author: COHEN, C.J.

text:
    Dominic Michaud BLAND, Appellant, v. State of FLORIDA, Appellee.
    Case No. 5D17-1626
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 6, 2018
    James S. Purdy, Public Defender, and Glendon George Gordon, Jr., and Benjamin A. Schumann, Assistants Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, C.J.

Dominic Bland appeals the denial of his motion to withdraw plea, arguing that the trial court erred in denying his request to represent himself and requiring him to proceed with court-appointed counsel. We affirm.

The State charged Bland with a series of crimes in two separate cases. In one case, Bland was charged with fleeing or attempting to elude law enforcement with high speed or wanton disregard, resisting an officer with violence, and driving while license canceled, suspended, or revoked. In the other case, Bland was charged with two counts of attempted second-degree murder while inflicting great bodily harm or death, four counts of attempted second-degree murder while discharging a firearm from a vehicle, and discharging a firearm from a vehicle.

As the cases proceeded, Bland requested the trial court to discharge his current counsel and appoint new counsel. The court conducted a Nelson inquiry, after which it denied Bland's request. Bland does not challenge that ruling on appeal. However, immediately after the court denied his request for different counsel, Bland asked to represent himself.

The court proceeded to conduct a Faretta inquiry, explaining the disadvantages of self-representation and detailing the maximum penalties Bland faced on each charge if convicted. Bland indicated that he was twenty-five years old, had completed the tenth grade and passed a high school equivalency test, was able to read, write, and understand English, and had never been treated for mental illness. He also stated that he had no legal training or experience and that he had not represented himself in any past criminal proceedings. Bland had no knowledge of the rules of criminal procedure or evidence, which was made clear by a series of questions. Following the inquiry, the court summarized:

All right. Mr. Bland, I must advise you that in my opinion you would be far better defended by a trained lawyer, than you can be by yourself, and I think it is unwise for you [to] try and represent yourself, because you're not familiar with the law, you're not familiar with the court procedure, you're not familiar with the rules of evidence, and I would strongly urge you not to try and represent yourself. And I can tell you that most of the judges in this County will tell anyone who is asking to represent themselves, especially in a very serious matter, that it almost is-almost always ended very badly for that person that is trying to represent himself.

Acknowledging the difficulties and disadvantages of self-representation, as well as the maximum penalties he faced, Bland maintained his request to represent himself. The court determined that Bland's decision was knowing and voluntary, yet denied the request based on Bland's limited education and unfamiliarity with the rules of evidence and trial procedure.

Within a week of the Nelson and Faretta inquiries, the trial court held a status hearing to readdress Bland's request for self-representation. At the hearing, Bland indicated that he was satisfied with being represented by counsel. Thereafter, Bland did not renew his request to represent himself.

Prior to trial, Bland announced that he wished to accept the State's latest plea offer. Bland agreed to plead no contest to fleeing or attempting to elude law enforcement with high speed or wanton disregard in the first case, and to discharging a firearm from a vehicle in the second case.

The State was to enter nolle prosequis on all other charges. The court allowed Bland and his counsel time to fill out and review a plea form and conducted a thorough plea colloquy. Bland stated that he was satisfied with his counsel's representation and was entering the plea freely and voluntarily. The court accepted the plea and sentenced Bland to seven years' incarceration, followed by three years' probation.

Bland subsequently filed a motion to withdraw his plea, alleging that he was compelled to enter the plea because he felt he would suffer "poor and indifferent" representation had he proceeded to trial with his court-appointed counsel. The court denied the motion after a hearing based on Bland's prior assertions that he was satisfied with counsel's representation. This appeal followed.

An accused has a constitutional right to self-representation when the decision is made knowingly and intelligently. See Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Here, we have no criticism of the substance of the trial court's Faretta inquiry. The court properly determined Bland's age, education, mental condition, experience with and knowledge of criminal proceedings, and understanding of the disadvantages and dangers of self-representation. See Davis v. State, 10 So.3d 176, 178 (Fla. 5th DCA 2009). However, the trial court's conclusion following the Faretta inquiry erroneously focused on Bland's ability to competently represent himself at trial instead of his competence to make the decision to represent himself. See Petruschke v. State, 192 So.3d 550, 553 (Fla. 4th DCA 2016) ("The likelihood that a defendant would incompetently represent himself is not a valid reason to deny an unequivocal and knowing request for self-representation." (citing Hooker v. State, 152 So.3d 799, 802 (Fla. 4th DCA 2014) )). The State properly concedes that the trial court applied the incorrect standard in denying Bland's request for self-representation. Nonetheless, under these circumstances, where Bland indicated he was satisfied proceeding with counsel subsequent to the Faretta inquiry, we find that Bland abandoned his request for self-representation. See Lindsey v. State, 69 So.3d 363, 365 (Fla. 5th DCA 2011) ("A waiver occurs if it is reasonably shown that the defendant has abandoned an initial request for self-representation." (citing Kearse v. State, 605 So.2d 534, 537 (Fla. 1st DCA 1992) )).

