text:
    Josef BARNES, Appellant, v. CASTLE BEACH CLUB CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D12-860.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2013.
    Arnaldo Velez, Coral Gables, for appellant.
    Alexander Edward Barthet, Patrick Charles Barthet and Paul D. Breitner, Miami, for appellee.
    Before SHEPHERD, CORTINAS and FERNANDEZ, JJ.
   FERNANDEZ, J.

Josef Barnes, the appellant-owner, appeals the trial court’s post-judgment order denying Barnes’ motion for determination of amount due in an action involving a dispute that arose between Barnes and the appellee, Castle Beach Club Condominium Association. We reverse.

Barnes was the successful bidder at a foreclosure sale of eight condominium units. The trial court found that the Association’s lien did not merge with the Certificate of Title that was issued in connection with its own foreclosure action. The court further found that Barnes was obligated to pay the Association the amounts owed on the subject condominium units which had accrued prior to the date the Association was issued the Certificate of Title.

The issue before this Court is the exact issue raised in Aventura Management, LLC, v. Spiaggia Ocean Condominium Association, Inc., 105 So.3d 637 (Fla. 3d DCA 2013), where we held that under section 718.116(1)(a), Florida Statutes (2009), there is no exception to be made for joint and several liability for unpaid assessments that come due up to the transfer of title when the “previous owner” is the condominium association. We therefore reverse the order under review on the authority of Aventura Management.

Reversed.

SHEPHERD, J., concurring dubitante.


source: Caselaw Access Project

author: LAGOA, J.

license: Public Domain

text:
    Kevin Charles SIMPSON, Appellant, v. TARMAC AMERICA, LLC, and FL Smidth, Inc., Appellees.
    No. 3D12-3206.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2013.
    Joel S. Perwin, for appellant.
    Restani Ditmar & Hauser and Helen Ann Hauser, for appellee Tarmac America, LLC; Luks, Santaniello, Perez, Petrillo & Gold and Daniel J. Santaniello and Heather Calhoon for appellee FL Smidth, Inc.
    Before LAGOA, FERNANDEZ and LOGUE, JJ.
   ON MOTION TO DISMISS'

LAGOA, J.

Appellee, Tarmac America, LLC (“Tarmac”), moves to dismiss this appeal for lack of jurisdiction because the notice of appeal was not filed within thirty days of the final judgment. For the reasons set forth below, we deny the motion to dismiss.

I. FACTUAL AND PROCEDURAL HISTORY

On June 28, 2012, the trial court granted summary judgment in favor of Tarmac. On July 6, 2012, appellant, Kevin Charles Simpson (“Simpson”), filed a motion for rehearing. That same evening, the trial court entered final summary judgment in favor of Tarmac. The motion for rehearing was denied by order dated November 7, 2012, and Simpson filed his notice of appeal on December 4, 2012.

II. ANALYSIS

Tarmac argues that the motion for rehearing was not sufficient to toll the time for filing a notice of appeal because it was not an “authorized motion.” Tarmac contends that the motion was not authorized because it was directed to the order granting summary judgment, which is a non-final, non-appealable order (i.e., an interlocutory order).

This Court is authorized to construe the motion for rehearing as directed to the final summary judgment, although prematurely filed. The facts of this case are indistinguishable from those in Bass v. Jones, 511 So.2d 441 (Fla. 1st DCA 1987). In Bass, the First District Court of Appeal found that a motion for rehearing filed after the entry of an order granting summary judgment but before entry of the final summary judgment was one directed to the final summary judgment. The court further concluded that because there was no substantive difference between the rights adjudicated in the order granting summary judgment and the final summary judgment, it was appropriate to treat the motion as an authorized, premature motion, which tolled the time for filing a notice of appeal. See also Agency for Health Care Admin. v. Estate of Johnson, 743 So.2d 83, 86 (Fla. 3d DCA 1999) (discussing the analogous rule of probate procedure concerning motions for rehearing and stating that the validity of such motions is not affected by the fact that they have been filed prior to the filing of the order to which it was directed).

Because here, as in Bass, there is no substantive difference between the rights adjudicated in the order granting summary judgment (i.e., the interlocutory order) and the final summary judgment, we find that, “there is no impediment to treating the motion for rehearing as an authorized, premature motion, tolling the time for filing a notice of appeal.” Bass, 511 So.2d at 441. Accordingly, the motion to dismiss is denied.

Denied.


author: PER CURIAM.

text:
    Anthony JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2537.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2013.

      Bernard F. Daley, Tallahassee, for appellant.
    Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA and EMAS, JJ.
   PER CURIAM.

Anthony Jones (“Jones”) appeals from the summary denial of his motion for post-conviction relief alleging newly discovered evidence. Pursuant to Nordelo v. State, 93 So.3d 178 (Fla.2012), we reverse and remand for an evidentiary hearing.

I. FACTUAL AND PROCEDURAL HISTORY

In February 2011, pursuant to Florida Rule of Criminal Procedure 3.850, Jones filed a motion for postconviction relief which raised a single claim i.e., that the proffered testimony of a former co-defendant, Jeffery Gibbs (“Gibbs”), was newly-discovered evidence, and warranted an evi-dentiary hearing and a new trial.

In 2003, Jones and Gibbs were charged as co-defendants with one count of first-degree murder and one count of attempted first-degree murder. Their cases were severed for trial and, in December 2008, Jones’ case proceeded to trial first. Gibbs, acting on the advice of counsel and invoking his Fifth Amendment right, did not testify at Jones’ trial, as he was still awaiting his own trial on the same charges. At Jones’ trial, the State proceeded on the theory that Jones hired and paid Gibbs to commit the crimes. Jones was convicted of both charges; he was sentenced to life in prison on the murder charge and fifteen years on the attempted murder charge. His convictions and sentences were affirmed per curiam on direct appeal. See Jones v. State, 41 So.3d 907 (Fla. 3d DCA 2010) (table decision).

Gibbs went to trial in February 2009 and was found not guilty of the charges.

In January 2011, Gibbs provided Jones with a sworn affidavit in which Gibbs averred, in part: “Jones never asked me to commit the alleged crime, did not pay or promise[] to pay me, nor was involved with me on this offense....” Jones filed a motion for postconviction relief, based upon the affidavit provided by Gibbs.

The trial court denied the motion without an evidentiary hearing. Specifically, the trial court concluded that the affidavit was not newly discovered evidence because it restated the same theory of defense presented by Jones at his trial. Moreover, the trial court stated that even if it were to find the affidavit facially sufficient, the evidence was not of such a nature that it would probably produce an acquittal on retrial.

II. ANALYSIS

Based on the authority of Nordelo, of which the trial court did not have the benefit, we are compelled to reverse and remand for the trial court to conduct an evidentiary hearing on Jones’ motion for postconviction relief, as the motion was clearly legally sufficient. See Barrow v. State, 940 So.2d 1235 (Fla. 5th DCA 2006); Brantley v. State, 912 So.2d 342 (Fla. 3d DCA 2005); Burns v. State, 858 So.2d 1229 (Fla. 1st DCA 2003).

Reversed and remanded for further proceedings consistent herewith.


author: MORRIS, Judge.

text:
    X.G., Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4330.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 2013.
    Howard L. Dimmig, II, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appel-lee.
   MORRIS, Judge.

X.G. appeals the revocation of his juvenile probation in circuit court case number 10-CJ-6275. Because the trial court revoked his probation based on the violation of a condition that was not imposed in case 10-CJ-6275, we reverse.

On November 18, 2010, the State filed a petition of delinquency in case 10-CJ-6275 alleging that X.G. committed the offenses of battery (domestic violence) and criminal mischief. On January 13, 2011, X.G. signed a plea agreement in which he agreed to plead no contest to the charge of criminal mischief in exchange for the State’s agreeing to nolle pros the charge of battery. The plea agreement specifically stated that no restitution would be ordered on the criminal mischief charge. A disposition order was entered on February 11, 2011, withholding adjudication of guilt and placing X.G. on twelve months’ probation. In accordance with the plea agreement, the disposition order did not list restitution as a condition of X.G.’s probation in case 10-CJ-6275.

On July 26, 2011, the State filed an affidavit/petition for violation of probation, alleging that X.G. violated his probation by (1) committing new law violations, (2) failing to pay his restitution, (8) failing to participate in required counseling, and (4) failing to remain at his approved residence at the required hours. The affidavit/petition for violation was filed in two circuit court case numbers, 10-CJ-6275 and 10-CJ-5510. Case 10-CJ-5510 is not part of this appeal, but it is relevant to the proceedings below.

At the violation hearing held on August 26, 2011, the State advised the court that X.G.’s new law violations were being filed in adult court. During the evidentiary portion of the violation hearing, the State proceeded only on the alleged violations of failing to pay restitution and failing to participate in counseling. The trial court found that the State did not prove that X.G. failed to participate in counseling but that the State did prove that X.G. failed to pay his restitution when he had the ability to pay. The parties and the court agreed that the supervision had lapsed in case 10-CJ-5510, but the court proceeded to revoke X.G.’s probation in case 10-CJ-6275, adjudicating him delinquent and placing him on probation for another twelve months.

