author:
CIKLIN, J.
      WARNER, J.,

text:
    STATE of Florida, Appellant, v. Tabias CALVERT, Appellee.
    No. 4D08-1423.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 2009.

      Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellee.
   CIKLIN, J.

This case requires us to decide if the State’s failure to make a specific objection to the trial court’s decision to withhold adjudication without written findings waives the State’s challenge. Because the State failed to preserve the issue it now raises for appellate review, we affirm.

On March 17, 2008, Tabias Calvert entered an open plea to the second degree felony of delivery of cocaine. The State recommended “an adjudication and eighteen months prison.” After finding that Calvert had no prior criminal history , the trial court withheld adjudication. After this decision, the following exchange took place:

COURT: You wanted to say something, Mr. Carmona [prosecutor]?
STATE: Yes judge. As far as 07-20628CF10A the court is giving a withhold. We would like to inquire from the court the reason for a withhold on a second degree felony.
COURT: He has no history.
STATE: Okay.
COURT: This is his first — That’s the reason.
STATE: Okay.
COURT: I want to give him the best shot of getting over this and getting on with his life. I know if I make him a convicted felon he’s going to have two strikes against him. If he screws up he faces the possibility of prison and being a convicted felon which will be with him for the rest of his life.
STATE: Yes, judge. Just for purposes of the record obviously it would be over the State’s objection.
COURT: Okay. All right. Thank you. Good-bye.
(emphasis added)

On appeal, the State now specifically argues for the first time that the trial court erred in failing to make written findings in conjunction with its decision to withhold adjudication. The State urges us to remand this matter to the trial court with instructions to adjudicate Calvert and in support of that request cites to section 775.08435(l)(b), Florida Statutes (2008), which states that:

[T]he court may not withhold adjudication of guilt upon a defendant for:
(b) A second degree felony offense unless:
1. The state attorney requests in writing that adjudication be withheld; or
2. The court makes written findings that the withholding of adjudication is reasonably justified based on circumstances or factors in accordance with those set forth in s. 921.0026.[]

To properly preserve an issue for appellate review requires three components, “[fjirst, a litigant must make a timely, contemporaneous objection. Second, the party must state a legal ground for that objection. Third, “[i]n order for an argument to be cognizable on appeal, it must be the specific contention asserted, as legal ground for the objection, exception, or motion below.” Harrell v. State, 894 So.2d 935, 940 (Fla.2005) (quoting Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982)).

Here, while there was an objection made, the prosecutor did not apprise the trial court of the statute relevant to the objection or why the prosecutor believed that the trial court was committing error. See Keyes v. State, 804 So.2d 373, 376 (Fla. 4th DCA 2001) (“Indeed, defense counsel’s assertion that T will object to that’ was insufficient to preserve any specific ground for appeal.”); Jones v. State, 760 So.2d 1057, 1058 (Fla. 4th DCA 2000) (“[Djefense counsel’s objection did not apprise the trial court of the precise argument made here, that this was an improper personal attack on counsel. If defense counsel had made a more specific objection the trial court might well have sustained it.”). Because the prosecutor did not indicate the error the trial court was making, the trial court did not have an opportunity to correct itself. See Crumbley v. State, 876 So.2d 599, 601 (Fla. 5th DCA 2004) (“Commonly referred to as the contemporaneous objection rule, the rationale for its application is two-fold: 1) to require an objection at the time the error is committed to give the trial court the opportunity to correct it; and 2) to prevent a litigant from allowing an error to go unchallenged so it may be used as a tactical advantage later.”); Ca stor v. State, 365 So.2d 701, 703 (Fla.1978) (The purpose of the contemporaneous objection rule is to place “the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early stage of the proceedings.”). Although objections may be preserved on the basis that their purpose is clear from the context, the prosecutor’s comments asking for “reasons” and that the ruling “would be over the State’s objection” only indicate a displeasure with the ruling, not a legal argument.

In the instant matter, was the State objecting to the withhold of adjudication because the trial court had not prepared written findings by the time of sentencing? Was the State conceding that the trial court could supplement the record with written justification but yet anticipating that the judge would not do so? Was the objection based on the prosecutor’s contention that sufficient mitigating factors did not exist — pursuant to section 921.0026— to justify a withhold of adjudication? Was the State of the opinion that the trial court’s reasoning was legally flawed? Given the form of the State’s general objection below, we are unable to discern why the State “obviously” lodged an objection.

“The sole exception to the contemporaneous objection rule applies where the error is fundamental.” F.B. v. State, 852 So.2d 226, 229 (Fla.2003) (citation omitted). For example, “[ijllegal sentences necessarily constitute fundamental error, and may therefore be challenged for the first time on direct appeal.” Sanders v. State, 698 So.2d 377, 378 (Fla. 1st DCA 1997); State v. Rhoden, 448 So.2d 1013 (Fla.1984), receded from on other grounds by Maddox v. State, 760 So.2d 89, 100 (Fla.2000) and Cargle v. State, 770 So.2d 1151, 1154 n. 2 (Fla.2000).

Failing to comply with the requirements of section 775.08435(l)(b), Fla. Stat., however, does not constitute fundamental en’or when the error benefits the defendant. See State v. Ackerman, 785 So.2d 1229, 1231 (Fla. 4th DCA 2001) (“Cases allowing sentencing errors to be reviewed as fundamental error involve defendants’ challenges to their sentences, not the state’s.”). Similar to section 775.08435(l)(b), Fla. Stat., downward departure sentences also require the trial court to provide written reasons. §§ 921.001(6), 921.0016(l)(c), Fla. Stat. (2008). The State’s failure to object to a trial court’s imposition of a downward departure sentence without providing written reasons or engaging in the proper analysis is unpreserved error. State v. Doit, 929 So.2d 1190, 1191 (Fla. 4th DCA 2006); State v. Golkiewicz, 930 So.2d 862, 862-63 (Fla. 4th DCA 2006) (“The state challenges the circuit court’s imposition of a downward departure sentence without providing written reason» or engaging in the proper analysis. We affirm the sentence because the state failed to preserve the issue in the trial court.”).

We recognize our decision in State v. Fulmore, 2 So.3d 365 (Fla. 4th DCA 2008), but find it distinguishable. In Fulmore, the error involved section 775.08435(l)(e), Fla. Stat., which prohibits a trial court from withholding adjudication (without written findings) when there has been a prior unrelated withholding of adjudication for a felony offense. In Fulmore, the State preserved the error by making the trial court aware of a prior unrelated withhold.

This issue before us was not properly preserved for appellate review and is therefore not now cognizable.

Affirmed.

GROSS, C.J., concurs.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurring specially.

I concur based upon the reasoning of State v. Hewitt, 702 So.2d 633 (Fla. 1st DCA 1997).

The erroneous withholding of adjudication without providing written reasons pursuant to section 775.08435(l)(b), Florida Statutes, creates a judgment unauthorized by law, not necessarily an illegal judgment. See id. at 636. Where the act is only unauthorized, rather than illegal, the state must preserve the issue for appeal by proper objection or assertion on appeal that the error is fundamental. Id. Based upon the analysis of sentencing errors in Maddox v. State, 760 So.2d 89, 100-01 (Fla.2000), it is unlikely that our supreme court would classify the lack of written reasons for a withhold of adjudication and sentence of probation under the statute as a fundamental error. (“[I]n order to be considered fundamental, an error must be serious. In determining the seriousness of an error, the inquiry must focus on the nature of the error, its qualitative effect on the sentencing process and its quantitative effect on the sentence. In most cases, a fundamental sentencing error will be one that affects the determination of the length of the sentence such that the interests of justice will not be served if the error remains uncorrected.”) (citation omitted).

It would not seem to be a serious error of constitutional proportion that the trial court failed to take the ministerial step of recording in writing the orally pronounced reasons for withholding adjudication, an act which does not increase the deprivation of liberty of the defendant. Maddox, 760 So.2d at 100 (“[A]n error that improperly extends the defendant’s incarceration or supervision likely would impress us as fundamental.”). The state has not argued that this failure constitutes fundamental error, nor has it argued that the reason orally assigned by the judge for withholding would not comport with the factors set forth in section 921.0026, Florida Statutes.

