author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Ladarrian Jatazz JONES, Appellant.
    No. 49,396-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.

      Ladarrian Jatazz Jones, Pro Se.
    Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, Michael J. Fontenot, Neal G. Johnson, George M. Campbell, Jr., Assistant District Attorneys, for Appellee.
    Before BROWN, LOLLEY and GARRETT, JJ.
   LOLLEY, J.

h Following a jury trial, the defendant, Ladarrian Jatazz Jones, was convicted of three counts of attempted second degree murder, violations of La. R.S. 14:30.1 and 14:27. Jones was subsequently sentenced to 20 years at hard labor, without the benefit of parole, probation, or suspension of sentence on each count, to be served concurrently. Jones now appeals, and for the following reasons, we affirm his convictions and sentences.

Facts

As the result of a drug deal gone bad on April 8, 2011, Ladarrian Jatazz Jones was charged by bill of information with three separate counts of attempted second degree murder against Zachary Humble, Drew Mayo and Randall “Ryan” Linder. The bill of information also charged Jones with three separate counts of armed robbery against three individuals arising out of a previous incident.

Following a trial on all six charges, the jury found Jones guilty of the three counts of attempted second degree murder and not guilty of the three counts of armed robbery with a firearm. The jury rendered its verdicts on all counts by a vote of ten to two.

Subsequently, a sentencing hearing was held. The trial court considered the facts of this case, the presentence investigation report, the letters submitted on behalf of Jones and the victims, and the sentencing guidelines set forth in La. C. Cr. P. art. 894.1. The trial court considered certain aggravating and mitigating factors and sentenced Jones to 20 years at hard labor, without the benefit of parole, probation, or suspension of sentence, on each count, to be served concurrently.

li>On December 9, 2013, Jones filed a motion for an out-of-time appeal, which the trial court granted. This appeal followed.

Discussion

Sufficiency of the Evidence

On appeal, Jones contends that the evidence was insufficient to support his convictions for attempted second degree murder, arguing the following: the state failed to prove that Jones was not acting in defense of his brother when he stabbed Humble, or that Jones had the specific intent to kill Humble, Linder, or Mayo; Jones did not have a gun, nor did he fire a gun; Jones did not start the fight over the marijuana and only entered the melee by stabbing his victim in a struggle over a gun; and, that in stabbing his victim, Jones was protecting his brother from getting severely injured or killed. Jones contends that even if the self-defense evidence is rejected, the evidence supports only a verdict of aggravated battery under La. R.S. 14:34.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.01/09/08), 974 So.2d 181, unit denied, 2008-0499 (La. 11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to ^substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.02/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.01/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/06/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Cook, 48,355 (La.App.2d Cir.11/20/13), 127 So.3d 992, writ denied, 2013-3000 (La.05/30/14), 140 So.3d 1174.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.01/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/06/09), 21 So.3d 299.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App. 2d Cir.09/18/02), 828 So.2d 622, units denied, 2002-2595 (La.03/28/03), 840 So.2d 566, 2002-2997 (La.06/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

Second degree murder is the killing of a human being when, among other things, the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. La. R.S. 14:27(A).

To obtain a conviction for attempted second degree murder the state must prove the defendant: (1) intended to kill the victim; and (2) committed an overt act tending toward the accomplishment of the victim’s death. State v. Bishop, 2001-2548 (La.01/14/03), 835 So.2d 434. Attempted second degree murder requires proof of specific intent to kill; proof of specific intent to inflict great bodily harm is insufficient. Id.

Specific intent is that state of mind which exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. State v. Reed, 45,237 (La.App.2d Cir.05/26/10), 37 So.3d 1116. The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Hill, 42,025 (La.App.2d Cir.05/09/07), 956 So.2d 758, unit denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

Louisiana R.S. 14:24 provides that “all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” Not all principals are automatically guilty of the same grade of offense as the main offender because the mental state of the offenders may be different. State v. Mitchell, 1999-3342 (La.10/17/00), 772 So.2d 78. An individual may only be convicted as a principal for those crimes which he personally has the requisite mental state. The intent of the accomplice cannot be inferred to the accused. Id. Further, more than mere presence and subsequent flight from the scene is required to be found guilty as a principal in murder cases requiring specific intent. State v. Wright, 2001-0322 (La.12/04/02), 834 So.2d 974.

The use of force or violence upon the person of another is justifiable under La. R.S. 14:19 when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence must be reasonable and apparently necessary to prevent such offense. La. R.S. 14:22 provides that it is justifiable to use force or violence or to kill in the defense of another person when it is reasonably apparent that the person attacked could have justifiably used such means himself, and when it is treasonably believed that such intervention is necessary to protect the other person.

A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. La. R.S. 14:21.

The standard of proof when a defendant claims self-defense in a non-homicide case is a preponderance of the evidence. State v. Freeman, 427 So.2d 1161 (La.1983); State v. Updite, 38,423 (La.App.2d Cir.6/23/04), 877 So.2d 216, writ denied, 2004-1866 (La.11/24/04), 888 So.2d 229. The state must then prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Ford, 42,928 (La.App.2d Cir.02/13/08), 976 So.2d 321, writ denied, 2008-0606 (La.10/03/08), 992 So.2d 1010.

At the trial of the matter, the jury heard testimony that on April 8, 2011, Zachary Humble and Ryan Linder made arrangements to buy a quarter-pound of marijuana from people they did not know. They arranged for the transaction to occur at Drew Mayo’s mobile home in Aurora Trailer Park in Monroe, Louisiana. However, Humble and Linder only asked Mayo if they could meet up with some people at his house, and they did not tell Mayo anything about the marijuana transaction. On the way to Mayo’s trailer, Linder told Humble that they were not going to pay for the marijuana, but were just going to take it from the sellers. Humble and Linder were not armed with any weapons. They went inside the trailer and |7visited with Mayo for about 10 minutes, and then went outside to meet the people who were going to sell them the marijuana. A car drove up to Mayo’s trailer and two men, whom they later identified as Jones and his half-brother, Jameel Chatman, got out of the ear. The men began discussing the transaction, and Linder put the marijuana in his bag and told Jones and Chatman that they needed to leave. Humble and Linder then ran inside Mayo’s trailer with the marijuana and closed the door. Seconds later, Jones and Chatman came in the trailer and a fight ensued.

Humble testified that they were fighting over the marijuana and then Chatman pulled out a gun and demanded the marijuana and the money. When he saw the gun in Chatman’s hand, he lunged for the gun in an attempt to disarm Chatman. As Humble was trying to get the gun from Chatman, the defendant stabbed Humble in the back. Humble testified that when Jones pulled the knife out of his back, he lost all the air in his lungs and fell to the ground. He stated that Jones then got on top of him and began stabbing him in the face. While Jones was stabbing him, he heard several gunshots.

Linder testified that after Chatman pulled out the gun, Chatman and Humble struggled over it. He stated that he saw Jones, who was armed with a four-to-five-inch knife, jump on Humble’s back and stab him as hard as he could right before Chatman shot Linder in the chest. After he was shot, Linder sat down on the couch and heard several more gunshots before he saw Chatman fall down in front of him.

| RMayo testified that he was sitting on the couch watching TV when Humble and Linder came into his trailer, followed by Jones and Chatman, and the scuffle ensued. He stated that he kept a pistol under the coffee table, which was right in front of the couch. According to Mayo, Chatman pulled out his gun and ordered them to get on the ground. When he saw Chatman point the gun at Linder, Mayo jumped up and grabbed his gun. Mayo stated that as he was doing so, he heard a gunshot and saw that Chatman had shot Linder in the chest. Mayo then shot at Chatman, striking him in the elbow, and Chatman shot his gun toward Mayo. As Mayo saw Jones pulling the knife out of Humble’s back, Chatman shot again toward Mayo, who shot again and ran out of his trailer to a friend’s trailer nearby.

Sergeant Mark Johnson, of the Monroe Police Department, testified that he was called to St. Francis Medical Center where Humble, Linder and Chatman had all arrived and were being treated for their injuries. Sergeant Johnson went to the scene at Aurora Trailer Park and interviewed Mayo. When Chatman was released from the hospital shortly thereafter, he was taken to the police department. Sergeant Johnson stated that Chatman gave a statement in which he admitted to his involvement in the incident at the trailer, but stated that Mayo pulled out his gun first, and he also indicated that Jones was with him. Jones was not located at that time, but several days later, Jones arrived at the police station with his mother and turned himself in. Sergeant Johnson took a recorded statement from Jones, which was played for the jury at trial.

|9In his recorded statement to Sgt. Johnson, Jones denied having any knowledge about what Chatman was doing at the trailer. He stated that when they got in the trailer, Chatman pulled out a gun and told the three men to give him everything, the marijuana and the money. He stated that Humble and Chatman began fighting and he saw Mayo with a gun and heard gunshots, so he got on the ground in the corner and did not get up until the three other men left the trailer. Jones denied having a knife and claimed that he did not stab anyone or even know that anyone got stabbed.

