text:
    STATE of Louisiana v. Donald K. SWANZY.
    No. 2012-K-1297.
    Supreme Court of Louisiana.
    April 1, 2013.
   PER CURIAM.

_JjThe state and defendant have filed cross applications seeking review of the Fifth Circuit’s decision affirming defendant’s conviction and sentence on one count of felony theft over $500 in violation of La.R.S. 14:67, but reversing his conviction and sentence on a second count of felony theft over $500. We deny defendant’s application in 12-K-1281, but grant the state’s application in 12-K-1297. For reasons that follow, we reinstate the conviction and sentence vacated by the court of appeal.

The state charged defendant by bill of information with theft of $6,500 from Lloyd Michell, and in a second count with theft of $25,000 from Charles McGowan, by means of fraudulent conduct, practices, or representations. The charges stemmed from the post-Katrina, 2007 demolition of the TwiRopa Mill, originally a twine rope manufacturing facility later remodeled as a nightclub, on Tchoupitoulas Street in New Orleans. The demolition project brought Terry |2Kutcher, owner of Chisholm Trail Construction in Cashion, Oklahoma, to Louisiana in the spring of 2007, with associated heavy construction equipment, including a John Deere backhoe excavator and a John Deere 850 bulldozer. According to the state, defendant, owner of Diesel Truck Service on Destrahan Boulevard in Gretna and the original general contractor on the TwiRopa project, misappropriated both pieces of heavy machinery, sold them to Michell and McGowan, and then refused repayment after the equipment was seized by the police as stolen property.

After trial by jury in August 2009, defendant was found guilty as charged on both counts. The trial court sentenced him to concurrent terms of six years’ imprisonment at hard labor on each count, suspended, with two years’ active probation and three years’ inactive probation. By the time of sentencing, and at the direction of the trial court, defendant had made full restitution to both victims. On appeal, addressing defendant’s single assignment of error challenging sufficiency of the evidence, the Fifth Circuit affirmed defendant’s conviction and sentence on count two charging the theft of $25,000 from Charles McGowan but reversed defendant’s conviction and sentence for the theft of $6,500 from Lloyd Michell. State v. Swanzy, 11-0882 (La.App. 5 Cir. 5/8/12), 96 So.3d 498. The instant cross applications to this Court followed.

Testimony at trial indicated that the relationship between Terry Kutcher and defendant began well enough in the early spring of 2007, when Kutcher signed on as a subcontractor to demolish the TwiRopa facility and collect the remaining lumber and bricks in good condition for salvage. At the time, defendant was the general contractor on the project, and among the heavy equipment brought to Louisiana, Kutcher delivered to defendant’s shop, Diesel Truck Service, in April 2007, a balky John Deere 850 bulldozer for an estimate to repair a damaged |sengine. Kutcher testified at trial and emphatically stated that he had asked defendant only for an estimate, not for actual repair of the bulldozer, although he also conceded it was possible, given that he was traveling back and forth to Louisiana from Oklahoma, someone else in his employ, although not authorized to order the repairs, might have done so anyway. Nevertheless, defendant sent a letter to Kutcher in Oklahoma at the end of June 2007 demanding payment of all outstanding invoices. Among the invoices were bills from Hydraulic Equipment Service, Inc. for building a dirt and concrete ramp to off-load the bulldozer at Diesel Truck Service and to repair two batteries. Kutcher testified that he had not personally authorized any repairs to the bulldozer and that the trailer on which it was delivered to defendant had its own ramp to off-load the equipment.

On the morning of July 28, 2007, or less than a month after defendant sent his demand letter to Terry Kutcher, Timothy Gooch, one of Kutcher’s employees from Oklahoma who was living in a trailer across from the TwiRopa site, awoke to the sound of defendant knocking on his door. Defendant informed Gooch he was removing the equipment from the site but would give Gooch until the night to pack up and leave because he “needed to lock the place up.” Gooch testified that when he told defendant “you can’t take this equipment, it’s not yours,” defendant “basically said I’m going to do what I’m going to do. I can do whatever I want to do.” Gooch recalled that defendant “had several trucks there picking stuff up, and I wasn’t going to get in the way of nobody.” Among the equipment removed by defendant from the job site was a 690 John Deere excavator belonging to Kuteher, a smaller John Deere Skid Steer, and at least one Dodge pickup, also belonging to Kuteher. The Skid Steer and Dodge truck had been picked up by Dale’s Towing, a wrecker service located in Gretna and owned by Lloyd Miehell, and taken to | ^defendant at Diesel Truck Service. Gooch called the police, who responded but informed him the missing equipment was a civil matter and then left.

In the fall of 2007, the excavator, sitting in the lot at Diesel Truck Service, caught the eye of Charles McGowan, who was working across the street on a job at the Harvey Canal. When McGowan inquired about buying the excavator, defendant informed him that it was not for sale at that moment but he was working on a letter and would be able to sell it in within a month. Defendant had already placed a notice in The Times-Picayune on September 14, 2007 that he would obtain a permit to sell several pieces of equipment, including the 690 John Deere excavator, the 850 John Deere bulldozer, and the John Deere Skid Steer, if payment of repairs and storage fees were not made by October 25, 2007. Defendant had then sent a facsimile transmission to Kuteher on October 19, 2007 indicating that Kuteher owed repair and storage fees in an amount of $8,700 for the bulldozer and $5,500 for the excavator. A demand letter accompanied the bill indicating that defendant had the necessary permits to sell the equipment if he did not receive payment. Kuteher testified that he never received the transmission because it was sent to the wrong number but he had received by October 2007 at least five other invoices for storage and repairs of both the excavator and bulldozer in addition to the original invoices for the offloading of the bulldozer and the servicing of the batteries at Diesel Truck Service in April 2007. In particular, one invoice, dated September 12, 2007, charged nearly $2,500 for towing and storage fees for the bulldozer. For the most part, the additional invoices came from Hydraulic Equipment Service, Inc. Kuteher testified that the invoices surprised him as he had not authorized repairs to either piece of equipment, or agreed to any storage fees, let alone towing fees for the bulldozer he had delivered to Diesel Truck Service in April 2007.

| ¿Kuteher informed jurors that he began working on recovery of his equipment immediately after he received the report of the taking from the TwiRopa job site and that after his efforts to secure a police report of the incident proved futile, he recruited private individuals to help him, including Jerry Blake, whom he sent as an emissary to defendant with a check to pay the invoices for the excavator and bulldozer and recover that much of his equipment. Kuteher testified defendant rejected the offer because “[h]e didn’t want to release the excavator and dozer without releasing all of the equipment that he had on his lot.” That equipment included the John Deere Skid Steer removed from the Twi-Ropa site on July 28, 2007. Kuteher acknowledged that his relationship with defendant deteriorated over the spring of 2007 as both sides began submitting invoices to each other that neither side paid, and that the TwiRopa site was then shut down, only 75% completed, “for nonpayment.” Kuteher further acknowledged that the contract disputes arising from the TwiRopa project remained unresolved at the time of trial. But he flatly denied that the contract authorized defendant to seize any of his equipment if there were disputes over amounts owed.

Three weeks after their initial discussions about the excavator, defendant informed McGowan that he had the right to sell it and asked for $30,000. The two men agreed on a price of $25,000 in cash and the sale took place in defendant’s office on November 6, 2007. McGowan used $8,000 of his own money and $17,000 borrowed from his lifelong friend, Lloyd Michell. A month later, McGowan purchased a 1981 LoBoy trailer from defendant to use in transporting the excavator. Timothy Gooch did not identify the trailer as one of the three pieces of heavy equipment removed from the TwiRopa site but it, too, belonged to Terry Kutcher, and for this transaction, defendant had gone through Total Recovery | ^Professionals of Louisiana [TRPL] to obtain a permit to sell the trailer from the Office of Motor Vehicles.

Michell knew defendant personally and in discussions about the excavator, defendant informed him that he had obtained a mechanics lien on the machine and that he was selling it because “somebody had abandoned it on him.” When Michell expressed interest in the John Deere 850 bulldozer sitting on the lot at Diesel Truck Service, defendant claimed that it, too, had been abandoned and that he was selling the bulldozer for non-payment of repairs and storage fees. Defendant initially asked for $30,000, but readily accepted Michell’s counter offer of $6,500, a steep discount that reflected the poor condition of the bulldozer’s engine. The sale took place on December 20, 2007, but Michell refused to sign the bill of sale because a notary was not present. On the following day, another trucking service delivered the bulldozer to property owned by Michell across the parish line in Plaquemines Parish. Michell testified that taking the machine off the 17trailer took nearly two hours, as the engine would “stop and kill and stop and kill,” and they had to restart it by “jumping the batteries off of the battery charger.” He then determined that the engine had a cracked head gasket. At the time, Michell was unaware of any connection between the excavator in which he was a part investor and the bulldozer.

Shortly after the sale of the bulldozer, McGowan called Michell and informed him that his newly-purchased excavator had disappeared. McGowan reported the apparent theft to the police, but in looking around for the excavator on his own he learned that “the guy who owned the machine had stole it back from me.” In fact, Kutcher had used some self-help and recovered the excavator on his own with the aid of J.G. Trulan. The excavator eventually made its way to Dale’s Towing, where it was recovered by State Trooper Andrew Pratt on July 24, 2008, after a meeting with Terry Kutcher, who had satisfied the trooper that he was the owner of the equipment. Ultimately, Kutcher allowed McGowan to use the excavator on a job for a couple of weeks and then reclaimed it and returned the excavator to Oklahoma.