The defense informed the court that restitution was not ordered in case 10-CJ-6275 and that the court could not revoke probation on that basis in that case. The court then stated that it had already found X.G. in violation for failing to pay restitution that was ordered in case 10-CJ-5510 and that the restitution was “a condition of his overall supervision and sanctions for both cases.” Defense counsel again argued that X.G. “did not violate a condition of 6275.”

The circuit court subsequently entered an order revoking X.G.’s probation, setting forth the findings above. The order also specifically stated that “[t]he monthly restitution payments were imposed based on a stipulation of all parties and incorporated into the disposition order entered ... on February 11, 2011.”

On appeal, X.G. argues — as he did below — that the circuit court erred in revoking his probation in case 10-CJ-6275 because restitution was not ordered as a condition of his probation in that case. He is correct. Contrary to the circuit court’s finding in the order of revocation, restitution was not stipulated to by the parties in case 10-CJ-6275 or incorporated into the disposition order in that case. Restitution appears to have been ordered in case 10-CJ-5510, but it was not ordered in case 10-CJ-6275. In fact, the record is clear that restitution was intentionally excluded as a condition of X.G.’s probation in case 10-CJ-6275. And the law is clear that probation may not be revoked based on a condition that was not imposed. See Jones v. State, 876 So.2d 642, 644 (Fla. 1st DCA 2004) (“Revoking probation ... for violating conditions neither orally pronounced nor embodied in a written order violates a defendant’s due process rights under the Florida and United States Constitutions.” (citing Perez v. State, 805 So.2d 76, 79 (Fla. 4th DCA 2002)). Therefore, the trial court erred in revoking X.G.’s probation in case 10-CJ-6275 for failure to pay the restitution ordered in case 10-CJ-5510.

Accordingly, we reverse the revocation of X.G.’s probation and resulting adjudication of delinquency in case 10-CJ-6275.

Reversed and remanded.

NORTHCUTT J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.

      . The circuit court specifically declined to revoke X.G.’s probation in case 10-CJ-5510, finding that the period of supervision had expired in that case. It appears that the circuit court's ruling on this issue was correct; X.G.’s probation was set to expire in that case on August 11, 2011, and even though the affidavit/petition was filed in July 2011, there is no tolling provision applicable to juvenile probation proceedings. See R.H. v. State, 93 So.3d 1166, 1167 (Fla. 2d DCA 2012); T.L.H. v. State, 93 So.3d 396, 398-99 (Fla. 2d DCA 2012). Regardless, case 10-CJ-5510 is not part of this appeal.


text:
    STATE Of Louisiana In the Interest Of C.S.
    No. 2012-CK-1376.
    Supreme Court of Louisiana.
    Jan. 11, 2012.
   PER CURIAM.

11 Granted. The ruling of the juvenile court granting respondent/defendant’s motion to suppress is reversed and this case is remanded for further proceedings.

Although the police officers subjectively intended to conduct an investigatory stop based solely on their observation that the three occupants of a parked SUV appeared too young to drive legally, the occupants’ freedom of movement had already been “restricted by a factor independent of police conduct,” Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389 (1991), i.e. they were sitting in a parked vehicle and speaking to a female who was standing outside, when the officers pulled over their patrol unit. Defense counsel acknowledged at the suppression hearing that a seizure or forcible detention did not occur until after one of the police officers positioned himself on the passenger side of the vehicle, ordered respondent to open his hands and then to step from the vehicle. At that point, the officer unquestionably seized the SUV and its occupants because no reasonable person in their position “would feel free to decline the officers’ requests or otherwise terminate the encounter.” Bostick, 501 U.S. pat 436, 111 S.Ct. at 2387. The officer had, however, looked through the back window as he approached the vehicle and observed respondent bending over in the front passenger seat and reaching for the floorboard, behavior that in the officer’s experience from conducting over 100 traffic stops meant a high probability firearms or drugs were involved. Given his observation of respondent’s furtive movement, and considering that all of the occupants of the vehicle appeared too young to drive, the officer had the requisite particularized objective basis “ ‘to maintain the status quo momentarily while obtaining more information,’ the hallmark of an investigatory stop.” State v. Porche, 06-0312, p. 6 (La.11/29/06), 943 So.2d 335, 339 (quoting State v. Fauna, 393 So.2d 688, 690 (La.1981); cf. State v. Sims, 02-2208, p. 5 (La.6/27/03), 851 So.2d 1039, 1043) (police had reasonable suspicion for an investigatory stop based on an apparent curfew violation because defendant looked “very young” although he was in fact 18 years old); State v. Sylvester, 01-0607, p. 5 (La.9/20/02), 826 So.2d 1106, 1109 (“In determining whether police officers have a ‘particularized and objective basis’ for conducting an investigatory stop, reviewing courts ‘must look at the totality of the circumstances of each case,’ a process which ‘allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that “might well elude an untrained person.” ’ ”) (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002) (other internal quotation marks and citation omitted)). That the person in the driver’s seat was subsequently determined to be over the age of 18 years (although he evidently was not licensed) had no bearing on the reasonableness of the officer’s action. State v. Strange, 04-0273, p. 5 (La.5/14/04), 876 So.2d 39, 41 (the relevant question under the Fourth Amendment is not that the police “ ‘always be right, but that they always be reasonable’ ”) (quoting Illinois v. Rodriguez, 497 U.S. 177, 185, 110 S.Ct. 2793, 2800, 111 L.Ed.2d 148 (1990)).

As part of a lawful investigatory stop, the officer acted reasonably in ordering respondent from the car. State v. Cure, 11-2238, p. 5 (La.7/2/12), 93 So.3d 1268, 1271 (“ ‘Ordering a suspect out of a car, which the Supreme Court has approved even with respect to a routine traffic stop, is a generally permissible tactic in connection with Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)] stops of vehicles.’ ”) (quoting 4 Warren R. LaFave, Search and Seizure, § 9.2(d) (4th ed.2004)). That the officer and not respondent opened the door did not even minimally increase the degree on intrusiveness on respondent’s privacy interests. Cure, 11-2238 at 5-6, 93 So.3d at 1271-72. Thus, when the officer looked through the open door and observed a handgun in between respondent’s feet, he lawfully acquired probable cause to seize the weapon and to arrest respondent for possession of a firearm by a juvenile in violation of La.R.S. 14:95.8. The automobile exception to the warrant requirement, based on the inherent mobility of vehicles, excused the immediate warrantless entry and search. Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996) (“Our first cases establishing the automobile exception to the Fourth Amendment’s warrant requirement were based on the automobile’s ‘ready mobility,’ an exigency sufficient to excuse failure to obtain a search warrant once probable cause to conduct the search is clear.”)

REVERSED AND REMANDED


author: PER CURIAM. KNOLL, J.,

text:
    Edward MORRISON v. USAA CASUALTY INSURANCE COMPANY, Megan Everett, and Zurich American Insurance Company.
    No. 2012-CC-2334.
    Supreme Court of Louisiana.
    Jan. 11, 2012.
   PER CURIAM.

| fin this matter, we are called upon to decide whether a rejection of uninsured motorist (“UM”) coverage is valid, where the insured fails to initial the selection on the form rejecting UM coverage prior to signing it, but later initials the form prior to the accident at issue.

In Duncan v. U.S.A.A. Ins. Co., 06-0363 (La.11/29/06), 950 So.2d 544, we identified six tasks the insured must perform for the UM rejection to be valid, one of which is “initialing the selection or rejection of coverage chosen.” Although Duncan did not address the timing of the completion of the six tasks, that issue was addressed in Gray v. American National Property & Cas. Co., 07-1670 (La.2/26/08), 977 So.2d 839. In contrast to the instant case, Gray involved a situation in which the UM selection form was initialed and signed in blank by a representative of the insured, and subsequently completed and backdated by an insurance agency employee. In finding the rejection to be invalid, we held the six tasks must be completed before the UM selection form is signed by the insured, such that the signature of the insured or the insured’s representative signifies an acceptance of, and agreement with, all of the information contained on the form. We observed that the insurer, not the insured, has the responsibility of assuring the form was properly completed, and noted “once the incomplete form was received from [the insured], nothing prevented the agent 12from returning the form [to the insured’s representative] with instructions for properly completing the form.” 07-1670 at 16, 977 So.2d at 850.

In the instant case, it is undisputed the insured’s representative attempted to complete the required tasks to reject UM coverage, but mistakenly failed to initial the line rejecting UM coverage at the time he returned the form to the insurer. Consistent with our suggestion in Gray, the insurer returned the incomplete form to the insured’s representative. The insured’s representative then initialed the line rejecting UM coverage and returned the form to the insurer, thereby confirming an acceptance of, and agreement with, all of the information contained on the form. Although the exact date of the initialing is unclear, the evidence presented by relator establishes it occurred prior to the subject accident. Therefore, the rejection of UM coverage is valid.

Accordingly, the writ is granted. The judgment of the district court is reversed, and relator’s motion for summary judgment is granted.

KNOLL, J., dissents with reasons.