For these reasons, I concur in the affir-mance of the judgment and sentence.

      . Although inconsequential for purposes of this appeal, the record indicates that the court was apprised of the fact that Calvert had been charged with loitering and prowling in 2007.

      . Section 921.0026, Fla. Slat., permits a sentencing court to downwardly depart from the lowest permissible statutory guideline sen-lence after considering and applying one or more of twelve enumerated "mitigating circumstances.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Willie REMBERT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-5129.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2009.
    Willie Rembert, pro se, Petitioner.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

ALLEN, DAVIS, and PADOVANO, JJ., concur.


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

text:
    Frances Orlando wife of/and Nicholas REGGIO v. E.T.I., ABC Inc. and City of New Orleans through New Orleans Aviation Board.
    No. 2007-C-1433.
    Supreme Court of Louisiana.
    Dec. 12, 2008.

      Daigle, Fisse & Kessenieh, Michael David Fisse, Jonathan Harold Sandoz, Patrick Edward Moore, Covington, for applicant.
    Goins Aaron Law Corporation, William David Aaron, Jr., Leola M. Anderson, De-Wayne L. Williams, Mark Christopher Carver, New Orleans, Bruce Henry Liza-na, Metairie, for respondent.
   JOHNSON, Justice.

hWe granted this writ application to address whether a third joarty claim for indemnity, which was filed three years after the main demand was served, is prescribed. The lower courts held that because the City of New Orleans (New Orleans Aviation Board) filed its third party demand three years after the principal demand was filed, its demand was prescribed under both LSA-C.C.P. art. 1067 and LSA-C.C. art. 3492. However, it is well settled that prescription does not commence on a claim for indemnity or contribution until the party seeking it has sustained a loss, either through payment, settlement or an enforceable judgment. For the following reasons, we reverse the rulings of the lower courts and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

This matter arrived in this Court in a pre-trial posture; therefore, the facts have been extrapolated from the various pleadings. On June 6, 2001, Exceptional ^Temporaries Inc., (“ETI”) entered into a contract with the City of New Orleans Aviation Board (“NOAB”) to provide sound-deadening insulation to residences in close proximity to Louis Armstrong Airport as part of the Airport Capital Improvements Program. On October 8, 2001, ■plaintiffs, Frances Orlando and Nicholas Reggio, contracted with NOAB to have their Kenner residence insulated. The work actually began on or about March 23, 2002. In the process of renovating the house, ETI allegedly broke a window’s glass, then failed to remove some pieces of the broken glass. Frances Orlando alleged that she stepped on the glass and cut her foot on April 21, 2002, causing severe bodily injuries. On March 7, 2003, she and her husband filed suit against ETI and NOAB alleging negligence on the part of NOAB in contracting with ETI to perform the repairs, and negligence on the part of ETI in performing “shoddy work in violation of LSA-C.C. art. 2762.” NOAB was served with the petition on March 26, 2003. ETI was never served with the original petition.

On February 27, 2006, NOAB filed a Third Party Demand against ETI, seeking contribution and/or indemnity for damages arising out of the plaintiffs’ tort claim. Particularly, NOAB argued that it “is entitled to complete indemnity and/or contribution from ... ETI to the degree that the accident sued upon was caused ... by the negligence and/or strict liability of ETI.” ETI filed an exception of prescription based on LSA-C.C.P. art. 1067, which the trial court maintained, dismissing NOAB’s third party demand.

|aThe trial court noted that NOAB filed its third party demand almost three years after the main demand was filed and served. Although NOAB alleged a cause of action in contract, pursuant to an indemnity provision, the trial court determined that the contract between ETI and NOAB contains no such provision. The court held that NOAB’s cause of action sounded in tort, and concluded that because NOAB brought suit against ETI more than 90 days after service of the main demand, pursuant to LSA-C.C.P. art. 1067, NOAB’s third party demand was prescribed.

In affirming the trial court’s ruling, the court of appeal found that the main demand clearly alleged a claim in tort, with a one year prescriptive period, although NOAB argued that a quasi contract existed between the parties. Reggio v. E.T.I., 07-0049 (La.App. 4 Cir. 6/13/07), 961 So.2d 1269. The court of appeal also concluded that there was no specific indemnity provision included in the contract between the NOAB and ETI; therefore, the NOAB’s only redress was in tort, and the cause of action was prescribed pursuant to LSA-C.C. art. 3492. In finding no contract of indemnity, the court noted:

“A contract of indemnity whereby the indemnitee is indemnified against the consequences of his own negligence is strictly construed, and such a contract will not be construed to indemnify an' indemnitee against losses resulting to him through his own negligent acts unless such an intention is expressed in unequivocal terms.” Soverign Ins. Co. v. Texas Pipe Line Co., 488 So.2d 982 (La.1986); Polozola v. Garlock, 343 So.2d 1000 (La.1977); Berry v. Orleans Parish School Bd., 2001-3283 (La.5/21/02), 830 So.2d 283.

The court of appeal held, as well, that the NOAB had ninety (90) days from service of the main demand to seek indemnification, and failed to do so; thus, NOAB’s third party demand was prescribed. NOAB applied for a writ of certiorari, alleging error in the lower courts’ application of LSA-C.C.P. art. 1067 to an | incidental demand for indemnification, and this Court granted NOAB’s writ of certiorari. Reggio v. ETI, 07-1433 (La.10/12/07), 966 So.2d 536.

DISCUSSION

The standard controlling review of a peremptory exception of prescription requires that this Court strictly construe the statute against prescription, and in favor of the claim that is said to be extinguished. Louisiana Health Service and Indemnity Company v. Tarver, 93-2449, pp. 11-12 (La.4/11/94), 635 So.2d 1090, 1098; Fontaine v. Roman Catholic Church of Archdiocese of New Orleans, 625 So.2d 548, 551 (La.App. 4th Cir.1993), writ denied, 93-2719 (La.1/28/94), 630 So.2d 787.

When an exception of prescription is filed, ordinarily, the burden of proof is on the party pleading prescription. However, when prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Alex Spott v. Otis Elevator Company, 601 So.2d 1355 (La.1992); Eastin v. Entergy Corp., 03-1030 (La.2/6/04), 865 So.2d 49.

In the present case, the plaintiffs’ Petition for Damages was filed on March 3, 2003, while NOAB’s Third Party Demand was filed on February 27, 2006, nearly three years after the original Petition was filed. ETI contends that NOAB’s Third Party Demand is prescribed on its face, arguing that the one year prescriptive period, provided for in LSA-C.C. art. 3492, expired on March 3, 2004. Additionally, ETI argues that the Third Party Demand is prescribed on its face, pursuant to LSA-C.C.P. art. 1067.

Since NOAB’s third party demand is seeking indemnification pursuant to the terms of a contract, we must examine the basic law of indemnity to better understand the potential cause of action.

| BIndemnity

NOAB argues first that the contract between the City of New Orleans and ETI includes indemnity language in favor of NOAB, and points to the clause where St. Paul Fire and Marine Insurance Company appears as surety. The record shows that St. Paul Fire and Marine Insurance Company intervened in the contract as Surety for the faithful performance of all work, and to fully secure and protect the City of New Orleans from all losses arising from failure or neglect on the part of ETI.

An action for indemnity is a separate substantive cause of action, arising at a different time, independent of the underlying tort, with its own prescriptive period. This Court defined “indemnity” in Nassif v. Sunrise Homes, Inc., 98-3193, pp. 2-3 (La.6/29/99), 739 So.2d 183, 185:

| (¡Indemnity ... means reimbursement, and may lie when one party discharges a liability which another rightfully should have assumed.... It is based on the principle that everyone is responsible for his own wrongdoing, and if another person has been compelled to pay a judgment which ought to have been paid by the wrongdoer, then the loss should be shifted to the party whose negligence or tortious act caused the loss. [Citations omitted].