We also find no abuse of discretion in the denial of Bland's motion to withdraw his plea. The trial court rejected Bland's contention that he was compelled to enter the plea because Bland had represented that he was satisfied with counsel in the prior proceedings, including the plea colloquy. The trial court properly denied Bland's motion. See Altersberger v. State, 216 So.3d 621, 627 (Fla. 2017) ("[O]nce a sentence has been imposed, a defendant must demonstrate manifest injustice or prejudice in order to withdraw a guilty plea.").

AFFIRMED.

PALMER and ORFINGER, JJ., concur.

      Defense counsel at the time was Bland's third court-appointed attorney.

      See Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973) (setting forth procedure for inquiry trial court must make upon defendant's request to discharge court-appointed counsel based on claim of counsel's incompetency).

      See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (requiring trial courts to conduct inquiry to ensure defendant knowingly and intelligently waives his or her right to counsel).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Wayne A. SCOTT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3278
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 6, 2018
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Wayne A. Scott, appeals his judgment and sentence after pleading guilty to knowingly and willfully violating his probation. Appellant argues that the trial court failed to conduct an adequate Faretta inquiry when he invoked his right to self-representation before entering his plea. We agree.

The Sixth Amendment guarantees a criminal defendant both the right to counsel and the right to self-representation. Faretta , 422 U.S. at 807, 95 S.Ct. 2525. When a defendant invokes his or her right to self-representation, the trial court must conduct a thorough inquiry "to determine whether [the] defendant knowingly and intelligently waives the right to counsel and asserts the right to self-representation." Slinger v. State , 219 So.3d 163, 164 (Fla. 5th DCA 2017) (citations omitted). "The ultimate test is not the trial court's express advice, but rather the defendant's understanding." Id. (quoting Fitzpatrick v. Wainwright , 800 F.2d 1057, 1065 (11th Cir. 1986) ). We review the trial court's Faretta inquiry for an abuse of discretion. Id.

In Slinger , the trial court engaged the defendant in a partial Faretta inquiry, asking the defendant his age, education, work history, and prior legal experience. Id. at 165. The court also asked if the defendant was familiar with the interrogative methods used during direct and cross-examination, and informed the defendant that he would be required to follow the same rules as an attorney. Id. However, the trial court failed to inquire as to the defendant's mental health or the defendant's knowledge on the issue of jury selection. Id. The court also failed to inform the defendant of the maximum sentence, the nature and complexity of the case, that he would have diminished access to legal materials, and a limited ability to contact witnesses while incarcerated. Id. We also observed that the trial court failed to state on the record its reasons for finding the defendant had knowingly and voluntarily waived his right to counsel. Id. As a result, this court reversed the defendant's convictions. Id. at n.7.

The inquiry in this case was even less complete than the inquiry we found deficient in Slinger . Here, the trial court merely asked Appellant's age, education, and the reason Appellant believed he could represent himself. The court did not advise Appellant of any of the disadvantages and dangers of self-representation, or of the possible consequences of the criminal charges against him. As in Slinger , the court also failed to inquire as to Appellant's mental capacity to freely and voluntarily waive his right to counsel. This is especially troubling given that Appellant filed a pro se "Notice to Rely on Insanity Defense," wherein Appellant alleged that "mental illness prevented him from willfully and knowingly violating his probation." Thus, we conclude that the Faretta inquiry in this case was inadequate, and therefore reverse Appellant's convictions and remand for further proceedings.

REVERSED and REMANDED.

PALMER, TORPY and EISNAUGLE, JJ., concur.

      Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Z.E., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5234
    District Court of Appeal of Florida, Second District.
    Opinion filed April 6, 2018
    Howard L. Dimmig, II, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cornelius C. Demps, Assistant Attorney General, Tampa, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

This appeal originally came to us pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Upon our de novo review of the record and after ordering additional briefing, we reverse the disposition order and remand for further proceedings.

Thirteen-year-old Z.E. was charged in a delinquency petition with simple battery on I.W., one of his classmates. At the adjudication hearing, I.W. testified that he had been shoved from behind and that when he had turned around, Z.E. had been the only person standing there. In addition, at some point previously, Z.E. had insulted I.W. On direct examination, I.W. denied that he had hit Z.E. or had provoked him in any way; on cross-examination, however, I.W. acknowledged that he and Z.E. had been "engaged in some verbal back and forth, not very nice comments."

