the argument, questions were raised whether petitioner has improperly shared the ^attorney’s fees that are paid to her employer, attorney Richard Garrett, and engaged in the unauthorized practice of law. Because these issues were not addressed in the commissioner’s report, we remanded this matter for a supplemental hearing before the commissioner.

The commissioner conducted the supplemental hearing in November 2005. The commissioner heard testimony given by petitioner and Mr. Garrett, as well as his wife, the bookkeeper and office manager for her husband’s law firm. At the conclusion of the hearing, the commissioner filed his report with this court, recommending that petitioner be denied admission to the bar because she has engaged in the unauthorized practice of law and has participated in a fee-sharing arrangement prohibited by the Rules of Professional Conduct.

' Petitioner did not file a timely objection in this court to the commissioner’s report and recommendation. However, in response to a motion filed by petitioner, we permitted the filing of briefs in the matter, without oral argument. Both petitioner and the Committee filed briefs in response to our order.

We find there is clear and convincing evidence in this record that petitioner negotiated personal injury settlements on behalf of Mr. Garrett’s clients and represented the clients during recorded statements taken by insurance companies. When performed by a non-lawyer such as petitioner, these tasks constitute the unauthorized practice of law. Moreover, we find petitioner has entered into an impermissible fee sharing arrangement with Mr. Garrett. Such an arrangement violates Rule 5.4(a) of the Rules of Professional Conduct, which provides that a |3lawyer “shall not share legal fees with a nonlawyer” except under limited circumstances not relevant to this case.

Considering petitioner’s fee sharing arrangement together with her unauthorized practice of law, we conclude she has failed to meet her burden of proving that she 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.

       Calogero, C.J., participated in oral argument but did not participate in the deliberation of this case, having retired on December 31, 2008.

      . Following our consideration of the briefs, we held this matter under advisement pending the conclusion of the disciplinary proceedings which had been instituted against Mr. Garrett. In a separate opinion rendered this day in In re: Garrett, 08-2513 (La.5/5/09), 12 So.3d 332, we now disbar Mr. Garrett.


text:
    In re Michael H. COLVIN.
    No. 2009-OB-1447.
    Supreme Court of Louisiana.
    July 2, 2009.
   ORDER

Considering the Petition for Transfer to Disability Inactive Status filed by respondent, Michael H. Colvin,

IT IS ORDERED that Michael H. Col-vin, Louisiana Bar Roll number 4355, be and he hereby is transferred to interim disability inactive status pending a hearing to determine the validity of his claim of inability to assist in his defense due to mental or physical incapacity, pursuant to Supreme Court Rule XIX, § 22(C). All disciplinary proceedings shall be stayed pending this determination.

/s/ Bernette J. Johnson

Justice, Supreme Court of Louisiana

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.


text:
    In re Randall P. SERRETT.
    No. 2009-B-1530.
    Supreme Court of Louisiana.
    July 9, 2009.
   ORDER

Considering the Joint Petition for Interim Suspension filed by respondent, Randall P. Serrett, and the Office of Disciplinary Counsel,

IT IS ORDERED that Randall P. Ser-rett, Louisiana Bar Roll number 17794, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

/s/ Bernette J. Johnson

Justice, Supreme Court of Louisiana


author: CARTER, C.J. GUIDRY, J., HUGHES, J., McDONALD, J.,

text:
    SUCCESSION OF Mrs. Viola Mary Tabor BADEAUX.
    No. 2008 CA 1085.
    Court of Appeal of Louisiana, First Circuit.
    March 27, 2009.
    Writ Denied May 29, 2009.

      Hughes, J., concurred and assigned reasons.
    McDonald, J., dissented in part and agreed in part and assigned reasons.
    Guidry, J., dissented and assigned reasons.
    See also 961 So.2d 404, 2007 WL 1300941, 2007 WL 1300804.

      Walter Antin, Jr., Hammond, LA, for Plaintiff-lst Appellant, C. Raymond Fernandez, Executor of the Succession of Teresa Mae Badeaux Fernandez.
    William W. Edelman, Metairie, LA, Henry P. Julien, Jr., New Orleans, LA, for Defendant-Appellee/2nd Appellant, Thomas L. Badeaux.
    Mary W. Riviere, Houma, LA, for Ap-pellee, Mrs. Frederick Brunet, Executor of the Succession of Viola Mary Tabor Ba-deaux.
    Before: CARTER, C.J., GUIDRY, DOWNING, MCDONALD, and HUGHES, JJ.
   CARTER, C.J.

l2C. Raymond Fernandez (Fernandez) appeals three trial court judgments awarding a total of $283,027.39 to Thomas L. Badeaux (Badeaux) as reimbursement for Badeaux’s legal expenses and losses connected with the defense of his actions and his status as agent/mandatary for his aunt Viola Mary Tabor Badeaux (the decedent). Badeaux also appealed, challenging that portion of the trial court’s judgments that denied Badeaux’s claim for legal interest. Additionally, Badeaux challenges the trial court’s denial of an additional $14,713.32 claim for the legal expense he necessarily incurred while pursuing his reimbursement claims. For the following reasons, we affirm in part and reverse in part.