KNOLL, J.,

dissenting.

[¾1 respectfully dissent from the majority opinion, which reverses the Trial Court and grants summary judgment in favor of relator, Zurich American Insurance Company (“Zurich”). In my view, this case should not be decided on summary judgment in favor of either party, as the question of whether Zurich’s insured executed a valid UM waiver prior to the accident at issue necessarily involves credibility determinations.

When entertaining a motion for summary judgment, a court cannot decide credibility issues. E.g., Hines v. Garrett, 04-0806, p. 6 (La.6/25/04), 876 So.2d 764, 769 (per curiam); Brooks v. Minnieweather, 44,624, p. 9 (La.App. 2 Cir. 8/19/09), 16 So.Bd 1244, 1250; Mouton v. Sears Roebuck, 99-669, p. 9 (La.App. 3 Cir. 11/3/99), 748 So.2d 61, 67, writ denied, 99-3386 (La.2/4/00), 754 So.2d 232. Although a court ruling on a motion for summary judgment must assume all witnesses are credible, Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 16 (La.2/29/00), 755 So.2d 226, 236, this general rule is inappropriate “where the mover’s testimony absolving himself from liability contains substantive contradictions or discrepancies that would ordinarily tend to call his credibility into doubt if presented to a fact-finder.” Hines, 04-0806 at 6, 876 So.2d at 768-69. Here, Zurich’s summary judgment evidence is ambiguous and does not definitively pinpoint when the insured’s representative initialed the UM waiver. For instance, [2the waiver itself contains no indication of when it was initialed, and the insured’s representative admitted he could not “give ... the exact date” he initialed the waiver, stating it could have been anywhere from 30 to 60 days after the policy was issued, but no later than his birthday, which was 11 days before the accident. If presented to a fact-finder, the ambiguous and self-serving nature of this evidence would tend to call into doubt the credibility of Zurich’s witnesses. Id.; see also Dibos v. Bill Watson Ford, Inc., 622 So.2d 677, 681 (La.App. 4 Cir.1993), unit denied, 629 So.2d 1178 (La.1993) (summary judgment precluded where credibility of insured’s representative who executed UM waiver was at issue). It is sound policy that such credibility determinations should only be made at trial, where, unlike summary judgment proceedings, the fact-finder has the added benefit of viewing demeanor evidence along with live testimony. Adhering to this policy, I would not grant summary judgment in favor of either party.

Notwithstanding, because the majority has ruled the UM waiver was valid, I will address this issue as well. Again, I respectfully disagree with the majority, as the insured’s UM waiver was invalid under the standards articulated by this Court in Duncan v. U.S.AA. Ins. Co., 06-363, pp. 11-12 (La.l1/29/06), 950 So.2d 544, 551 and Gray v. American Nat. Property & Cas. Co., 07-1670, p. 14 (La.2/26/08), 977 So.2d 839, 849. The formalities mandated in Duncan and Gray are not merely procedural exercises or rote tasks, but rather are substantive requirements meant to prevent “abuse, confusion, and uncertainty ... [in] a process designed to prevent those exact concerns.” Gray, 07-1670 at 13, 977 So.2d at 848. In this case, the insured’s representative did not complete one of Duncan’s six enumerated tasks— initialing the selection or rejection of coverage chosen — before signing the UM selection form. Id. at 849. Validating this waiver, despite the insured’s failure to strictly adhere to Duncan and Gray, invites uncertainty into an area where none should exist.


text:
    In re Maurice L. TYLER.
    No. 2013-OB-0161.
    Supreme Court of Louisiana.
    Jan. 23, 2012.
   ORDER

| iConsidering the Petition for Transfer to Disability Inactive Status filed by the Office of Disciplinary Counsel,

IT IS ORDERED that Maurice L. Tyler, Louisiana Bar Roll number 25279, be and he hereby is transferred to disability inactive status pursuant to Supreme Court Rule XIX, § 22(A) for an indefinite period and until further order of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

IT IS FURTHER ORDERED that the Office of Disciplinary Counsel may seek the appointment of a trustee(s) to protect the interests of respondent’s clients pursuant to the provisions of Supreme Court Rule XIX, § 27, if appropriate.

FOR THE COURT:

/s/ Jeffrey P. Victory Justice, Supreme Court of Louisiana


text:
    In re Jarred Patrick BRADLEY.
    No. 2009-OB-2239.
    Supreme Court of Louisiana.
    Nov. 30, 2012.
   11 ORDER

Considering the “Termination of Conditional Admission” filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the probationary period imposed by this court in In re: Bradley, 09-2239 (La.11/5/10), 50 So.3d 114, be and hereby is terminated, as the court finds petitioner has successfully complied with all terms of probation.

FOR THE COURT:

/s/ Jeannette Theriot Knoll /s/ Justice, Supreme Court Of Louisiana


text:
    In re Darlene Sansone RANSOME.
    No. 2012-B-1823.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

UNDERLYING FACTS

During all times pertinent to these proceedings, respondent was the sole owner and president of ALDAR Investments, Inc. (“Aldar”), a company involved as plaintiff in an antitrust suit against Jefferson Downs Corporation in the United States District Court for the Middle District of Louisiana. Aldar retained a Washington, D.C. law firm, Foley & Lardner, L.L.P. (“Foley”), as co-counsel in the suit. As collateral for Aldar’s past due and future legal fees, respondent proposed to give Foley a second mortgage, in the form of a collateral mortgage, on a tract of immovable property owned by Aldar in Livingston Parish. Foley agreed to respondent’s proposal, and in October 2002, the parties entered into a fee agreement. Among other provisions, the agreement specified that a collateral mortgage evidenced by a collateral mortgage note would secure Aldar’s promissory note to Foley in the amount of $534,329.48.

| ¡.Aldar executed the collateral mortgage documents in November 2002. In December 2002, Aldar agreed to settle the antitrust case for $550,000. The day after the parties agreed to the settlement, respondent recorded the collateral mortgage with the clerk of court in Livingston Parish. However, respondent retained possession of the original promissory and collateral mortgage notes, and thus Foley did not have a perfected security interest in Al-dar’s property.

In the months following the settlement, respondent and Foley could not agree on the distribution of the settlement proceeds. Without the knowledge or approval of Foley, respondent instructed her paralegal to have the collateral mortgage note can-celled by the clerk of court. When the clerk indicated the note would have to be marked “paid” before it could be cancelled, respondent instructed her paralegal to so mark the note. The mortgage was then cancelled by the clerk in May 2003. The day after the mortgage was cancelled, Al-dar agreed to the settlement terms in the antitrust litigation, knowing Foley no longer had any interest, especially not a perfected security interest, in Aldar’s property.

One week later, two new collateral mortgages were recorded affecting the same property securing Foley’s indebtedness. The day after these mortgages were recorded, Foley learned for the first time that J. Marvin Montgomery, another attorney who served as co-counsel for Aldar, had recorded a 20% contingency fee contract with Aldar dated nearly eighteen months earlier. Respondent had never informed Foley about the contract between Aldar and Mr. Montgomery. Thereafter, Foley withdrew from representing Aldar and filed suit against respondent, her law firm, and Aldar in federal court, contending that they ^defrauded Foley and deprived Foley of the collateral mortgage that Aldar had promised to give Foley as security for the payment of attorney’s fees.

Following a bench trial, United States District Judge James J. Brady determined that respondent committed civil fraud by failing to deliver the collateral mortgage note to Foley and then cancelling the collateral mortgage at the clerk’s office and instructing her assistant to mark the note as paid. Foley & Lardner, L.L.P. v. Aldar Invs., Inc., 491 F.Supp.2d 595 (M.D.La.2007). Judge Brady awarded damages to Foley in the amount of $847,621.96, and in May 2007, he filed a complaint against respondent with the ODC.

DISCIPLINARY PROCEEDINGS

In November 2010, the ODC filed formal charges against respondent, alleging that her conduct, as set forth above, violated Rule 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct. Respondent, through counsel, answered the formal charges and admitted to the basic factual allegations but denied any misconduct. The matter then proceeded to a formal hearing on the merits, conducted by the hearing committee in February 2011.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee made factual findings consistent with the underlying facts set forth above. The committee also noted that respondent has years of experience in real estate transactions, having served as the president of a title insurance company 14prior to her admission to the bar in 1992. Based on these facts, the committee determined that respondent violated Rule 8.4(c) of the Rules of Professional Conduct, as charged in the formal charges, as well as Rule 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer). In making this determination, the committee recognized that based upon her real estate experience, respondent knew that cancelling the collateral mortgage note would effectively dispose of the collateral mortgage held by Foley in favor of the later-filed lien holders.

The committee determined respondent intentionally violated duties owed to the public, the legal system, and the legal profession. Respondent requested the cancellation of a mortgage note that she knew had not been paid in an effort to benefit her negotiations with Foley over the fee agreement. In doing so, respondent directly impacted the integrity of public records in Louisiana. She acted for her own personal benefit, using her position as an attorney to commit a fraud during her personal business dealings. After reviewing the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the applicable baseline sanction is suspension.