Z.E. waived his right to testify. His attorney then moved for a judgment of dismissal, arguing that I.W.'s demeanor while testifying "made it seem like he was not taking this very seriously" and that "his testimony [was] not credible and that the State [had] not proven their case beyond a reasonable doubt."

The trial court found Z.E. guilty but withheld adjudication, placing him on probation for an indefinite period not to exceed his nineteenth birthday and ordering him to pay various court fees and costs, to perform twenty hours of community service, to have an anger management evaluation, and to refrain from any contact with I.W. The court stated: "It's not the strongest case I've ever heard, but the sad part about it is, it's unrefuted. So he testified that he was pushed from behind and based on that testimony unrefuted, I'm going to have to find him guilty." The court made no findings regarding I.W.'s credibility.

The trial court erred in concluding that it was constrained to find Z.E. guilty because I.W.'s testimony was unrefuted. When sitting as the fact-finder in a criminal case, the court is free to disbelieve the State's witness even if that witness's testimony is unrefuted and even if that witness is the sole witness at the hearing or trial. See Lewis v. State, 979 So.2d 1197, 1200 (Fla. 4th DCA 2008) ("A trial court has the same ability [as the jury] to determine the believability of a witness. The mere fact that the testimony appears 'uncontradicted' does not necessarily make it believable ...."); Maurer v. State, 668 So.2d 1077, 1079 (Fla. 5th DCA 1996) ("A judge acting as fact-finder is not required to believe the testimony of police officers in a suppression hearing, even when that is the only evidence presented; just as a jury may disbelieve evidence presented by the state even if it is uncontradicted, so too the judge may disbelieve the only evidence offered in a suppression hearing." (citing State v. Paul, 638 So.2d 537, 539 (Fla. 5th DCA 1994) ) ). In short, when sitting as a trier of fact, the trial court is in the same position as a jury: if a jury is entitled to "disbelieve all or any part of the evidence or the testimony of any witness," Fla. Std. Jury Instr. (Crim.) 3.9, then so too is the trial court.

The State does not quibble with this principle but argues, "The trial court found the victim's testimony credible based on his recollection of events and their [sic] veracity as a witness." As set forth above, however, the court made no such finding. Instead, its comments evidence the reluctant conclusion that it had no choice but to "believe" I.W.'s testimony because it was unrefuted. Because the court unquestionably had a choice, we reverse the disposition order and remand for the court to make credibility findings based on the evidence that has already been presented and for disposition in light of those findings.

Reversed; remanded for further proceedings.

SILBERMAN and MORRIS, JJ., concur.


author: Per Curiam.

text:
    John Henry ALLEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-5205
    District Court of Appeal of Florida, First District.
    April 10, 2018
    John Henry Allen, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is dismissed as moot.

Osterhaus, Winokur, and M.K. Thomas, JJ., concur.


text:
    JUNG BEA HAN, Appellant, v. Donald C. SPENCER, Clerk of Court, Appellee.
    No. 1D17-2888
    District Court of Appeal of Florida, First District.
    April 10, 2018
    Jung Bea Han, pro se, Appellant.
    Jason D. English, Milton, for Appellee.
   Per Curiam.

The Court has determined that the Order on Motion to Reinstate the Ownership of Real Property is not a final order or an otherwise appealable non-final order. Thus, the Court lacks appellate jurisdiction to review the order and the appeal is dismissed.

Because Appellant has failed to demonstrate that the circuit court's ruling represents a departure from the essential requirements of the law resulting in harm that cannot be remedied on appeal, we decline the Appellant's request to review the order by petition for writ of certiorari. The petition is stricken as unauthorized.

In light of the foregoing, Appellee's motion to dismiss the appeal and motion to strike the petition for writ of certiorari are denied as moot.

Roberts, Kelsey, and M.K. Thomas, JJ., concur.


text:
    Christopher REDD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-4704
    District Court of Appeal of Florida, First District.
    April 30, 2018
    Christopher Redd, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Wolf, Bilbrey, and Kelsey, JJ., concur.


text:
    Francisco GALLENO, d/b/a Hightech Engineering Solutions, Appellant, v. KCE, INC., a Florida corporation and DAK Shipping & Transport, LLC, a Florida limited liability company, Appellees.
    No. 1D18-1018
    District Court of Appeal of Florida, First District.
    April 30, 2018
    Alexander B. Cvercko and M. Alex Williams of Cvercko & Associates, P.A., Jacksonville, for Appellant.
    No appearance for Appellees.
   Per Curiam.