BACKGROUND

This appeal is limited to a review of the trial court’s award to Badeaux for his legal expense reimbursement and the denial of legal interest on that award. A detailed history of the decedent’s succession and the complicated factual and procedural background of the underlying litigation can be found in this court’s previous opinions: Fernandez v. Hebert, 06-1558 (La.App. 1 Cir. 5/4/07), 961 So.2d 404, writ denied, 07-1123 (La.9/21/07), 964 So.2d 333; Fernandez v. Hebert, 06-1416 (La.App. 1 Cir. 5/4/07), 956 So.2d 850 (unpublished); Fernandez v. Hebert, 06-2401 (La.App. 1 Cir. 5/4/07), 956 So.2d 850 (unpublished), writ denied, 07-1190 (La.9/21/07), 964 So.2d 336; |3and Fernandez v. Herbert, 07-0883 (LaApp. 1 Cir. 6/8/07), 958 So.2d 1218 (unpublished), writ denied, 07-1259 (La.9/21/07), 964 So.2d 343. In those opinions, we upheld the validity of the decedent’s inter vivos donations, sale of stocks, annuity purchases, and investments made by her nephew, Badeaux, acting pursuant to a verbal mandate given by the decedent. The decisions upholding the validity of the mandate are now final.

The matter of reimbursement for legal expenses at issue in this appeal occurred when Badeaux submitted a series of three claims to the decedent’s succession executor, Monsignor Frederick T. Brunet (the executor). Badeaux’s claims sought reimbursement from the decedent’s succession for a total of $297,740.71 in legal expenses and costs that Badeaux had allegedly incurred in the course of successfully defending the underlying lawsuit regarding the validity of the decedent’s mandate and Badeaux’s actions as mandatary, citing as authority LSA-C.C. arts. 3012 and 3013. Badeaux’s claim also included a request for legal interest on the reimbursement award, under the authority of LSA-C.C. art. 3014. Taking a neutral position on the reimbursement request, the executor filed separate rules to show cause seeking the trial court’s guidance as to why the large reimbursement claims should not be paid. Fernandez opposed payment of the claim on the grounds that: (1) the claim amounted to a request for attorney’s fees, which are not available in Louisiana unless specifically provided for in a contract or by statute; and (2) the decedent’s mandate 1 ¿ended at her death, which had obviously preceded Badeaux’s claims for mandatary reimbursement expenses.

After several hearings, the trial court issued a series of judgments finding that Badeaux’s claims, totaling $283,027.39, for reimbursement of legal fees and costs he had incurred as mandate were “fully and properly substantiated, lawful and valid claims, reasonable in amount, but no legal interest shall accrue or be paid thereon.” However, the trial court denied Badeaux’s request for legal interest on the reimbursement award. The trial court also denied Badeaux’s additional reimbursement claim for another $14,713.32 that he had allegedly incurred for legal expenses and costs connected with the pursuit of his reimbursement claims, finding that claim was not “lawful and valid.” Fernandez timely filed a suspensive appeal from the trial court’s judgments, contending that the trial court erroneously approved and authorized payment of Badeaux’s reimbursement claims by the executor of the decedent’s succession. Badeaux also sus-pensively appealed from the trial court’s judgments, maintaining that the trial court erred in denying legal interest on the reimbursement award and in denying the extra $14,713.32 claim for legal expenses he has incurred while pursuing his reimbursement claims.

|,.DISCUSSION

Motions

As a preliminary matter, we must address two motions filed by Badeaux in this court. Badeaux filed a motion to strike sections of Fernandez’s appellate brief and a motion for sanctions under LSA-C.C.P. art. 863. Action on these motions was referred to the merits of this appeal. Badeaux asserts that Fernandez’s brief includes references to highly improper and extraneous testimony and discovery responses that are not evidence in the record on appeal. Badeaux also contends that the improper references are an inappropriate attempt to re-litigate the underlying issues involving the validity of the decedent’s mandate and Badeaux’s actions made pursuant to the mandate. For these reasons, Badeaux argues that the references should be stricken from Fernandez’s brief and Fernandez should be sanctioned under article 863.