In December 2008, Terry Kutcher contacted Trooper Pratt about his John Deere 850 bulldozer and satisfied the officer he also owned that piece of heavy equipment. By then, J.C. Trulan, with the aid of a deputy sheriff, had recovered the bulldozer from Michell’s yard in Plaquemine’s Parish and removed it to a location a couple miles away. On December 19, 2008, Pratt executed a search warrant for the location and recovered the bulldozer. Defendant’s arrest followed. With the agreement of Terry Kutcher, the bulldozer was returned to Michell for storage.

After learning that the police were in the process of recovering stolen property from him, an irate Michell insisted on obtaining a notarized bill of sale | Rfrom defendant for the bulldozer. They executed that document in the office of a local attorney, backdating it to December 20, 2007. Michell also insisted that defendant produce paperwork to prove that he actually obtained possession of the bulldozer through a mechanics lien. The men met in defendant’s office and defendant handed Michell a thick file relating to the bulldozer for him to copy. Among the papers was an application to TRPL relating to storage of the bulldozer, although Michell knew from his own extensive experience in the trade that permits to sell do not issue for off-road, unregistered heavy equipment. The file also included a copy of the newspaper notice demanding payment for repairs to the excavator, bulldozer, and Skid Steer by October 25, 2007, and invoices relating to the excavator purchased by Charles McGowan with the help of Michell. After inspecting the documents, Michell realized for the first time the connection between the excavator and bulldozer because “both of them ... came from the same fellow in Oklahoma.”

Defendant insisted the sale was legal, but Michell hired a private investigator to look into matters and the investigator eventually put him in contact with Terry Kutcher, who cooperated in the return of the bulldozer to Michell for storage. Mic-hell testified that he asked for his money back on both the excavator, for which he had paid the majority of the price, and for the bulldozer, but defendant refused, insisting that he “had done it right.” In fact, defendant had sent a letter to Lieutenant Terry Poche in the auto theft division of the Jefferson Parish Sheriffs Office, “mainly to have the necessary paper trial” for his records, stating that he had followed all of the legal requirements for taking possession of the equipment in his yard on Destrahan Avenue, including an advertisement placed in The Times-Picayune providing notice of the bills associated with the machines in his possession to all responsible parties, and asking Poche to contact him “to 19discuss the best way ... to handle this situation,” as he needed “to be certain before selling or disposing of this machinery that we have followed all rules and ... completed all necessary steps to obtain this equipment both legally and professionally.” The letter is dated November 7, 2007, or one day after defendant sold the excavator to Charles McGowan.

Defendant did not testify at trial but his defense emerged in the testimony of Valerie Oxner, an attorney who had represented him for 15 years and who had set up several of his corporations for which he served as the director. Oxner assured jurors that both sales had been lawful and that because she and defendant were fully aware TRPL would not process the necessary paperwork for issuing permits to sell off-road, non-titled machines, she advised defendant to follow the procedures for executing mechanics liens provided by La.R.S. 9:4502. “As far as I know,” Oxner told jurors, “he followed all the proper procedures and he did it exactly as the law provided for, and it was legal.” Oxner also testified about extensive correspondence with Terry Kutcher and Chisholm Trail Construction and emphasized that no claim had ever been made by Kutcher in the course of the paper trail that any equipment had been stolen from him. In fact, investigation of the sales as a criminal matter began in July 2008, a full year after the excavator had been removed from the TwiRopa site and over a year after Terry Kutcher had delivered the bulldozer to Diesel Truck Service. On the other hand, Kutcher never 110paid on invoices totaling $48,190 for repairs and storage fees accumulated from April to November 2007, a ruinous situation for defendant, who had “spent money buying parts and supplies to repair these vehicles and this equipment ... it was disastrous for him.” Oxner also underscored that no one involved in the investigation of the dispute between Terry Kutcher and defendant as a criminal matter had come to her for a statement and that the documentary evidence in her possession had thus never come to light before defendant was charged with misappropriation of Kutcher’s equipment and theft of the cash provided by Michell and McGowan. Oxner indicated that she was “in the process of filing a civil suit against the parties to this matter to recoup the money” they owed defendant. On cross-examination, Oxner acknowledged that of various corporations she had set up for defendant, some of them had had their licenses revoked by the state for failure to submit annual reports. Among them was Hydraulic Equipment Service, Inc., which, as documented by the state at trial, had its license revoked in 2005.

Reviewing all of this evidence on appeal, the Fifth Circuit panel concluded that with respect to the excavator, rational jurors could have found defendant had the requisite specific intent to commit theft by misappropriating the equipment and then selling it for cash to Charles McGowan. The lynchpin of that finding was the unrebut-ted testimony of Timothy Gooch who “specifically told defendant he could not take the equipment” from the TwiRopa site, “but defendant did so anyway.” Swanzy, 11-0882, p. 8, 96 So.3d at 502. The defense had no answer to that testimony and the court noted “[t]he fact that defendant attempted to obtain a repairman’s lien on the excavator after seizing it does not negate the fact he took the excavator without permission with the intent to permanently deprive the owner of the excavator ... [and] then misrepresented to Mr. McGowan that he had the authority to sell the excavator, which he took without permission.” Swanzy, 11-0882 at 8, 96 So.3d at 502. Defendant had further refused to refund the $25,000 paid in cash for the excavator even after his “authority to sell ... was questioned and the excavator was seized as stolen property.” Id.

On the other hand, the court of appeal noted that unlike the excavator, Terry Kutcher had voluntarily delivered the bulldozer to defendant in April 2007, at least for an estimate for repairs, and thereafter never attempted to reclaim the machine before receiving an invoice in September 2007 for storage fees and before defendant then sold it to Lloyd Michell in December 2007, after he had run newspaper notices of his intent and consulted with the Jefferson Parish Sheriffs Office. The court of appeal further noted that “[t]he documentary and testimonial evidence shows defendant consulted an attorney, communicated verbally and in writing with Mr. Kutcher and other representatives of Chisholm Trail about the outstanding invoices and his intent to sell the bulldozer under a lien, and advertis[ed] his intent to sell the bulldozer under a lien in the newspaper.” Swanzy, 11-0882 at 11, 96 So.3d at 504. Although “cognizant that we may not substitute our judgment for that of the jury,” the court of appeal also observed that “the jury’s conclusion cannot stand if the evidence is such that reasonable jurors must have a reasonable doubt.” Id., 11-0882 at 11-12, 96 So.3d at 504 (citing State v. Mussall, 523 So.2d 1305, 1311 (La.1988)). The court ultimately concluded that “reasonable jurors must have a reasonable doubt as to defendant’s specific intent to commit theft” involving the bulldozer, as opposed to theft involving the excavator, because “the evidence shows nothing more than a personal dispute between the parties.” Id.

We agree with the court of appeal that the evidence presented at trial supported the jury’s guilty verdict with respect to theft of the $25,000 paid by Charles McGowan for the excavator and, thus, defendant’s application does not 112warrant the exercise of our supervisory authority. The application in 12-K-1281 is therefore denied. We find merit, however, in the state’s application in 12-K-1297 that the court of appeal erred in setting aside defendant’s conviction for the theft of $6,500 from Lloyd Michell because, even as it disclaimed any intent to do so, the court of appeal ultimately substituted its own appreciation of the evidence for that of the fact finder in concluding a rational trier of fact would necessarily have a reasonable doubt with respect to the specific intent necessary to convict defendant of theft. State v. Captville, 448 So.2d 676, 680 (La.1984) (“When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant ] ... that hypothesis falls, and the defendant is guilty unless there is another hypothesis.... sufficiently reasonable that a rational juror could not ‘have found proof beyond a reasonable doubt.’ ”) (quoting Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). A jury acting as the fact finder may reasonably reject the hypothesis of innocence offered by the defendant unless that hypothesis “is sufficiently reasonable and sufficiently strong [that] a reasonable trier of fact must necessarily entertain a reasonable doubt about guilt.” Captville, 448 So.2d at 678, n. 2 (internal quotation marks and citation omitted).

The circumstances involving the sale of Terry Kutcher’s excavator and bulldozer, brought to Louisiana in support of the TwiRopa demolition project, were so inextricably intertwined that even in separate trials, the evidence would have been virtually the same to provide a narrative completeness “with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.” Old Chief v. United States, 519 U.S. 172, 187, 117 S.Ct. 644, 653, 136 L.Ed.2d 574 (1997). In assessing whether defendant had the requisite fraudulent intent with |13regard to the sale of Terry Kutcher’s bulldozer, following the previous sale of Kutcher’s excavator to Charles McGowan, rational jurors could take into account the testimony of Kutcher that he began working on the recovery of his equipment immediately after its removal from the TwiRopa job site and attempted to recover both his excavator and the bulldozer from defendant by sending his emissary to Diesel Truck Services with a check to pay the disputed invoices on those two pieces of equipment. Kutcher testified without objection that defendant had rebuffed that effort with a demand that he pay all invoices or free up none of his equipment. Kutcher was not specific as to dates, but rational jurors could find that the effort to reclaim the equipment took place before defendant sold either the excavator or the bulldozer, and find that evidence completely at odds with defendant’s representations to Charles McGowan and Lloyd Michell that the equipment had been “abandoned” by its owner. Thus, although the bulldozer and excavator had traveled different routes to the same place at Diesel Truck Services, rational jurors could find that defendant had no more right to assert a claim of privilege in the bulldozer after Kutcher unsuccessfully tendered payment for it, and then represent that claim as a basis for selling the equipment to satisfy storage and repair costs, than he did in the excavator, which the evidence established had been removed without authority from the TwiRopa job site.