DISMISSED . See Owens v. State , 579 So.2d 311 (Fla. 1st DCA 1991).

Wolf, Bilbrey, and Kelsey, JJ., concur.


text:
    Jason Makoto BRITTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3644
    District Court of Appeal of Florida, First District.
    April 10, 2018
    Bruce Miller, Public Defender, and John David Snell, Assistant Public Defender, Shalimar, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED . See Fla. R. App. P. 9.110(b) ; Fla. R. App. P. 9.140(b)(3). Any request for belated appeal must be filed pursuant to Florida Rule of Appellate Procedure 9.141(c).

Osterhaus, Winokur, and M.K. Thomas, JJ., concur.


text:
    Victor Jerome BELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2370
    District Court of Appeal of Florida, First District.
    May 1, 2018
    Victor Jerome Bell, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Due to Appellant's apparent abuse of the legal process by his repeated pro se filings attacking his judgment and sentence, the Court issued an order directing Appellant to show cause why he should not be prohibited from future pro se filings. See State v. Spencer , 751 So.2d 47, 48 (Fla. 1999) (requiring that courts "first provide notice and an opportunity to respond before preventing [a] litigant from bringing further attacks on his or her conviction and sentence"). Appellant's response to the show cause order does not provide a legal basis to prohibit the imposition of sanctions.

Because Appellant's continued and repeated attacks on his judgment and sentence have become an abuse of the legal process, we hold that he is barred from future pro se filings in this Court concerning Escambia County Circuit Court case number 2012-CF-1842. The Clerk of the Court is directed not to accept any future filings concerning this case unless they are filed by a member in good standing of The Florida Bar. Appellant is warned that any filings that violate the terms of this opinion may result in a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes. See Fla. R. App. P. 9.410.

Rowe, Ray, and Makar, JJ., concur.


author: PER CURIAM

text:
    IN RE: John Morris DUNN, III
    NO. 2018-B-0340
    Supreme Court of Louisiana.
    May 9, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, John Morris Dunn, III, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

By way of background, respondent represented numerous personal injury clients whom he referred to Dr. Stewart Altman for medical treatment or who sought treatment from Dr. Altman on their own. For some of these clients, respondent signed letters of guarantee to Dr. Altman.

At some point, Dr. Altman sold his medical practice to MCNO, LLC d/b/a SouthShore Physician Group (hereinafter referred to as "SouthShore"). On February 23, 2011, SouthShore sent respondent a letter with a list of his clients' outstanding accounts totaling $74,058.50. In the letter, SouthShore stated:

We have tried many times to communicate with you regarding these cases that you guaranteed payment on after settled [sic] and you have not returned our calls. There for [sic] you left us no choice but to contact the patients to find out about there [sic] cases and we were notified by the patients that the cases settled and money was held for there [sic] medical expenses that they accrued with SouthShore Physician Group.
If you do not make payment arrangements with our office as soon as possible ... you leave us no alternative but to file the patient correspondents [sic], your letter of guarantees and all outstanding accounts with the Louisiana Attorney Disciplinary Counsel and we will also hire legal counsel and bring you to court regarding these outstanding accounts. Several of your clients are willing to testify in this matter.

In response to this letter, respondent wrote to SouthShore to explain that he had been having heart problems and financial problems since November 2004. However, he failed to make payment arrangements or otherwise address the issue with SouthShore.

As a result, SouthShore referred the outstanding patient accounts to its attorney, Mr. Aubrey Hirsch. SouthShore also filed a disciplinary complaint against respondent on June 2, 2011. On July 19, 2011, respondent informed the ODC that he had met with Mr. Hirsch about the accounts and had explained to Mr. Hirsch that many of the patients on SouthShore's list had treated with Dr. Altman before retaining respondent, some patients had treated with Dr. Altman but never retained respondent, and some patients' cases were unsuccessful. At their meeting, respondent and Mr. Hirsch on SouthShore's behalf entered into a compromise agreement.

In a July 13, 2011 letter to respondent, SouthShore set forth the terms of the compromise agreement, indicating that it had accepted a total of $38,050 to settle all of the outstanding client accounts associated with respondent. The letter also indicated that respondent had made an initial $17,050 payment to SouthShore, leaving a $21,000 balance to be paid through monthly payments of $125 "unless Mr. Dunn is able to come up with more funds or we [SouthShore] are aware of more funds available." On August 8, 2011, SouthShore confirmed the compromise agreement to the ODC but informed the ODC that respondent had not yet signed the July 13, 2011 letter to memorialize his acceptance of the compromise agreement. Although respondent made all of the monthly payments to SouthShore, he did not sign the July 13, 2011 letter until February 4, 2013.