At oral argument in this Court, NOAB suggested that the contract between ETI and NOAB clearly sets forth the parties’ intent to provide indemnity for “... all loss or expense of any kinds, including all costs of Court and attorneys'f ees, made necessary or arising from the failure, refusal or neglect of the aforesaid ETI, Contractor, to comply with all of the obligations assumed by it.”

While NOAB makes the argument here, the record shows that NOAB conceded in the lower courts that there was no contractual indemnity. In NOAB’s Memorandum In Support of Motion to Reconsider Judgment, it acknowledged in its conclusion that “no express contract provision exists that specifically provides for indemnity.” After reviewing the four corners of the contract, we conclude, as well, that there is no express language to support contractual indemnity between ETI and NOAB. Thus, there is no express contractual indemnity.

Third Party Demands

A third party demand is an incidental demand allowed by the Louisiana Code of Civil Procedure. “Incidental demands are reconvention, crossclaim, intervention, and the demands against third parties.” LSA-C.C.P. art. 1031(B). LSA-C.C.P. art. 1067 provides that:

An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of the main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.

This Court has determined that “Article 1067 was initially added to protect defendants from being lulled into the loss of their right to assert actions and defenses 17through reconvention by plaintiffs’ guile and delay in bringing forward their ultimate and true demands. Act 472 of 1970.” Moore v. Gencorp, Inc., 93-0814 (La.3/22/94), 633 So.2d 1268, 1272. In Moore, we determined that the fundamental purpose of prescription statutes is “to afford a defendant security of mind and affairs” if the claim is filed untimely and “to protect him from stale claims and the loss or non-preservation of relevant proof.” Id.

Professor Frank Maraist and Justice Harry T. Lemmon (retired) explained in Chapter 7 of the Louisiana Civil Law Treatise, entitled “Incidental Actions,” 1 La. Civ. L. Treatise, Civil Procedure § 7.2(2008), that:

Article 1067 has utility in avoiding unnecessary lawsuits. When two claims arise out of the same occurrence, one person may decide not to pursue his or her claim as long as the other person also forgoes that claim. However, a claimant who would otherwise forgo his or her claim may not learn until after the claim has prescribed that the other party filed an “eleventh hour” suit. Faced with this prospect, such a claimant would be likely to file a protective suit. Article 1067 eliminates the dilemma that would prompt a protective, and sometimes unnecessary, suit by allowing the forebearing claimant a ninety-day grace period. The period has been described as an exemption period, and not an extension of prescription.

[Footnotes omitted.]

LSA-C.C.P. art. 1067 is an exemption, rather than a prescriptive statute, which exempts the incidental demand from any applicable prescriptive statute whose prescriptive period would accrue during the 90 day period from the date of service of the main demand. Traylor v. Reliance Insurance Co., 98-1379 (La.App. 4 Cir. 7/1/98), 715 So.2d 1253. Article 1067 was promulgated to permit additional opportunities for filing reconventional demands on which prescription would normally have run, but within 90 days of the filing of the main demand. Id. Subsequently, Act 86 of 1974 amended Article 1067 to expand its scope to encompass reconventional demands and “all prescribed incidental or third party demands.” Id.

|sSome appellate courts have held that a defendant’s third party demand, not filed within one year of the allegedly tortious conduct, or within 90 days of plaintiffs amended petition, is prescribed pursuant to LSA-C.C.P. art. 1067. See, Thibaut v. Thibaut, 607 So.2d 587 (La.App. 1 Cir.1992); Keller v. Townsley, 462 So.2d 264, 365 (La.App. 1 Cir.1984); State Fann v. Smith, 448 So.2d 209 (La.App. 1 Cir.1984); Hildebrand v. Schnell, 441 So.2d 395 (La.App. 4th Cir.1983). See also, Lawyer v. Succession of Kountz, 00-1888 (La.App. 4th Cir.1/8/02), 806 So.2d 867, writ denied, 02-253 (La.3/28/02), 812 So.2d 632, where a buyer sued the seller for rescission of the sale after discovering termite damage in the house. Three years later, the Succession filed a third party demand against the termite inspector. In that case, the termite inspector filed an exception of prescription, which the lower courts granted and dismissed the Succession’s incidental demand. The court held that the Succession’s incidental demands against Rid-A-Pest had prescribed since the third party demand was filed almost three years after the original petition was served. It was not served within the 90 day delay period provided by LSA-C.C.P. art. 1067; in fact more than one year had elapsed since the expiration of the 90 day period.

Next, we must determine when the cause of action accrued in order to decide whether NOAB’s claim for indemnification has expired since it was clearly filed three years after the main demand.

Prescription

In Louisiana, there are three elements necessary for a negligence cause of action to accrue: fault, causation, and damages. Austin v. Abney Mills, Inc., 01-1598, n. 7 (La.9/4/02), 824 So.2d 1137, 1150. Before prescription can run, or be suspended, these three elements must exist. Id. To determine whether a claim is prescribed, a court looks to the time when a plaintiff knew or should have known that |ga cause of action arose or existed. However, to decide what substantive law to apply, a court must look to token the cause of action accrued,, i.e. when the injury or insult to the plaintiff first occurred. Cole v. Celotex, 599 So.2d 1058 (La.1992).

In this case, we find that NOAB’s demand sounds in tort; thus, the one-year prescriptive period would apply. It is clear from our review of the original petition and the third party demand that NOAB asserts a negligence (tortious) cause of action, which has a one year prescription period attached. See, LSA-C.C. art. 3492.

Louisiana courts have found that in a claim for indemnification based on a tortious act, prescription begins to run when the indemnity claimant suffers the loss or damage, at the time of the payment of the underlying claim, payment of a judgment thereon, or payment of a settlement thereof by the party seeking indemnity, i.e., when the judgment has been cast. Wiggins v. State Through Dept. Of Transportation and Development, 97-0432 (La.App. 1 Cir. 5/15/98), 712 So.2d 1006, 1011, writ not considered, 98-1652 (La.9/25/98), 726 So.2d 6; Carpenter v. Lafayette Woodworks, Inc., 504 So.2d 179 (La.App. 3rd Cir.1987).

In Bergeron v. Amerada Hess Corp., 478 So.2d 1308, 1310 (La.App. 5th Cir.1985), the plaintiffs filed suit to recover damages as a result of the death of Perry Bergeron, who was the passenger in a boat which collided with an oil well. The suit was filed against owner, insurer, and several employees of the oil well within the applicable one year prescriptive period. The owner of the oil well then filed a third-party demand seeking contribution against the operator of the boat. However, the third-party demand was not filed until four months after the principal action would have prescribed. Bergeron, 478 So.2d at 1309.

The third-party defendant, the boat operator, filed a peremptory exception of prescription alleging that pursuant to LSA-C.C.P. art. 1067, the third party plaintiff, Imthe owner of the oil well, only had ninety days from service of the main demand to file the claim. The trial court upheld the peremptory exception of prescription. However, the appellate court found that since the action was for contribution and/or indemnity, prescription could not begin to run until defendant was cast in judgment. Therefore, the time periods set forth in LSA-C.C.P. art. 1067 were not applicable. Bergeron, 478 So.2d at 1309.

The court recognized that LSA-C.C.P. art. 1067 is an exemption rather than a prescriptive statute. Thus, if the action had not or could not have prescribed because the cause of action had not yet accrued, the time limitations of article 1067 would not apply. Bergeron, 478 So.2d at 1309-1310. The court noted that in a claim for indemnity or contribution, prescription does not begin to run until the right vests. Bergeron, 478 So.2d at 1310.