Here, the evidence presented at trial is sufficient to support Jones’s convictions for attempted second degree murder. At trial, the testimony established that after Humble’s and Linder’s foolish attempt to steal the marijuana from their dealers, Jones and Chatman busted into Mayo’s trailer behind them. Chatman pulled out a gun and demanded the money and marijuana. When Humble attempted to disarm Chatman, Jones stabbed Humble in the back, puncturing his lung. Jones then got on top of Humble and repeatedly stabbed him in the face while Chatman shot Linder in the center of the chest and fired shots at Mayo. Other than Jones’s self-serving statement to police to the contrary, the evidence at trial clearly supports this version of events. Moreover, the location, number, and severity of Humble’s wounds demonstrate Jones’s specific intent to kill Humble. Further, although Jones did not actually shoot or fire a gun at Linder or Mayo, the evidence establishes that Jones was a principal to these crimes by aiding and abetting Chatman. Jones and Chatman were acting in concert, and Jones’s actions in stabbing Humble facilitated the shooting. Based on | inhis active participation in the commission of this offense, there was arguably sufficient evidence for the jury to find that Jones had the specific intent to kill not only his immediate victim Humble, but Linder and Mayo as well.

In addition, the jury reasonably concluded that Jones’s actions in stabbing Humble were not justified as being in defense of Chatman. Although Jones stabbed Humble only after Humble struggled with Chat-man over the gun, there is no evidence that the force and violence used by Jones was reasonable or apparently necessary. As noted by the trial court at sentencing, when Jones stabbed Humble in the back, Humble fell to the ground and ceased being a threat, but Jones continued to attack him by repeatedly slashing and stabbing him in the face. Further, because Chat-man and Jones were the aggressors in this situation, Jones is not entitled to claim self-defense or defense of Chatman.

Considering the evidence in the light most favorable to the prosecution, a rational trier of fact could have reasonably concluded that Jones had the requisite specific intent to kill, and that he did not act in self-defense or defense of others. The evidence presented at trial was sufficient to support the convictions for attempted second degree murder. Therefore, this assignment of error is without merit.

Bill of Information

Jones also brings three pro se assignments of error, the first two being related to the bill of information. He argues that the bill of information was fatally defective because it did not contain the formal conclusion provided h fin La. C. Cr. P. art. 468, i.e. the language “contrary to the law of the State of Louisiana and against the peace and dignity of the same.”

Louisiana C. Cr. P. art. 468 provides:

The information may be in substantially the following form:
In the (Here state the name of the court.) on the_day of_, 19_State of Louisiana v. A.B. (Here state the name or description of the accused.).
X.Y., District Attorney for the Parish of _, charges that A.B. (Here state the name or description of the accused.) committed the offense of _, in that (Here set forth the offense and transaction according to the rules stated in this Title. The particulars of the offense may be added with a view to avoiding the necessity for a bill of particulars.) contrary to the law of the state of Louisiana and against the peace and dignity of the same.

The permissive nature of the language of La. C. Cr. P. art. 463 does not require inclusion of the formal conclusion “contrary to the law of the state of Louisiana and against the peace and dignity of the same.” State v. Estes, 42,093 (La.App.2d Cir.05/09/07), 956 So.2d 779, writ denied, 2007-1442 (La.04/04/08), 978 So.2d 324. The omission of the formal conclusion is a formal defect, which is waived if no motion to quash is timely filed. State v. Russell, 397 So.2d 1319 (La.1981); La. C. Cr. P. art. 531, et seq. Further, if timely raised, formal defects may be cured by amendment at any time. La. C. Cr. P. art. 487; see also State v. Davis, 614 So.2d 270 (La.App. 3d Cir.1993).

The fact that the bill of information does not contain the formal conclusion as provided in La. C. Cr. P. art. 463 does not render the bill fatally defective, nor did it deprive the trial court of jurisdiction. The 112inclusion of the exact language of the form provided in that article is not required. Further, the omission of the concluding phrase is only a formal defect, which could have been cured by amendment, but was waived by Jones’s failure to file a motion to quash. These assignments of error are without merit.

Ineffective Trial Counsel

In the third pro se assignment of error, Jones contends that his attorney was ineffective in failing to file a motion to quash the defective bill of information, which he claims would have resulted in the dismissal of the prosecution against him. We disagree.

Claims of ineffective assistance of counsel are more properly raised in an application for post-conviction relief in the trial court because it provides the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 980. However, when the record is sufficient, allegations of ineffective assistance of trial counsel may be resolved on direct appeal in the interest of judicial economy. State v. Eiskina, 42,492 (La.App.2d Cir.09/19/07), 965 So.2d 1010.

A cláim of ineffective assistance of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish that his attorney was ineffective, the defendant first must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant | ismust show that counsel’s deficient performance prejudiced his defense. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. Strickland v. Washington, supra; State v. Jordan, 35,643 (La.App.2d Cir.04/03/02), 813 So.2d 1123, writ denied, 2002-1570 (La.05/30/03), 845 So.2d 1067.

The filing and pursuit of pretrial motions is squarely within the ambit of the attorney’s trial strategy, and counsel is not required to engage in efforts of futility. State v. Shed, 36,321 (La.App.2d Cir.09/18/02), 828 So.2d 124, writ denied, 2002-3123 (La.12/19/03), 861 So.2d 561.

Here, regarding his ineffective assistance of counsel claim, Jones has failed to show any prejudice arising from his trial attorney’s failure to file a motion to quash the bill of information. If his attorney would have timely raised this issue, the bill would have simply been amended. Accordingly, this pro se assignment of error is without merit.,

ConClusion

For the foregoing reasons, the convictions and sentences of Ladarrian Jatazz Jones are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Margene M. McCOY, Plaintiff-Appellant v. CITY OF SHREVEPORT, Louisiana, Defendant-Appellee.
    No. 49,428-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.

      Broussard, Halcomb & Vizzier by Daniel E. Broussard, Jr., Alexandria, for Appellant.
    Colvin, Smith & McKay by Jennifer P. McKay, Shreveport, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   MOORE, J.

| T Margene McCoy, a former assistant fire chief with the Shreveport Fire Department (“SFD”), appeals a summary judgment dismissing his claim for overtime wages. We affirm.

Factual and Procedural Background

McCoy was a veteran of SFD, being promoted to assistant fire chief in January 2003 and holding that position until he retired in 2009. In August 2006, he filed suit against the City of Shreveport, alleging that he was due additional pay or overtime wages for time spent attending staff meetings, disciplinary board hearings, EMS workshops, other committee meetings, work-related training, and command of Hurricane Rita-related fire line operations. He sought a declaratory judgment that he was entitled to overtime under La. R.S. 33:1994 and 33:1969, an injunction ordering the City to comply with these statutes, and an award of all unpaid overtime.

The City filed a general denial, and then the case languished for some time. In August 2012, the City filed the instant motion for summary judgment, asserting (1) all overtime wage claims are subject to two years’ prescription under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 255, and (2) McCoy was exempt from overtime wage requirements because he was a highly compensated executive employee not eligible for overtime under FLSA, a federal statute explicitly referenced in R.S. 33:1994 A since a 1993 amendment. In support, it attached portions of McCoy’s deposition, in which he stated that he supervised about 160 employees, addressed personnel issues, delegated responsibility to subordinates and exercised ^numerous management functions. It also cited jurisprudence holding that deputy chiefs, district chiefs and battalion chiefs were executives and thus exempt from FLSA overtime provisions. Monroe Firefighters Ass’n v. City of Monroe, 600 F.Supp.2d 790 (W.D.La.2009); Simmons v. City of Fort Worth, 805 F.Supp. 419 (N.D.Tex.1992); Smith v. City of Jackson, Miss., 954 F.2d 296 (5 Cir.1992).

McCoy opposed the motion, arguing that R.S. 33:1994 actually excluded him from the provisions of FLSA, and thus entitled him to time-and-a-half overtime in accordance with the schedule in § 1994 A. In support, he attached the deposition of then-Chief Kelvin Cochran stating that McCoy received three hours of FLSA overtime every week. He also argued that Monroe Firefighters and Smith, supra, were true FLSA cases, not overtime cases under § 1994 A, and that the applicable prescriptive period was three years, under La. C.C. art. 3494. He also attached copies of pay stubs showing that between August 2005 and his retirement, the City routinely paid him overtime, evidencing an intent to compensate him more generously than FLSA would require.

At a hearing in November 2012, the district court denied the motion for summary judgment, intimating that R.S. 33:1994 was. ambiguous and citing “all those questions about how the man was paid.”

The City applied for a writ, which this court granted on March 14, 2013. This court’s order stated that R.S. 33:1994 applied to the case, and |8that the legislature clearly intended FLSA to apply to firefighters covered under the statute. The order remanded the case for further consideration.

At a hearing in August 2013, the district court found that R.S. 33:1994 applied, FLSA controlled the determination of overtime wages for SFD firefighters, and no genuine issues of material fact existed. The record showed that McCoy “held a high ranking and high salaried position,” was third in command, and it is “undisputed that this is a supervisory and managerial position” in a city that vastly exceeds the population threshold of § 1994. The court found as a matter of law that the position of assistant fire chief is exempt from the minimum and overtime wage provisions and that “additional voluntary or discretionary compensation by a municipality in the form of overtime does not defeat or waive the exemption.”