In addition, rational jurors could also take into account the supposed repairs of the bulldozer were performed on behalf of a corporation, Hydraulic Equipment Service, Inc., that had lost its license in 2005, that the repairs in no way addressed the problem of the cracked head gasket plaguing the bulldozer, and that at least some of the repairs may not have been performed at all, as Michell had to boost the batteries from a battery charger to off-load the sputtering bulldozer from its trailer. Rational jurors could thus take defendant at his word when he wrote to the 114Jefferson Parish Sheriffs Office in November 2007, after he had already sold the excavator, that he was doing so “mainly” to create a paper trial, which was no more a reliable indicator of his subjective intent than the invoices were a reliable indicator of repair and storage fees for both the excavator and the bulldozer, or, for that matter, the towing fees for the bulldozer assessed by Hydraulic Equipment Service, Inc., for a piece of equipment that had been delivered to Diesel Truck Service.

Rational jurors could thus find that the evidence in its entirety supported a finding that defendant converted not only Terry Kutcher’s excavator but also his bulldozer to his own use in a fraudulent scheme to sell the heavy equipment to unsuspecting buyers on assurances the equipment had been “abandoned.” Rational jurors could thus conclude that whatever the civil ramifications of the case arising out of the unsettled contractual issues, the count involving the bulldozer, as well as the count involving the excavator, did not stem from only a personal dispute between the parties but properly charged defendant with felony theft in that, "with the specific intent to deprive Lloyd Michell of his money permanently, he took something of value from Michell “by means of fraudulent conduct, practices, or representations.” La. R.S. 14:67(A).

Accordingly, the state’s application is granted, the court of appeal decision is reversed in part, and defendant’s conviction and sentence on count one for the theft of $6,500 from Lloyd Michell are hereby reinstated.

JOHNSON, C.J., would deny.

GUIDRY, J., recused.

      . Testimony at trial established that Towing and Recovery Professionals of Louisiana is a nonprofit trade association that serves as an agent of the Office of Motor Vehicles to process paperwork for storage facilities in the state, including towing companies, body shops, repair shops "that basically store[] vehicles or titled movables to go through procedures to report to legally charged storage and notify the owners of the property and, if the owners do not come and claim it, the owner and/or lien holder, then [TRPL] help[s] them go through the procedures to obtain a permit to sell.” The permit to sell is issued by the Officer of Motor Vehicles and allows the storage facility to sell the vehicle as if it had title to it. The testimony also made clear that the procedure for obtaining a permit to sell encompasses only registered vehicles capable of traveling on the highway and thus does not govern disposition of unregistered farm or heavy construction equipment. Diesel Truck Services is one of TRPL's customers and was involved in the permit to sell issued by the Office of Motor Vehicles for the sale of the 1981 LoBoy trailer that qualified although it is not a motorized vehicle. As explained by Jennifer Wall, a TRPL representative, the disposition of unclaimed heavy construction equipment by a storage facility is something of a grey area in Louisiana. She supposed that the facility would hold the equipment for at least 90 days and then run notices for it in the newspaper and “after that they would just contact counsel for legal advice on how they would pursue for disposal of something.” She made clear that TRPL would not be involved in that process and would not give that legal advice with respect to liens or writs of seizure, based on the assumption that at some point the courts would have to become involved. She also made clear, with respect to the 1981 LoBoy, that the permit to sell did not validate the lawful ownership of the equipment but meant only that Diesel Truck Service had complied with the procedures necessary to dispose of the equipment on a claim that its fees for storage and repair had not been satisfied.

      . As provided in La.R.S. 9:4502(A)(1), "[a]ny person engaged in the making or repairing of ... machinery ... or movable objects or movable property of any type or description, has a privilege on the thing for the debt due him for materials furnished or labor performed ... [and] such privilege continues as long as such thing remains in such place of business.” The statute further provides that when the machinery or movable remains in the place of business, the holder of the privilege may sell "such property at private sale and without appraisement, after advertising such property for ten days as provided by law in case of judicial sales of movables.” La.R.S. 9:4502(C). During deliberations, jurors requested a copy of the statute along with all of the documentary exhibits introduced at trial and inspected by them at the close of the state’s case in chief. At the urging of both state and defense, the trial court declined the request and committed jurors to memory in deciding the case.


source: Caselaw Access Project

author: HUGHES, J.,

license: Public Domain

text:
    Percival FRANKLIN v. ENTERPRISE RENT-A-CAR.
    No. 2013-C-0399.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Franklin, Percival; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Martin, 16th Judicial District Court Div. C, No. 75768; to the Court of Appeal, Third Circuit, No. 12-555.

Denied.

HUGHES, J., dissents in part.

HUGHES, J.,

dissenting in part.

I respectfully dissent in part. The interlocutory discovery orders are renewable with the final judgment appealed.

There is a distinction between party-initiated discovery and court-ordered discovery. Compare La. C.C.P. arts. 1469 and 1471. MTU of N. Am., Inc. v. Raven Marine, Inc., 475 So.2d 1063 (La.1985). “Sanctions” may be ordered under the latter article, while reasonable expenses including attorney’s fees may be awarded, after a hearing, pursuant to the former. I would therefore vacate the $500 “sanction” ordered in this case. In all other respects, I would deny the writ.


author: PER CURIAM.

text:
    STATE of Louisiana v. Phillip LAMPTON.
    No. 2012-K-1547.
    Supreme Court of Louisiana.
    April 5, 2013.
   PER CURIAM.

The state charged defendant by bill of information with possession of cocaine in violation of La.R.S. 40:967. After the trial court denied his motion to suppress the evidence, defendant entered a plea of guilty as charged, reserving his right to seek review of the trial court’s adverse ruling on the suppression issue. State v. Crosby, 338 So.2d 584 (La.1976). The trial court sentenced him to two years imprisonment at hard labor, suspended, with two years of active probation. On appeal, the Fourth Circuit reversed defendant’s conviction and sentence on grounds that the trial court erred in denying the motion to suppress. State v. Lampton, 11-0775 (La.App. 4 Cir. 6/11/12), 95 So.3d 1199. We granted the state’s application to review the decision below and reverse for reasons that follow.

The testimony of New Orleans Police Officer Jimmy Peak at the hearing on the motion to suppress established the following facts. Peak was working with his partner, Officer Jonathan Sam, proactively patrolling the Iberville Housing Development maintained by the Housing Authority of New Orleans (HANO), when he and Sam observed a black male walking in the 1300 block of Bienville Street, which is located in the development. Officer Peak explained that the Iberville development is a high crime area known for drug trafficking and that nearly every building had a “no trespassing” sign. He also stated that he and Officer Sam were familiar with most of the Iberville residents through their cooperation with HANO’s own police officers, who “pretty much advise us of any individual that stays back there.” Because neither officer recognized the individual, they stopped him in the 1200 block of Bienville Street as he exited the development. Officer Peak patted defendant down and asked for identification. Defendant presented a Texas identification card reflecting he did not reside in the Iberville development. At that time, officers arrested him for trespassing, and during a search incidental to the arrest, observed a bulge in his right sock. A field analysis of the item recovered from the sock tested positive for crack cocaine.

On cross-examination, Peak confirmed that he had been assigned to the C.O.P.S. duty (Community Oriented Policing Squad) at the development for approximately one or two months at the time of defendant’s arrest and that he had been a New Orleans police officer for two years. He testified that he had spoken to a majority of the residents within that time, but could not recall the number of people living in the Iberville development. Peak explained that his partner, Officer Sam, had been assigned to the Iberville Housing Development longer than he had worked there. Officer Peak reiterated that he was unfamiliar with defendant when they made the stop. When asked why they conducted the stop, Peak elaborated that the block he was traveling on was known for drug trafficking, nearly all of the buildings had “no trespassing” signs, and neither he nor his partner was acquainted with defendant. Although there was some confusion on the number of pat-down searches, Office Peak clarified that he did an initial frisk of defendant “to make sure he didn’t have any weapons as we stopped him.... ” That pat down evidently did not produce any weapons or evidence, but the ensuing search incidental to defendant’s arrest for trespassing located the cocaine concealed in his sock. At the conclusion of the hearing, the trial court denied defendant’s motion to suppress evidence.

The court nevertheless permitted defendant to reopen the motion and at a second hearing on September 16, 2010, Officer Jonathan Sam testified that at the time of defendant’s arrest, he had been patrolling the Iberville development for eight or nine months and was familiar with the majority of residents. He testified that he and Peak stopped defendant because they suspected he was trespassing. Officer Sam offered a nearly identical version of the stop as his partner, emphasizing that it is common for non-residents to enter the Iberville Housing Development to buy narcotics. He also explained that every tenant’s lease includes a provision requiring residents to accompany their guests until they leave the area. The state did not, however, offer a copy of this lease into evidence.

On cross-examination, Officer Sam acknowledged that the area where they caught up to defendant and stopped him, the 1200 block of Bienville Street, was on the outskirts of the development, but noted that he and Officer Peak observed defendant coming out of the courtyard within the development immediately before the stop. He testified that defendant produced a valid identification when asked to do so, but the document showed an address not within the housing development. Sam confirmed that Peak conducted the initial pat down search of defendant for officer safety. After the arrest, officers noted that defendant kept moving his body so that they would not be able to check his right side. Defendant continued this motion even after Officer Peak asked him to stop moving. At that time, they conducted a full search incident to arrest, and discovered crack cocaine in defendant’s right sock. After considering the testimony of Officer Sam, the trial court again denied defendant’s motion to suppress the narcotics seized during the search.