In Wiggins, the plaintiff filed suit against the Department of Transportation and Development (DOTD), on July 30, 1994, seeking damages on behalf of a minor pedestrian struck by a truck driver. DOTD filed its reconventional demand, on December 22, 1995, seeking indemnity from the minor’s mother for her negligence in failing to properly supervise her child, and in allowing him to play near the highway. DOTD’s claim was filed more than ninety days after service of process of the original petition. The court held that based on Bergeron, the limitations set forth in Article 1067 were not applicable, as DOTD’s indemnity claim had not accrued. The court concluded that prescription did not begin to run on DOTD’s claim until the cause of action matured, which would have been at the time of judgment and payment by DOTD in excess of its virile portion of the damages.

In Bailey v. Khoury, 04-0620 (La.1/20/05), 891 So.2d 1268, this Court held that “[pjrescription cannot run against a cause of action that has not accrued or while |nthat cause of action cannot be exercised.” (citing Wilkinson v. Wilkinson, 323 So.2d 120, 125 (La.1975)). Because prescription does not commence on a claim for indemnity until a party has sustained a loss, either through payment, settlement, or an enforceable judgment, we hold that the indemnity claim is not time barred. See Wiggins, 712 So.2d at 1011, (claim for indemnity not governed by or time-barred by the provisions of LSA-C.C.P. art. 1067).

We find, as well, that while NOAB may have a potential claim for indemnity, we conclude that indemnity is not available at this time because NOAB has not suffered any loss or damages, i.e., the cause of action has not yet accrued. Thus, there is no need for contribution or indemnification. In sum, we find that the prescriptive period on a claim for indemnity does not begin to run until NOAB is cast in judgment, regardless of the applicable theory of indemnity. Thus, we expressly overrule the holding of Lawyer v. Succession of Kountz, supra.

An action for indemnity is a separate substantive cause of action, independent of the underlying tort. The action for indemnity does not accrue until the City of New Orleans is responsible for a judgment, or actually discharges a liability for which NOAB is responsible. Thus, NOAB’s action against ETI is neither premature nor prescribed. See, Article 1805.

An action is premature when the “right of action ” is the right to claim contribution. This right matures by operation of law, when parties are cast as solidai’y obli-gors. Therefore, when the plaintiffs named both E.T.I. and NOAB, as defendants, a “right of action ” in subrogation was created by operation of law.

This Court has spoken on this issue in at least two cases.

A party sued on an obligation that would be solidary if it exists may seek to enforce contribution against any solidary co-obligor by making him a third party defendant according to the rules of procedure, whether or not that third party has been initially sued, and whether the party seeking 112to enforce contribution admits or denies liability on the obligation alleged by plaintiff.

Perkins v. Scaffolding Rental and Erection Service, Inc., et al., 568 So.2d 549 at 551, (La.1990).

This Court further explained that “[t]he source of the right to claim contribution is subrogation to the plaintiffs rights against the remaining tortfeasors. Contribution rights are enforced/created by joining potential solidary obligors as third-party defendants.” Farbe v. Casualty Reciprocal Exchange, 2000-0076, p. 4 (La.7/6/00), 765 So.2d 994, 996.

In Glass v. Alton Ochsner Medical Foundation, et al., 02-0412 (La.App. 4th Cir.11/6/02), 832 So.2d 403 at 409, the Fourth Circuit, when examining the right to bring two suits for indemnity arising from the same facts, stated that:

The Supreme Court .... did not create requirements for tortfeasors to fulfill in order to file their Third Party Demand. The nonexistence of this requirement allows tortfeasors to proceed against [defendants] where the original plaintiffs are precluded.

In Mercantile, III, Inc., et al. v. Glaser, M.D., 01-2101 (La.App. 4th Cir.1/9/02), 806 So.2d 906, 908, the Fourth Circuit explained that:

The predecessor to article 1805, article 2103 of the civil code of 1870, was amended in 1960 to overrule legislatively Kahn v. Urania Lumber Co., 103 So.2d 476, 478 (La.App. 2d Cir.1958), which stood for the proposition that “there is no right of contribution between joint tort-feasors unless and until they have been condemned in a judgment in solido, and then only in favor of the joint tort-feasors who has paid the damages awarded.” The article thus changed the time when a demand for contribution could be asserted and allowed a defendant to seek contribution against a co-obligor who had not already been cast in judgment.

For these reasons, the lower courts erred in granting ETI’s Exception of Prescription and dismissing NOAB’s third party demand. The lower courts’ rulings are hereby reversed, and the case remanded for further proceedings.

J^REVERSED and REMANDED.

KIMBALL and KNOLL, JJ., concur.

VICTORY, J., concurs in part and dissents in part and assigns reasons.

TRAYLOR, J., concurs in part and dissents in part for reasons assigned by VICTORY, J.

WEIMER, J., concurs and assigns reasons.

VICTORY, J.,

concurring in part and dissenting in part.

|,I concur in the portion of the majority opinion holding that indemnity is a separate substantive cause of action, independent of the underlying tort, and that prescription on an implied indemnity claim does not commence until a party has sustained a loss, either through payment, settlement, or an enforceable judgment. At 958. In this ease, NOAB has not suffered any loss because it has not been cast in judgment, thus any indemnity claim it may have has not prescribed.

However, I dissent from the portion of the majority opinion which seemingly concludes that if NOAB is cast in judgment for damages against the plaintiffs, then NOAB automatically has an implied indemnity claim. While our courts have applied the concept of implied indemnity in construction cases, see Bewley Furniture Co., Inc. v. Maryland Cas. Co., 285 So.2d 216 (La.1973), before implied indemnity can be applied, certain requirements must be met. As former Justice Marcus explained in Nassif v. Sunrise Homes, Inc., 98-3193 (La.6/29/99), 739 So.2d 183:

An implied contract of indemnity arises only where the liability of the person seeking indemnification is solely constructive or derivative and only against one who, because of his act, has caused such constructive liability to be imposed. Thus, because the party ■ seeking indemnification must be without fault, a weighing of the relative fault of tortfeasors has no place in the concept of indemnity.

See also Bewley Furniture, supra (“This indemnity, or recovery over, has been Jjallowed a contractor from his subcontractor and/or supplier, so long as the exclusive fault producing liability has been that of such subcontractor and/or supplier.”)

In this case, the plaintiffs alleged the direct negligence of NOAB in contracting with ETI to perform the work and the direct negligence of ETI is performing shoddy work. Thus, the issue to be determined as far as indemnity is concerned is whether NOAB is independently liable to plaintiffs, in which case indemnity cannot apply, or whether, in spite of this claim, NOAB is found to be only constructively or derivatively liable to plaintiffs, in which case indemnity can apply. This issue cannot be determined until after trial and if NOAB is found to be independently liable to plaintiffs, then it has no claim for indemnity and its third party demand will have prescribed.

WEIMER, J.,

concurring.

hi concur in the result only. Because prescription does not commence on a claim for indemnity until a party has sustained a loss, either through payment, settlement, or an enforceable judgment, I would hold the indemnity claim is not time barred. See Wiggins v. State, Department of Transportation and Development, 97-0432, p. 7 (La.App. 1 Cir. 5/15/98, 712 So.2d 1006, 1011), writ not considered, 98-1652 (La.9/25/98), 726 So.2d 6 (claim for indemnity not governed by or time-barred by the provisions of LSA-C.C.P. art. 1067).

Further, there is a distinction between the right to “claim” indemnity and the right to “collect” indemnity. Generally, a person cannot exercise his right of action until the corresponding cause of action accrues. However, a solidary obligor may exercise his right of action for indemnity before the cause of action accrues. LSA-C.C. art. 1805. Subrogation is the source of indemnification, and “[sjubrogation takes place by operation of law ... [i]n favor of an obligor who pays a debt he owes with others or for others and who has recourse against those others as a result of the payment.” LSA-C.C. art. 1829(3); Wiggins, supra.

Thus, NOAB’s action against ETI is neither premature nor prescribed.

      . LSA-C.C. art. 2762, entitled "Liability of contractor for damages due to badness of workmanship,” provides that:
      If a building, which an architect or other workman has undertaken to make by the job, should fall to ruin either in whole or in part, on account of the badness of the workmanship, the architect or undertaker shall bear the loss if the building falls to ruin in the course of ten years, if it be a stone or brick building, and of five years if it be built in wood or with frames filled with bricks.