A review of the Fernandez brief discloses a zealous argument by counsel with several references to testimony and facts purportedly supported and contained in the records of the underlying litigation. We note that all of the exhibits attached to the Fernandez brief are in the record before us. An appellate court must render its judgment upon the record on appeal. LSA-C.C.P. art. 2164. We cannot review evidence that is not in the record, nor can we receive new evidence. Buelle v. Period 04-2733 (La.App. 1 Cir. 12/22/05), 927 So.2d 1126, 1129, writ denied, 06-0160 (La.4/24/06), 926 So.2d 542. However, the arguments of counsel contained in appellate briefs and references to facts and issues that are not currently before the court, are not considered record evidence. See Thomas v. Connolly, 31,447 (La.App. 2 Cir. 1/20/99), 726 So.2d 1052, 1054. This court has no authority to |ficonsider on appeal facts referred to in appellate briefs if those facts are not in the record on appeal. Tranum v. Hebert, 581 So.2d 1023, 1026 (La.App. 1 Cir.), writ denied, 584 So.2d 1169 (La.1991); Chavers v. Bright Truck Leasing, 06-1011 (La.App. 3 Cir. 12/6/06), 945 So.2d 838, 841, writ denied, 07-0304 (La.4/5/07), 954 So.2d 141. Also, this court is precluded from taking judicial notice of a suit record from another court. Pinegar v. Hams, 06-2489 (La. App. 1 Cir. 5/4/07), 961 So.2d 1246, 1249; Union Planters Bank v. Commercial Capital Holding Corp., 04-0871 (La.App. 1 Cir. 3/24/05), 907 So.2d 129, 130. The full records from the previous appeals were not introduced into evidence at any of the trial court hearings at issue. Consequently, to the extent that the Fernandez brief references testimony and facts that are not part of the appellate record before us, Badeaux’s motion to strike is granted.

Furthermore, we cannot address on appeal a request for LSA-C.C.P. art. 863 sanctions arising from a brief filed in the appellate court. ANR Pipeline Co. v. Louisiana Tax Com’n, 01-2594 (La.App. 1 Cir. 3/20/02), 815 So.2d 178, 183. The ability to impose sanctions under article 863 is limited to the trial court. An appellate court’s authority to regulate conduct before it is governed by LSA-C.C.P. art. 2164, which provides in pertinent part that “[t]he [appellate] court may award damages for frivolous appeal.” Hampton v. Greenfield, 618 So.2d 859, 862 (La.1993); ANR Pipeline, 815 So.2d at 183. While Badeaux moved for article 863 sanctions in the trial court, Badeaux did not seek review of the trial court’s denial of the motion. Badeaux’s current motion for article 863 sanctions is based on the content of Fernandez’s appellate brief. Because we cannot address article 863 sanctions, we deny Badeaux’s motion. Moreover, damages for frivolous 17appeal are only allowed when it is obvious that the appeal was taken solely for delay or that counsel does not sincerely advocate the view advanced to the court. Hampton, 618 So.2d at 862; Cavin v. Harris Chevrolet, Inc., 95-1878 (La.App. 1 Cir. 5/10/96), 673 So.2d 654, 658. We do not find that Fernandez’s appeal unquestionably falls within either category of frivolous appeals. Having so ruled, we now proceed to the substantive issues raised in this appeal. Reimbursement of Mandatary’s Expenses and Costs

Badeaux’s reimbursement claim for legal expenses and costs that he incurred while necessarily defending the validity of the decedent’s mandate and his actions pursuant to the mandate, appears to present a res nova issue. Our research has not revealed any jurisprudence or controlling precedent whereby legal expenses have been awarded to a mandatary as reimbursement or compensation for a loss incurred as a result of the mandate.

Badeaux relies on the authority of the mandatary reimbursement and compensation for loss provisions found in LSA-C.C. arts. 3012 and 3013. Badeaux further points to LSA-C.C. art. 3014, which provides for interest to be paid on sums expended by the mandatary in performance of the mandate. Fernandez argues that the trial court erroneously approved and authorized payment of Ba-deaux’s legal expenses and costs, because neither LSA-C.C. arts. 3012 or 3013 expressly provide for a mandatary to be reimbursed or compensated for attorney’s fees. Fernandez points to the well-established general rule in Louisiana that attorney’s fees may not be awarded to a successful litigant unless specifically authorized by statute or contract. Sher v. Lafayette Ins. Co., 07-2441 (La.4/8/08), 988 So.2d 186, 201; Campbell |su Melton, 01-2578 (La.5/14/02), 817 So.2d 69, 80. Fernandez also maintains that Ba-deaux’s legal expenses and costs were not a result of the mandate since both the mandate and the authority of the mandatary terminated upon the death of the principal (the decedent), relying on LSA-C.C. art. 3024(1). Badeaux counters that his duties as mandatary did not cease when his aunt died because he was forced to defend the validity of the mandate and his actions as mandatary after his aunt’s death.