In reversing the trial court’s ruling, the Fourth Circuit initially noted that the officers did not violate defendant’s Fourth Amendment rights by approaching him and asking for his identification. However, the appellate court, convinced that the state failed to produce any evidence of a “specific trespassing rule relating to the Iberville Housing Development, or any other housing development in New Orleans, that prohibited a person from walking through the development when that person is a nonresident of the development and not accompanied by a resident[,]” concluded that the officers lacked probable cause to arrest defendant for trespassing. Lampton, 11-0775 at 9, 95 So.2d at 1205. In its reasons for judgment, the appellate court relied heavily on its recent decision in State v. Mulder, 11-0424 (La.App. 4 Cir. 10/19/11), 76 So.3d 1241, writ denied, 11-2511 (La.12/1/11), 76 So.3d 1160, a factually similar case which held that police lacked reasonable suspicion to conduct an investigatory stop, based on an officer’s belief that defendant did not reside in Iberville Housing Development, because the state failed to present any evidence of an ordinance or statute outlawing a nonresident from entering a city housing development. Consequently, it determined that the illegal arrest invalidated the subsequent search of defendant and the seizure of cocaine from one of his socks. Id.

There is no dispute in the present case over the analytical framework for assessing the validity of the initial stop and subsequent arrest of defendant. While an arrest requires probable cause, an investigatory stop requires only the lesser standard of reasonable suspicion enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). La.C.Cr.P. art. 215.1. In making a brief investigatory stop the police still “‘must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” State v. Kalie, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881 (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). The police must therefore “articulate something more than an ‘inchoate and un-particularized suspicion or “hunch.” ’ ” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883). This level of suspicion, however, need not rise to the probable cause required for a lawful arrest. The police need have only “‘some minimal level of objective justification...Sokolow, 490 U.S. at 7, 109 S.Ct. at 1585 (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984)). Police officers may nevertheless approach an individual, engage him in conversation about his presence in the area, and ask for his identification, without implicating either the Fourth Amendment or La. Const, art. I, § 5. State v. Lewis, 00-3136, p. 3 (La.4/26/02), 815 So.2d 818, 820(“[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen.... An officer’s request for identification does not turn the encounter into a forcible detention unless the request is accompanied by an unmistakable show of official authority indicating to the person that he or she is not free to leave.”) (internal quotation marks and citations omitted).

Moreover, as a general matter, “the determination of reasonable grounds for an investigatory stop, or probable cause for an arrest, does not rest on the officer’s subjective beliefs or attitudes but turns on a completely objective evaluation of all of [the] circumstances known to the officer at the time of his challenged action.” Kalie, 96-2650 at 1, 699 So.2d at 880 (citing Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); State v. Wilkens, 364 So.2d 934, 937 (La.1978)).

A fair reading of Officer Peak’s testimony at the suppression hearing indicates that immediately after stopping defendant, the officer frisked him, not out of any particularized concern for his safety and that of his partner, but as part of a general policy of frisking anyone the officers stop. In this regard, Officer Sam freely acknowledged that he routinely patted down individuals he stopped on the street “‘cause we don’t know who we’re dealing with ... some people just don’t like the police ... So we just do a pat down for officers’ safety for weapons.” The moment Officer Peak literally laid hands on defendant he decisively changed the nature of the encounter from consensual to a forcible detention for which he needed at least reasonable suspicion because at that point, no reasonable person would have felt free to leave and go about his business. California v. Hodari D., 499 U.S. 621, 626-27, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991) (a seizure for Fourth Amendment purposes requires either physical force or submission to the assertion of official authority.)

Even granting that a forcible detention occurred, however, the circumstances in this case gave rise to the officers’ reasonable suspicion that defendant was trespassing in the Iberville Housing Development. Although Officer Peak had been patrolling the community for only one or two months, Officer Sam had been on that same duty for approximately nine months and was acquainted with many if not most of the development’s residents. In addition, both officers testified to the plethora of “no trespassing” signs posted on virtually every building in the development. The officer thus had the requisite “minimal objective basis” to “maintain the status quo momentarily while obtaining more information,” the hallmark of an investigatory stop. State v. Fauria, 393 So.2d 688, 690 (La.1981).

Although there are factual similarities, we find that the lower court’s reliance on its decision in Mulder is misplaced because the officer in that case, acting upon a belief that defendant was a nonresident of the housing development, immediately ordered defendant to step to the hood of the patrol unit and patted him down, which prompted him to drop a packet of heroin from his clenched hand. Therefore, given that the officer did not first ask for identification from the suspect, retrieval of the contraband was a direct result of a frisk without a particularized basis. In the present case, however, even assuming that Office Peak’s pat down of defendant also lacked a particularized basis, the officer’s request for identification was not induced by anything he discovered as a result of that cursory frisk but was the principal reason why the officers stopped defendant in the first place. Once defendant produced his identification, which established he did not reside in the Iberville Housing Development, the officers had probable cause to place him under arrest for trespassing and conduct a search incident to arrest.

The appellate court thus erroneously demanded a higher evidentiary burden of proof in relation to the trespassing statute than a hearing on a motion to suppress required because probable cause justifying an arrest and an ensuing incident search does not require proof beyond a reasonable doubt. State v. Brisban, 00-3437, p. 8 (La.2/26/02), 809 So.2d 923, 929 (“Probable cause deals with probabilities and recognizes that a degree of uncertainty may exist. Although mere suspicion cannot justify an arrest, the officer does not need sufficient proof to convict.”) (citations omitted). The housing development is owned by the City of New Orleans and operated by HANO, which placed the no trespassing signs on the property. The absence of evidence detailing the specific parameters of HANO’s authority to enforce the law of this state for the protection of its residents, which now includes the authority to maintain its own police force to “enforce laws, rules, and regulations to secure the protection of persons, properties, or interests relating to HANO,” R.S. 40:456.1(A) (2011 La. Acts 117), was not fatal to the state’s case at the suppression hearing. The trial court found credible the police testimony defendant was a non-resident who entered onto the property of another despite an array of “no trespassing signs,” under circumstances giving rise to a fair probability he had done so without express or implied authorization because he was walking alone through the housing development unaccompanied by any person who might have been a resident capable of authorizing him to be on the premises as an invited guest. See La.R.S. 14:63(B) (“No person shall enter upon immovable property owned by another without express, legal, or implied authorization.”); compare State v. Deary, 99-0627, p. 1 (La.1/28/00), 753 So.2d 200, 201 (noting “an almost implicit understanding and custom in this country that, in the absence of signs or warning, a residence may be approached and the occupants summoned to the door by knocking.”) (emphasis added) (internal quotation marks and citation omitted). We find no clear abuse of the trial court’s fact finding discretion in that regard. State v. Wells, 08-2262, pp. 4-5 (La.7/6/10), 45 So.3d 577, 580-81 (“When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings.... A trial court’s decision relative to the suppression of evidence is afforded great weight and will not be set aside unless there is an abuse of that discretion.”) (citations omitted). Moreover, even assuming that the suppression issue came down to HANO’s authority to exclude non-residents from its housing developments, a matter more properly reserved for trial of the case which defendant elected to forego by pleading guilty, the trial court was charged with taking judicial notice of La.R.S. 40:510, which allows local housing authorities in this state to adopt rules excluding persons “who are not residents [or] their guests” from the premises “subject to an applicable state or local trespass law.” This authority is “cumulative of any other laws of this state relating to civil or criminal trespass, unauthorized entry upon property, or the exclusion or ejection of unauthorized persons from public or private property....” La.R.S. 40:511; cf. La. C.E. art. 202(A) (“A court, whether requested to do so or not, shall take judicial notice of the laws ... of every state....”).

Accordingly, the decision below is reversed, defendant’s conviction and sentence are reinstated, and this case is remanded to the district court for purposes of execution of sentence.


text:
    In re Gregory J. AVERY.
    No. 2012-B-0598.
    Supreme Court of Louisiana.
    April 5, 2013.
   PER CURIAM.

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

By way of background, the ODC filed multiple counts of formal charges against respondent in November 2001. In his answer • to the formal charges, respondent alleged that he was suffering from depression, anxiety, and other conditions which had rendered him “currently medically disabled” and unable to participate in the disciplinary proceedings. Respondent then filed a petition in this court, seeking to be transferred to disability inactive status. On November 20, 2002, we transferred respondent to interim disability inactive status pending a hearing to determine the validity of his claim of an inability to assist in his defense due to mental incapacity. In re: Avery, 02-2683 (La.11/20/02), 834 So.2d 971. Following the hearing, we transferred respondent to disability inactive status and ordered that the pending disciplinary proceedings be stayed. In re: Avery, 02-2683 (La.3/26/03), 841 So.2d 769.

In 2006, respondent filed a petition seeking to be reinstated to active status, in which he asserted that his disability had been removed. Following a hearing on the petition, this court reinstated respondent to active status on February 14, 2007. In re: Avery, 06-1816 (La.2/14/07), 948 So.2d 1075. At that time, the ODC elected not to proceed with the formal charges filed in 2001.

|2In March 2011, the ODC filed seven counts of formal charges against respondent, all arising from complaints received after he was reinstated to active status. Respondent was served with the formal charges but failed to answer, and consequently, the factual allegations of the formal charges were deemed admitted, as follows:

FORMAL CHARGES

Count I

In March and April 2009, respondent wrote checks to his landlord, Rolando Hernandez, in payment of his rent. These checks, totaling $2,400, were subsequently dishonored by respondent’s bank for insufficient funds.