      . LSA-C.C. art. 3492 provides, in pertinent part, that "[d lelictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damages is sustained.”

      . The contract specifically provides, in pertinent part, that:
      The said ETI ... [is] hereby bound to perform this contract ... strictly in accordance with said plans and specifications, to observe and comply with all conditions and stipulations therein contained....
      And the City of New Orleans binds and obligates itself to pay to, on the proper completion of its contract, the amount as set forth in its bid.
      And now to these presents personally came and intervened St. Paul Fire & Marine Insurance Company, as Surety.
      Who ... hereby bind itself as surety for the faithful performance of all work called for in the said contract by the said contractor ... and does further bind and obligate itself as surety for the payment ... of all payments to be made by the said contractor under the contract, ... each of the said bonds given herein to be considered separate and distinct, and no payment made by the surety under either shall in any way reduce the obligations of the surety under the other.
      NOW THE CONDITION, of this obligation is such that if the said ETI ... shall ... perform all ... obligations assumed by it in the aforesaid contract, ... and shall fully secure and protect the said City of New Orleans ... from all loss or expense of any kind, including premises, and from all loss or expense of any kind, including all costs of Court and attorneys' fees, made necessary or arising from the failure, refusal or neglect of the aforesaid ETI ... to comply with all of the obligations assumed by it; ans likewise to promptly deliver all the work called for by said contract to the City of New Orleans, free from any and all such claims, liens and expenses, then this said bond shall become null and void, otherwise to remain in full force and effect.

      . In Nassif, the Court made clear that an action for indemnity is a separate substantive cause of action, independent of the underlying wrong. Id. at 186.


text:
    In re Bonnie B. HUMPHREY.
    No. 2009-B-0083.
    Supreme Court of Louisiana.
    June 26, 2009.

      Charles Bennett Plattsmier, Baton Rouge, Robert Samuel Kennedy, Jr., Shreveport, for Applicant.
    Albert H. Hanemann, Jr., Bonnie B. Humphrey, for Respondent.
   | ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Bonnie B. Humphrey, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Humphrey, 05-0462 (La.3/2/05), 894 So.2d 1128. For the reasons that follow, we now disbar respondent.

FORMAL CHARGES

Count I

In 2000, respondent represented her sister, Judith Myers, in the domestic relations proceeding captioned Judith Brown Myers v. William A. Myers, III, No. 2000-7121 on the docket of the Orleans Civil District Court, Judge Rosemary Ledet presiding. In May 2000, respondent obtained a temporary restraining order on ' behalf of her sister based upon materially false representations regarding the marital domicile of the parties. Specifically, respondent misrepresented that Mr. Myers’ |2office at # 5 Finch Street in New Orleans was the family home of William and Judith Myers, when at the time of the filing, respondent well knew that the family lived in a residence on Dryades Street. As a result of respondent’s false representations, Mr. Myers was evicted from his office and suffered the loss of substantial business property and profits. Following a hearing in the matter, at which respondent continued to maintain that # 5 Finch Street was the Myers’ family home, Judge Ledet made a factual finding that “the Finch Street property was not the family residence of the parties when the action was instituted.”

The ODC alleges that respondent’s conduct violates Rules 3.3(a) (a lawyer shall not knowingly make a false statement of fact or law to a tribunal), 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 4.4(a) (in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person), and 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.

Count III

Respondent represented Barbara Mau-berret-Lavie in child custody litigation pending in Orleans Civil District Court. Attorneys John Cummings, III and Edith Morris represented the defendant, Michael Lavie. In December 2002, Mr. Cummings filed a complaint against respondent with the ODC, alleging that she engaged in unauthorized and ex parte removal of original pleadings from the court record, | ¡¡refused to permit the cross-examination of Ms. Mauberret-Lavie, and cursed opposing counsel and made obscene hand gestures toward counsel.

The ODC alleges that respondent’s conduct violates Rules 3.2 (a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client), 3.3, and 3.4 of the Rules of Professional Conduct.

Count IV

On August 12, 2002, Ms. Mauberret-Lavie executed an affidavit that was filed into the record of the child custody litigation subject of Count III, supra. In the affidavit, sworn to before a notary and two witnesses, Ms. Mauberret-Lavie stated that she “was advised telephonically on or about Tuesday, August 6, 2002 by Bonnie B. Schultz that she was withdrawing as counsel of record. Please be advised that [Darleen] Jacobs is sole counsel of record in this matter.” In October 2002, Ms. Mauberret-Lavie and Mr. Lavie entered into a consent judgment resolving all issues in the case. The consent judgment was signed by Ms. Jacobs as counsel of record for Ms. Mauberret-Lavie, and by attorney Edith Morris as counsel for Mr. Lavie.

Despite the fact that Ms. Mauberret-Lavie was represented by other counsel and that the Lavie case had been concluded by consent judgment, respondent continued to file pleadings in the case. On May 5, 2003, respondent filed a motion for appeal of a judgment of the trial court relating to custody of the minor child. Judge Kern Reese dismissed the motion for appeal as moot in light of the consent judgment. Respondent then filed a writ of mandamus in the Fourth Circuit Court of Appeal, alleging that Judge Reese erred in failing to perfect the appeal. On September 4, 2003, the Fourth Circuit ordered Judge Reese to hold an evidentiary hearing to clarify certain issues specified in its order, including “whether Ms. Schultz |4is counsel of record for [Ms. Mauberret-La-vie] to handle any appeal ...” of the custody judgment.

Judge Reese held a hearing on October 2, 2003 pursuant to the Fourth Circuit’s order. Respondent did not appear at the hearing. Ms. MauberreL-Lavie was present at the hearing, along with one of her counsel, Guy D’ Antonio, who unequivocally stated on the record that neither he nor Ms. Mauberret-Lavie had authorized respondent to file the motion for appeal. At the conclusion of the hearing, Judge Reese reported to the court of appeal his finding that respondent was no longer representing Ms. Mauberret-Lavie as of August 9, 2002, and that at no time did Ms. Mauber-ret-Lavie authorize respondent to proceed with an appeal of the custody judgment or to seek a writ of mandamus.

On October 10, 2003, attorneys for Mr. Lavie filed a motion in the Fourth Circuit seeking sanctions against respondent. The court of appeal ordered respondent to respond to the motion within ten days. In turn, respondent filed a motion seeking an extension of time to respond, in which she, among other things, claimed that she was in possession of evidence that Mr. Lavie and his counsel had committed perjury and blackmail; that opposing counsel was complied in child molestation; and that Judge Reese had violated the Code of Judicial Conduct.

The court of appeal found that these allegations in respondent’s motion violated Rule 2-12.4 of the Uniform Rules of the Courts of Appeal and the Louisiana Code of Civil Procedure. The court of appeal struck the inappropriate comments |5from the pleadings, held respondent in contempt of court, and transferred the motion for sanctions to the trial court for a determination of the amount of the sanction to be imposed upon respondent. Following a hearing in May 2004, Judge Reese imposed sanctions against respondent in the amount of $13,171.

The ODC alleges that respondent’s conduct violates Rules 1.2(a) (scope of the representation), 1.3 (failure to act with reasonable diligence and promptness in representing a client), and 1.16 (terminating the representation of a client) of the Rules of Professional Conduct.

Count V

In 2002, New Orleans attorney Kyle Schonekas represented artist George Ro-drigue in a lawsuit captioned George Ro-drigue v. Jean Bragg Antiques, L.L. C, et al., No. 02-15035 on the docket of Orleans Civil District Court. In this suit, Mr. Ro-drigue alleged that certain pieces of artwork he created had been stolen from him by a former employee and then placed on consignment with the defendant art gallery. The defendants, represented by respondent, denied Mr. Rodrigue’s claims and asserted that they were legally in possession of the artwork in question.