SouthShore's disciplinary complaint sat dormant with the ODC until February 15, 2016, when the ODC filed formal charges against respondent. The formal charges read as follows:

On or around June 2, 2011, the Office [of] Disciplinary Counsel (ODC) received a complaint from third party medical provider Southshore Physician Group. The complaint provides that the Respondent owed approximately $74,000.00 to them for medical services provided to his clients in various personal injury matters. The Respondent failed to communicate with the Complainant regarding the status of payment regarding the same. As a result, the Complainant was compelled to contact the clients directly. Upon contacting the clients, the Complainant was informed that the personal injury matters had settled and funds owed to the third party medical provider were deducted from the final settlement. The Respondent failed to pay the third party medical provider.
Respondent informed the Complainant that without prior notice, his health failed and he underwent an emergency quadruple bypass heart surgery. At the time, Respondent had no medical insurance and was billed approximately $150,000.00. As a result, Respondent was unable to work for a period of time. Respondent utilized the third party funds designated to the Complainant for medical services rendered to his personal injury clients to pay his personal medical bills and to sustain himself during the time he was unable to work.
Subsequent to the filing of the complaint, Respondent entered into a payment arrangement with the third party medical provider and is making payments on the balance owed.
Respondent's actions in this matter constitute violating or attempting to violate the Rules of Professional Conduct, in violation of Rule 1.15(a) (failed to hold property belonging to a third person, that is in lawyer's possession, in connection with a representation, separate from the lawyer's own property); Rule 1.15(c) (withdrew funds held in lawyer's client trust account that were not earned fees, belonging to a third party); Rule 1.15(d) (upon receiving funds belonging to a third person, lawyer failed to promptly notify the third person); Rule 8.4(a) (violated the Rules of Professional Conduct); and Rule 8.4(c) (engaged in conduct involving dishonest, fraud, deceit or misrepresentation).

Respondent answered the formal charges, denying any misconduct, and the matter proceeded to a formal hearing on the merits scheduled for December 9, 2016. Prior to the hearing, the ODC's forensic auditor conducted an audit of respondent's client trust account for the period beginning January 1, 2007 and ending February 28, 2013 and reported her findings to the ODC in an audit report dated November 14, 2016.

The audit report revealed numerous unidentifiable transactions, including the following: multiple disbursements to respondent without reference to a specific client, earned fee, or associated deposit; multiple disbursements to various payees that may be clients or third parties but without associated deposits; multiple disbursements that may be for respondent's personal expenses (including a $240,000 disbursement to Wetlands Aquarium on January 11, 2012); multiple disbursements via checks made payable to cash and endorsed by respondent; and multiple deposits without reference to a specific client (including a $280,548.24 wire transfer deposit on August 18, 2011). The disbursements to respondent not associated with a specific client, fee, or deposit totaled more than $498,000. Cash withdrawals or wire transfers withdrawals without reference to a specific payee totaled almost $165,000. After completing the audit of respondent's client trust account, the ODC's forensic auditor concluded that:

As stated and illustrated above Mr. Dunn has misused and converted the funds in his client trust as well as having accounting errors and potential commingling at times. His account balance falls below the amount necessary to honor funds deposited on multiple occasions and disbursements are often made prior to the associated deposit. Due to the lack of information a necessary balance at the end of the audit period to honor all client and third party obligations cannot be determined at this time. He fails to provide sufficient support to confirm he properly documents his records to ensure he is handling his IOLTA trust account properly.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee made several factual findings. Those findings consisted of the following:

Respondent testified that he had a longstanding personal and professional relationship with Dr. Altman, and he referred clients from his personal injury practice to Dr. Altman for treatment. The ODC introduced several letters from respondent to Dr. Altman, dated between 1997 and 2000, wherein respondent guaranteed payment of any medical costs of certain clients upon settlement of the clients' claims.