In May 2009, Mr. Hernandez filed a disciplinary complaint against respondent and attached copies of the NSF checks, which the ODC determined had been written on respondent’s client trust account. The ODC then obtained the trust account bank records and discovered checks which had been issued in payment of respondent’s personal expenses and checks which had been signed by respondent’s girlfriend, who is not a lawyer. Furthermore, the ODC discovered that between January and March 2009, the balance of the trust account dropped below the amount respondent was holding on behalf of a client, Raymond Amedeo, whom he had represented in a property damage claim. Respondent did not deliver the entirety of the settlement proceeds to Mr. Amedeo and failed to provide the ODC with requested documentation concerning the settlement of Mr. Amedeo’s claim.

IsThe ODC alleges that respondent’s conduct violated Rules 1.15 (safekeeping property of clients or third persons), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.

Count II

In September 2009, Richard Jer-rell, Jr. retained respondent to defend him in a criminal case, paying him $1,500. The court minutes reflect that respondent was not present for Mr. Jerrell’s arraignment on November 8, 2009, and that another attorney entered a not guilty plea on Mr. Jerrell’s behalf. Thereafter, when Mr. Jerrell could not reach respondent to discuss his ease, he hired a new attorney to represent him. Respondent has not refunded any portion of the legal fee Mr. Jerrell paid. He also failed to respond to the disciplinary complaint filed against him by Mr. Jerrell in December 2009.

The ODC alleges that respondent’s conduct violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(f)(5) (failure to refund an unearned fee), and 8.1(c) of the Rules of Professional Conduct.

Count III

In July 2009, Jason Brimer retained respondent to handle an intra-family adoption matter, paying him $750. Thereafter, respondent neglected the matter and failed to communicate with his client. Respondent also failed to refund any portion of the legal fee Mr. Brimer paid, and failed to respond to the disciplinary complaint filed against him by Mr. Brimer in December 2009.

The ODC alleges that respondent’s conduct violated Rules 1.3, 1.4, 1.5(f)(5), and 8.1(c) of the Rules of Professional Conduct.

_[4Count IV

In June 2009, Geraldine Henkel retained respondent to pursue an appeal of a civil judgment rendered against her and to file a legal malpractice suit against her former attorney. Respondent agreed to accept the legal malpractice matter on a contingency fee basis, and in connection with the appeal, Ms. Henkel paid respondent an advance deposit of $2,500, from which fees were to be deducted at the rate of $175 per hour. Respondent failed to place these funds in his client trust account, as required by the Rules of Professional Conduct, and instead immediately cashed Ms. Henkel’s check. Thereafter, respondent delayed in filing the necessary brief with the court of appeal and failed to keep Ms. Henkel informed as to the status of her case.

In connection with the legal malpractice matter, respondent did not provide Ms. Henkel with any information concerning the status of the matter, causing Ms. Henkel to become concerned that the claim had prescribed.

In May 2010, Ms. Henkel filed a complaint against respondent with the ODC. Respondent failed to cooperate with the ODC in its investigation of the complaint. In December 2010, respondent sent Ms. Henkel a billing statement in which he claimed to have provided legal services in the appeal matter from June through October 2010. However, at that point in time, respondent was ineligible to practice law, and the ODC therefore contends that the fees charged for these services were unreasonable.

The ODC alleges that respondent’s conduct violated Rules 1.3, 1.4, 1.5(a) (charging an unreasonable fee), 1.5(f)(8) (payment of fees in advance of services), 1.15(a), 3.2 (failure to make reasonable efforts to expedite litigation), 5.5(a) | .^engaging in the unauthorized practice of law), 8.1(c), and 8.4(c) of the Rules of Professional Conduct.

Count V

As noted in connection with Count IV, supra, respondent was declared ineligible to practice law between June 19, 2010 and October 4, 2010 for failure to comply with his professional obligations. Nevertheless, respondent continued to practice law during the period of his ineligibility. Specifically, on June 24, 2010, respondent appeared at a hearing before a domestic commissioner in Jefferson Parish on behalf of his client in a divorce matter. He also filed pleadings on behalf of his client in August 2010.

Further with respect to the June 24, 2010 hearing, the record reveals that the commissioner halted the proceeding because respondent raised an exception during the testimony. The commissioner advised respondent that exceptions had to be in writing and gave him two weeks to file a written exception. However, respondent never filed the exception, and thereby delayed the proceeding. Respondent also delayed the proceeding by refusing to provide opposing counsel with a physical address so that he could be served with pleadings.

In May 2010, a disciplinary complaint was filed against respondent on behalf of the opposing party in the divorce. Respondent failed to cooperate with the ODC in its investigation of the complaint.

The ODC alleges that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 3.1 (meritorious claims and contentions), 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 3.4(e) (in trial, alluding to a matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence), 5.5(a), 8.1(c), and 8.4(c).

| s Count VI

In 2007, John Barbetti, Jr. retained respondent to represent him in an ongoing personal injury matter. In September 2010, Mr. Barbetti filed a complaint against respondent with the ODC, alleging that during the course of the representation, he had difficulty communicating with respondent and received little information about the status of his case. The matter finally settled, but according to Mr. Bar-betti, the settlement payments were delayed because respondent and his former employer, attorney Mark Smith, could not reach an agreement as to their respective fee interests. Mr. Barbetti also expressed some concern with regard to the payment of his medical bills out of the settlement proceeds. Respondent failed to cooperate with the ODC in its investigation of the complaint.

In connection with Mr. Barbetti’s case, the trial court issued an order requiring respondent to deposit the attorney’s fee portion of the settlement into the registry of the court. Respondent failed to do so, and in September 2010, he was held in contempt for his “willful” failure to comply with a court order.

In addition, in June 2009, respondent issued two checks to Mr. Smith from his client trust account to reimburse fees and costs associated with a matter in which Mr. Smith had an interest. These checks, totaling $1,150, were subsequently dishonored by respondent’s bank for insufficient funds.

The ODC alleges that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.15(a), 1.15(d), 3.4(c), 8.1(c), and 8.4(c).

Count VII

In August 2009, Dr. Gordon Johnson retained respondent to represent him in a civil matter. Respondent agreed to handle the case on a contingency fee basis, but required Dr. Johnson to advance certain funds at the outset of the case. 1 .¡Accordingly, on September 1, 2009, Dr. Johnson wrote respondent a check in the amount of $2,000. He gave respondent a second check in the amount of $1,500 on October 27, 2009. Respondent apparently cashed these checks and did not deposit the funds into his client trust account.

Thereafter, Dr. Johnson met with respondent on two occasions, but he then began to have difficulty contacting respondent. Eventually, Dr. Johnson could not reach respondent at all, and it does not appear that any work was performed on his legal matter.

In October 2010, Dr. Johnson filed a complaint against respondent with the ODC. Respondent failed to cooperate with the ODC in its investigation of the complaint.

The ODC alleges that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f)(4), 1.5(f)(5), 3.2, 8.1(c), and 8.4(c).

DISCIPLINARY PROCEEDINGS

As previously discussed, respondent failed to answer the formal charges filed against him, and consequently, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

The hearing committee adopted the ODC’s deemed admitted submission by reference and recommended that respondent be permanently disbarred. The | scommittee also recommended that respondent be required to refund the unearned portion of the legal fees paid by his clients.

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

Disciplinary Board Recommendation

After review, the disciplinary board determined the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence. Based on the deemed admitted facts, the board determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The board further determined respondent violated duties owed to his clients, the public, the legal system, and the legal profession. He acted knowingly and intentionally, and his misconduct resulted in actual harm. Based on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction in this matter is disbarment.

In aggravation, the board found the following factors are present: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim, substantial experience in the practice of law (admitted 1978), and indifference to making restitution. The board found the only applicable mitigating factor is the absence of a prior disciplinary record.

Considering respondent’s misconduct in light of the permanent disbarment guidelines and the prior jurisprudence of this court, the board recommended he be permanently disbarred. The board also recommended respondent be ordered to refund any unearned fees and make restitution to the clients whose funds he converted, and pay the costs and expenses of this proceeding.

IflFollowing the filing of the disciplinary board’s recommendation, respondent sent a letter to this court seeking additional time to respond to the complaints which form the basis of the formal charges against him. By way of explanation for his request, respondent stated that since 2009, he has suffered a recurrence of the disabling medical issues that led to his original transfer to disability inactive status in 2002. By order dated April 11, 2012, we gave respondent thirty days “to file a supplement and any supporting documentation.”

Thereafter, respondent filed a supplement in which he responded to each count of the formal charges. He also submitted a request to be transferred to disability inactive status. On September 12, 2012, we ordered that respondent be transferred to interim disability inactive status and remanded the matter for a hearing on his claim of disability. The hearing was held on October 30, 2012; however, respondent did not appear. Accordingly, the hearing committee submitted a recommendation to this court that respondent’s request for disability inactive status be denied. Respondent objected to the committee’s recommendation and urged the court “to allow his Disability Inactive Status to continue indefinitely until proven otherwise by proper process.”

On January 25, 2013, we issued an order immediately reinstating respondent to active status from interim disability inactive status. Our order further provided that “before the court considers the merits of this disciplinary proceeding, respondent and the Office of Disciplinary Counsel shall submit written briefs addressing whether the sanction recommended by the disciplinary board is appropriate. The briefs shall be filed in this court no later than twenty days from the date of this order.” The ODC timely filed its brief in response to the order, urging that permanent disbarment be imposed. Respondent filed nothing for the court’s consideration.

linDISCUSSION

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: Banks, 09-1212 (La.10/2/09), 18 So.3d 57.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(8) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.