We first address Fernandez’s assertion that Badeaux’s obligations as man-datary terminated upon the death of the decedent. Louisiana Civil Code article 3030 provides that “[t]he mandatary is bound to complete an undertaking he had commenced at the time of the principal’s death if delay would cause injury.” (Emphasis added.) We find that Badeaux was bound to complete his mandatary duties after his aunt died because the validity of the mandate and the various donations, sales, purchases, and investments were at issue while the decedent’s succession was pending and before it could be closed. As the trial court explained in its oral reasons for judgment:

[Badeaux was put in the] position of agency [mandatary] and having to defend the actions that he took on behalf of the decedent. Because his duty was to make sure that her wishes were protected and he’s been doing that[,] and he’s been having to fight through every court that he’s been thrust into. And [the trial court doesn’t] think he would have incurred those [legal fees and costs] had he not been dragged to court. But he’s been successful in defending his actions and he had to get a lawyer to do it, several lawyers.

We agree with the trial court’s reasoning and find that Badeaux’s mandatary duty extended past the time of decedent’s death pursuant to his continuing obligation to ensure that the decedent’s wishes were protected. We recognize that LSA-C.C. art. 3024(1) supplies the general rule that the mandate and Badeaux’s authority as mandatary terminated at the death of|9the decedent. However, Badeaux was bound to complete the mandate by defending and protecting the decedent’s wishes after her death through successfully litigating the validity of the mandate and his actions as mandatary. LSA-C.C. art. 3030. Therefore, we find no merit to Fernandez’s argument in this regard.

Next, we examine Fernandez’s contention that Badeaux is requesting unauthorized attorney’s fees from the decedent’s succession. The decedent’s succession is now the “principal” in the mandate relationship due to the decedent’s death. Louisiana Civil Code article 3012 provides, in pertinent part: “[t]he principal is bound to reimburse the mandatary for the expenses and charges he has incurred and to pay him the remuneration to which he is entitled.” (Emphasis added.) Additionally, LSA-C.C. art. 3013 provides: “[t]he principal is bound to compensate the mandatary for loss the mandatary sustains as a result of the mandate, but not for loss caused by the fault of the mandatary.” (Emphasis added.) The lack of fault on the part of Badeaux as manda-tary was previously established in the long and involved underlying litigation. Therefore, the trial court was faced with the novel issue of deciding whether Badeaux’s claim for reimbursement of legal expenses and costs that arose out of his defense of the decedent’s mandate was to be considered as an action for attorney’s fees or as a claim for reimbursement of a mandatary’s expenses.

We agree that there is no contractual or statutory authorization for the award of attorney’s fees in this case. Neither of the cited civil code articles, LSA-C.C. arts. 3012 and 3013, explicitly authorizes an attorney’s fee award, nor do the articles exclude attorney’s fees from reimbursable expenses or losses. We find, however, that the absence of the words “attorney’s fees” or |1fl“defense costs” from articles 3012 and 3013 does not preclude Badeaux’s reimbursement claim for his legal expenses and costs under these circumstances. This is not a case where Badeaux is seeking an attorney’s fee award as a successful litigant or as an executor of the succession for the executor’s benefit. Rather, Badeaux is seeking reimbursement of his expenses and compensation for his losses that he sustained as a result of performing his duties under the decedent’s valid mandate, and for being forced to defend his actions as mandatary. Ba-deaux’s legal expenses and the costs he incurred in defending the decedent’s mandate primarily benefited the decedent’s succession in that it allowed the decedent’s wishes to be fulfilled so that her estate planning remained intact and undisturbed. Therefore, while Badeaux’s mandatary expenses and losses in this case were certainly all linked to legal fees and costs, we find this reimbursement claim to be separate and distinct from an action for attorney’s fees. Thus, we agree with the trial court’s conclusion that LSA-C.C. arts. 3012 and 3013 provide authority for the decedent’s succession to pay a total of $283,027.39 for the mandatary reimbursement award to Badeaux.

We also conclude that the trial court correctly denied Badeaux’s additional reimbursement claim for an extra amount of $14,713.32 for the legal expenses he incurred while pursuing his reimbursement claims. We find that those additional legal expenses are not specifically linked to Badeaux’s obligations as man-datary or for the losses he sustained as a result of defending the mandate; but instead, are more akin to an action for an attorney’s fee award sought by a successful litigant. We are powerless to make such an award without specific statutory or contractual authority. Sher, 988 So.2d at 201; Campbell, 817 So.2d at 80. Therefore, we affirm | n those portions of the trial court’s judgments regarding the reimbursement awards in this situation.

Finally, we find merit to Ba-deaux’s assertion that the trial court erred when it denied his request for legal interest on the reimbursement claim. Louisiana Civil Code article 3014 specifically provides that: “[t]he principal owes interest from the date of the expenditure on sums expended by the mandatary in performance of the mandate.” (Emphasis added.) Because we hold that Badeaux’s legal expenses were necessarily expended by him in performance of the decedent’s mandate, the succession owes interest on the reimbursement award from the date of the expenditures as provided by statutory law. When legal interest is statutory, it should be strictly construed. See Smith v. Quarles Drilling Company, 04-0179 (La.10/29/04), 885 So.2d 562, 567. Accordingly, we hereby reverse those portions of the trial court’s judgments that erroneously denied legal interest on Badeaux’s reimbursement awards. Having so decided, we find it necessary to remand this matter to the trial court for a determination of the full amount of legal interest due to Ba-deaux, in accordance with this opinion.