The Parties’ Positions

McCoy has appealed, designating three assignments of error: (1) the court erred in granting the motion for summary judgment, (2) the court committed legal error in failing to address the application of the second sentence of R.S. 33:1994 A, and (3) the court erred in failing to give any significance to the City’s prior conduct in paying him overtime for regular hours worked exceeding the schedule set forth in § 1994. He concedes that under FLSA, minimum wage and maximum hour requirements do not apply to “any employee employed in a bona fide executive, administrative, or professional capacity,” 29 U.S.C. § 213(a)(1). He also concedes that the first sentence of R.S. 38:1994 A expressly subjects him to FLSA. However, 14he relies on the second sentence, “In the event that such firefighters are subsequently excluded from the overtime compensation provisions of [FLSA], any firefighter having a work period of [7 to 28] consecutive days shall receive overtime compensation at the rate of one and one-half times his usual salary[.]” He argues that this is a “state enacted exception to FLSA” whereby he is “excluded from the overtime provisions of FLSA” because § 1994 does not provide the exemption for persons employed in a bona fide executive, administrative or professional capacity. He contends that the district court’s (and, by implication, this court’s) interpretation of § 1994 A renders the second sentence meaningless.

He also argues that states may adopt higher standards than those stated in FLSA. 29 U.S.C. § 218(a); Overnite Transp. Co. v. Tianti, 926 F.2d 220 (2 Cir.), cert. denied, 502 U.S. 856, 112 S.Ct. 170, 116 L.Ed.2d 133 (1991); Morales v. Showell Farms Inc., 910 F.Supp. 244 (M.D.N.C.1995). He specifically cites Cranford v. City of Slidell, 25 F.Supp.2d 727 (E.D.La.1998), in which the court enforced Slidell’s “more generous” wage structure for police lieutenants, and La. A.G. Opin., 89-101, which required the city of Lafayette to follow the second sentence of § 1994 A with its firefighters. He submits that the City’s prior payment of overtime proved an exclusion from FLSA, and urges the importance of interpreting the law as having the meaning that best conforms to the purpose of the law. La. C.C. art. 10; Richard v. Hall, 2003-1488 (La.4/23/04), 874 So.2d 131. He concludes that the case must be remanded for trial.

|fiThe City responds by reiterating McCoy’s job duties and salary range (from $72,700 to $83,700), urging that he was “in one of the highest management positions of the SFD.” It argues that just because McCoy was ineligible for overtime under FLSA does not mean that he was “excluded from” its provisions. It shows that Cranford, supra, hinged on a special statute, La. R.S. 33:2213, that expressly adopted an overtime scheme for police officers, and that the A.G. opinion actually addressed R.S. 33:1994 C, a special subsection for Lafayette firefighters, but no such special statute exists for assistant fire chiefs. The City also shows that the 1993 amendment to § 1994 A expressly added the FLSA reference, thus showing an intent to subject firefighters to FLSA. The second sentence, the City submits, is operative “only if the overtime provisions are removed from FLSA,” which has not occurred; in other words, the court’s interpretation does not impermissibly negate the second sentence.

Finally, the City concedes that it “elected” to pay overtime to exempt employees who worked a 24-hour shift schedule, but this election does not entitle those employees to even more overtime pay. Boykin v. Boeing Co., 128 F.3d 1279 (9 Cir.1997); Hartman v. Arlington County, Va., 720 F.Supp. 1227 (E.D.Va.1989). The City concludes that R.S. 33:1994 A clearly subjects McCoy to FLSA provisions, under which he is not entitled to overtime, and the judgment should be affirmed.

Discussion

The starting point in the interpretation of any statute is the language of the statute itself. Moreno v. Entergy Corp., 2012-0097 (La.12/4/12), 105 So.3d 40. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9; Fulmer v. State, 2010-2779 (La.7/1/11), 68 So.3d 499.

Overtime for firefighters is regulated by La. R.S. 33:1994 A, which ■ provides, in pertinent part:

§ 1994. Maximum hours
A. Overtime compensation for firefighters covered by this Subpart in cities having a population of [13,000 or more] * * * shall be governed by the provisions of the federal Fair Labor Standards Act, as implemented in 20 CFR Part 553. In the event that such firefighters are subsequently excluded from the overtime compensation provisions of the Fair Labor Standards Act, any firefighter having a work period of [7 to 28] consecutive days shall receive overtime compensation at the rate of [1½] times his usual salary, to be determined by reducing his average monthly salary to an hourly scale, for all hours worked in excess of the following maximum hours standards!.]

The minimum wage and maximum hour requirements of FLSA do not apply with respect to “any employee employed in a bona fide executive, administrative, or professional capacity!.]” 29 U.S.C. § 213(a)(1). The regulation, 29 C.F.R. Part 553, § 553.32(c), explains:

Section 13(a)(1) of the Act [§ 213(a)(1) ] provides an exemption from both the minimum wage and overtime pay requirements for any employee employed in a bona fide executive, administrative, professional, or outside sales capacity * * *_ An employee will qualify for the exemption if he or she meets all of the pertinent tests relating to duties, responsibilities, and salary:

The parties concede, and the summary judgment evidence easily shows, that as assistant fire chief McCoy was employed in a bona fide | executive, administrative or professional capacity. Under FLSA and the applicable regulations, he is exempt from overtime pay requirements.

By his first two assignments of error, McCoy urges that R.S. 33:1994 A entitles him to overtime pay by virtue of its provision that firefighters in towns over 13,000 population “shall receive” overtime if they are “subsequently excluded” from the overtime provisions of FLSA. A plain reading of § 1994 A defeats the argument. The first sentence of the statute states that overtime pay for firefighters is governed by FLSA. True, FLSA exempts McCoy from drawing overtime but does not exclude him from its overtime provisions; it merely treats executive and administrative employees differently from hourly workers. We do not find that the first sentence excludes McCoy from coverage of FLSA. It does the opposite.

As for the second sentence, McCoy has not shown, and this court is not aware, that any Louisiana or federal statute has excluded or removed him from the coverage of FLSA. Indeed, R.S. 33:1994 A included him in FLSA and made him subject to all its provisions. Without an exclusion, we have no authority to apply the overtime schedule that follows the second sentence of § 1994 A.

We are also unpersuaded by the argument that § 1994 A is somehow ambiguous. The legislature obviously intended to subject firefighters to FLSA, but also provided an alternative for the contingency that they might later be excluded from FLSA overtime rules. In the context of insurance policies, courts have held that just because a policy provides general coverage but subjects it to certain exclusions does not make the policy [¡¡ambiguous. Jones v. Louisiana Timber Co., 519 So.2d 333 (La.App. 2 Cir.1988); Walpole v. Le Petit Théâtre du Vieux Carré, 2012 WL 12839 (E.D.La.2012). The same interpretative principle obviously applies to a statute. Just because § 1994 A provides for an eventuality that has not occurred does not make it ambiguous and improper for summary judgment disposition.

Finally, we find Cranford v. City of Slidell, supra, and A.G. Opin. 89-101 La. inapposite to this case. Cranford involved a special statute for police officers, La. R.S. 33:2213 A, which required overtime for officers and made no reference whatsoever to FLSA; the A.G. Opinion involved a special subsection governing Lafayette firefighters, La. R.S. 33:1994 C, which required the City of Lafayette to pay them time-and-a-half overtime and made no reference to FLSA. The latter could be considered an example of how covered firefighters may be “subsequently excluded” from the ambit of FLSA. No such exclusion applies in the instant case. McCoy’s first two assignments of error lack merit.

By his third assignment of error, McCoy urges that the City’s prior conduct in paying him overtime constituted an acknowledgment of its obligation to pay him overtime under § 1994 A. However, the law is settled that the “receipt of overtime payment by otherwise exempt employees does not defeat their exempt status under the FLSA.” Constant v. Webre, 2010 WL 2243641 (E.D.La.2010); Fife v. Harmon, 171 F.3d 1173 (8 Cir.1999); Boykin v. Boeing Co., supra, and citations therein. On this record, we find no evidence that the City waived McCoy’s executive status under FLSA or acknowledged any obligation that it did not owe under § 1994 A. This |9assignment lacks merit.

Conclusion

For the reasons expressed, the summary judgment is affirmed. Margene McCoy is to pay all costs.

AFFIRMED.

      . These included managing electronic correspondence from 21 stations under his command, daily meetings with district chiefs, ensuring participation in training, filling positions that were vacant because of training, selecting training topics, attending staff meetings, evaluating SFD's response to incidents, participating in oral counseling or disciplinary reports, serving on’ disciplinary board, strategic planning, and evaluating rules and regulations.

      . A different judge of the First Judicial District Court heard the case in August 2013.

      . A tabular schedule follows in the statute.


author: PITMAN, J.

text:
    Mrs. Jane S. NICKERSON, Plaintiff-Appellant v. WEBSTER PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 49,435-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.