The record in this deemed admitted matter supports a finding that respondent wrote checks for personal expenses drawn on his client trust account and otherwise improperly handled his trust account; neglected legal matters, failed to communicate with his clients, and failed to refund the unearned portion of the fees he was paid; practiced law while he was ineligible to do so; and failed to cooperate with the ODC in its investigation.. Based on these facts, respondent has violated the Rules of Professional Conduct as charged by the ODC.

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

Respondent knowingly and intentionally violated duties owed to his clients, the public, the legal system, and the legal profession, causing actual harm. The baseline sanction for this type of misconduct is disbarment.

In its report, the disciplinary board concluded that respondent’s offenses are so egregious that he should be permanently prohibited from applying for readmission to the bar. We agree. Respondent repeatedly mishandled his client trust account and converted client funds to his own use. As such, we find that respondent’s conduct amounts to repeated or multiple instances of intentional conversion of client funds with substantial harm, as contemplated by Guideline 1 of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E.

Respondent’s conduct demonstrates a disregard for his clients and for his duties as an attorney. In order to protect the public and maintain the high standards of the legal profession in this state, respondent must not be allowed the opportunity to return to the practice of law in the future.

Accordingly, we will adopt the board’s recommendation and permanently disbar respondent. We will also order respondent to make restitution to his victims.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record and the brief filed by the Office 112of Disciplinary Counsel, it is ordered that the name of Gregory J. Avery, Louisiana Bar Roll number 2618, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. It is further ordered that respondent shall make restitution to his victims. 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.

      . The checks themselves do not contain a notation that they are drawn on a client trust account, but the account number on the checks matches the account number on the bank statement for the "IOLTA Trust Account” maintained by respondent at Statewide Bank in Covington.

      . Although respondent testified in a sworn statement that he had authorized his girlfriend to sign the checks in question, this practice is contrary to Rule 1.15(f) of the Rules of Professional Conduct, which provides that every check "from a client trust account shall be personally signed by a lawyer ...”

      . In March 2011, the court of appeal affirmed the judgment against Ms. Henkel and awarded the appellees an additional $2,500 in attorney's fees “for the work necessitated by Henk-el's frivolous appeal." Rockett v. Neupert, 10-1311, 10-1312 (La.App. 1st Cir.3/25/11), 58 So.3d 1154 (not designated for publication).

      . Respondent was ineligible to practice law from June 19, 2010 through October 4, 2010 for failure to comply with the mandatory continuing legal education requirement.


text:
    In re Derrick Damond JONES.
    No. 2013-B-0541.
    Supreme Court of Louisiana.
    April 5, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent practiced law while ineligible to do so. Prior to the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Derrick Damond Jones, Louisiana Bar Roll number 28298, be suspended from the practice of law for a period of one year and one day, with all but sixty days deferred, followed by a two-year period of probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    Dan VEULEMAN & Jody Veuleman v. MUSTANG HOMES, LLC, et al.
    No. 2013-C-190.
    Supreme Court of Louisiana.
    April 5, 2013.
   PER CURIAM.

This case involves the burden of proof on a motion for summary judgment.

The insurer bears the burden of proving that a loss falls within a policy exclusion. Blackburn v. National Union Fire Ins. Co., 00-2668 (La.4/3/01), 784 So.2d 637, 641. The policy in this case contains a “work product” exclusion; however, the exclusion has a “subcontractor” exception, thus work performed by a subcontractor, rather than an employee of the insured, would be covered under the policy.

On motion for summary judgment the insurer introduced its policy but no evidence to show who performed the work at issue. The plaintiffs, applicants herein, introduced an affidavit that the work was performed by subcontractors. The court of appeal disallowed the affidavit and concluded that the applicants “have not established their claims are excepted from the exclusion.”

If the exception is met, the exclusion does not apply. The insurer retains the burden of proving that the exception is not met in order to show that the exclusion does apply. The insurer offered no proof to accomplish its burden, and we believe that the court of appeal erroneously shifted the burden of proof on the motion for summary judgment to the applicants. We therefore vacate the summary judgment rendered in this matter and remand for further proceedings.

WRIT GRANTED; APPELLATE COURT DECISION REVERSED; DISTRICT COURT SUMMARY JUDGMENT VACATED.


author: /s/ Jeffrey P. Victory

text:
    In re John D. CONRY.
    No. 2012-OB-2544.
    Supreme Court of Louisiana.
    April 5, 2013.
   ORDER

Considering the Petition for Transfer to Disability Inactive Status filed by respondent, John D. Conry, and the report and recommendation of the hearing committee, this court finds that respondent’s claim of inability to defend is invalid. Accordingly,

IT IS ORDERED that John D. Conry, Louisiana Bar Roll number 29807, be and he hereby is reinstated to active status from interim disability inactive status, pursuant to Supreme Court Rule XIX, § 22(C)(3). This order shall be effective immediately.

FOR THE COURT:

/s/ Jeffrey P. Victory

Justice, Supreme Court of Louisiana


text:
    STATE ex rel Andrew HARVEY, Jr. v. STATE of Louisiana.
    No. 2012-KH-2435.
    Supreme Court of Louisiana.
    April 1, 2001.
   In re Harvey Jr., Andrew; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. G, No. 801966; to the Court of Appeal, First Circuit, No. 2012 KW 1239.

Denied.


text:
    STATE of Louisiana v. Frandisia WHITE.
    No. 2012-KO-2228.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re White, Frandisia; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Webster, 26th Judicial District Court Div. C, Nos. 82916, 83406; to the Court of Appeal, Second Circuit, Nos. 47,413-KA, 47,414-KA.

Denied.


text:
    STATE of Louisiana v. Eric J. BONE.
    No. 2012-KO-2229.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Bone, Eric J.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. N, No. 09-4310; to the Court of Appeal, Fifth Circuit, No. 12-KA-34.

Denied.


text:
    STATE ex rel. Troy Ray HERMAN v. STATE of Louisiana.
    No. 2012-KO-2230.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Herman, Troy Ray; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 11-09-0649; to the Court of Appeal, First Circuit, No. 2011 KA 1967.

Denied.


text:
    STATE of Louisiana v. Hunter P. THIBODAUX.
    No. 2012-K-2242.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Thibodaux, Hunter P.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, Lafayette City Court, No. 2011-00696; to the Court of Appeal, Third Circuit, No. KW 12-00739.

Denied.


text:
    STATE of Louisiana v. Lloyd A. BARNES.
    No. 2012-K-2251.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Barnes, Lloyd A.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. E, No. 494-350; to the Court of Appeal, Fourth Circuit, No. 2011-KA-1421.

Denied.


text:
    STATE of Louisiana v. Sullivan WILLIAMS.
    No. 2012-K-2252.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Williams, Sullivan;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. A, No. 501-947; to the Court of Appeal, Fourth Circuit, No. 2011-KA-1547.

Denied.


text:
    STATE ex rel. Noel DEAN v. STATE of Louisiana.
    No. 2012-KH-2364.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Dean, Noel;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 408-447; to the Court of Appeal, Fourth Circuit, No. 2012-K-1445.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 98-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Andrew D. WETZEL v. STATE of Louisiana.
    No. 2012-KH-2374.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Wetzel, Andrew D.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 472552; to the Court of Appeal, First Circuit, No. 2012 KW 1283.

Denied.


text:
    STATE ex rel. Darius PATTERSON v. STATE of Louisiana.
    No. 2012-KH-2399.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Patterson, Darius;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 09-6180; to the Court of Appeal, Fifth Circuit, No. 12-KH-675.

Denied.


text:
    Wilton CARABY v. STATE of Louisiana.
    No. 2012-KH-2400.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Caraby, Wilton;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 450-882; to the Court of Appeal, Fourth Circuit, No. 2012-K-1393.

Denied.


text:
    STATE ex rel. John B. DOUCET v. STATE of Louisiana.
    No. 2012-KH-2401.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Doucet, John B.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. L, No. 96032; to the Court of Appeal, Third Circuit, No. KH 12-01066.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Darren Dewayne KING v. STATE of Louisiana.
    No. 2012-KH-2402.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re King, Darren Dewayne;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. B, No. 152,056; to the Court of Appeal, Second Circuit, No. 47,-638-KH.

Denied.


text:
    STATE ex rel. Terry Wayne MAYS v. STATE of Louisiana.
    No. 2012-KH-2403.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Mays, Terry Wayne;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 4, No. 155,463; to the Court of Appeal, Second Circuit, No. 47,-782-KH.

Denied.


text:
    STATE ex rel. Mark Lewis SMITH v. STATE of Louisiana.
    No. 2012-KH-2404.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Smith, Mark Lewis;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 4, No. 293,514; to the Court of Appeal, Second Circuit, No. 47,-285-KA.

Denied.


text:
    STATE ex rel. Elbert CHINN v. STATE of Louisiana.
    No. 2012-KH-2405.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Chinn, Elbert;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 08-6437 C/W 09-2876; to the Court of Appeal, Fifth Circuit, No. 12-KH-767.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. See also State v. Cotton, 09-2397 (La.10/15/10), 45 So.3d 1030; State v. Thomas, 08-2912, (La.10/16/09), 19 So.3d 466.


text:
    STATE ex rel. Kieron BATISTE v. STATE of Louisiana.
    No. 2012-KH-2414.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Batiste, Kieron;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Bienville, 2nd Judicial District Court Div. C, No. 40,914; to the Court of Appeal, Second Circuit, No. 47,-831-KH.

Denied.


text:
    STATE ex rel. Johnny B. WRIGHT v. STATE of Louisiana.
    No. 2012-KH-2415.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Wright, Johnny B.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 4, No. 136,884.

Denied. Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 351; cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Rodney HINGLE v. STATE of Louisiana.
    No. 2012-KH-2428.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Hingle, Rodney;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 489283; to the Court of Appeal, First Circuit, No. 2012 KW 1350.