In aggravation, the committee found that (1) respondent knowingly engaged in obvious and intentional acts to deny Foley’s right to a collateral mortgage on Al-dar’s property, and (2) she failed to acknowledge or take responsibility for her actions which led to the judgment of civil fraud. According to the committee, respondent continues to believe her behavior is somehow justified, noting that she was unable to show any remorse for her behavior due to her own perceptions of being a victim in relation to her fee agreement with Foley. In mitigation, the committee found the following factors: absence of a prior disciplinary record and character or reputation.

|fiUnder these circumstances, the committee recommended that respondent be suspended from the practice of law for eighteen months, with all but six months deferred. The committee also strongly recommended that prior to the filing of any petition for reinstatement, respondent be required to take an additional six hours of ethics and six hours of professionalism for the next two years.

Respondent filed an objection to the hearing committee’s report and recommendation.

Disciplinary Board Recommendation

Upon review, the disciplinary board adopted the hearing committee’s factual findings and legal conclusions; however, the board disagreed that respondent’s dishonest conduct amounted to the commission of a criminal act and thus declined to find a violation of Rule 8.4(b). The board determined respondent knowingly violated duties owed to the public, the legal system, and the legal profession. The public and the legal profession were harmed by respondent’s failure to be forthcoming with pertinent information which directly affected Foley’s negotiating position. The legal system was harmed by respondent’s dishonest actions directed at attempting to gain an unfair negotiating advantage over Foley. By unilaterally cancelling the collateral mortgage without Foley’s knowledge, and then recording two new mortgages in favor of a third party, respondent potentially jeopardized Foley’s ability to recover the fees owed to them. After reviewing the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the applicable baseline sanction is suspension.

The board found the following aggravating factors are present: a dishonest or selfish motive, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law (admitted 1992). The board found the following mitigating factors are present: absence of a prior disciplinary record, a ^cooperative attitude toward the proceedings, character or reputation, and imposition of other penalties or sanctions.

After further considering this court’s prior jurisprudence involving similar misconduct, the board recommended respondent be suspended from the practice of law for twelve months, with all but ninety days deferred, followed by one year of probation with the condition that she not engage in any additional misconduct during that time period. Finally, the board recommended respondent be assessed with all costs and expenses of these disciplinary proceedings.

Although neither respondent nor the ODC filed an objection to the board’s recommendation, on October 23, 2012, we ordered briefing addressing the issue of an appropriate sanction. Both respondent and the ODC filed briefs in response to the court’s order.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57.

In this matter, the record supports a finding that respondent deprived the Foley law firm of a collateral mortgage that she had promised to give Foley as security for the payment of attorney’s fees. Specifically, respondent failed to deliver the collateral mortgage note to Foley and then falsely marked the note as paid and obtained the cancellation of the mortgage, all in an effort to gain an advantage in her negotiations with Foley over the settlement terms in the underlying litigation. Based on these findings, respondent has violated the Rules of Professional Conduct as found by the disciplinary board.

17Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987).

Respondent argues that because she maintained possession of the original collateral mortgage note, no perfected security interest was ever created in favor of Foley, and thus, she could not have acted dishonestly by marking the note paid and cancelling the mortgage. Without question, Foley did not have a perfected security interest in the immovable property owned by Aldar. However, the undisputed reason why Foley did not obtain that interest directly resulted from respondent’s failure to deliver the collateral mortgage note. Respondent readily admitted that she knew she was obliged to deliver the note in order to perfect the security interest. Moreover, it was respondent who suggested the use of the collateral mortgage as a means to secure Aldar’s fee obligation to Foley. Under these facts, we agree with the hearing committee’s determination that it appears respondent used her position as an attorney with extensive real estate experience to obtain an unjust advantage for her own personal benefit. In doing so, she intentionally violated a duty owed to the public, the legal system, and the legal profession, causing harm to Foley. The baseline sanction for this misconduct is suspension.

We find the following aggravating factors are present in this matter: a dishonest or selfish motive, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law. In mitigation, we recognize that respondent has no prior record of discipline in her twenty-year legal career. She has also displayed a cooperative attitude toward these proceedings and has an excellent reputation in the community in which she practices law. Finally, | ^respondent has suffered the imposition of other penalties or sanctions in the civil case brought by Foley.

In prior cases involving dishonest and deceitful conduct in violation of Rule 8.4(c), we have imposed suspensions in the range of eighteen months. Although a similar sanction is appropriate here, we find the mitigating factors present warrant the deferral of a substantial period of this suspension.

Based on this reasoning, we will suspend respondent from the practice of law for eighteen months, with all but six months deferred, as recommended by the hearing committee. Following the active portion of her suspension, respondent shall be placed on supervised probation for a period of two years. As a condition of probation, respondent is ordered to attend and successfully complete the Ethics School program sponsored by the Louisiana State Bar Association. We caution respondent that any violation of 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.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record and the briefs filed by the parties, it is ordered that Darlene Sansone Ran-some, Louisiana Bar Roll number 21983, be and she hereby is suspended from the practice of law for a period of eighteen months. It is further ordered that all but six months of the suspension shall be deferred. Following the active portion of the suspension, respondent shall be placed on supervised probation for two years. As a condition of probation, [ ^respondent is ordered to attend and successfully complete the Louisiana State Bar Association’s Ethics School. The probationary period shall commence from the date respondent, the ODC, and the probation monitor 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. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . The original plaintiff in the suit was Livingston Downs Racing Association. Aldar is the successor entity, via a name change, of Livingston Downs. The suit arose from events that occurred during Aldar’s attempt to develop a horse racing facility on its land in Livingston Parish. Respondent participated as co-counsel in the litigation.

      . Under Louisiana law, a pledge of a collateral mortgage note is not properly perfected unless the note is physically delivered to the secured creditor. See La. Civ.Code arts. 3158 and 3162.

      .Aldar was placed in involuntary bankruptcy in 2004. Foley made a claim in the bankruptcy for legal fees of approximately $1.2 million, but ultimately received only about half of this amount.

      . In the formal charges, the ODC mistakenly alleged a violation of Rule 8.4(g) (threatening to present criminal or disciplinary charges solely to obtain an advantage in a civil matter). The ODC corrected the typographical error in subsequent filings.

      . The parties have cited as instructive our prior decision in In re: Bordelon, 04-0759 (La.1/7/05), 894 So.2d 315. However, we do not agree that Bordelon involves misconduct similar to that at issue here, as in Bordelon, the only misconduct the respondent was found to have committed involved his false statements to the ODC concerning payment of a promissory note, in violation of Rule 8.1(a) of the Rules of Professional Conduct. Respondent herein is not charged with making false statements to the ODC, nor is there any indication she has done so.


text:
    In re Dele A. ADEBAMIJI.
    No. 2012-B-2411.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   |!ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent failed to obey court orders to appear in a bankruptcy matter and attempted to practice law in Tennessee, contrary to the regulations of that jurisdiction. Following the filing 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 Dele A. Adebamiji, Louisiana Bar Roll number 21417, be publicly reprimanded.

IT IS FURTHER ORDERED that respondent shall enroll in and attend one full day of Ethics School offered by the Louisiana State Bar Association’s Practice Assistance and Improvement Committee.

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

       Chief Justice Kimball not participating in the opinion.


text:
    Brenda MORALES and Jerson Rodriguez v. STATE of Louisiana through the BOARD OF SUPERVISORS OF LSU through EARL K. LONG MEDICAL CENTER.
    No. 2012-C-2301.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   PER CURIAM.

The issue presented in this case is whether service upon a state entity is timely pursuant to La. R.S. 13:5107(D), where the request for service is made by facsimile filing within ninety days from the filing of the petition, but the facsimile filing is not perfected under La. R.S. 13:850 until five days later when the fees are paid. The district court granted defendants’ exception of insufficiency of service of process, and the court of appeal affirmed that determination on appeal. Plaintiffs now seek review of that judgment.

In Tranchant v. State of Louisiana, Louisiana State University Health Sciences Center, 08-0978, p. 7 (La.1/21/09), 5 So.3d 832, 836, we discussed the requirements for a valid request for service, finding “[a] valid request for service under La. R.S. 13:5107(D)(1) is made when the clerk receives the request for service and can then act on it.” In the instant case, the court of appeal reasoned that the request for service, although received within ninety days, was not timely, because the clerk could not act on it until plaintiffs paid the required fees five days later, pursuant to the provisions of La. R.S. 13:850. We disagree. A review of the facts of Tran-chant reveal the request for service in that case was mailed on the ninetieth day, but not received by the clerk until several days later. Under the facts presented in Tran-chant, we held the request for service was not received by the clerk’s office within ninety days, and ^therefore the request could not be acted upon by the clerk’s office for purposes of completing the request.

By contrast, in the instant case, the request was received by the clerk’s office within the ninety-day period. Pursuant to La. R.S. 13:850(A), such a filing “shall be deemed complete at the time that the facsimile transmission is received and a receipt of transmission has been transmitted to the sender by the clerk of court” [emphasis added]. We acknowledge La. R.S. 13:850(C) provides “[i]f the party fails to comply with the requirements of Subsection B [relative to filing of original documents and payment of fees], the facsimile filing shall have no force or effect.” However, it is undisputed plaintiffs complied with all necessary requirements within five days. Therefore, we find the request for service was received within ninety days.