In September 2009, Ms. Schultz began sending letters on SouthShore's behalf to respondent regarding various clients and requesting status updates on the clients' cases as payment was outstanding. Respondent appeared to have simply ignored the letters until Ms. Schultz threatened to report him to the ODC. Respondent finally wrote a letter to Ms. Schultz recounting several alleged hardships he had endured, including a 2004 heart attack, $150,000 in medical bills, damage to his office by Hurricane Katrina, heart surgery in 2008, a line of credit closed by Chase Bank, and another heart surgery soon thereafter; respondent did not offer any good faith attempt to settle the outstanding accounts, give the status of any of the outstanding matters, or offer any explanation as to why he made no attempt for years to contact SouthShore about the status of the matters. However, he did state that he attempted to contact Ms. Schultz on Facebook to "meet for coffee so I could tell you all the bad things that have happened to me and see who I should talk to." Ms. Schultz responded that she was sorry about his recent problems but that she still expected payment. During her testimony, Ms. Schultz indicated that she had to contact respondent's clients to force him to communicate with her because he was uncommunicative for long periods of time.

The ODC's forensic auditor testified that respondent's misuse of his client trust account included cash withdrawals, failures to endorse deposited checks, and the payment of personal expenses. Payments to Best Buy, Walgreens, and Wetlands Aquarium appeared to be for personal expenses, and respondent was unable to counter this assumption. The records of respondent's trust account show some legitimate payments to clients, but many of the payments respondent made to himself failed to note on the check the reason for the disbursement. The ODC's forensic auditor also testified that settlement checks were received for some of respondent's clients without subsequent disbursements to SouthShore. In other cases, SouthShore was paid but only years after respondent received settlement funds. Furthermore, the trust account had a negative balance due to a check printing charge at a time when SouthShore was due funds in cases that had settled.

In his defense, respondent stressed that his personal relationship with Dr. Altman resulted in a rather loose "laissez-faire" arrangement where he could stop by Dr. Altman's office and have clients' fees reduced or waived altogether in the preceding years. He further testified that he made some efforts to contact Dr. Altman but could not reach him. Likewise, he testified that he attempted to reach Ms. Schultz at some point, but she was unavailable and did not return his calls.

Despite the fact that he was receiving written communication from Ms. Schultz on a regular basis and she handled Dr. Altman's accounts and then SouthShore's accounts, respondent testified that he was confused about whether this successor entity was the appropriate party to collect fees since he felt his loyalty was to Dr. Altman. Respondent also testified that he suffered serious health problems, which caused him to not be on top of matters as much as he once was.

On July 13, 2011, realizing SouthShore was serious about pursuing the matter with the ODC after hiring an attorney to collect, respondent worked out a compromise agreement with SouthShore wherein he agreed to pay $125 per month in restitution toward a balance of $38,050. The parties apparently came to this final number because many of the claims had prescribed and respondent disputed whether certain funds were even due. Respondent made an initial lump sum payment of $17,050 and has subsequently been paying $125 per month. He currently owes SouthShore $13,000. The compromise agreement stated that the $125 per month payment was premised on good faith that respondent would make SouthShore aware if he had more funds available, and respondent signed the compromise agreement.

On January 11, 2012, respondent wrote a trust account check in the amount of $240,000 and made payable to Wetlands Aquarium Park, which respondent testified was a non-profit corporation. Respondent further testified that the $240,000 came from funds he received via a reverse mortgage on his house, and he used the $240,000 for a charitable endeavor that would educate children about exotic fish. He made no effort to inform SouthShore that he was in the process of obtaining this money or that he had access to this amount of money when the reverse mortgage closed. His defense that there was already a compromise agreement in place and he did not have any obligation to pay more than the $125 per month is not supported by the clear wording of the agreement.

Based on these findings, the committee determined that respondent violated Rules 1.15 (safekeeping property of clients or third persons), 8.4(a), and 8.4(c) of the Rules of Professional Conduct. The committee went on to find that respondent's excuses for his repeated failure over many years to proactively seek the proper party to pay for Dr. Altman's treatment of his clients were disingenuous and not credible in light of his considerable experience in the practice of personal injury law. Furthermore, the fact that money flowed in and out of respondent's trust account in the manner described by the ODC's forensic auditor goes well beyond sloppy recordkeeping and innocent mistakes. It appears respondent used his trust account as a "personal slush fund" for various purchases with little to no regard to safeguarding funds belonging to Dr. Altman and SouthShore. Especially egregious was that SouthShore appeared to have made many good faith efforts to work with respondent before reporting him to the ODC. Respondent betrayed the trust of the longstanding relationship he had with Ms. Schultz by keeping money that was not his, and reaching out to her on social media was not sufficient. Furthermore, the audit indicated that respondent's trust account balance fell well below the agreed-upon amount he owed SouthShore, indicating that conversion took place. Respondent also misrepresented to his clients that he would pay these medical bills, and he simply did not do so, which conceivably could have caused harm to their credit. Based on the evidence in the record, it appears the conversion applied to many clients who treated with Dr. Altman over the course of several years. Furthermore, even after SouthShore worked out a monthly payment plan with respondent, he almost immediately secured $240,000 for a personal, albeit charitable, venture as opposed to making SouthShore whole.