Denied.


text:
    STATE ex rel. Kenneth MORGAN v. STATE of Louisiana.
    No. 2012-KH-2436.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Morgan, Kenneth;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court, No. 15-4507; to the Court of Appeal, First Circuit, No. 2012 KW 1383.

Denied.


text:
    STATE ex rel. Lance S. BARTON v. STATE of Louisiana.
    No. 2012-KH-2437.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Barton, Lance S.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. F, No. 94-FELN-011127; to the Court of Appeal, First Circuit, No. 2012 KW 1259.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Payton FUNCHESS v. STATE of Louisiana.
    No. 2012-KH-2474.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Funchess, Payton;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 00-5957; to the Court of Appeal, Fifth Circuit, No. 12-KH-672.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    John Creighton WEBB, Jr., et al. v. FRANKS INVESTMENT CO., et al. Eric W. Allen, et al. v. Chesapeake Louisiana LP, et al.
    No. 2012-C-2549.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Eric W. Alien, et al.;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. F, No. 530,547; to the Court of Appeal, Second Circuit, No. 47,-321-CA C/W 47,322-CA.

Denied.

VICTORY, J., recused.

HUGHES, J., would grant.


text:
    John Creighton WEBB, Jr., et al. v. FRANKS INVESTMENT CO., et al. Eric W. Allen, et al. v. Chesapeake Louisiana LP, et al.
    No. 2012-C-2552.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Parish of Caddo;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. F, No. 530,547; to the Court of Appeal, Second Circuit, No. 47,321-CA C/W 47,322-CA.

Denied.

VICTORY, J., recused.

HUGHES, J., would grant.


text:
    John Creighton WEBB, Jr., et al. v. FRANKS INVESTMENT CO., et al. Eric W. Allen, et al. v. Chesapeake Louisiana LP, et al.
    No. 2012-C-2553.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Parish of Caddo; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. F, No. 530,547; to the Court of Appeal, Second Circuit, No. 47,321-CA C/W 47,322-CA.

Denied.

VICTORY, J., recused.

HUGHES, J., would grant.


text:
    John Creighton WEBB, Jr., et al. v. FRANKS INVESTMENT CO., et al. Eric W. Allen, et al. v. Chesapeake Louisiana LP, et al.
    No. 2012-C-2556.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Chesapeake Louisiana, LP, et al.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. F, No. 530,547; to the Court of Appeal, Second Circuit, No. 47,321-CA C/W 47,322-CA.

Denied.

VICTORY, J., recused.

HUGHES, J., would grant.


text:
    John Creighton WEBB, Jr., et al. v. FRANKS INVESTMENT CO., et al. Eric W. Allen, et al. v. Chesapeake Louisiana LP, et al.
    No. 2012-C-2565.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Franks Investment Co., et al.; Twin Cities Development;—Defendant (s); Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. F, No. 530,547; to the Court of Appeal, Second Circuit, No. 47,-321-CA CW 47,322-CA.

Denied.

VICTORY, J., recused.

HUGHES, J., would grant.


text:
    Michael J. BELANGER, individually and on behalf of his minor Children, Annalise E. Belanger and Ashlan L. Belanger v. Natalie N. STEPHEN and Geico General Insurance Company.
    No. 2012-C-2679.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Geico General Insurance Company; Stephen, Natalie N., et al.;—Defendants); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 578,513; to the Court of Appeal, First Circuit, No. 2012 CA 0278.

Denied.

HUGHES, J., recused.


text:
    STATE of Louisiana v. Horace O'Neal KOONCE.
    No. 2013-KK-0136.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Koonce, Horace O’Neal; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 18640-CR-2011; to the Court of Appeal, Third Circuit, No. KW12-01268.

Denied.


text:
    VARSITY EVENT MANAGEMENT, L.L.C. v. LOUISIANA HIGH SCHOOL ATHLETIC ASSOCIATION, INC.
    No. 2013-CC-0178.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Louisiana High School Athletic Association, Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. H, No. 2012-586; to the Court of Appeal, Third Circuit, No. CW 12-01446.

Denied.

HUGHES, J., recused.


text:
    James Tigner WALKER, Barbara Rigby Walker, Alison W. Medinis, Caryn W. Donnelly, Clare W. Kettlekamp and Andrew Tigner Walker v. J-W OPERATING COMPANY, Grigsby Petroleum, Inc., Matador Production Company and the State of Louisiana through the Department of Conservation.
    No. 2013-C-0185.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Donnelly, Caryn W.; Kettlekamp, Clare W.; Medinis, Alison W.; Walker, Andrew Tigner; Walker, Barbara Rigby; Walker, James Tigner; — Plaintiffs); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 555,247; to the Court of Appeal, First Circuit, No. 2012 CA 0662.

Denied.


text:
    Kevin ROCA v. SECURITY NATIONAL PROPERTIES-LOUISIANA LIMITED PARTNERSHIP, 123 Cleaning Crew, XYZ Insurance Company and ABC Insurance Company.
    No. 2013-C-0233.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Roca, Kevin; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. R, No. 538,935; to the Court of Appeal, First Circuit, No. 2011 CA 1188.

Denied.

JOHNSON, C.J., would grant.

KNOLL, J., would grant.

HUGHES, J., recused.


text:
    ESTATE of Robert E. RIGGS v. WAY-JO, L.L.C. Sarah M. Kent v. The Succession of Robert E. Riggs and Way-Jo, L.L.C.
    No. 2013-C-0239.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Cheramie, Anthony; Terrebone, Gail; — Third Party(s); Applying For Writ of Certiorari and/or Review, Parish of St. Helena, 21st Judicial District Court Div. H, No. 19,728 C/W 20,714; to the Court of Appeal, First Circuit, No. 2011 CA1651 C/W 2011 CA 1652.

Denied.

KNOLL, J., would grant.


text:
    ESTATE of Robert E. RIGGS v. WAY-JO, L.L.C. Sarah M. Kent v. The Succession of Robert E. Riggs and Way-Jo, L.L.C.
    No. 2013-C-0246.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Arthur, Luora; Arthur, Samuel; Kent, Sarah M.; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of St. Helena, 21st Judicial District Court Div. H, No. 19,728 C/W 20,714; to the Court of Appeal, First Circuit, No. 2011 CA1651 C/W 2011 CA 1652.

Denied.

KNOLL, J., would grant.


text:
    Al HARNEY, et al. v. LOUISIANA CITIZENS PROPERTY INSURANCE COMPANY.
    No. 2013-C-0258.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Al Harney, et al; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. O, No. 702-066; to the Court of Appeal, Fifth Circuit, No. 12-CA-177.

Denied.

KNOLL, J., would grant.


text:
    Al HARNEY, et al. v. LOUISIANA CITIZENS PROPERTY INSURANCE COMPANY.
    No. 2013-C-0260.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Louisiana Citizens Property Insurance Company; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. O, No. 702-066; to the Court of Appeal, Fifth Circuit, No. 12-CA-177.

Denied.

VICTORY, J., would grant.


text:
    STATE of Louisiana v. Jerry DANTIN.
    No. 2013-KK-0319.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Dantin, Jerry; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 10 — 4101; to the Court of Appeal, Fifth Circuit, No. 12-K-913.

Denied.

KNOLL and WEIMER, JJ„ would grant.


text:
    Larry ENGLISH v. Cynthia Diane Thomas ENGLISH.
    No. 2013-C-0326.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re English, Larry; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. F, No. 496,901; to the Court of Appeal, Second Circuit, No. 47,331-CA.

Denied.


text:
    Suzanne ATKINS, Brian P. Atkins and James Atkins v. LOUISIANA MUTUAL MEDICAL INSURANCE COMPANY and Dirk T. Rainwater, M.D.
    No. 2013-C-0341.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Atkins, Brian P.; Atkins, James; Atkins, Suzanne et al.; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Jackson, 2nd Judicial District Court Div. B, No. 31,474; to the Court of Appeal, Second Circuit, No. 47,-374-CA.

Denied.


text:
    SWEENEY LAW FIRM, LLC v. Steven K. SCHILLING. Sweeney Law Firm, LLC., Neil Sweeney and Sweeney & Miller, LLC. v. Steven K. Schilling and Christopher L. Whittington, et al.
    No. 2013-CC-0342.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Whittington, Christopher L.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 585,608 C/W 589,869; to the Court of Appeal, First Circuit, No. 2012 CW 1889.

Denied.

CLARK, J., would grant.

HUGHES, J., recused.


text:
    William TAYLOR v. HANSON NORTH AMERICA.
    No. 2013-C-0344.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Hanson North America; — Defendant; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation District 06, No. 07-07603; to the Court of Appeal, First Circuit, No. 2012-CA-0286.

Denied.


text:
    Joe D. MAGEE, et al. v. Wyeth Hardey WORLEY, et al. Howard C. Talley, et al. v. Wyeth Hardey Worley, et al.
    No. 2013-C-0345.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Adams, Anne E.; Adams, Bobby W.; Magee, Joann Fulmer; Magee, Joe D. et al.; Talley, Amy Deville Adams; Talley, Howard C. et al.; Talley, Jeffrey Charles et al.; Talley, Shirley Kaye Kauffman;— Plaintiff(s); Applying For Writ of Certio-rari and/or Review, Parish of Desoto, 42nd Judicial District Court Div. B, Nos. 72,373, 72,443; to the Court of Appeal, Second Circuit, Nos. 47,565 CA, 47,566-CA.