Accordingly, the writ is granted. The judgment of the court of appeal is reversed, and the exception of insufficiency of service is hereby overruled. The case is remanded to the district court for further proceedings.

      . In Wilborn v. Vermillion Parish Police Jury, 04-1074 (La.7/2/04), 877 So.2d 985, we summarily reinstated a judgment of the district court, which held a facsimile request for service received within ninety days was timely, even though the requirements of La. R.S. 13:850 had not been satisfied. We need not pass on the applicability of that holding in the instant case, as it is undisputed plaintiffs complied with the requirements of La. R.S. 13:850.


text:
    In re Claire P. SHARP.
    No. 2012-B-2463.
    Supreme Court of Louisiana.
    Jan. 11, 2013.
   h ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) received a complaint that respondent employed a permanently disbarred attorney as a paralegal. Thereafter, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that the employment violated Rule 5.5 of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Claire P. Sharp, Louisiana Bar Roll number 14078, be publicly reprimanded.

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.

       Chief Justice Kimball not participating in the opinion.

      . Respondent's employment of the attorney as a paralegal began while the attorney was in-terimly suspended. At that time, respondent was not in violation of the Rules of Professional Conduct because she submitted the appropriate employment registration statement to the ODC, pursuant to Rule 5.5(e)(l)(ii).


text:
    In re Demetrie FORD.
    No. 2012-B-2643.
    Supreme Court of Louisiana.
    Jan. 18, 2013.
   I, ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent failed to timely remit funds to third-party medical providers. Following the filing 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 Demetrie Ford, Louisiana Bar Roll number 21594, be suspended from the practice of law for a period of one year and one day. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of 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 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.

       Chief Justice Kimball not participating in the opinion.


author: PER CURIAM. CLARK, J.

text:
    STATE ex rel. Albert LANDRY v. STATE of Louisiana.
    No. 2011-KH-0796.
    Supreme Court of Louisiana.
    Jan. 18, 2013.
   PER CURIAM.

11 Writ granted. Relator is presently serving a sentence of life imprisonment without possibility of parole for a second degree murder committed in 1976 when he was 17 years old. The sentence was mandated by the penalty provision of the statute establishing the offense. R.S. 14:30.1. In 2011, relator filed a motion to correct an illegal sentence in which he contended that a sentence of life imprisonment without parole for a juvenile offender is no longer constitutionally permissible under developing legal standards, and in particular in light of Graham v. Florida, 560 U.S.-, 180 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (Eighth Amendment precludes sentencing juvenile offenders to life imprisonment without parole for non-homicide crimes). The district court (Johnson, J) denied relief. While review of that judgment was pending, the United States Supreme Court determined that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on “cruel and unusual punishments”. Miller v. Alabama, 567 U.S.-, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Unlike the case in Graham, the Miller court did not establish a categorical prohibition against life without parole for juveniles but instead required that a sentencing court consider an offender’s youth and attendant characteristics as mitigating circumstances before |2deciding whether to impose the harshest possibly penalty for juveniles. Therefore, we grant to remand to the district court to reconsider the sentence after conducting a new sentencing hearing in accordance with the principles enunciated in Miller v. Alabama.

CLARK, J.

dissenting.

hi would grant the writ for consideration for a full analysis under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).


text:
    FOOD PERFECT, INC., Barreca’s Restaurant v. UNITED FIRE AND CASUALTY COMPANY.
    No. 2012-CC-2492.
    Supreme Court of Louisiana.
    Jan. 18, 2013.
   PER CURIAM.

|)At issue is whether plaintiffs suit has been abandoned. The undisputed facts indicate the last activity on the record occurred on June 4, 2008. In March 2009, plaintiff met with a representative of defendant to determine if there was any possibility of resolving the case. In addition, plaintiff had several conversations with defendant’s representatives following this meeting. On April 13, 2012, defendant filed a motion to dismiss, arguing plaintiff abandoned the case pursuant to La.Code Civ. P. art. 561. Although the district court initially granted the motion, it later set aside that judgment. The court of appeal denied defendant’s writ application. Defendant now seeks relief in this court.

Because plaintiffs suit is abandoned on its face, the sole question presented is whether any of the exceptions to abandonment apply. In Clark v. State Farm Mutual Auto Ins. Co., 00-3010 (La.5/15/01), 785 So.2d 779, we explained there are two jurisprudential exceptions to the abandonment rule. Those two exceptions are: (1) a plaintiff-oriented exception based on contra non valentem, that applies when failure to prosecute is caused by circumstances beyond the plaintiffs control; and (2) a defense-oriented exception based on acknowledgment, that applies when the defendant waives his right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned. Id. at p. 7, 785 So.2d at 784-785.

12With regard to the first exception, the plaintiff is required to make a showing his failure to prosecute was caused by circumstances beyond his control. In the instant case, plaintiff does not allege any circumstances beyond his control, such as natural disasters, prevented him from taking any steps to prosecute this action. Rather, he candidly admits that as a pro-se litigant, he was unaware of the applicable deadlines. Courts have held pro-se litigants assume responsibility for their lack of knowledge of the law. See Ledbetter v. Wheeler, 31, 357 at p. 3 (La.App. 2 Cir. 12/9/98), 722 So.2d 382, 384 (“[ajlthough we concede that Ledbetter, as a layperson, was representing himself, a pro se litigant assumes all responsibility for his own inadequacies and lack of knowledge of procedural and substantive laws”). Under these circumstances, we find contra non valen-tem does not apply.

The next question is whether plaintiff established defendant waived its right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned. In Clark, we explained that a “defendant waives his right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned.” 00-3010 at p. 7, 785 So.2d at 785. Clark cited several examples of conduct which could amount to a waiver of abandonment, such as making an unconditional tender, or “agreeing to a trial setting, submitting a case for decision, seeking security for costs, or provoking or responding to discovery.” Id. at p. 14, 785 So.2d 789, n. 15.

In the instant case, defendant took no actions which could be construed as a waiver of abandonment. At most, the parties engaged in informal settlement negotiations. Clark explicitly held the waiver exception does not apply to informal settlement negotiations. Id. at 00-3010 at p. 18, 785 So.2d at 791. Therefore, we do Rnot find defendant took any actions inconsistent with an intent to treat the case as abandoned after the abandonment period accrued.

Accordingly, the writ is granted. The judgment of the district court is reversed, and defendant’s motion to dismiss plaintiffs suit as abandoned is hereby granted.

      . We acknowledge defendant sent discovery requests to plaintiff on July 17, 2008; however, this action occurred more than three years prior to the filing of defendant’s April 12, 2012 motion to dismiss for abandonment, and therefore cannot constitute an action inconsistent with an intent to treat the case as abandoned.


text:
    In re Elizabeth A. SPURGEON.
    No. 2010-OB-2299.
    Supreme Court of Louisiana.
    Jan. 19, 2013.
   110RDER

FOR THE COURT.

Considering the “Termination of Conditional Admission” filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the probationary period imposed by this court in In re: Spurgeon, 10-2299 (La.10/15/10), 46 So.3d 190, be and hereby is terminated, as the court finds petitioner has successfully complied with all terms of probation.

FOR THE COURT:

/s/Jeannette Theriot Knoll JUSTICE, SUPREME COURT OF LOUISIANA


text:
    In re Erica L. ANDREWS.
    No. 2012-OB-2681.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   hON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, Erica L. Andrews, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to the following conditions:

1. Petitioner must execute a new five-year recovery agreement with the Lawyers Assistance Program (“LAP”).

2. The period of this conditional admission shall coincide with the period of petitioner’s LAP agreement. However, petitioner’s conditional admission status shall not be terminated until this court so orders.

3. Petitioner shall be responsible for ensuring that monthly reports of her progress and participation in LAP are forwarded to the Office of Disciplinary Counsel (“ODC”).

4. Upon the expiration of the term of petitioner’s LAP agreement, the Executive Director of LAP shall forward to the ODC (a) a final report of petitioner’s progress and participation in LAP, and (b) a recommendation regarding the need for petitioner’s continued participation in LAP.

5. Following receipt of the report from LAP, the ODC shall file a report in this court in which it shall recommend whether the conditional admission shall be allowed to terminate or shall be extended.

|⅞6. Petitioner shall cooperate with LAP and the ODC, and shall comply with any and all requirements imposed upon her by LAP and the ODC.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should she commit any misconduct during the period of probation, her conditional right to practice may be terminated or she may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

       Chief Justice Kimball not participating in the opinion.


text:
    In re Benjamin L. JOHNSON.
    No. 2012-B-2750.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

11 Prior to the filing of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline, in which respondent admitted that he violated the Rules of Professional Conduct by engaging in conduct that constitutes a conflict of interest and is prejudicial to the administration of justice. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted, and that Benjamin L. Johnson, Louisiana Bar Roll number 7279, be suspended from the practice of law for a period of six months, fully deferred, subject to a two-year period of unsupervised probation. 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 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.