CONCLUSION

For the outlined reasons, we grant Thomas L. Badeaux’s motion to strike, but deny his motion for sanctions. The judgments of the trial court awarding a total reimbursement from the decedent’s succession in the amount of $283,027.39 to Thomas L. Badeaux as mandatary are affirmed. That portion of each of the trial court’s judgments denying legal interest on the reimbursement awards is reversed, and interest is hereby awarded on the reimbursement award from the date that the expenditures occurred. | ^Additionally, we remand this case to the trial court for the limited purpose of accepting any evidence necessary to determine the full amount of legal interest due to Thomas L. Badeaux from the decedent’s succession. The trial court’s judgments are affirmed in all other respects. The costs of this appeal are assessed to C. Raymond Fernandez.

MOTION TO STRIKE GRANTED; MOTION FOR SANCTIONS DENIED; TRIAL COURT JUDGMENTS DATED JULY 10, 2007, JULY 24, 2007, AND JANUARY 25, 2008, AFFIRMED IN PART AND REVERSED IN PART; AND REMANDED.

DOWNING, J., concurs.

GUIDRY, J., dissents and assigns reasons.

HUGHES, J., concurs with reasons.

McDONALD, J., dissents and assigns reasons.

GUIDRY, J.,

dissenting.

hi respectfully dissent from the majority opinion, as I do not believe that Badeaux’s claim for attorney’s fees, though styled as a claim for reimbursement under La. C.C. arts. 3012 and 3013, is provided for by contract or statute.

HUGHES, J.,

concurring.

_JjThis is not a case where the mandatary incurred expenses in performance of the mandate. The mandate was completed and the principal is deceased.

Rather, the mandatary incurred an expense or loss after the mandate was complete, as a result of the mandate. See Civil Code article 3013.

Thus the mandatary is not entitled to interest on sums expended “in performance of the mandate,” Civil Code article 3014.

However, because the mandatary would in any event be entitled to legal interest from the date of judicial demand, rather than from the date of the loss, I will in, the interest of judicial economy, concur in the majority opinion.

McDONALD, J.,

dissents in part and agrees in part and assigns reasons.

|/The majority is correct in granting the motion to strike portions of the appellant brief and I agree with the majority that sanctions cannot be imposed under LSA-C.C.P. art. 863 at the appellate level. I also agree with the majority in affirming the decision of the trial court to deny Badeaux’s reimbursement claim for legal expenses incurred in pursuing the reimbursement claim.

However, the majority and I part company on the substantive issues, particularly the issue of reimbursement for expenses and costs incurred by the mandatory as attorney fees and legal expenses. Civil code art 3030 provides that the mandatory is bound to complete an undertaking he had commenced at the principal’s death if delay would cause injury. I do not believe that this article provides support for the result reached by the majority in finding that Badeaux was bound to complete the mandate by defending and protecting the decedent’s wishes after her death by litigating the validity of the mandate.

Next, this court examines Fernandez’s contention that Badeaux is requesting unauthorized attorney’s fees from the decedent’s succession. It is beyond dispute that attorney’s fees are not available in Louisiana unless specifically provided for in a contract or by statute. Smith v. Albrecht, 965 So.2d 879, 882 (La.App. 1 Cir. 6/08/07). In spite of the law established by civil code article 3024(1) and the fact recognized in this opinion that the mandatory relationship terminated at the death 12of the principal, the majority opinion finds that the decedent’s succession is now the “principal” in the mandate relationship. No law or jurisprudence is cited to support this finding. I find no law or jurisprudence that would validate this proposition. Additionally, the facts do not indicate that the succession representative entered into a mandatory relationship with Badeaux. 1 do recognize that even though the succession is not the principal in a mandatory relationship with Badeaux it could be held legally responsible for expenses in accordance with La. Civü Code art. 3012 because it is responsible for the debts of Badeaux’s principal, who is now deceased. However, article 8012 is not applicable here because the attorney’s fees, characterized as expenses, were not incurred in the performance of the mandate.

I do not believe that Civil Code article 3013, providing that the principal is bound to compensate the mandatory for loss sustained as a result of the mandate, is applicable. The reimbursement for attorney’s fees requested here is not a loss incurred as a result of the mandate. Badeaux incurred these attorney fees because he chose to defend the acts he took as a mandatory, however, he had no legal obligation to do so and had no personal liability. While it may appear to be just to pay the legal fees Badeaux incurred in defending actions taken on behalf of his principal, I do not believe it is lawful. There is no statute or contract in this case providing for attorney’s fees.