The committee additionally found that Dr. Altman started to close his medical practice without having these outstanding invoices paid. The committee believed respondent knew this and assumed he did not have to pay these bills, so he treated this money as his own. His testimony that he had no idea what happened to Dr. Altman, with whom he had a longstanding personal and professional relationship, was not credible.

Noting that the delay in these disciplinary proceedings would be troubling to any respondent in that there is a reasonable expectation that a disciplinary complaint should be investigated and disposed of expediently, the committee nevertheless determined the delay does not change the fact that respondent violated the Rules of Professional Conduct. No evidence exists in the record that the ODC decided not to pursue formal charges in lieu of the compromise agreement between respondent and SouthShore. Furthermore, while the committee was sympathetic to respondent's ongoing medical problems and other hardships he has faced in recent years, it determined there was no rational excuse for the conversion of funds to this extent over this period of time.

The committee then determined that respondent knowingly and intentionally violated duties owed to a third-party medical provider and caused actual harm to SouthShore. After considering the ABA's Standards for Imposing Lawyer Sanctions , the committee determined the baseline sanction is disbarment. In aggravation, the committee noted respondent's substantial experience in the practice of law (admitted 1971). In mitigation, the committee noted the absence of a prior disciplinary record. Additionally in mitigation, the committee noted that respondent has been providing pro bono legal services to some indigent litigants and has been making monthly payments to SouthShore for the past several years.

After also considering this court's prior jurisprudence addressing similar misconduct, the committee recommended respondent be disbarred. The committee further recommended respondent be ordered to continue to make monthly payments to SouthShore.

Neither respondent nor the ODC objected to the hearing committee's report. However, in his brief to the disciplinary board, respondent suggested that he had been ignorant of the rules regarding trust accounts and urged that a deferred suspension be imposed, subject to probation.

Disciplinary Board Recommendation

After review, the disciplinary board found that the hearing committee's factual findings are not manifestly erroneous and are supported by the record. Based on these facts, the board determined that respondent violated the Rules of Professional Conduct as charged, with the exception of Rule 1.15(c), which the board determined is not applicable to the facts of this matter because it addresses deposits into the client trust account of legal fees and expenses that have been paid in advance, not settlement funds owed to third parties.

The board then determined that respondent knowingly and intentionally converted funds owed to a third party. His conduct caused actual harm to the third party and had the potential to harm his former clients if SouthShore sought to collect against the clients. After considering the ABA's Standards for Imposing Lawyer Sanctions , the board determined that the baseline sanction is in the range of suspension to disbarment.

In aggravation, the board found a prior disciplinary record (a 2001 admonition for failing to protect funds owed to a third-party medical provider), a dishonest or selfish motive, a pattern of misconduct, and substantial experience in the practice of law. In mitigation, the board found personal or emotional problems, the delay in the disciplinary proceedings, and the remoteness of the prior offenses.

In determining an appropriate sanction, the board took guidance from Louisiana State Bar Ass'n v. Hinrichs , 486 So.2d 116 (La. 1986), wherein the court discussed the factors that influence the severity of the sanction in conversion matters. Specifically, the court stated:

In a typical case of disbarment for violation of DR 9-102 [the precursor to Rule 1.15], one or more of the following elements are usually present: the lawyer acts in bad faith and intends a result inconsistent with his client's interest; the lawyer commits forgery or other fraudulent acts in connection with the violation; the magnitude or the duration of the deprivation is extensive; the magnitude of the damage or risk of damage, expense and inconvenience caused the client is great; the lawyer either fails to make full restitution or does so tardily after extended pressure of disciplinary or legal proceedings.
A three year suspension from practice typically results in cases involving similar but less aggravated factors. In such cases the lawyer is guilty of at least a high degree of negligence in causing his client's funds to be withdrawn or retained in violation of the disciplinary rule. He usually does not commit other fraudulent acts in connection therewith. The attorney usually benefits from the infraction but, in contrast with disbarment cases, the client may not be greatly harmed or exposed to great risk of harm. The attorney fully reimburses or pays his client the funds due without the necessity of extensive disciplinary or legal proceedings.
A suspension from practice of eighteen months or two years will typically result where the facts are appropriate for a three-year suspension, except that there are significant mitigating circumstances; or where the facts are appropriate for a one-year suspension, except that there are significant aggravating circumstances.
A suspension from practice of one year or less will typically result where the negligence in withdrawing or retaining client funds is not gross or of a high degree. No other fraudulent acts are committed in connection with the violation of the disciplinary rule. There is no serious harm or threat of harm to the client. Full restitution is made promptly, usually before any legal proceeding or disciplinary complaint is made.
A reprimand may be appropriate in a case where there is a minor violation of DR 9-102, but there is no conversion or harm to the client. [Citations omitted.]