At the outset, Mr. Schonekas sought the issuance of a writ of sequestration to secure the artwork in dispute pending the outcome of the litigation. The writ was not issued, but rather, upon agreement of counsel, respondent was designated to hold the artwork in trust until the lawsuit was decided. The trial court’s order, rendered in March 2003, further provided that respondent “does not need to post a bond to secure these art works.” Respondent was ultimately disqualified as counsel for the defendants in July 2003 because she asserted an ownership interest in one of the | lipieces of artwork she held in trust, a work known as the Blue Dog “Cut Out with Neon Light.”

In August 2004, Mr. Rodrigue settled his dispute with the defendants, who relinquished all claims to the artwork in question. The defendants turned over one of the artworks to Mr. Rodrigue, but respondent still held the Blue Dog and refused to return it, despite repeated demands. In December 2004, the trial court ordered respondent to return the artwork to Mr. Rodrigue, but again she refused to comply. In April 2005, the trial court held respondent in contempt of court for her failure to obey the prior judgment.

In June 2004, Mi*. Schonekas filed a complaint against respondent with the ODC. Mr. Schonekas was prompted to file the complaint upon learning that respondent had filed suit seeking damages against him and Mr. Rodrigue on behalf of her former clients. The lawsuit contains unfounded allegations of professional misconduct against Mr. Schonekas.

The ODC alleges that respondent’s conduct violates Rule 1.7 (conflict of interest) of the Rules of Professional Conduct.

17Count VII

In 2004, respondent filed a writ application with the Fourth Circuit Court of Appeal in which she sought supervisory review of the sanctions imposed upon her by the trial court in connection with Count IV, supra. On January 12, 2005, the court of appeal held respondent in contempt of court for using insulting and discourteous language in a pleading filed with the court, for including irrelevant and inappropriate matter, and for criticizing another person, court, and judge, all in violation of Rule 2-12.4 of the Uniform Rules of the Courts of Appeal and the Louisiana Code of Civil Procedure.

The ODC alleges that respondent’s conduct violates Rule 3.3 of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS

Respondent initially failed to answer the formal charges filed against her. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). Soon thereafter, counsel enrolled on behalf of respondent and filed an answer to the formal charges, generally denying any misconduct and suggesting that substantial mitigating factors are present in this matter. Counsel also requested that the deemed admitted order be recalled, which motion was granted.

In October 2006, the ODC amended Count I of the formal charges, adding new factual allegations and additional alleged rule violations. Respondent, through counsel, answered the amended formal charges and denied any misconduct. The matter then proceeded to a formal hearing on the merits.

18Puring the hearing, respondent stipulated that she violated the Rules of Professional Conduct as charged in Count V, relating to the George Rodrigue matter. Respondent also testified at length in mitigation that the misconduct subject of the formal charges was the result of impaired judgment stemming from personal and emotional difficulties and depression that she suffered during the breakup of her marriage, culminating in a nervous breakdown in 2003 and a suicide attempt in the fall of 2004. Respondent also testified that she was “numbing the pain” with alcohol, cocaine, prescription diet pills, and amphetamines. Respondent testified that she stopped using alcohol and drugs following a psychiatric hospitalization in February 2005 and has been sober since that time. In March 2007, respondent voluntarily signed a five-year recovery agreement with the Lawyers Assistance Program.

Hearing Committee Report

After considering the evidence and testimony presented at the hearing, the hearing committee made the following factual findings:

Count I — The committee found that respondent knowingly and intentionally misrepresented to Judge Ledet that the Finch Street property was the marital domicile/family home of William and Judith Myers. The committee based its finding on the testimony of Judge Ledet, who recounted at the hearing that she signed an order on May 8, 2000 allowing Mrs. Myers use of the Finch Street property based on respondent’s representations that this was the family home. It was not until a subsequent hearing on May 26, 2000 that Judge Ledet learned that the Finch Street property was actually Mr. Myers’ office and that the parties resided on Dryades Street. Judge Ledet further testified that given the actual residence of the parties at the time the order was signed, Mrs. Myers was not entitled to occupancy of Finch 1 ¡[Street, and that had she known where the parties were actually living, she would not have granted occupancy of that property to Mrs. Myers. The committee found respondent knew Mrs. Myers was living on Dryades Street at the time she filed the pleading stating that the family home and current mailing address for Mrs. Myers was the Finch Street address. At the time of these incidents, Mr. Myers owned a litigation support business, and respondent contacted his business clients concerning documents that belonged to them which were located at the Finch Street premises. The committee found it particularly troubling that one client, a Houston lawyer, reported he had been contacted by respondent, who requested $500 to let Mr. Myers go into the Finch Street property in order to get photographs and a computer that were needed for the lawyer’s death penalty case.

Based on these findings, the committee determined that respondent’s knowing and intentional misrepresentations to Judge Ledet regarding the marital domicile/ family home of Judith and William Myers caused Mr. Myers to be evicted from his business without cause, deprived Mr. Myers of access to his business records, and damaged his litigation support business. The committee found respondent violated Rules 8.3, 3.4, 4.4, and 8.4(c) of the Rules of Professional Conduct.

Count III — The committee found the ODC did not prove by clear and convincing evidence that respondent removed pleadings from the court record of the La vie matter, as no competent evidence was put forth to show exactly what documents were removed. However, the committee did find that respondent improperly refused to permit cross-examination of her client during a hearing on May 17, 2001 and made obscene comments and gestures to opposing counsel in a hearing on June 5, 2002. In the May 2001 hearing, respondent called her client, Ms. Mauberret-La-vie, to testify and then refused to conclude her direct examination so as to permit opposing counsel an opportunity for cross-examination. The committee 11()rejected respondent’s argument that this was proper trial procedure because she took writs to the Fourth Circuit during the hearing-on the issue of permissible examination of her client. With respect to the June 2002 hearing, the committee found the hearing transcript clearly confirms that respondent used obscenities in the courtroom and was sanctioned $500 for such. The committee noted it was troubled by respondent’s denial of these allegations at the hearing when “the transcript introduced by the ODC confirms that these egregious acts did in fact occur.”

Based on these findings, the committee determined that the ODC did not establish by clear and convincing evidence that respondent removed pleadings from the court record without authority. However, the committee found the ODC did prove by clear and convincing evidence that respondent refused to permit cross-examination of her client and made obscene comments and gestures to opposing counsel. The committee found respondent did not violate Rule 3.2 of the Rules of Professional Conduct but did violate Rules 3.3 and 3.4.

Count IV — The committee found that on August 12, 2002, Ms. Mauberret-Lavie executed an affidavit stating that Darleen Jacobs was sole counsel of record. On October 25, 2002, Ms. Mauberret-Lavie and Mr. Lavie entered into a consent judgment agreeing to joint custody of their child. While respondent claimed that it was not her intention to abandon efforts to appeal issues relating to allegations of molestation of the minor child, the committee was persuaded by the per curiam opinion executed by Judge Reese in August 2003, in which he clearly stated that respondent’s motion for appeal was moot because of the consent judgment and because “Ms. Bonnie Schultz was dismissed as counsel of record in this matter by an Affidavit executed by Plaintiff, Barbara Mauberret-La-vie, on August 12, 2002.” The committee found all the evidence indicated that respondent ceased to be counsel for In Ms. Mauberret-Lavie in August 2002 and that any actions she took thereafter were in violation of Rule 1.16.

Thereafter, the Fourth Circuit Court of Appeal found respondent in contempt based on her request for an extension of time to respond to a motion for sanctions filed by opposing counsel. In her filing, respondent accused her opponent of being complicit in child molestation, perjury, and destruction of evidence. Respondent had in fact made these same charges in a June 2002 hearing in Civil District Court, but she never provided any evidence in support of her allegations.

Based on these findings, the committee determined that respondent continued to file pleadings on behalf of Ms. Mauberret-Lavie, namely a writ of mandamus and a motion for appeal, when she no longer represented her, and made unsubstantiated allegations and accused opposing counsel and Mr. Lavie of wrongdoing without sufficient proof or evidence. The committee found respondent violated Rule 1.16 of the Rules of Professional Conduct.