In this case, I also do not believe it is just. The actions taken by Mr. Badeaux that were the subject of the litigation benefited him personally. The issues in those underlying lawsuits are not before us, and the facts are not part of this record. However, there is no doubt he had a personal interest in the matters, and regardless, he had no legal obligation to insure that the “decedent’s wishes” were respected. I respectfully dissent in the decision of the majority to affirm the | ¡¿judgment awarding attorney fees as “expenses and charges” and in awarding interest on this amount.

      . Fernandez is the son of Teresa Mae Ba-deaux Fernandez, who is the residuary legatee named in the will executed by the decedent. The underlying litigation was instituted by Teresa Mae Badeaux Fernandez, but after her death Fernandez, the testamentary executor of her succession, was substituted as plaintiff.
      The trial court approved $283,027.39 of Ba-deaux's reimbursement claims to be paid by the decedent's succession through two separate interlocutory judgments on July 10, 2007, and July 24, 2007, and a final judgment ho-mologating a partial tableau of distribution on January 25, 2008.

      . Fernandez also submitted a claim for legal fees, which was denied by the trial court and is not at issue in this appeal.

      . The first judgment was signed on July 10, 2007, awarding reimbursement to Badeaux for a total of $261,877.39, representing Ba-deaux’s first two claims. The second judgment was signed on July 24, 2007, awarding reimbursement to Badeaux for an additional amount of $21,150.00, representing Ba-deaux's third claim. The third judgment was signed on January 25, 2008, authorizing and ordering the decedent’s succession executor to pay a total of $283,027.39 to Badeaux.for reimbursement of his legal fees and costs.


author: KUHN, J. GAIDRY, J.,

text:
    Victoria DIXON Individually and o/b/o The Minors and Barbara Jackson v. DIRECT GENERAL INSURANCE COMPANY OF LOUISIANA.
    No. 2008 CA 0907.
    Court of Appeal of Louisiana, First Circuit.
    March 27, 2009.

      Christopher L. Whittington, Randolph A. Piedrahita, Baton Rouge, LA, for Plaintiffs/Appellants, Victoria Dixon, individually and on behalf of the minors LaSadie Dixon and Steven Dixon, and Barbara Jackson.
    Kimberly R. Louper, Matthew W. Bailey, Baton Rouge, LA, for Defendant/Ap-pellee, Direct General Insurance of Louisiana.
    Before KUHN, GUIDRY, GAIDRY, McDonald, and HUGHES, JJ.
   KUHN, J.

12This appeal presents the issue of whether an uninsured/underinsured motorist (“UM”) bodily injury coverage waiver form is invalid simply because it does not bear the name of the insurer. Where the pertinent designated spaces on the UM form are filled out and the requirements of Duncan v. U.S.A.A. Ins. Co., 06-863 (La.11/29/06), 950 So.2d 544, are met, the absence of the insurance company’s name from the form does not render it invalid, despite the language of Louisiana Insurance Rating Commission (“LIRC”) Bulletin 98-01. Thus, we affirm the trial court’s judgment that granted the defendant-insurer’s motion for summary judgment and denied the plaintiffs’ motion for summary judgment, dismissing plaintiffs’ claims with prejudice.

I. FACTUAL AND PROCEDURAL HISTORY

On November 21, 2007, plaintiffs, Barbara Jackson and Victoria Dixon, individually and on behalf of her minor children, LaSadie Dixon and Steven Dixon, filed a petition for damages against defendant, Direct General Insurance Company of Louisiana (“Direct General”). The petition alleged that on February 9, 2007, while Ms Dixon’s vehicle was stopped at an intersection, it was rear-ended by another vehicle, which was driven by Demecca Johnson. Ms. Dixon’s children and Ms. Jackson were passengers in Ms. Dixon’s car, and the petition asserts that all four sustained injury resulting from the accident.

According to the petition, Allstate Insurance Company, Ms. Johnson’s insurer, paid its policy limits to plaintiffs. Plaintiffs further averred that Direct General provided UM coverage on the vehicle driven by Ms. Dixon and plaintiffs’ damages exceeded the underlying amount of coverage. Accordingly, they sought a judgment against Direct General in their favor.

Direct General answered the petition, generally denying liability on the basis that Ms. Dixon “properly and legally rejected uninsured motorist coverage, and (..¡therefore, did not have any uninsured or underinsured motorist coverage in effect at the time of the accident sued upon.” Thereafter, Direct General filed a motion for summary judgment, seeking the dismissal of plaintiffs’ claims on the basis that Ms. Dixon had rejected UM coverage in conjunction with her application for liability coverage with Direct General. Plaintiffs, in turn, filed a cross motion for summary judgment, seeking a declaration that Direct General’s policy afforded UM coverage in an amount equal to the liability limits of the policy.