      Culpepper & Carroll, PLLC, Jonesboro, by Bobby L. Culpepper, for Appellant.
    Hammonds, Sills, Adkins & Guice, LLP, by Jon K. Guice, Baton Rouge, for Appel-lee.
    Before BROWN, WILLIAMS & PITMAN, JJ.
   PITMAN, J.

1 plaintiff Jane S. Nickerson appeals the district court’s granting of a motion for summary judgment filed by Defendant Webster Parish School Board (“School Board”). For the following reasons, we affirm.

FACTS

In March 2008, Mrs. Nickerson, a tenured teacher at Shongaloo High School who taught sixth- and seventh-grade students, met with Webster Parish Superintendent Wayne Williams regarding deficiencies in her teaching practices and classroom management skills. Supt. Williams gave Mrs. Nickerson the option to retire or to have formal tenure charges brought against her. On March 20, 2008, Mrs. Nickerson submitted a handwritten letter stating that she “planfned] to retire on June 10, .2008.” Mrs. Nickerson was placed on paid administrative leave for the remainder of the school year. On June 6, 2008, Mrs. Nickerson wrote a letter to Supt. Williams stating that she no longer intended to retire and requesting that she have the opportunity to continue teaching. As a result, Supt. Williams initiated a hearing process by recommending to the School Board that formal tenure charges be brought against Mrs. Nickerson. The School Board brought the following charges: Charge 1: Incompetency; Charge 2: Willful Neglect of Duty; Charge 3: Willful Neglect of Duty; Charge 4: Willful Neglect of Duty and Incompetency; and Charge 5: Willful Neglect of Duty. The School Board scheduled a tenure hearing, and Supt. Williams | ¡notified Mrs. Nickerson of this hearing and provided her with a written copy of the charges against her.

At the October 20, 2008 tenure hearing, the School Board heard testimony from numerous witnesses and reviewed copious documentary evidence. At the conclusion of the hearing, the School Board found Mrs. Nickerson guilty of Charges 1, 2, 3 and 4 (incompeteney only). At the recommendation of Supt. Williams, the School Board terminated her employment by a unanimous vote of nine to zero.

On August 31, 2009, Mrs. Nickerson filed a petition alleging that her discharge from her teaching position violated La. R.S. 17:443, the Louisiana Teacher Tenure Law. She stated that she was entitled to be reinstated with full pay for any loss of time or salary she sustained by reasons of the action of the School Board. Mrs. Nickerson argued that the actions of the School Board were arbitrary, capricious and/or an abuse of discretion and that her dismissal should be reversed.

On October 7, 2010, the School Board filed an answer and stated that Mrs. Nick-erson was afforded all procedural protections to which she was entitled by La. R.S. 17:443. The School Board also noted that Mrs. Nickerson resigned from her position and that she was terminated by a unanimous vote of the School Board. The School Board stated that the | ¡¡matter before the district court was to be an appeal from an administrative hearing and not a trial de novo.

On August 19, 2011, the School Board filed a motion for summary judgment. In support of this motion, it submitted several exhibits, including Mrs. Nickerson’s retirement letter, the School Board’s policy regarding resignation of employees, correspondence from Supt. Williams regarding Mrs. Nickerson’s placement on paid leave, correspondence from the School Board to Mrs. Nickerson regarding the charges against her and a photograph of prescription medication left unsecured on Mrs. Nickerson’s desk. In a memorandum in support of the motion for summary judgment, the School Board stated that the district court was to review the actions of the School Board, specifically whether the statutory formalities were complied with and whether the School Board’s findings were supported by substantial evidence. It argued that a review of its decision was unnecessary because Mrs. Nickerson resigned from her teaching position and could not rescind her resignation. The School Board explained that, after Mrs. Nickerson attempted to rescind her resignation, it initiated the hearing process out of an abundance of caution. The School Board stated that it fully complied with all of the statutory requirements of La. R.S. 17:443 and that its decision was based on substantial evidence and was not arbitrary, capricious or an abuse of discretion.

On November 21, 2011, Mrs. Nickerson filed a memorandum in opposition to the motion for summary judgment. She stated that it was improper for the district court to weigh the affidavits and other evidence |4submitted in support or opposition of a motion for summary judgment. In an affidavit, Mrs. Nickerson gave her account of the tenure hearing, stating that it lasted from 6 p.m. to 4 a.m. She noted her participation in an intensive assistance program and defended her complained-of actions.

On December 12, 2013, the district court filed an opinion granting the School Board’s motion for summary judgment. The district court stated that the School Board properly followed the procedures set forth in La. R.S. 17:443. The court noted that the School Board presented the necessary paperwork and sufficient evidence to prove that Mrs. Nickerson had been neglectful and deficient in her teaching practices. The district court further found that Mrs. Nickerson failed to prove that the School Board did not comply with proper procedure or present sufficient evidence for her termination. The court also stated that Mrs. Nickerson resigned from her position and that her resignation was accepted by the School Board.

On February 3, 2014’, the trial court filed a judgment granting the School Board’s motion for summary judgment and dismissing the suit at Mrs. Nickerson’s cost.

Mrs. Nickerson appeals.

DISCUSSION

Mrs. Nickerson argues that the district court erred, as a matter of law, in granting the School Board’s motion for summary judgment and dismissing her action with prejudice at her cost. Specifically, she contends that the district court committed the following errors:

1. Affirming a discharge that was in violation of La. R.S. 17:443.
_|2. By affirming a discharge where plaintiff was not provided with “a written statement of recommendation of removal or discipline, which included the exact reasons, offenses, or instances upon which the recommendation was based.”
3. Plaintiff was not “ordered removed from office or disciplined by the board.”
4. By affirming the discharge when the notification in this matter did not indicate any discipline of any nature reference charge 5.
5. By affirming a discharge when the letter dated October 23, 2008, did not correspond with the charges in this matter.
6. By affirming the discharge where defendant school board did not prove the validity of any of the charges in question.

Mrs. Nickerson claims that the district court improperly weighed affidavits and other evidence in this case. She argues that the School Board clearly abused its discretion in terminating her employment. Regarding her letter stating her intent to retire, she differentiates between resigning and planning to resign and suggests that a plan to resign cannot be accepted.

The School Board argues that the district court did not err in granting its motion for summary judgment, that it did not abuse its discretion and that it presented sufficient evidence to support its decision to terminate Mrs. Nickerson’s employment. The School Board further argues that the district court did not err in finding that Mrs. Nickerson was properly discharged in accordance with La. R.S. 17:443 because it provided her with detailed written charges more than two months before the tenure hearing and notified her of possible witnesses to be called at the tenure hearing.

The Louisiana Teacher Tenure Law, La. R.S. 17:441 et seq., defines the status of Louisiana’s public school teachers and outlines the procedures a school board must follow to discharge them. Spears v. Beauregard Parish Sch. Bd., 02-2870 (La.6/27/03), 848 So.2d 540, citing Wright v. Caldwell Parish Sch. Bd., 98-1225 (La.3/2/99), 733 So.2d 1174. A permanent or tenured teacher is one who holds proper certificates and who has served satisfactorily as a teacher in that parish or city for more than three consecutive years. La. R.S. 17:442. La. R.S. 17:443 (2001) provides the procedure for the removal of a permanent or tenured teacher and states:

A. A permanent teacher shall not be removed from office except upon written and signed charges of willful neglect of duty, or incompetency or dishonesty, or of being a member of or contributing to any group, organization, movement or corporation that is by law or injunction prohibited from operating in the state of Louisiana, and then only if found guilty after a hearing by the school board of the parish or city, as the case may be, which hearing may be private or public, at the option of the teacher. At least twenty days in advance of the date of the hearing, the superintendent with approval of the school board shall furnish the teacher with a copy of the written charges. Such statement of charges shall include a complete and detailed list of the specific reasons for such charges and shall include but not be limited to the following: date and place of alleged offense or offenses, names of individuals involved in or witnessing such offense or offenses, names of witnesses called or to be called to testify against the teacher at said hearing, and whether or not any such charges previously have been brought against the teacher. The teacher shall have the right to appear before the board with witnesses in his behalf and with counsel of his selection, all of whom shall be heard by the board at said hearing. For the purpose of conducting hearings hereunder the board shall have the power to issue subpoenas to compel the attendance of all witnesses on behalf of the teacher. Nothing herein contained shall impair the right of appeal to a court of competent jurisdiction.
B. If a permanent teacher is found guilty by a school board, after due and legal hearing as provided herein, on charges of willful neglect of duty, or of incompetency, or dishonesty, or of being a member of or contributing to any group, organization, |7movement or corporation that is by law or injunction prohibited from operating in the state of Louisiana, and ordered removed from office, or disciplined by the board, the superintendent with approval of the board shall furnish to the teacher a written statement of recommendation of removal or discipline, which shall include but not be limited to the exact reason(s), offense(s) or instance(s) upon which the recommendation is based. Such teacher may, not more than one year from the date of the said finding, petition a court of competent jurisdiction for a full hearing to review the action of the school board, and the court shall have jurisdiction to affirm or reverse the action of the school board in the matter. If the finding of the school board is reversed by the court and the teacher is ordered reinstated and restored to duty, the teacher shall be entitled to full pay for any loss of time or salary he or she may have sustained by reason of the action of the said school board.