Count V — Respondent withdrew her denial of the allegations in this count; accordingly, the committee determined that she violated Rule 1.7 of the Rules of Professional Conduct, as charged.

Count VII — The committee found that in July 2004, respondent filed a writ application with the Fourth Circuit seeking to set aside the imposition of $13,171 in monetary sanctions. In its prior order of September 4, 2003, the Fourth Circuit had suspended execution of a twenty-four hour jail sentence on the condition that respondent pay a $100 fine and refrain from filing any derogatory pleadings in the court of appeal for three years. In her July 2004 writ application, respondent made the same allegations she had made in her 2003 filing with the Fourth Circuit, and as a result, counsel for Mr. Lavie filed a motion to strike and asked the court of appeal to carry out the execution of the previously suspended contempt sentence.

|12On September 7, 2004, the court of appeal issued a “show cause” order to respondent to answer the motion to strike within ten days. Respondent answered by filing a 115-page response which again repeated many of the prior allegations. The court of appeal found respondent in contempt again per an order dated January 12, 2005. The court also made a determination that respondent was disabled from practicing law, and transmitted a copy of its findings to the ODC “for their urgent and immediate action to protect the public until such time as she is no longer disabled from whatever is causing her disability.” Following the court of appeal’s action, respondent was placed on interim suspension effective March 2, 2005.

The committee found the court of appeal’s order speaks for itself and particularly noted the grave concern that the court expressed for the public and the legal system as a result of respondent’s disability. The committee found respondent violated Rule 3.8 of the Rules of Professional Conduct.

Considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the applicable baseline sanction in this matter is disbarment. The committee found the following aggravating factors apply: a pattern of misconduct and multiple offenses. In mitigation, the committee recognized the following factors: absence of a prior disciplinary record, personal or emotional problems, inexperience in the practice of law, mental disability or chemical dependency, and imposition of other penalties or sanctions.

Under all these circumstances, the committee recommended that respondent be disbarred. One member of the committee dissented and would recommend permanent disbarment.

|1sBoth respondent and the ODC objected to the hearing committee’s report. Respondent took issue with nearly all of the factual findings made by the committee and argued that disbarment is too harsh. The ODC argued that the committee erred in considering in mitigation respondent’s history of drug and alcohol abuse as well as the depression she suffered during the breakup of her marriage.

Disciplinary Board Recommendation

After review, the disciplinary board made the following findings:

Count I — The board deferred to the hearing committee’s determination that Judge Ledet was credible when she testified that respondent had represented to her in an ex parte hearing that the Finch Street property was the Myers’ family home, and that she would not have granted use of the property to respondent’s client absent that representation. According to Judge Ledet, during the hearing, respondent never even alerted her to the possibility that another property might be considered to have been the family home. The board rejected respondent’s argument that this testimony by Judge Ledet should be given little weight because the judge admitted she had no specific recollection of reviewing the petition prepared by respondent prior to making her ruling. Judge Ledet clearly recalled how respondent orally represented during the hearing that the Finch Street property was the family home, a fact which later came to be in dispute. Likewise, during the intentional tort suit filed against respondent by Mr. Myers, Judge Ledet testified that she ordered Mr. Myers to be evicted from the Finch Street property in reliance upon respondent’s representations.

Based on these findings, the board determined that respondent violated the Rules of Professional Conduct as follows:

Rule 3.3 requires a lawyer to be candid in the lawyer’s representations to a tribunal. The hearing at issue was an ex parte hearing, and Rule 3.3(d) further and 114directly speaks to this situation: “In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.” As respondent’s client was her sister, the board found respondent had every ability to meet her obligation under Rule 3.3(d) to candidly inform Judge Ledet where the family lived before the divorce petition was filed.

Rule 3.4 requires a lawyer to be candid as a matter of fairness to an opposing party. As noted, respondent made her misrepresentations at an ex parte hearing. Given that Mr. Myers was not present at the hearing, the court had to rely exclusively upon the representations made by respondent. When respondent provided incomplete and inaccurate information in an effort to advance her sister’s interests during a contested divorce, she violated the duty of fairness required by Rule 3.4.

Rule 4.4 requires a lawyer to refrain from employing “means that have no substantial purpose other than to embarrass, delay, or burden a third person, ...” Respondent failed to adhere to this standard when she made incomplete and inaccurate representations, which caused Mr. Myers to be evicted from his office and to suffer considerable financial losses.

Rule 8.4(c) requires a lawyer to refrain from conduct involving dishonesty, fraud, deceit, or misrepresentation. Respondent violated this standard when she provided incomplete and inaccurate information to a court.

Count III — The hearing committee found clear and convincing evidence that respondent improperly refused to allow her client to be subject to cross-examination and made obscene comments and gestures to opposing counsel, but that the ODC did not prove that respondent improperly removed pleadings from a court record. The board agreed with each of these findings. On the cross-examination issue, the board noted that the committee accepted as credible testimony to the effect that respondent 115refused to continue and essentially just walked out of the trial, such that her client was never made available for cross-examination. The record also supports the committee’s finding that respondent was sanctioned for telling her opposing counsel “f* * * you” and that she did not deny using the expletive. Finally, the board noted that nothing in the relevant transcript establishes to a clear and convincing standard that the documents respondent took with her were pleadings that had been clocked in or otherwise filed into the court record.

Based on these findings, the board determined that respondent violated the Rules of Professional Conduct as follows:

Rule 3.2 requires a lawyer to make reasonable efforts to expedite litigation. Respondent acted contrary to this rule by refusing to allow her client to be subject to cross-examination and to continue with the trial as directed by the judge. Respondent also acted contrary to Rule 3.2 when she directed an expletive at opposing counsel, and consumed the court’s time with imposing sanctions for this misconduct.

Rule 4.4 requires a lawyer to refrain from tactics that have no substantial purpose other than to embarrass, delay, or burden others. Respondent acted contrary to this rule by telling her opposing counsel “f* * * you.”

Count IV — The hearing committee found that the ODC proved by clear and convincing evidence that after Barbara Mauberret-Lavie executed an affidavit stating that respondent no longer represented her in the custody litigation described in Count III, respondent nevertheless continued to file pleadings in the trial court and Fourth Circuit Court of Appeal on behalf of Ms. Mauberret-Lavie. Additionally, the court of appeal held respondent in contempt of court for using “vile, obscene, obnoxious, or offensive” language in her appellate brief, when she made unsubstantiated allegations that her opposing counsel was complicit in child molestation, perjury, and | ^destruction of evidence. The trial court, acting at the Fourth Circuit’s direction, sanctioned respondent $13,171 for her actions.

The board rejected respondent’s argument that Ms. Mauberret-Lavie authorized the appeal to the Fourth Circuit, relying on the affidavit from Ms. Mauberret-Lavie indicating that the attorney-client relationship with respondent had been terminated on August 6, 2002, and that Ms. Mauberret-Lavie was represented by other counsel. The ODC also presented a consent judgment in the litigation, executed on October 25, 2002 by Ms. Mauberret-Lavie, which resolved the issue of child custody. The board deferred to the committee’s determination that this evidence (showing a clear expression of the client’s intent to terminate the representation and then a consent judgment resolving child custody) was more credible than respondent’s testimony.

Based on these findings, the board determined that respondent violated the Rules of Professional Conduct as follows:

Rule 1.2(a) requires that the lawyer respect the client’s ultimate authority to decide the objectives and means of the lawyer’s representation. Respondent disregarded Ms. Mauberret-Lavie’s clear intent that she was no longer represented by respondent, and that the child custody matter had been resolved by Ms. Mau-berret-Lavie’s consent to judgment.

Rule 1.16 requires an attorney to withdraw from representation when the client discharges the lawyer. Ms. Mauberret-Lavie indicated that she no longer employed respondent, yet respondent continued to present a writ application on Ms. Mauberret-Lavie’s behalf.