Following a hearing, the trial court found the UM form established a valid waiver of UM coverage and granted Direct General’s motion for summary judgment. The judgment further denied plaintiffs’ motion for summary judgment and dismissed plaintiffs’ claims with prejudice at plaintiffs’ costs. Plaintiffs have appealed, urging the UM form signed by Ms. Dixon “did not comply with the requirements of La. R.S. 22:680(l)(a)(i) and LIRC 98-01 and is therefore invalid,” because it failed to identify Direct General as the insurance company.

II. ANALYSIS

When an appellate court reviews a trial court judgment on a motion for summary judgment, it applies the de novo standard of review, “using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, ie., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Gray v. American Nat’l Property & Cos. Co., 07-1670, p. 6 (La.2/26/08), 977 So.2d 839, 844, see La. C.C.P. art. 966(B). In reviewing this judgment, we must apply the burden of proof |4imposed upon a mov-ant in a motion for summary judgment, which is set forth as follows in La. C.C.P. art. 966(C)(2):

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

When a case involves cross motions for summary judgment, the court should determine whether either party has established there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Id. The issue of whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be resolved properly within the framework of a motion for summary judgment. Green v. State Farm Mut. Auto. Ins. Co., 07-0094, p. 3 (La.App. 1st Cir.11/2/07), 978 So.2d 912, 914, writ denied, 08-0074 (La.3/7/08), 977 So.2d 917.

Under the UM coverage statute, La. R.S. 22:1295, the requirement of UM coverage is an implied amendment to any automobile liability policy, even when not expressly addressed, as UM coverage will be read into the policy unless validly rejected. See Duncan, 06-363 at p. 4, 950 So.2d at 547. UM coverage embodies |sa strong public policy. Id. The object of UM coverage is to provide full recovery for automobile accident victims who suffer damages caused by a tortfeasor, who is not covered by adequate liability insurance. Id. UM rejection “shall be made only on a form prescribed by the commissioner of insurance.” La. R.S. 22:1295(1) (a)(ii). This statute provides, in part, that “[a] properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage.” Id.

The UM coverage statute is to be liberally construed. Duncan, 06-363 at p. 4, 950 So.2d at 547. Accordingly, the insurer bears the burden of proving any insured named in the policy rejected in writing the coverage equal to bodily injury coverage or selected lower limits. Id., 06-363 at p. 5, 950 So.2d at 547. Ultimately, a determination of whether Direct General was entitled to summary judgment depends on whether it carried its burden of producing factual support sufficient to establish that it would be able to satisfy its evidentiary burden of proof at trial, i.e., by producing a valid UM coverage form by which the named insured under the policy, Ms. Dixon, rejected such coverage.

On December 2, 2006, Ms. Dixon completed an application for automobile liability insurance with Direct General. Included in the application was a form entitled, “Uninsured/Underinsured Motorist Bodily Injury Coverage Form.” The parties do not dispute that Ms. Dixon signed this form after initialing the selection Rthat indicated she did not want UM bodily injury coverage. Plaintiffs contend however, that the form is invalid because it does not fully comply with Bulletin 98-01 in that it fails to name the insurer.

By 1997 La. Acts, No. 1476, § 3, the Louisiana Legislature amended La. R.S. 22:1406 D(l)(a), to mandate that the rejection, selection of lower limits, or selection of economic-only UM coverage be made only on a form prescribed by the commissioner of insurance. In response to the legislature’s mandate in Act 1476, the commissioner of insurance issued Bulletin 98-01. In the section of Bulletin 98-01 entitled, “UNINSURED/UNDERINSURED MOTORIST BODILY INJURY COVERAGE FORM,” it states “[w]ith this Bulletin,] the LIRC distributes the form prescribed by the Commissioner of Insurance for the selection of lower coverage limits, selection of economic-only coverage, or rejection of uninsured and underinsured motorist coverage.” Bulletin 98-01 further states:

The prescribed UM Form is required by law to be used with all automobile insurance policies delivered or issued for delivery in Louisiana. For identification purposes, the company name must be placed at the lower left-hand corner and the policy number at the lower right-hand corner of the Form.

[Emphasis in original.]

The court in Duncan examined the UM form prescribed by the commissioner of insurance and found that it outlined six tasks:

(1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal ^representative; (5) filling in the policy number; and (6) filling in the date.

Duncan, 06-363 at 11-12, 950 So.2d at 551. Because the form completed by the insured in Duncan did not include a policy number, the court found the form was invalid. Duncan, 06-363 at 14-15, 950 So.2d at 553.

In the present matter, it is undisputed that the six tasks outlined by the Duncan court for a valid UM waiver are met. We conclude the absence of the insurance company’s name in the lower-left hand corner of the form does not negate the form’s effectiveness, despite the language of LIRC Bulletin 98-01. Because the Duncan requirements have been met, the UM form is valid. Gingles v. Dardenne, 08-2995, p. 1 (La.3/13/09), 4 So.2d 799 {per curiam), wherein the Supreme Court addressed the issue presented herein; i.e., is a UM rejection form that lacks the insurance company’s name “properly completed” as required by La. R.S. 22:1295(i )(a)(ii)? Finding that “the pertinent designated spaces on the form were filled out,” and the six Duncan requirements for a compliant UM rejection form were satisfied, the court granted summary judgment in favor of the insurer.