In accordance with La. R.S. 17:443(B), a permanent or tenured teacher who is found guilty by a school board after a removal hearing may petition a court of competent jurisdiction for a full hearing to review the action of the school board. Spears v. Beauregard Parish Sch. Bd., supra.

Judicial review of tenure proceedings must be limited to an inquiry of whether the school board complied with the statutory formalities under the Teacher Tenure Law and whether the school board’s findings were supported by substantial evidence. Wise v. Bossier Parish Sch. Bd., 02-1525 (La.6/27/0S), 851 So.2d 1090, citing Howell v. Winn Parish Sch. Bd., 332 So.2d 822 (La.1976). The district court must give great deference to the school board’s findings of fact and credibility. Id., citing Arriola v. Orleans Parish Sch. Bd., 01-1878 (La.2/26/02), 809 So.2d 932. Reasons for dismissal are largely in the sound discretion of the school board, and the school board’s judgment should not be reversed in the absence of a clear showing of abuse of discretion. Id., citing Gaulden v. Lincoln Parish Sch. Bd., 554 So.2d 152 (La.App. 2d Cir.1989), unit denied, 559 So.2d 126 |8(La.l990), Furthermore, the district court may not substitute its judgment for that of the school board or interfere with the school board’s good faith exercise of discretion. Id., citing Howard v. W. Baton Rouge Parish Sch. Bd., 00-3234 (La.6/29/01), 793 So.2d 153, McLaughlin v. Jefferson Parish Sch. Bd., 560 So.2d 585 (La.App. 5th Cir.1990), and Sampson v. Lincoln Parish Sch. Bd., 439 So.2d 454 (La.App. 2d Cir.1983). The district court’s responsibility is to determine whether the school board’s action was supported by substantial evidence, or conversely, constituted an arbitrary' decision and thus an abuse of discretion. Id., citing Howell, supra, and Roberts v. Rapides Parish Sch. Bd., 617 So.2d 187 (La.App. 3d Cir.1993), writ denied, 619 So.2d 1068 (La.1993).

Similarly, a court of appeal may not reverse a district court’s decision unless it finds the school board’s termination proceedings failed to comply with statutory formalities and/or the school board’s findings were not supported by substantial evidence. Guirlando v. Richland Parish Sch. Bd., 48,970 (La.App.2d Cir.4/9/14), 137 So.3d 137, reh’g denied (5/8/14), citing Wise v. Bossier Parish Sch. Bd., supra.

An appellate court reviews a trial court’s granting of summary judgment de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Schroeder v. Bd. of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991). Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that mover is entitled to | ¡¡.judgment as a matter of law. La. C.C.P. art. 966; Schroeder v. Bd. of Sup’rs of La. State Univ., supra; Shiers v. Richland Parish Sch. Bd., 39,649 (La.App.2d Cir.5/11/05), 902 So.2d 1173, unit denied, 05-1379 (La.12/9/05), 916 So.2d 1066.

Mrs. Nickerson was a tenured teacher pursuant to La. R.S. 17:442 with more than 25 years of service at the time of her termination. A review of the tenure hearing transcript and exhibits, the pleadings of both parties and Mrs. Nickerson’s affidavit demonstrates that the School Board followed the procedural requirements of La. R.S. 17:448 when it terminated her employment. More than 20 days in advance of the date of the tenure hearing, the School Board notified Mrs. Nickerson in writing of the tenure hearing and furnished her with a copy of the five charges against her. These written and signed charges of willful neglect of duty and/or incompetency detailed the dates and locations of the alleged offenses, the names of possible witnesses to testify against her at the hearing, specific reasons for the charges and whether .previous charges had been brought against her. Mrs. Nickerson appeared before the School Board at the tenure hearing with witnesses on her behalf and with counsel, all of whom were heard by the School Board at the hearing. After the testimony of witnesses and the examination of evidence at the tenure hearing, the School Board found Mrs. Nickerson to be guilty of Charges 1, 2, 3 and 4 (incompetency only). Supt. Williams recommended that she be terminated, and the nine members of the School Board present at the hearing unanimously voted to terminate |i0Mrs. Nickerson’s employment. Following the tenure hearing, Supt. Williams provided Mrs. Nickerson with a written statement of the outcome of the hearing, including the votes of the School Board on each of the five charges, and that the School Board voted to accept Supt. Williams’ recommendation to terminate her employment. Throughout the process of terminating Mrs. Nickerson’s employment, Supt. Williams and the School Board closely adhered to the procedural requirements of La. R.S. 17:443. Therefore, Mrs. Nickerson’s arguments that her discharge was in violation of La. R.S. 17:443 and that she was not provided with a written statement of recommendation of removal are unfounded.

A review of the tenure hearing transcript and exhibits, the pleadings of both parties and Mrs. Nickerson’s affidavit also confirms that the School Board’s findings are supported by substantial evidence. Numerous witnesses testified at the tenure hearing regarding the charges brought against Mrs. Nickerson. Regarding Charge 1 that Mrs. Nickerson failed to complete lesson plans, failed to keep her students on task and failed to maintain adequate classroom management and control, Shongaloo High School Principal Cindy Hair testified about a classroom observation of Mrs. Nickerson. Principal Hair detailed Mrs. Nickerson’s incomplete lesson plans, her unorganized classroom, her lack of evaluation methods and her failure to encourage student participation, Principal Hair explained that all of Mrs. Nick-erson’s students had a 100 percent average in her class and had only received completion grades. Principal Hair explained that this was troubling because the students’ work needed to be evaluated independently hfin order to measure their progress. Cathy Miller, an elementary supervisor, testified that she performed an additional observation a month after Principal Hair’s observation in which Mrs. Nickerson did not have written lesson plans and was unsatisfactory in her classroom management and overall teaching. Ms. Miller noted that the students did not understand the instructions in their assignments and that their behavior was “atrocious.”

Regarding Charge 2, that Mrs. Nicker-son failed to report to work on parent/teacher conference day, Principal Hair testified regarding Mrs. Nickerson’s absence. Principal Hair noted that it was necessary for teachers to be present on parent/teacher conference day so that they could give out report cards and speak to parents about their children’s progress and problems in school. Principal Hair explained that teachers are instructed to notify the school if they are unable to come to school and stated that Mrs. Nickerson did not contact the school regarding her absence.

Regarding Charge 3, that Mrs. Nicker-son failed to fax in lesson plans as required by her participation in an intensive assistance plan, Principal Hair explained that, after an unsatisfactory classroom observation, Mrs. Nickerson was placed on an intensive assistance plan to help improve her lesson plans. Ms. Miller and Charlotte Dean, a staff development facilitator, provided extensive testimony about the intensive assistance program and the support provided to Mrs. Nickerson to improve her teaching. Ms. Dean explained that she graded the lesson plans Mrs. Nickerson submitted as part of the program and noted that h2Mrs. Nickerson never made a passing score on any of the grading rubrics and that her lesson plans were often turned in late.

Regarding Charge 4, that Mrs. Nicker-son left approximately six pills unsecured on top of her desk in an area that was easily accessible by students, Ms. Miller testified that she observed “a handful of medicine ... at least six pills and they appeared to be prescription drugs” on Mrs. Nickerson’s desk within the reach of students. Ms. Miller noted that she took a photograph of the pills with her cell phone and then asked Mrs. Nickerson about the pills. Jill Wadlington, the coordinator of the safe and drug free schools and communities program, testified that she met with Mrs. Nickerson regarding the pills and that Mrs. Nickerson told her the pills were Fluoxetine, Prozac, an anti-histimine, Omnicef (an antibiotic), Vera-pamil (blood pressure medication), Trama-dol (a pain medication) and Temazepam (a sleep aid). Ms. Wadlington stated that the presence of this medication in the classroom created a safety and health concern for the students. She explained that there is a general rule of conduct for employees concerning the well being and safety of students and a drug free workplace policy in place, both of which were violated by Mrs. Nickerson’s actions.

Regarding Charge 5, that Mrs. Nicker-son violated iLeap testing security policies, Phillip Carroll, a Shongaloo High School guidance counselor and iLeap testing administrator and supervisor, testified that Mrs. Nickerson allowed students to leave the testing room with their test 11sbooklets. Mr. Carroll noted Mrs. Nickerson attended an in-service training workshop regarding iLeap test administration and security at which she was advised that test materials should never be left unattended. He explained that Mrs. Nickerson’s violation of test security directives could have resulted in invalidated test scores.

During the tenure hearing, the School Board provided substantial evidence in support of its charges against Mrs. Nicker-son. The testimony heard and the documentary evidence reviewed by the School Board were sufficient to support their findings that Mrs. Nickerson violated Charges 1, 2, 3 and 4 (incompetency only) and to accept Supt. Williams’ suggestion of termination of employment. Accordingly Mrs. Nickerson’s argument that the School Board did not prove the validity of any of the charges in question is unfounded.