       Chief Justice Kimball not participating in the opinion.


text:
    In re Charles E. REEVES, Jr.
    No. 2010-OB-2282.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   I,ORDER

Considering the “Termination of Conditional Admission” filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the probationary period imposed by this court in In re: Reeves, 10-2282 (La.10/14/10), 45 So.Bd 1016, be and hereby is terminated, as the court finds petitioner has successfully complied with all terms of probation.

FOR THE COURT:

/s/ Jeffrey P. Victory Justice, Supreme Court of Louisiana


author: STEWART, J.

text:
    Jacqueline A. WYNN and Jean E. Oliver, Plaintiffs-Appellees v. John F. LUCK, Jr., Individually and d/b/a Luck Properties, LLC, Defendants-Appellants.
    No. 47,314-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2012.

      The Williams Family Law Firm, by Joseph P. Williams, Jr., Natchitoches, LA, for Appellants.
    Rice & Kendig, Shreveport, LA, by William F. Kendig, Jr., for Appellees.
    Before BROWN, STEWART and CARAWAY, JJ.
   STEWART, J.

Bln this case, a piece of Sheetrock fell from the ceiling onto Jacqueline Wynn and Jean Oliver (hereafter referred to as “plaintiffs”), while they were visiting their sister, Brenda Wynn, at her home. The trial court determined that John Luck, Jr., individually and d/b/a/ Luck Properties, L.L.C. (hereafter referred to as “Luck”), were liable for this accident. More specifically, the trial court found that there was a defect or ruin, that the defect or ruin caused the damage, that the ruin should have been discovered in the exercise of reasonable care, and that the damages could have been prevented in the exercise of reasonable care.

Luck appeals, asserting that the trial court erred in ruling that he knew or should have known of a defect or ruin in the sheetrock ceiling in the kitchen of Brenda’s home prior to June 16, 2010. In the event that we agree with the trial court’s finding that Luck was liable for this accident, he suggests that we assess a percentage of fault to Brenda Wynn, for failing to warn the plaintiffs of the danger before they entered the kitchen. Finding that the plaintiffs proved that Luck knew, or should have known, that the ceiling’s condition presented a risk of injury, we affirm.

FACTS

Brenda Wynn and her eight children lived in a rental house owned by Luck, from July 2007 to October 2010. This house (hereafter referred to as “Brenda’s house”) was located at 3849 Flora Avenue in Shreveport, Louisiana.

On June 16, 2010, Brenda’s sisters, the plaintiffs, went to Brenda’s house to pick her up and take her to the grocery store. Upon their return to 12her house, the plaintiffs assisted her in bringing the groceries into the house. The plaintiffs allege that when they walked through the entrance from the living room into the kitchen, a three foot by six foot piece of sheetrock fell from the ceiling in the kitchen. This piece of sheetrock struck the plaintiffs, knocking them to the floor.

The plaintiffs filed suit, seeking damages for injuries they contend they sustained from the incident. They asserted that Luck was responsible for their injuries “since he knew, or in the exercise of reasonable care, should have known of the defect and/or ruin in the ceiling of the kitchen and that with the exercise of reasonable care could have prevented their injuries.”

Luck answered, denying any responsibilities for the plaintiffs’ injuries. Further, Luck denied “that he knew, or, in the exercise of reasonable care, should have known of any problems with the sheetrock ceiling in the kitchen of this house prior to this incident.” Alternatively, Luck argued that if he was responsible for the plaintiffs’ injuries, then he was not responsible for Brenda’s negligence in failing to warn her sisters of the alleged defect or ruin in the kitchen.

The trial court found Luck liable. Plaintiff Jacqueline Wynn was awarded general damages in the amount of $8,750.00, and special damages in the amount of $2,957.70. Plaintiff Jean Oliver was awarded general damages in the amount of $4,000.00 and special damages in the amount of $3,420.05.

Luck appeals.

|SLAW AND DISCUSSION

Knowledge of the Defect

Luck asserts three assignments of error in his appeal. In the first assignment, he alleges that the trial court erred in ruling that he had actual knowledge of any defect or ruin in the sheetrock in the kitchen ceiling of Brenda’s house prior to June 16, 2010. Similarly, in the second assignment of error, Luck contends that the trial court erred in ruling that he should have known of a defect or ruin in the sheetrock ceiling in the kitchen of Brenda’s house prior to June 16, 2010. Since both of these assignments address Luck’s knowledge of the defect or ruin in the sheetrock ceiling, we will discuss them together.

Under Louisiana law, the owner/lessor is generally liable for the condition of the leased premises. Greely v. OAG Properties, L.L.C., 44,240 (La.App. 2 Cir. 5/13/09), 12 So.3d 490, writ denied, 2009-1282 (La.9/25/09), 18 So.3d 77; Allstate Ins. Co. v. Veninata, 2006-1641 (La.App. 4 Cir. 11/7/07), 971 So.2d 420, writ denied, 2008-0067 (La.3/7/08), 977 So.2d 918. Liability for a thing under one’s ownership or custody is governed by La. C.C. art. 2317.1, which provides as follows:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

Thus, to recover for damages caused by a defective thing, the plaintiff must prove that the thing was in the defendant’s custody, that the thing contained |4a defect which presented an unreasonable risk of harm to others, that this defective condition caused the damage and that the defendant knew or should have known of the defect. Johnson v. Super 8 Lodge-Shreve port, 47,081 (La.App. 2 Cir. 4/25/12), 92 So.3d 519; Pamplin v. Bossier Parish Community College, 38,533 (La.App. 2 Cir. 7/14/04), 878 So.2d 889, writ denied, 2004-2310 (La.1/14/05), 889 So.2d 266.

A defect pursuant to La. C.C. art. 2317.1 is a condition or imperfection that poses an unreasonable risk of injury to persons exercising ordinary care and prudence. Cavet v. Louisiana Extended Care Hosp., 47,141 (La.App. 2 Cir. 5/16/12), 92 So.3d 1122; Nicholson v. Horseshoe Entertainment, 46,081 (La.App. 2 Cir. 3/2/11), 58 So.3d 565, writ denied, 2011-0679 (La.5/20/11), 63 So.3d 980. The terms vice, defect, and ruin describe a thing’s unreasonably dangerous character. Cavet, supra; Myers v. Dronet, 2001-5 (La.App. 3 Cir. 6/22/01), 801 So.2d 1097, citing Frank L. Maraist & Thomas C. Galligan, Burying Caesar; Civil Justice Reform and the Changing Face of Louisiana Tort Law, 71 Tul. L.Rev. 339 (1996).

In determining whether a defect presents an unreasonable risk of harm, the trier of fact must balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair. Johnson, supra; Reed v. Wal-Mart Stores, Inc., 1997-1174 (La.3/4/98), 708 So.2d 362. In a nutshell, the trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify, its potential harm to others. Id.

|/rhe determination of whether a defect presents an unreasonable risk of harm is a matter “wed to the facts” and must be determined in light of the facts and surrounding circumstances of each particular case. Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002. The trial court’s factual findings concerning the presence of a defect should be afforded deference, and such factual findings should be disturbed only if clearly wrong or manifestly erroneous. Heflin v. American Home Wildwood Estates, L.P., 41,073 (La.App. 2 Cir. 7/12/06), 936 So.2d 226.

Several days after the incident, Brenda’s house was inspected by the Housing Authority of the City of Shreveport on June 23, 2010. The following notations were made regarding the ceilings and walls of her home:

Bedroom 1: ceiling conditions: cracking; wall conditions: cracking.
Bedroom 2: ceiling conditions: cracking and falling: wall conditions: weak by window
Bedroom 3: ceiling conditions: falling; screws not holding.
Hall: wall conditions: need repairing. Laundry: ceiling condition: falling badly-
Living Room: wall condition: hole by door.
Kitchen: ceiling condition: fell, not finished.
Bath: ceiling condition: cracking.

The ceilings in every room of Brenda’s house, with the exception of the living room, were damaged and presented a danger to everyone who lived in or visited Brenda’s house. Needless to say, Brenda’s home failed the June 23, 2010, inspection, and it was identified as being out of compliance with the minimum standards for participation in the Section 8 housing program until and unless some repairs were made.

|fiLuck called its maintenance supervisor, Rodney Fleckenstein, as a witness at trial. He worked for Luck as a repairman for approximately five years and eight months. Fleckenstein testified that he visited the home on December 31, 2009, to repair a toilet; on February 1, 2010, to repair a hot water heater; and on May 12, 2010, to replace the -window unit in the living room. He further testified that in order to identify a problem with a ceiling, all that would be required was a casual observation. It is possible that one may overlook a cracked or falling ceiling in one room of a house. However, it is difficult to ascertain how one may overlook the ceiling’s horrible condition in most of the rooms of Brenda’s house on several occasions.

Although Fleckenstein did not draft any type of inspection report during these three visits, he noted that he had not seen “any dangerous condition in the kitchen before replacing the damaged ceiling in June 2010.” However, Fleckenstein noted that he would expect inspections 34 days apart to reveal essentially the same generalized condition of the house.