Denied.


text:
    Beverly FARMER, Individually as the Provisional Tutrix of Virginia Martin, et al. v. WILLIS-KNIGHTON MEDICAL CENTER.
    No. 2013-C-0346.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Louisiana Patient’s Compensation Fund & Louisiana Patient’s Compensation Fund Oversight Board; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 521,823; to the Court of Appeal, Second Circuit, No. 47,530-CA.

Denied.


text:
    Patrick DANIEL v. Bob BROUSSARD, et al.
    No. 2013-CC-0349.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Bob Broussard APLC; Broussard Esq., Bob et al.; Continental Casualty Company; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. E, No. 2012-0981-E; to the Court of Appeal, Third Circuit, No. CW 12-00974.

Denied.


text:
    ESTATE OF Robert E. RIGGS v. WAY-JO, L.L.C. Sarah M. Kent v. The Succession of Robert E. Riggs and Way-Jo, L.L.C.
    No. 2013-C-0253.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Estate of Robert E. Riggs; Kent, Sarah M.; — Plaintiffs); Applying For Writ of Certiorari and/or Review, Parish of St. Helena, 21st Judicial District Court Div. H, No. 19,728 C/W 20,714; to the Court of Appeal, First Circuit, No. 2011 CA1651 C/W 2011 CA1652.

Denied.

KNOLL, J., would grant.


text:
    STATE of Louisiana v. Trey CHENIER.
    No. 2013-KK-0359.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Chenier, Trey; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 513-115; to the Court of Appeal, Fourth Circuit, No. 2013-K-0010.

Denied.

WEIMER, J., would grant.


text:
    Karen DAVIS v. EUROPEAN SERVICES, INC.
    No. 2013-CC-0376.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re European Services, Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs Monroe City Court, No. 2011CV1671; to the Court of Appeal, Second Circuit, No. 48,061-CW.

Denied.


text:
    Judy SEROU, Gordon Serou, Jr., Stephen S. Serou, and Michael Serou v. TOURO INFIRMARY, Specialty Hospital of New Orleans, Inc., and Columbia Casualty Company.
    No. 2013-C-0377.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Touro Infirmary; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. L, No. 2006-09095; to the Court of Appeal, Fourth Circuit, No. 2012-CA-0089.

Denied.


text:
    STATE of Louisiana v. Lorenzo CARTER, Jr.
    No. 2013-KK-0382.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Carter Jr., Lorenzo; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Helena, 21st Judicial District Court Div. B, No. 18142; to the Court of Appeal, First Circuit, No. 2012 KW 1989.

Denied.


text:
    Robert J. HUTCHESON and his Wife, Kathie Jo Curry Hutcheson v. USAGENCIES CASUALTY INSURANCE COMPANY, INC., Kenyon Kindsay, Samuel Lindsay, Jr. New Hampshire Insurance Company, and State Farm Mutual Automobile Insurance Company.
    No. 2013-CC-0385.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Hutcheson, Kathie Jo Curry; Hutcheson, Robert J.; — Plaintiffs); Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. E, No. 2009-0002052; to the Court of Appeal, First Circuit, No. 2012 CW 1711.

Denied.

HUGHES, J., would grant.


text:
    Trevino CLARK v. LOUISIANA STATE RACING COMMISSION.
    No. 2013-C-0386.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Clark, Trevino; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. F, No. 2011-04287; to the Court of Appeal, Fourth Circuit, No. 2012-CA-1049.

Denied.


text:
    Nichol “Nick” BREAUX v. BREAUX BRIDGE MANOR, LTD., et al.
    No. 2013-CC-0387.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Breaux Bridge Manor, LTD., Et Al.; Scottsdale Insurance Company; — Defendants); Applying For Supervisory and/or Remedial Writs, Parish of St. Martin, 16th Judicial District Court Div. F, No. 75479-F; to the Court of Appeal, Third Circuit, No. CW 12-01117.

Denied.


text:
    Faye HUEY, Individually and as Natural Tutrix of the Minor, Lashaun Latrice Thompson v. CALDWELL PARISH SCHOOL BOARD.
    No. 2013-C-0395.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Huey, Faye et al.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Caldwell, 37th Judicial District Court Div. O, No. C-25205; to the Court of Appeal, Second Circuit, No. 47,-704-CA.

Denied.


text:
    Kim Wheat WELLS v. Jesse James WELLS, Jr.
    No. 2013-C-0396.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Wells, Jr., Jesse James; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. John, 40th Judicial District Court Div. C, No. 54,754; to the Court of Appeal, Fifth Circuit, No. 12-CA-315.

Denied.


text:
    Ali MOGHIMI d/b/a HD Design v. Wade RAWLS d/b/a Rawls Design.
    No. 2013-CC-0398.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Ali Moghimi d/b/a HD Design;— Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, Monroe City Court, No. 2012CV02774; to the Court of Appeal, Second Circuit, No. 48100-CW.

Denied.


text:
    Derek Alan POCIASK v. Kera MOSELEY.
    No. 2013-C-0262.
    Supreme Court of Louisiana.
    April 1, 2013.
   In re Pociask, Derek Alan; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. K, No. 2008-14420; to the Court of Appeal, First Circuit, No. 2012 CA 0440.

Granted.


text:
    Cheniere THOMAS v. CAESARS ENTERTAINMENT OPERATING CO., INC., formerly known as Harrah’s Operating Co., Inc. d/b/a Harrah’s New Orleans Casino.
    No. 2013-C-0546.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Jazz Casino Company, L.L.C.;— Defendant; Applying For Writ of Certio-rari and/or Review, Parish of Orleans, First City Court of New Orleans, No. 2011-51335; to the Court of Appeal, Fourth Circuit, No. 2012-CA-1202.

Denied.


text:
    SUCCESSION OF Mack HOUSTON, Jr., Carlyle Houston, and McKinley Houston.
    No. 2013-CC-0500.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Houston, Michael; Houston, Steve; — Other(s); Applying For Supervisory and/or Remedial Writs, Parish of De-soto, 42nd Judicial District Court Div. B, No. 64,685; to the Court of Appeal, Second Circuit, No. 48165-CW.

Denied.


text:
    Bryan MULVEY v. DEPARTMENT OF POLICE.
    No. 2013-C-0484.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re City of New Orleans; Department of Police; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil Service Commission, No. 7843; to the Court of Appeal, Fourth Circuit, No. 2012-CA-1041.

Denied.


text:
    Clinton BADON v. LOUISIANA CASINO CRUISES, INC. d/b/a Hollywood Casino of Baton Rouge.
    No. 2013-CC-0474.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Badon, Clinton M.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 602560; to the Court of Appeal, First Circuit, No. 2012 CW 2010.

Denied.

HUGHES, J., would grant.


text:
    Troy FRANKLIN v. SLIDELL POLICE DEPARTMENT.
    No. 2013-C-0471.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Franklin, Troy; — Plaintiff; Applying For Writ of Certiorari and/or Review Office of Worker’s Compensation Administration, District 6, No. 09-07345; to the Court of Appeal, First Circuit, No. 2012 CA 0539.

Denied.

HUGHES, J., recused.


text:
    Mia SKINNER v. CITY OF NATCHITOCHES POLICE DEPARTMENT, et al.
    No. 2013-C-0469.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Skinner, Mia; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Natchitoches, 10th Judicial District Court Div. A, No. 84473; to the Court of Appeal, Third Circuit, No: 12-819.

Denied.


text:
    LOUISIANA SAFETY ASSOCIATION OF TIMBERMEN-SELF INSURANCE FUND v. PROVOSTY, SADLER, DeLAUNAY, FIORENZA & SOBEL, APC, et al.
    No. 2013-CC-0467.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Bailey, Joseph J.; Provosty, Sad: ler, DeLaunay, Fiorenza & Sobel, APC et al.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. F, No. 238,956; to the Court of Appeal, Third Circuit, No. CW 12-01229.

Denied.


text:
    Marcus HEATH and his Mother, Marilyn Heath v. STATE of Louisiana through the BOARD OF SUPERVISORS OF SOUTHERN UNIVERSITY and A & M College. Cameron J. Taylor and his Parents, Jerome E. Taylor and Reda L. Taylor v. State of Louisiana through the Board of Supervisors of Southern University and A & M College.
    No. 2013-CC-0465.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Heath, Marcus; Heath, Marilyn; Taylor, Cameron J.; Taylor, Jerome E.; Taylor, Reda L.; — Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 582218 CfW 582340; to the Court of Appeal, First Circuit, No. 2012 CW 1810 C/W 2012 CW 1811.

Denied.


text:
    Cheniere THOMAS v. CAESARS ENTERTAINMENT OPERATING CO., INC., formerly known as Harrah’s Operating Co., Inc. d/b/a Harrah’s New Orleans Casino.
    No. 2013-C-0462.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Thomas, Cheniere; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, First City Court of New Orleans, No. 2011-51335; to the Court of Appeal, Fourth Circuit, No.-2012CA-1202.

Denied.


text:
    STATE of Louisiana v. Anthony FARRIER.
    No. 2013-KK-0452.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Department of Children and Family Services; — Other; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 509-365; to the Court of Appeal, Fourth Circuit, No. 2012-K-1657.

Denied.


text:
    Doris HARVEY, Nicholas Porter, Individually and on behalf of Nolan Porter and Alfretta Harvey, Individually and on behalf of Joekobi Harvey v. IMPERIAL FIRE AND CASUALTY INSURANCE COMPANY and Corey Washington.
    No. 2013-C-0445.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Imperial Fire and Casualty Insurance Company; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, First City Court of New Orleans, No. 2008-52371; to the Court of Appeal, Fourth Circuit, No. 2012-CA-1131.

Denied.