The School Board’s termination proceedings complied with statutory formalities, and its findings were supported by substantial evidence and were not arbitrary. Finding no genuine issues of material fact and no wrongful dismissal of Mrs. Nicker-son from her employment with the School Board, we find that the trial court did not err in granting the School Board’s motion for summary judgment. Furthermore, we note that Mrs. Nickerson’s termination by the School Board does not affect her ability to retire from the school system.

^CONCLUSION

For the foregoing reasons, the judgment of the district court granting summary judgment in favor of Defendant Webster Parish School Board and against Plaintiff Jane S. Nickerson is affirmed. Costs of appeal are assessed to Jane S. Nickerson.

AFFIRMED.

      . At the October 20, 2008 tenure hearing, Supt. Williams testified that he placed Mrs. Nickerson on paid leave from March 2008 until June 2008 because she needed two more months of service in order to retire.

      . Specifically, Mrs. Nickerson asserted that she did not receive adequate information about the charges against her to be able to prepare her defense, she did not receive a list of witnesses that might be called to testify at her hearing, she did not receive proper notice, the School Board was prejudiced against her because it was aware of additional reprimands unrelated to the present charges, she did not receive a written statement of recommendation of removal or discipline, she was not ordered removed from office or disciplined by the School Board, the voting on one of the charges was unclear, the School Board did not prove the validity of any of the charges, she was not properly evaluated and her medical condition was not considered.

      . The Teacher Tenure Law was amended by the Louisiana Legislature during the 2012 Regular Session. All of the events in this case, except for the district court’s ruling on the School Board’s motion for summary judgment, occurred prior to legislative changes in the law. Accordingly, this case is governed by the pre-2012 versions of La. R.S. 17:441, 442 and 443.

      . The School Board notified Mrs. Nickerson of the hearing and charges against her in a letter dated August 6, 2008. The tenure hearing was originally scheduled for September 8, 2008.

      . Principal Hair provided testimony consistent with Mr. Carroll's testimony regarding Mrs. Nickerson’s violation of iLeap test security regulations.

      . Mr. Carroll testified that he reported the violation to the school principal and that the test scores were counted.

      . Supt. Williams testified that Mrs. Nickerson was placed on paid administrative leave for the remainder of the 2007-2008 school year so that she would have the requisite 25 years of service to retire. Supt. Williams stated that Mrs. Nickerson could retire from the school system even if she was terminated following the tenure hearing. In a written letter confirming the School Board’s decision to terminate Mrs. Nickerson’s employment, Supt. Williams provided Mrs. Nickerson with contact information for the Louisiana Teacher Retirement System so that she could learn about her retirement benefits.


author: CARAWAY, J.

text:
    FURIE PETROLEUM COMPANY, L.L.C. and Silver Spur Royalty Company, L.L.C., Plaintiffs v. SWEPI, LP, Encana Oil & Gas (USA), Inc., Pride Oil and Gas Properties, Inc., Cloyce C. Clark, Jr. and Martha Chamberlain Clark, Defendants. Cloyce C. Clark, Jr., et ux., Plaintiffs v. Eugene Copeland, et al., Defendants.
    Nos. 49,462-CA, 49,463-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.

      James D. “Buddy” Caldwell, Attorney General, Ryan M. Seidemann, Steven B. “Beaux” Jones, Daniel D. Henry, Jr., Assistant Attorneys General, for Intervenor-Appellant, State of Louisiana.
    Bradley Murchison Kelly & Shea LLC by David R. Taggart, Leland G. Horton, Sarah A. Kirkpatrick, Shreveport, for Fu-rie Petroleum Company, L.L.C. and Silver Spur Royalty Company, L.L.C.
    Kevin J. Severson, Covington, for Succession of Eugene Copeland.
    Cook, Yancey, King & Galloway by Herschel E. Richard, Jr., John T. Kalmbach, Shreveport, for Encana Oil & Gas (USA) Inc. and Pride Oil & Gas Properties, Inc.

      Liskow & Lewis by Lawrence P. Simon, Brian W. Capell, Nicohlas S. Wise, Jeffrey D. Lieberman, Lafayette, for SWEPI LP.
    ■ James G. Bethard, Coushatta, for Cloyce C. Clark, Jr. and Martha Chamberlain Clark.
    D. Scott Brown, Mansfield, M. Amy Burford McCartney, Shreveport, for Briar-wood Finance Co., LLC.
    Before BROWN, STEWART and CARAWAY, JJ.
   CARAWAY, J.

|,The State of Louisiana (“State”) appeals a ruling denying its right to intervene into these consolidated actions for declaratory judgment regarding the mineral ownership of a large tract of land. The State claims that a navigable waterway which it owns divides the tract into two parts. If established, this fact concerning the State’s waterway would directly bear upon the underlying dispute over the maintenance of a mineral servitude over the large tract which is subject to the claim of prescription of nonuse. From our review of the pleadings and the positions of all sides, we find that the State’s joinder is required for a complete adjudication of the controversy and the State’s intervention should be allowed.

Facts and Procedural History

The procedural issue before the court arises from consolidated suits filed in 2009 concerning the validity of a 1967 mineral servitude burdening a 1,154-acre tract known as “Sunrise Place Plantation” in DeSoto Parish. The owners of the disputed mineral servitude are the Succession of Eugene Copeland, Karen Ann Ochsenbein Lanier, Annie Laurie Lanier Samuels, Harvey H. Samuels Jr., and Briarwood Finance Co., LLC, and their mineral lessees are Furie Oil & Gas, LLC, Silver Spur Royalty Co., LLC, and Jamma Energy, LLC (hereinafter the “Mineral Servitude Group”). The surface owners of the property are Cloyce C. Clark Jr. and Martha Chamberlain Clark, and their mineral lessees are SWEPI LP and Encana Oil and Gas, Inc. (hereinafter the “Landowners Group”). Originally, both sides sought declaratory judgments as to the validity of the disputed mineral 12servitude. The competing oil and gas leases were executed in 2008 and 2009. The underlying dispute concerned prescription of nonuse and whether the servitude is still in effect. At issue was whether a well that had produced minimal quantities had sufficiently interrupted prescription.

The Mineral Servitude Group alleged that their rights were maintained by continuous production from the servitude from its creation in 1967 until July 9,1998. They further alleged that a well was commenced on the property on June 80, 2008, and prescription of nonuse was again interrupted. That well is currently shut in.

By 2012, as the original parties approached trial, the Landowners Group revealed in a discovery disclosure that they would assert that Dolet Bayou, which crossed the 1,154-aere tract, was a navigable waterway. This new issue raised the possibility of ownership of the State of a part of the 1,154-acre tract (the “waterway”), and such ownership, if established, would divide the tract into two noncontiguous tracts of land. The Mineral Code requires that the creation of a single mineral servitude extend over a continuous body of land and a grant of rights over noncontiguous tracts creates multiple ser-vitudes. La. R.S. 31:63 and 64. Thus, by-raising the Dolet Bayou matter, the Landowners Group sought to compound the burden of the Mineral Servitude Group to show that the interruption of prescription had occurred on two mineral servitudes created by the 1967 mineral reservation.

|aThe Mineral Servitude Group responded to the Dolet Bayou matter by filing a motion in limine to prohibit such evidence and with an exception of res judicata. The res judicata defense rests upon two rulings of the Louisiana Supreme Court, Wemple v. Eastham, 150 La. 247, 90 So. 637 (1922) (“Wemple No. 1 ”), and Wemple v. Albritton, 154 La. 359, 97 So. 489 (1923) (“Wemple No. 2”), involving the predecessor-in-title to all of the parties in the consolidated actions, B.Y. Wemple. Wemple had successfully defended his ownership of the land in those suits against party defendants who claimed rights granted by the State pertaining to Dolet Bayou. The Mineral Servitude Group, therefore, argued that as successor to Wemple’s ownership of the 1,154-acre tract, the Landowners Group was precluded from asserting a position contrary to the Wemple rulings.

The motion in limine and an exception of res judicata were heard on December 5, 2012. Although there was no judgment, the trial court gave oral reasons indicating that the issue of Bayou Dolet’s navigability was res judicata as between the original parties, but that the court’s ruling was subject to withdrawal at any time and also subject to the Landowners Group’s motion for reconsideration.

On the heels of this action, the State moved to intervene in the suit, and its petition for intervention was granted on December 14, 2012. On January 8, 2013, the Landowners Group filed a motion for reconsideration of the court’s oral ruling on the peremptory exception of res judica-ta regarding the navigability of Bayou Do-let. Thereafter, on January 23, 2013, the Mineral Servitude Group filed several exceptions to the State’s petition 14for intervention, including peremptory exceptions of no cause of action and no right of action.