Fleckenstein had the opportunity to observe the conditions of the ceilings in the home when he went to make repairs on three separate occasions. In fact, he visited the home a little bit over a month prior to the June 16, 2010, incident. It is clear that Luck, through a casual observation by Fleckenstein of Brenda’s house, had the opportunity, in the exercise of reasonable care, to observe and repair the ceiling in the kitchen, as well as other areas of the home. Luck even testified that it would have cost approximately $350.00 to repair the condition in the ceiling.

|7The record supports the trial court’s finding that Luck owned Brenda’s house; that the house contained defective ceilings which presented an unreasonable risk of harm to others, namely the ceiling in the kitchen area; that this defective ceiling caused damage to Jacqueline Wynn and Jean Oliver; and that Luck, by way of his employee Fleckenstein, knew or should have known of the defective ceiling. Luck had constructive notice through Flecken-stein’s simple and casual observation of the condition of the ceilings in the rental home while he was in the home on three separate occasions. Therefore, he should have been aware of the condition of the ceiling in Brenda’s house. This assignment of error is without merit.

Affirmative Defense of Comparative Fault

In this assignment, Luck argues that should this court find that the Plaintiffs met their burden of proof to establish that he knew or should have known of the existence of a defect and/or ruin in the kitchen ceiling of Brenda’s home, then the trial court erred in failing to assess a percentage of fault to Brenda Wynn for having failed to warn the plaintiffs of the danger prior to their entering the kitchen.

Luck states that the trial court did not mention his affirmative defense of comparative fault in its oral reasons for judgment. He alleged in his answer that if he were to be found responsible for negligence in failing to repair a defect or ruin in Brenda’s house, then he should not be responsible for the percentage of fault attributable to Brenda for her failure to warn the plaintiffs of the defect or ruin before they were injured.

[«Generally, when a judgment is silent as to a claim or demand, it is presumed that the relief sought was denied. M.J. Farms, Ltd. v. Exxon Mobil Corp., 2007-2371 (La.7/1/08), 998 So.2d 16; Action Revenue Recovery, L.L.C., v. eBusiness Group, L.L.C., 44,607 (La.App. 2 Cir. 8/19/09), 17 So.3d 999. The trial court’s judgment, as well as its oral reasons for ruling, finding that Luck was liable for this accident, show that it gave full consideration to the facts of this matter and Luck’s claims. There being no mention in the trial court’s judgment of Luck’s contention that he “would not be responsible for the negligence of the plaintiffs’ sister or any other person whose negligence contributed to and or caused the incident which is the basis of this litigation,” it is presumed the trial court rejected that assertion. We find no error in trial court’s failure to specifically address Luck’s comparative fault claim.

CONCLUSION

Based on our determination that the plaintiffs presented evidence that Luck knew, or should have known, of the condition of the ceiling in Brenda Wynn’s home, we affirm. Cost of appeal are assessed to John Luck, Jr. individually and d/b/a Luck Properties, L.L.C.

AFFIRMED.


author: CARAWAY, J.

text:
    STATE of Louisiana, Plaintiff-Appellee v. Marcus Dewayne YOUNG (4 Aces Bail Bonds, Financial Casualty & Surety, Inc., Power of Attorney DS255171), Defendants-Appellants.
    No. 47,387-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2012.

      Anthony Hollis, Shreveport, LA, for Appellant.
    Charles R. Scott, District Attorney, Brian H. Barber, John Ford McWilliams, Assistant District Attorneys, for Appellee.
    Before CARAWAY, MOORE and SEXTON (Pro Tempore), JJ.
   CARAWAY, J.

| ¡.The defendant, his bonding agent and surety appeal the trial court judgment denying a motion to have a judgment of bond forfeiture declared a nullity. For the reasons that follow, we reverse.

Facts

On November 9, 2003, Marcus Dewayne Young was arrested on the charge of Illegal Possession of Stolen Things in violation of La. R.S. 14:69. Young posted a Criminal Appearance Bond of $10,184.00, through his bonding agent, 4 Aces Bail Bonds (“4 Aces”), and surety, Financial Casualty and Surety, Inc. (“Financial Casualty”). The executing agent was Anthony Bowers.

After making several court appearances in the case during the remainder of 2003 and 2004, Young failed to appear for a scheduled February 24, 2005 proceeding. On that date, the court unsuccessfully sounded the courtroom for Young, representatives of 4 Aces and Financial Casualty, and issued a bench warrant for Young’s arrest.

A bond forfeiture hearing, set by the court at the time of the bench warrant, was ultimately conducted on March 28, 2005, and the bond was forfeited.

On that day, the record court minutes read:

THE DEFENDANT WAS NOT PRESENT OR REPRESENTED BY COUNSEL. CASE WAS TAKEN UP FOR BOND FORFEITURE HEARING. EVIDENCE WAS ADDUCED, CLOSED AND MATTER WAS SUBMITTED. THE COURT ORDERED THE BOND FORFEITED. JUDGMENT OF BOND FORFEITURE READ, SIGNED AND FILED. AFFIDAVIT WAS FILED THIS DAY. (JUDGE R. EMANUEL)

IsThe evidence submitted by the state on March 28, 2005, in proof of the bond forfeiture included “In Globo S-l,” which contained a copy of the Appearance Bond and Power of Attorney number DS255171. Notably absent from the state’s documentary evidence was proof of notice of the hearing to the defendant and the surety as required by La. R.S. 15:85(1).

The initial written Judgment of Bond Forfeiture rendered on March 28, 2005, was made in error. It incorrectly cast Allegheny Mutual Casualty Company as surety in judgment, contained an incorrect Power of Attorney number, XC239124, and bond amount of $5,184.00. This judgment was filed into the Mortgage Records on March 28, 2005. An Affidavit by the clerk of court certifying that notice of the signing of the “Judgment of Bond Forfeiture” had been sent to Financial Casualty, 4 Aces and Young, by certified mail, return receipt requested, was filed into the record on March 28, 2005, in accordance with La. R.S. 15:85(3)(b), but no return receipts accompanied that notice as required by that statute.

Thereafter, an “Amended Judgment of Bond Forfeiture,” which correctly named Financial Casualty as surety and contained the correct Power of Attorney number and bond amount, was prepared by the district attorney. That amended judgment states that it was read, signed and dated March 28, 2005, by the trial court. The judgment was filed into the Mortgage Records on March 29, 2005. The record minutes indicate that it was on March 31, 2005, that the amended judgment was “FILED THIS DAY AND SIGNED BY JUDGE RAMONA L. EMANUEL.” It is apparent that no additional hearing was conducted or evidence adduced [4prior to the issuance and filing of this Amended Judgment. No proof of notice of the “Amended Judgment” to Young, 4 Aces and Financial Casualty in the form of the affidavit of service under La. R.S. 15:85(3)(b) was executed and filed by the clerk of court.

On November 21, 2005, Anthony Bowers, individually and on behalf of 4 Aces, as agent for Financial Casualty, (“Movers”) filed a motion within the original criminal proceedings to vacate the March 28, 2005 judgment and to surrender Young so as to exonerate them from liability on Young’s bail undertaking. Movers sought to nullify the Amended Judgment, on the grounds of lack of notice as required by La. R.S. 15:85.

The November filing was made outside of the time periods of La. R.S. 15:85(5) for bringing defenses. Movers argued that:

1) Notice of the judgment of bond forfeiture was first received through a November 9, 2005 letter from the Caddo Parish District Attorney’s Office which notified 4 Aces and Financial Casualty that it was the intent of the DA’s office to file a rule to show cause for collection of the bond amount, if the sum of $11,070.27 was not paid.
2) Young had been incarcerated in the Union Parish Detention Center in Farm-erville, Louisiana since July 21, 2005 and that had it been properly served with notice of the bond forfeiture judgment, Young would have been surrendered and 4 Aces exonerated from its bond liability.

4 Aces also sought leave of court to surrender Young to Caddo Parish and to thereby be exonerated from liability on the bond contending that it paid the Cad-do Parish Sheriffs Office the cost of transporting Young from Union Parish. Attached to the motion were record minutes in Young’s illegal possession of stolen things proceedings from November 10, 2003, through March 31, 2005, a copy of the above-noted November 9 letter from 15the Caddo Parish District Attorney’s office seeking payment under the bond, a November 21, 2005 receipt to 4 Aces evidencing payment of $184.26 travel costs, a November 18, 2005 Letter of Incarceration from the Warden of the Union Parish Detention Center evidencing Young’s incarceration from July 21, 2005 through November 18, 2005, copies of both the original and amended judgments of bond forfeiture and copies of unidentified and partially illegible certified mail and return receipt requested forms addressed to 4 Aces from the Caddo Parish Clerk of Court.

The record minutes indicate that the hearing on the motion was originally set for December 12, 2005, but never occurred. Thereafter Young appeared before the court with counsel on December 20, 2006, March 5, 2007, April 30, 2007, June 11, 2007, November 27, 2007, January 7, 2008, and February 13, 2008. On April 7, 2008, the District Attorney entered a dismissal in the criminal prosecution.