Rule 4.4 requires a lawyer to refrain from tactics that have no substantial purpose other than to embarrass, delay, or burden others. Respondent acted contrary to this rule by filing pleadings containing the unsubstantiated allegations that her 117opposing counsel was complicit in child molestation, perjury, and destruction of evidence.

Count V — Respondent does not dispute that she was ordered by a court to hold a piece of artwork in trust during litigation to determine its ownership, but that she failed to release the artwork after the court ordered her to do so. According to the formal charges, the court’s order to release the artwork followed the court’s determination that a conflict of interest barred respondent from continuing the representation, in violation of Rule 1.7. The hearing committee found that respondent committed the misconduct as charged. The board agreed with the committee that respondent engaged in misconduct in this count, but found she violated Rule 1.8(j) of the Rules of Professional Conduct by claiming an ownership interest in the disputed artwork, not the more general conflict of interest rule set forth in Rule 1.7.

Count VII — This count was initiated by a complaint submitted to the ODC by the Fourth Circuit Court of Appeal. The ODC alleges that respondent was again found in contempt of court by the Fourth Circuit for again filing a pleading with offensive language and unsubstantiated allegations. The hearing committee noted that the pleading at issue was respondent’s writ application, in which she asked the court to set aside the $13,171 in monetary sanctions she was assessed for the unauthorized writ application described in Count IV. Finding that the Fourth Circuit’s opinion “speaks for itself,” the hearing committee concluded that respondent violated Rule 3.3. The board agreed.

The board determined that respondent violated duties owed to her clients, the legal system, and the profession. By its very nature, respondent’s conduct was knowing and intentional. For example, the record reflects that respondent was twice held in contempt of the Fourth Circuit, and both times for making the same types of insulting and unsupported allegations about opposing counsel and the trial judge. As 118another example of knowing and intentional misconduct, respondent was ordered to return property in which her clients claimed an interest, but she failed to do so.

The injury or potential injury stemming from respondent’s misconduct was serious or potentially serious. For example, respondent refused to return artwork created by the renowned Louisiana artist George Rodrigue, in which her clients claimed an interest. Additionally, when respondent filed an appeal in a child custody matter that her former client did not authorize, the courts and Ms. Mauberret-Lavie’s new counsel had to expend significant time and effort cleaning up the disorder respondent caused. Because respondent’s misconduct is intentional, the board determined that under the AJBA’s Standards for Imposing Lawyer Sanctions, the applicable baseline sanction in this matter is disbarment.

The board found the following aggravating factors apply: a pattern of misconduct and multiple offenses. In mitigation, the board recognized the following factors: absence of a prior disciplinary record, personal or emotional problems, inexperience in the practice of law, mental disability or chemical dependency, and imposition of other penalties or sanctions.

The board concluded that although respondent’s individual acts of misconduct are different, the common thread running through them is the intent behind them. These acts of misconduct were knowingly and intentionally committed. Disbarment is the appropriate baseline sanction for such misconduct, and the board found no reason to deviate from the baseline under the facts of this case. Accordingly, the board recommended that respondent be disbarred.

1 ^Respondent filed an objection to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). 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.

The factual findings of the hearing committee, as modified by the disciplinary board, are generally supported by the evidence in the voluminous record of this matter. Many of these findings, in particular those made by the committee, rest upon credibility determinations to which we give great deference. However, we do not find clear and convincing evidence that respondent refused to allow her client to be cross-examined by opposing counsel, as charged in Count III. With this one exception, respondent violated the Rules of Professional Conduct as found by the board.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In considering 12nthat issue, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent’s misconduct involves making false representations in a judicial proceeding, attempting to represent a client after being discharged, converting client property, engaging in a conflict of interest, and being held in contempt for filing pleadings containing offensive language and unsubstantiated allegations. The ABA’s Standards for Imposing Laiv-yer Sanctions indicate that the baseline sanction for this misconduct is disbarment.

As aggravating factors, we recognize a pattern of misconduct and multiple offenses. The record supports the following mitigating factors; absence of a prior disciplinary record, personal or emotional problems, mental disability or chemical dependency, and imposition of other penalties or sanctions.

While there are a number of mitigating factors in this case, we do not find that they are sufficient to justify a deviation from the baseline sanction of disbarment. As the board correctly noted, a common thread running through respondent’s misconduct is that it is knowing and intentional. Moreover, respondent has caused significant factual harm. Under these circumstances, we decline to impose a lesser sanction than disbarment.

DECREE

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 Bonnie B. Humphrey, Louisiana Bar Roll number 17125, be and she hereby is disbarred, retroactive to her March 2, 2005 interim suspension. Her name shall be stricken from the roll of attorneys and her 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.

       Chief Justice Catherine D. Kimball recused herself after oral argument, and she has not participated in the deliberation of this case. Retired Judge Philip Ciaccio, assigned as Justice ad hoc, sitting for Justice Chet D. Traylor, now retired.

      . In the formal charges filed by the ODC in April 2006, respondent was originally charged with a total of seven counts of misconduct. However, during the hearing in this matter, the ODC dismissed Count VI in its entirety. Furthermore, in its report, the disciplinary board recommended that Count II be dismissed for lack of clear and convincing evidence of a violation of the Rules of Professional Conduct. The ODC does not object to the board's finding in this regard. Accordingly, no reference is made in this opinion to either Count II or Count VI.

      . Mr. Myers subsequently sued respondent for damages arising out of this matter. In January 2005, Mr. Myers obtained a $375,000 default judgment against respondent. This judgment was later discharged in respondent's personal bankruptcy.

      . Rule 2-12.4 of the Uniform Rules of the Courts of Appeal provides in pertinent part:
      The language used in the brief shall be courteous, free from vile, obscene, obnoxious, or offensive expressions, and free from insulting, abusive, discourteous, or irrelevant matter or criticism of any person, class of persons or association of persons, or any court, or judge or other officer thereof, or of any institution. Any violation of this Rule shall subject the author, or authors, of the brief to punishment for contempt of court, and to having such brief returned.

      . Respondent claimed that the defendants gave her the Blue Dog as her legal fee for representing them in the suit brought by Mr. Rodrigue. The trial court found that the artwork in question was the basis of the dispute between Mr. Rodrigue and the defendants, and that under Rule 1.8(j) of the Rules of Professional Conduct, respondent could not ethically acquire a proprietary interest in the cause of action she was handling for her clients. Accordingly, the trial court ordered that respondent be disqualified as counsel for the defendants based upon her conflict of interest.

      . Mr. Schonekas testified that after expending considerable time, effort and money, he finally recovered the Blue Dog in March 2006 from a convicted drug dealer who contended he had purchased it from respondent for $3,000. The Blue Dog is alleged to be valued at approximately $50,000.

      . The suit was eventually dismissed on exceptions filed by Mr. Schonekas.

      . The two members of the committee who recommended disbarment felt that the mitigating circumstances were sufficient to warrant allowing respondent the opportunity to apply for readmission. The majority suggested that when respondent applies for readmission, she should be “required to put forth evidence that she has been alcohol and drug-free during the time of her temporary disbarment.”

      . The board rejected the ODC's argument that this factor should not be considered in mitigation at all, reasoning diat there is evidence of a causal link between respondent's depression and drug abuse and the misconduct at issue. Nevertheless, the board noted that not every instance of misconduct was affected by mental disability/chemical dependency issues, as some conduct occurred outside the relevant time frame. Therefore, for the conduct described in Counts I, III, and IV, the board ascribed no mitigation to respondent’s mental disability/chemical dependency evidence.

      . This court generally accepts the credibility evaluations made by those committee members "who were present during respondent's testimony and who act as the eyes and ears of this court.” In re: Bolton, 02-0257 (La.6/21/02), 820 So.2d 548.

      . See Standards 4.11 ("disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client”); 6.11 ("disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, ...”); 6.21 ("disbarment is generally appropriate when a lawyer knowingly violates a court order or rule with the intent to obtain a benefit for the lawyer or another, and causes serious injury or potentially serious injury to a party, or causes serious or potentially serious interference with a legal proceeding”).