The trial court held a hearing on April 4, 2013, to consider the Mineral Servitude Group’s exceptions of no right of action, no cause of action, and res judicata. On July 24, 2013, the court withdrew its prior oral ruling on the issue of res judicata regarding the navigability of Bayou Dolet, and denied that exception. Further, the trial court ruled that the Mineral Servitude Group’s “Peremptory Exception of No Right of Action to State of Louisiana’s Petition for Intervention be and is hereby deferred to trial on the merits on the state of Louisiana’s claim of ownership of Bayou Dolet.” However, on June 9, 2014, the trial court reversed its course again and issued a judgment against the State on the exception of no right of action, finding the Mineral Servitude Group’s exception to be “well-founded for the reasons stated” in their brief. The trial court held that the State had no interest in the pending declaratory judgment action involving the mineral dispute between the parties. The State of Louisiana appeals the dismissal of its interventional claims.

Discussion

The Mineral Servitude Group primarily asserts that their declaratory judgment action fixed as the sole object of the suit the issue of whether their mineral servitude created in 1967 lapsed by the prescription of nonuse. In filing their petition in the consolidated actions, the Mineral Servitude Group necessarily admits that the Landowners Group is the owner of the 1,154-acre tract of land. Therefore, expressed from the Landowners Group’s |r,opposing perspective, the object of the suit is whether the Landowners Group owns the complete and unencumbered rights in the land, including the landowner’s right to the minerals. The issue of the ownership to the production of oil and gas is also incidental to these claims for declaratory judgment, requiring the inclusion in the action of the various mineral lessees.

From this overview of the action, whether burdened by the 1967 mineral servitude or not, the Landowners Group’s ownership of the land was never in question in this declaratory judgment action before the State’s arrival in the case. The State’s claim in intervention, however, challenges the Landowners Group’s ownership of a part of the 1,154-acre tract (the “waterway”) and any mineral rights of the Mineral Servitude Group encumbering the waterway. The Mineral Servitude Group therefore argues that the State has injected into this declaratory judgment action a wholly unrelated issue, justifying the trial court’s peremptory ruling.

Secondarily, the Mineral Servitude Group argues, and the trial court’s ruling recognized, that the State’s claim of ownership for the waterway is based upon the navigability of Bayou Dolet, which has been rejected in the two prior Wemple cases of the Louisiana Supreme Court. The trial court cites the Wemple rulings as settled law and indicates that the State “has no interest in the dispute” to assert navigability, or, at the least, an overruling of the Wemple rulings and a new ruling recognizing navigability could have only prospective effects.

IfiWe find the Mineral Servitude Group’s arguments and the trial court’s ruling to properly address issues requiring peremptory consideration. Nevertheless, we find that the grant of the peremptory exception of no right of action is mislabeled. Clearly, the State has a cause of action and is the proper party to assert that land in this state is (or was) navigable and that it holds ownership of the public property in its sovereign capacity. La. C.C. art. 450. Yet, the improper joinder of the State into this pending declaratory judgment suit may be appropriately questioned at the outset upon the party’s attempt to intervene. La. C.C.P. arts. 1091 and 641; Palace Properties, LLC v. City of Hammond, 02-1263 (La.App. 1st Cir.6/27/03), 859 So.2d 15. Likewise, the issue of the pre-clusive effect of a prior judgment is the basis of the peremptory exception of res judicata which may be noticed by the trial or appellate court for the dismissal of the State’s claim. La. C.C.P. art. 927. We also note that the trial court’s ruling, which was made after some evidence was received, did not rest upon any factual determination of the issue of navigability in this case. Accordingly, we will review de novo the trial court’s dismissal of the State’s intervention and address the two procedural issues argued by the Mineral Servitude Group.

The Propriety of the State’s Intervention and Joinder in the Declaratory Judgment Action

The procedural authority for a third person to intervene in a pending action is set forth in La. C.C.P. art. 1091, as follows:

A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
|7(2) Uniting with defendant in resisting the plaintiffs demand; or (3) Opposing both plaintiff and defendant.

In addition to these parameters for intervention, the jurisprudence has recognized that the procedural test for joinder of parties for the complete adjudication of the dispute is also relevant when a third party’s right to intervene is questioned. Palace Properties, supra. Article 641 provides for joinder as follows:

A person shall be joined as a party in the action when either:
(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.

La. C.C.P. art. 641.

The dispute in Palace Properties concerned a declaratory judgment action where, as in this case, the ownership and encumbrance of immovable property was the subject matter of the action. The predecessor-in-title to the intervenor had granted the city a street servitude across the disputed tract. Years later, after the city attempted to abandon use of the street, the plaintiff brought suit to declare the abandonment of the street a nullity, against the public .interest for use of the street and the plaintiff’s rights as an interested nearby landowner. The trial court denied the intervenor the right to intervene. Reversing that ruling, the court of appeal recognized that at stake in the litigation was whether or not the intervenor’s land remained | ^encumbered by the public servitude. The intervention was therefore entirely proper. The court also noted that intervenor’s right to participate would also result because of the joinder test of Article 641. Such conclusion was a peremptory ground for requiring the landowner of the disputed tract to be included in the action. See, La. C.C.P. arts. 645 and 927(4).

In this case, the State has an interest to enforce a right related to the object or subject matter of the pending action, when that subject matter is seen as the ownership of land and various mineral right encumbrances of that land. While the entire tract of land is 1,154 acres, the State’s claim to only a small strip does not disconnect its rights from the controversy. Likewise, Article 1091 expressly allows the State to oppose the Mineral Servitude Group’s claim for a mineral servitude and any title interest of the Landowners Group over the alleged waterway. Opposition by an intervenor can be against all parties in the action.

We reject as too narrow the Mineral Servitude Group’s view that the pending declaratory judgment action is limited to only the question of the continued existence of the 1967 mineral servitude. In the first place, the present landowner parties are not barred from questioning whether the 1967 sale of the 1,154 acres of land to their predecessor-in-title did in fact convey the ownership of the waterway. The issue of the State’s ownership had never been adjudicated against the State as will be discussed below. Therefore, the Landowners Group’s assertions that the State’s ownership of the waterway divides the 1,154-acre tract was a relevant claim, possibly requiring the measure of the continued existence of two mineral servitudes. J^That claim had been raised in the suit at the time of the State’s intervention. Moreover, the presence of the mineral lessees as parties in the suit and any ongoing production mean that the resolution of the question of the continued existence of the Mineral Servitude Group’s mineral servitude rights would be expected to result in a proper division of the production proceeds and royalties for the 1,154 acres upon conclusion of the action. Such resolution for the payment of ongoing production would not result if the State’s claim for ownership to part of the 1,154 acres must be litigated in another action.

In summary, the State in brief correctly observes that “[a] decision in favor of any party to this litigation in the absence of the State will result in an allocation of State-claimed rights to private parties.” When the State sought intervention, the ownership of land and all attendant and extant mineral rights to that land were the subject matter of this declaratory judgment. The State may oppose all parties claiming such ownership by intervening to claim a portion of the disputed land as a navigable waterway.

Res Judicata

The two Wemple opinions of the Louisiana Supreme Court were recognized by the trial court as precluding the State’s rights to assert the navigability of the waterway and to therefore claim ownership. Wemple is the predecessor-in-title to both the Mineral Servitude Group and the Landowners Group, and Wemple prevailed in the two prior suits involving ownership of portions of the bed of Dolet Bayou.

|10In Wemple No. 1, the defendant had acquired an oil and gas lease from the State over “the meandering line” of Dolet Bayou running through four sections of Wemple lands. The mineral lessee stipulated “that Dolet Bayou is not, and never has been, a navigable stream, and that the state therefore had no right to lease the bed and bottom of that bayou.” Wemple No. 1 at 637. With that stipulation, the court affirmed the trial court’s recognition of Wemple’s ownership of land traversed by the bayou.

Wemple No. 2 involved only a 29-acre tract in one section of land “lying within the original bed of Red or Dolet Bayou.” The defendant unsuccessfully claimed ownership by virtue of a 1917 patent from the State. The ruling noted the lack of proof by the defendant concerning the navigability of the waterway in 1812. Likewise, acquisition of the land by the State through the 1849 swamp land grant from the United States was not established. Finally, with adequate proof of over 30 years of possession by Wemple and his predecessors-in-title, the court held that the State’s issuance of the patent to defendant was improper under state law, even assuming the State had acquired ownership from the federal government.

The first and most significant observation about these Wemple rulings is that the State was not a party to either action. Particularly, in Wemple No. 1, which contested ownership of a long stretch of Dolet Bayou running through the 1,154 acres, the defendant’s mineral lease was challenged merely as a slander of title disturbing Wemple’s claim of possession and In ownership. The ruling was not a judgment on a petitory action against the State. Wemple No. 2 addresses only a small stretch of Dolet Bayou and therefore is not a ruling affecting the entirety of the waterway which the State now claims. In Wemple No. 2, the contested patent did purport to divest the State of ownership of the land. Yet, with the State’s present claim resting on navigability of the Dolet Bayou, a state patent of a navigable waterway is a nullity under the ruling of Gulf Oil Corp., supra, note 2.