On January 20, 2011, after five years, the District Attorney filed an answer to Movers’ motion to vacate the bond forfeiture judgment. The District Attorney argued that the motion to nullify the bond forfeiture was untimely filed after September 29, 2005, or six months following the Amended Judgment, and that:

1) Notice of Judgment was mailed to the Surety, Bail Bonds Agent and Defendant within the 60 days allowed for doing so at the address provided by the Bail Bond Agent as required by Code of Criminal Procedure Art. 322.
2) Notice of Judgment was delivered on April 1, 2005.
3) Notice of Judgment was returned from the Bail Bond Agent’s address.
4) No provision of the Louisiana State Law requires that any further attempt to notify Bail Bond Agent be made.

lfiHearing on the motion to vacate was held on July 14, 2011. Young was present with counsel. Movers’ attorney argued that there had been a previous compromise between 4 Aces and another Caddo Parish district attorney in which the state agreed to dismiss the matter if Young’s transportation costs to Caddo Parish were paid. Movers argued that the fact that the matter was taken off the docket in December of 2005 and the length of time that had elapsed until the 2011 hearing evidenced that the settlement had taken place. Movers were prepared to present the testimony of Anthony Bowers, the individual who allegedly made the agreement with an assistant district attorney, and a copy of the receipt received by Bowers evidencing payment of transportation costs. The state denied that an agreement had been reached but stipulated that the transportation costs had been paid after the six months had run.

Other than the discussion of the alleged compromise and the stipulation of transportation costs, neither party presented any other evidence at the hearing. The trial court then had the clerk review the minutes of the proceedings on the record and recognized that the criminal charges against Young had ultimately been dismissed. The court indicated that it had brought this fact “to both counsel’s attention” and “gave both sides the opportunity to confer with each other prior to coming to court on today.” The trial court denied the motion to vacate the judgment after noting only that it was the “DA’s office that generates the docket.” Movers objected to the ruling. A written judgment was signed by the Court on July 1714, 2011. This appeal by Young, 4 Aces and Financial Casualty (“Appellants”) ensued.

Discussion

On appeal, appellants argue that the trial court erred in disallowing evidence of a compromise and settlement at the bond forfeiture hearing and in declining to vacate the bond forfeiture judgment due to failure to comply with La. R.S. 15:85 and C.Cr.P. art. 344.

One who posts an appearance bond enters into a suretyship agreement with the State. This is considered a civil contract based upon an act under private signature, breach of which will lead to a money judgment against the surety. State, City of Bossier City v. Miller, 40,492 (La.App.2d Cir.1/25/06), 920 So.2d 408; State v. Berry, 29,359 (La.App.2d Cir.4/2/97), 691 So.2d 375; State v. Bailey, 567 So.2d 721 (La.App. 2d Cir.1990). A surety underwriting a bond guarantees that a defendant will be present at each stage of the proceedings, that he will submit to the orders of the court, and that he will not leave the state without permission of the court. State, City of Bossier City v. Miller, supra. See also La.C.Cr.P. art. 311. A bond forfeiture is basically a civil proceeding that is subject to special rules set forth in the Code of Criminal Procedure. La. R.S. 15:83; State v. Hill, 41,925 (La.App.2d Cir.2/28/07), 953 So.2d 849; Bankers Ins. Co. v. State, 37,080 (La. App.2d Cir.4/11/03), 843 So.2d 641, writ denied, 03-1240 (La.6/27/03), 847 So.2d 1268.

The general rule is that bond forfeitures are not favored. State v. Kerrison, 97-1759 (La.10/17/97), 701 So.2d 1347; Bankers, supra. In | «order to obtain a judgment of bond forfeiture against a surety, the state must strictly comply with the terms of the statutory provisions regulating bond forfeiture. Hill, supra; Bankers, supra. This includes the notice requirements required to be given after the entry of forfeiture. State v. Hathaway, 403 So.2d 737 (La.1981).

In 2005, La. R.S. 15:85 (hereinafter the “Statute”) was the relevant provision applicable to this matter because the law in effect at the time of the bond forfeiture applies. State v. Adkins, 613 So.2d 164 (La.1993); Bankers, supra. That Statute read in relevant part as follows:

All bonds taken to secure the appearance of any person before any court executed in the state of Louisiana shall be forfeited and collected as follows:
(1)Failure to appear and answer. If at the time fixed for appearance the defendant fails to appear and answer when called, the judge, on motion of the prosecuting attorney, upon hearing of proper evidence including: the bail contract; the power of attorney if any; and the notice to the defendant and the surety as required by Article 344 of the Code of Criminal Procedure, shall immediately and forthwith issue a warrant for the arrest of the person failing to appear and order a judgment decreeing the forfeiture of the bond and against the defendant and his sureties in solido for the full amount of the bond.
(2) Signing of the judgment of bond forfeiture. Following the defendant’s failure to appear, the court shall sign a written judgment of bond forfeiture.
(3) Notice of judgment.
(a) After entering the fact of the signing of the judgment of bond forfeiture in the court minutes, the clerk of court shall promptly mail notice of the signing of the judgment of bond forfeiture. The notice of the signing of the judgment shall be mailed by United States certified mail with return receipt to all of the following:
19(i) The defendant at the address designated pursuant to Code of Criminal Procedure Art. 322.
(ii) The personal sureties at the addresses designated pursuant to Code of Criminal Procedure Art. 322.
(iii) The agent or bondsman who posted the bond for the commercial sureties at the address designated pursuant to Code of Criminal Procedure Art. 322.
(iv) The commercial sureties at the addresses designated pursuant to Code of Criminal Procedure Art. 322. Notice to the commercial sureties shall include the power of attorney number used to execute the bond without which the bond obligation of the commercial surety shall be suspended until the power of attorney number is supplied provided the commercial surety provides notice to the clerk of court who mailed the notice to the surety of the failure to include such number in the notice by certified mail not later than thirty days following receipt of notice of the judgment. If the power of attorney number is not provided to the commercial surety within thirty days following the date of receipt by the clerk of court of the notice that it was not included in the notice of the judgment, the commercial surety shall be released from the bond obligation.
(b) After mailing the notice of the signing of the judgment of bond forfeiture, the clerk of court shall execute an affidavit of the mailing and place the affidavit and the return receipts in the record.
(c) Failure to mail proper notice of the signing of the judgment within sixty days after the defendant’s failure to appear shall release the sureties of any and all obligations under the bond.
(5) Summary proceedings. The defendant and his sureties shall be entitled to bring defenses and actions in nullity by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within sixty days from mailing the notice of the signing of the judgment of bond forfeiture. Any summary proceeding brought by the defendant or his sureties within the sixty-day period shall be determined by the court within one hundred and eighty days of mailing the notice of the signing of the judgment of bond forfeiture. The defendant and his sureties shall be entitled to bring defenses pursuant to Code of Criminal Procedure Art. 345 and R.S. 15:87 by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within six months from mailing the notice of the signing of the judgment of bond forfeiture.

The purpose of the power of attorney number is to ensure that the surety can quickly identify its obligation and the power of attorney on which | inthat obligation is based. Requiring prompt and adequate notice to the surety enhances the surety’s chances of locating the defendant and surrendering him to the court for trial, a desirable objective from the point of view of both the surety and the state. State v. Bullock, 412 So.2d 1059 (La.1982).

Any inadequacies in notice must be shown to prejudice the defendant. State v. Bullock, supra; State v. Brown, 577 So.2d 784 (La.App. 2d Cir.1991); State v. Owens, 561 So.2d 842 (La.App. 2d Cir.1990), writ denied, 566 So.2d 400 (La.1990). Minor defects are harmless if the record as a whole shows that the surety received notice and was not prejudiced by the deficiencies. State v. Brown, supra.

Although certain other notices afforded for the surety’s protection within the Statute also appear deficient from the record, we will address Appellants’ assertion that there is no evidence of the Statute’s required notice of the Amended Judgment of Forfeiture rendered in March 2005. The affidavit of the clerk of court of the signing of the Judgment required under subpart (3)(b) of the Statute cannot be said to have occurred because of the confusion surrounding the erroneous initial Judgment and Amended Judgment. The affidavit of the clerk that is in the record must be viewed as an attempted notice of the “Judgment of Bond Forfeiture” of March 28, which was the erroneous judgment, and not the “Amended Judgment” later executed by the court. Moreover, no evidence of the return receipt of the mailing of notice of either of the two judgments is shown in the record.

| n Accordingly, pursuant to subpart (3)(c) of the Statute, the failure to mail notice of the signing of the Amended Judgment within 60 days of its execution resulted in the release of the surety’s obligation under the bond.

Conclusion

The judgment of forfeiture is reversed and set aside. Judgment is hereby rendered releasing Financial Casualty from liability under the bonds. Costs of this appeal are assessed against the State in the amount of $172.50.

REVERSED AND RENDERED.

      . In 2010, the laws pertaining to bond forfeiture were substantially revised.