Because the waiver form in the instant case meets the requirements of La. R.S. 22:1295, bears the proper form proscribed by the Louisiana Commissioner of Insurance, meets all of the requirements of Duncan, and as such, contains all essential information to accurately identify the applicable policy at issue, it is valid and enforceable. Requiring the UM form to bear the name of the insurance company where there is no uncertainty regarding the policy to which the form pertains would be a hyper-technical, absurd result. See Harper v. Direct General Jins. Co., 08-2874, p. 2 (La.2/13/09), 2 So.2d 418. The purpose of requiring the UM waiver to be clear and unmistakable is to establish that the insured knowingly waived coverage under a particular policy. In this case, we find the form executed by plaintiff herein complies with the formal requirements of law in that there is a clear rejection of UM coverage, the form is signed and dated, and it contains the policy number and the name of the insured.

Accordingly, by submitting the applicable UM form in support of its motion for summary judgment, Direct General produced factual support sufficient to establish that it would be able to satisfy its evidentiary burden of proof at trial, i.e., that Ms. Dixon rejected UM coverage by initialing and signing the UM form, indicating she did not want UM coverage. At that point, the burden shifted to plaintiffs to rebut the presumption that Ms. Dixon knowingly rejected UM coverage. Because plaintiffs presented no evidence to counter the valid UM coverage form, we conclude, as the trial court did, that there are no genuine issues of material fact, and that Direct General is entitled to judgment as a matter of law.

III. CONCLUSION

For these reasons, we affirm the trial court’s judgment. Plaintiffs, Barbara Jackson and Victoria Dixon, are each assessed with one-half of the appeal costs.

AFFIRMED.

GAIDRY, J. concurs with reasons.

GUIDRY, J. concur.

GAIDRY, J.,

concurring.

|tI respectfully concur in the result reached by the majority, as we are bound by the supreme court’s holding in the recent case of Gingles v. Dardenne, 08-2995 (La.3/13/09), 4 So.2d 799. But I must express my disagreement with the rationale utilized by the supreme court. In Duncan v. U.S.A.A. Ins. Co., 06-363 (La.11/29/06), 950 So.2d 544, the supreme court reviewed the form prescribed by the commissioner of insurance for selection of UM coverage alternatives, noting that the bulletin prescribing the form specifically stated that “the company name must be placed at the lower left-hand corner and the policy number at the lower right-hand corner of the Form.” I fail to see the logical distinction in result between an insurer’s failure to “fill in” or place a policy number in the designated location (Duncan) and an insurer’s failure to place its company name in the designated location (Gingles). Both tasks are plainly required by the commissioner’s bulletin and form, although the latter was not mentioned in Duncan.

      . Pursuant to La. Acts 2008, No. 415, effective January 1, 2009, the current provisions of Title 22 of the Louisiana Revised Statutes of 1950 were redesignated into a new format and number scheme without changing the substance of the provisions. Pursuant to this redesignation, La. R.S. 22:680 was renumbered and the UM coverage statute is now codified in La. R.S. 22:Í295(l)(a).

      . La. R.S. 22:1295(l)(a), provides, in pertinent part:
      (i) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle designed for use on public highways and required to be registered in this state or as provided in this Section unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom; however, the coverage required under this Section is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage, in the manner provided in Item (l)(a)(ii) of this Section....
      (ii) Such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or .selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a -lower limit, or selected economic-only coverage....

      . Ms. Dixon’s initials are placed on the form adjacent to the following language:
      I do not want UMBI Coverage. I understand that I will not be compensated through UMBI coverage for losses arising from an accident caused by an uninsured/underinsured motorist.

      . Louisiana Revised Statute 22:1406 D was redesignated as La. R.S. 22:680 by Acts 2003, No. 456, § 3. La. R.S. 22:680 has since been renumbered and is now set forth in La. R.S. 22:1295, See fn. 1, supra.

      . We note, however, that since Duncan was decided, the supreme court has recognized that the omission of the policy number does not invalidate a UM waiver form if the policy number does not exist at the time the form is completed. Carter v. State Farm Mut. Auto. Ins. Co., 07-1294 (La. 10/5/07), 964 So.2d 375. In Gray, the court stated that in a case where the policy number is not available, only five ''tasks” would be necessary for a valid UM selection form. Gray, 07-1670 at p. 11 n. 2, 977 So.2d at 847 n. 2.

      . We note that the Gingles decision references 22:608(l)(a)(ii), without referencing its redes-ignation as La. R.S. 22:1295(l)(a)(ii), pursuant to La. Acts 2008, No. 415, effective January 1, 2009.