Louisiana’s enactment in 1990 of La. R.S. 13:4231, et seq., regarding res judicata retained the essential principle that “a final judgment is conclusive between the same parties.” See also, La. C.C. art. 2286. In both the common law and the civil law, in order for a second suit to be barred by the doctrine of res judica-ta, the parties must appear in the same capacities in both suits. Burguieres v. Pollingue, 02-1385 (La.2/25/03), 843 So.2d 1049, 1054. There exists an identity of parties whenever the same parties, their successors, or others appear so long as they share the same “quality” as parties. Welch v. Crown Zellerbach Corp., 359 So.2d 154, 156 (La.1978), citing Quinette v. Delhommer, 247 La. 1121, 176 So.2d 399 (1965); 2 Planiol, Traité Elementaire de Droit Civil, No. 54A(4) at 35-36 (11th ed. La. State L.Inst.trans.1959). With respect to application of the principle of res judica-ta, the term privy refers to and encompasses representatives and successors, including any person having a legal right or interest in the subject matter of the prior suit derived through succession or assignment from the litigant who asserted the right; or any person whose legal right or interest in the subject matter of the prior suit was asserted by his legal | ^representative. Coates Equipment & Service, Inc. v. Glover, 181 So.2d 455, 459 (La.App. 1st Cir.1965); see also Gilbert v. Visone, 30,204 (La.App.2d Cir.2/25/98), 708 So.2d 496.

In an early ruling of the Louisiana Supreme Court, the following observation was made regarding the res judicata element for the identity of the parties:

Again, where two persons litigate titles set up by them, respectively, to particular property, and it is decreed to belong to one of them, though in fact it belongs to a third person not a party to the suit, such third person may thereafter, either sue for the property himself, or may transfer his right to the party cast in the litigation or to another, who may then exercise it, and renew the litigation for the vindication of the title thus acquired. In other words, a litigation is not conclusive as against those who are not parties to it, nor as to rights not possessed by the litigants at the time, save as to persons who are the privies of each other.

Gajan v. Patout & Burguieres, 135 La. 156, 65 So. 17 (1914).

The State is not a successor by grant from either of the defendants in the Wem-ple rulings. Those defendants were not the legal representatives of the State in the prior Wemple suits. Therefore, the identity of the parties test for res judicata is not met, and res judicata does not apply to bar the State’s intervention in this proceeding.

Conclusion

For the foregoing reasons, the trial court’s grant of the peremptory exception dismissing the State from proceeding is reversed. Costs of appeal are assessed to the Mineral Servitude Group.

REVERSED AND REMANDED.

      . Louisiana Civil Code Article 450 defines public things owned by the state to include navigable water bodies.

      . In Gulf Oil Corp. v. State Mineral Bd., 317 So.2d 576 at 589 (La.1975), the court observed that all states were placed on an equal footing with the original thirteen states concerning ownership of navigable waterbot-toms: "Because of the equal footing doctrine, states subsequently admitted to the Union likewise acquired beds of navigable waters.” Thus, the key test for navigability and the State’s corresponding ownership is 1812 at the time of our statehood.


text:
    ALLIANCE HOLDINGS, LLC, Plaintiff-Appellee Defendants-Appellants v. Johnny ANTWINE, Shylonda R. Antwine and Claude A. Dance, Jr., Defendants-Appellants.
    No. 49,233-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 26, 2014.
    Rehearing Denied Jan. 8, 2015.
    Washington & Wells, Shreveport, by Alex J. Washington, Jr. for Appellants, Johnny Antwine and Shylonda R. Antwine.
    Shuey Smith LLC, Shreveport, by Richard E. Hiller for Appellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   CARAWAY, J.

|,Alliance Holdings LLC (“Alliance”) instituted- this suit to quiet its 2001 tax title against defendants Johnny Antwine (“Ant-wine”), Shylonda Antwine, and Claude Dance Jr. In an amended petition, Alliance raised an alternative cause of action against Antwine for the amount of the property taxes paid by Alliance, as well as redemption interest from July 15, 2010, until paid, reasonable attorney’s fees, and all costs of court. On October 3, 2012, Alliance and Antwine filed a joint stipulation of facts and evidence, including the amount of taxes paid by Alliance, totaling $22,699.60, exclusive of redemption interest. After trial, a money judgment was rendered in favor of Alliance on December 20, 2012, in the amount of $42,891.62, together with redemption interest of one percent per month until paid and all costs of court. The judgment was signed by counsel for both Antwine and Alliance on December 20, 2012. Antwine, in proper person, filed a motion for new trial on January 8, 2013, and a hearing was set for September 4, 2013, at which time the motion was denied. On October 25, 2013, Antwine filed this appeal.

Alliance contends that Antwine’s motion for new trial was untimely. The notice of judgment was mailed by the Caddo Parish clerk of court on December 21, 2012. La. C.C.P. art. 4907 allows a seven-day delay for applying for a new trial, which begins to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment. This would have required the motion for new trial to have been filed on or before January 7, 2013. The motion was filed on January 8, 2013.

12Alternatively, Antwine had only 60 days to file his notice of appeal, beginning on the date the notice of judgment was mailed by the clerk. Antwine’s appeal was filed on October 25, 2013, well beyond the 60-day period.

Accordingly, the motion for appeal being untimely filed, we dismiss the appeal. Costs of appeal are assessed to appellant.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, CARAWAY and DREW, JJ.

Rehearing denied.

DISMISSED.


text:
    THE MISSISSIPPI BAR, Appellant, v. Eugene T. HOLMES, Appellee.
    No. 2014-BD-01221-SCT.
    Supreme Court of Mississippi.
    Dec. 1, 2014.
   ORDER

This matter is before the Court on the Mississippi Bar’s Motion to Accept the Irrevocable Resignation of Eugene T. Holmes, and this Court, having considered the same, finds as follows:

Mr. Holmes is an inactive member in good standing with the Mississippi Bar. On October 8, 1992, the Supreme Court of Georgia accepted the voluntary surrender of Mr. Holmes’s license to practice law, which, according to the Georgia Court, is tantamount to disbarment. The Mississippi Bar did not discover the Georgia Supreme Court’s disciplinary action against Mr. Holmes until approximately July 2014. On August 28, 2014, the Mississippi Bar filed with this Court a Formal Complaint against Mr. Holmes, asserting that Mr. Holmes’s surrender of his law license in Georgia served as grounds for disciplinary action in Mississippi pursuant to Rule 13 of the Rules of Discipline for the Mississippi State Bar.

On September 10, 2014, Mr. Holmes executed a Notice of Irrevocable Resignation pursuant to Rule 10.5 of the Rules of Discipline for the Mississippi State Bar, whereby he requested permission to resign with prejudice from the Mississippi Bar. Said Notice, which complies with Rule 10.5 in all respects, was delivered to the Bar on September 17, 2014. Rule 10.5 provides that, upon receipt of such resignation, this Court “shall enter its order accepting the resignation, revoking the attorney’s license, and barring forever thereafter the attorney’s right to seek reinstatement to the privilege of practicing law in this state.” Miss. R. Disc. 10.

Having considered the above circumstances in light of Rule 10.5, this Court finds that the Mississippi Bar’s Motion to Accept the Irrevocable Resignation of Eugene T. Holmes is well-taken and shall be granted.

IT IS, THEREFORE, ORDERED, ADJUDGED, and DECREED as follows:

1. This Court hereby accepts Eugene T. Holmes’s resignation with prejudice from the Mississippi Bar, and such resignation shall be considered tantamount to proof of guilt on the matter charged;
2. This Court hereby revokes Eugene T. Holmes’s license to practice law in the State of Mississippi;
3. This Court hereby bars Eugene T. Holmes from seeking reinstatement to the privilege of practicing law in the State of Mississippi in the future;
4. The Clerk of this Court shall forward an attested copy of this order to Eugene T. Holmes and the Executive Director of the Mississippi Bar;
5. Eugene T. Holmes shall, within thirty days following entry of this order, notify clients and affected courts, if any, of his resignation from the Mississippi Bar, properly disburse all funds he may hold in trust, and comply with all other requirements applicable under Rule 11 of the Mississippi Rules of Discipline;
6. Eugene T. Holmes shall, within forty-five days following entry of this order, file an affidavit with this Court stating that all of his clients have been notified of his resignation from the Mississippi Bar and his consequent inability to practice law in Mississippi, and that he has fully complied with all applicable requirements set forth in Rule 11 of the Mississippi Rules of Discipline, as well as the requirements of this order;
7. Failure to comply with this order may be punished as a contempt and may constitute a separate ground for disciplinary action;
8. The Clerk of the Supreme Court of Mississippi shall immediately forward an attested copy of this order to the Clerks of the United States District Courts for the Northern and Southern Districts of Mississippi, the Clerk of the United States Court of Appeals for the Fifth Circuit, and the Clerk of the Supreme Court of the United States; and
9. Costs of the formal complaint shall be, and are hereby, assessed to Eugene T. Holmes.

SO ORDERED.

/s/ William L. Waller, Jr. WILIAM L. WALLER, JR., CHIEF JUSTICE