Finding that respondent's conduct falls within the scope of disbarment pursuant to the guidelines set forth in Hinrichs , the board recommended he be disbarred. The board further recommended respondent provide restitution to SouthShore.

Neither respondent nor the ODC filed an objection to the disciplinary board's recommendation.

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. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield , 96-1401 (La. 11/25/96), 683 So.2d 714 ; In re: Pardue , 93-2865 (La. 3/11/94), 633 So.2d 150.

The record of this matter supports a finding that respondent converted third-party funds. This conduct amounts to a violation of the Rules of Professional Conduct as found by the disciplinary board.

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 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, if not intentionally, violated duties owed to his clients and the public, causing actual harm to SouthShore and potential harm to his clients. The record supports the aggravating and mitigating factors found by the board.

As noted by the board, in Louisiana State Bar Ass'n v. Hinrichs , 486 So.2d 116 (La. 1986), we conducted an extensive review of the jurisprudence in conversion cases in order to determine the appropriate sanctions for different types of conversion. We reserved disbarment, then the most serious sanction available, for conversion cases in which one or more of the following elements are present:

[T]he lawyer acts in bad faith and intends a result inconsistent with his client's interest; the lawyer commits forgery or other fraudulent acts in connection with the violation; the magnitude or the duration of the deprivation is extensive; the magnitude of the damage or risk of damage, expense and inconvenience caused the client is great; the lawyer either fails to make full restitution or does so tardily after extended pressure of disciplinary or legal proceedings.

Here, respondent's conduct falls within the scope of disbarment. Both the magnitude and the duration of the deprivation is extensive. Furthermore, while respondent is making restitution to SouthShore in monthly payments, he only entered into the compromise agreement after the extended pressure of disciplinary and legal proceedings.

Under these circumstances, we will adopt the disciplinary board's recommendation and impose disbarment. We will also order respondent to make restitution to SouthShore.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that J. Morris Dunn, also known as John Morris Dunn, III, Louisiana Bar Roll number 5182, be and he hereby is disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. It is further ordered that respondent shall make restitution to SouthShore Physician Group. 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:
    IN RE: Jose W. VEGA
    NO. 2018-B-0262
    Supreme Court of Louisiana.
    May 9, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Jose W. Vega, a disbarred attorney.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent's prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1993. He was subsequently admitted to the Texas Bar in 2002, and to the New York Bar in 2004.

In 2001, respondent consented to be publicly reprimanded by the Louisiana Attorney Disciplinary Board. The misconduct at issue involved respondent's violations of Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client) and 1.16 (failure to properly terminate the representation of a client) of the Louisiana Rules of Professional Conduct in connection with his representation of clients in two immigration proceedings in Louisiana between 1995 and 1997.

In 2013, we publicly reprimanded respondent as reciprocal discipline based on public reprimands he received in two separate proceedings in Texas for conduct that occurred between 2007 and 2009. In re: Vega , 13-1456 (La. 9/20/13), 124 So.3d 456. The basis for the disciplinary charges in Texas involved respondent's failure to communicate with clients, failure to properly terminate the representation of clients, and failure to respond to a client's request for a refund of fees.

In 2016, we disbarred respondent as reciprocal discipline after he resigned from the practice of law in Texas in lieu of discipline. In re: Vega , 16-0816 (La. 9/6/16), 198 So.3d 1176 (" Vega III "). Respondent was charged in Texas with multiple rule violations stemming from numerous immigration matters, including violations of rules governing the refund of unearned fees, client communications, cooperation with disciplinary investigations, supervision of non-attorney assistants, and neglect of client matters. The misconduct at issue in Vega III began as early as 2007 in some matters and continued through February 16, 2016, when the Supreme Court of Texas accepted respondent's resignation.

Against this backdrop, we now turn to a consideration of the misconduct at issue in the instant proceeding.

FORMAL CHARGES

In September 2012, Terisita De Jesus Montejano, a Texas resident, hired respondent to represent her in an immigration matter. She paid respondent $3,000 for the representation. In August 2014, respondent appeared with Ms. Montejano in a Texas immigration court, at which time he instructed her to file a motion for change of venue in proper person. Ms. Montejano filed the motion as directed, but it was denied as untimely. The immigration judge set a removal hearing for November 2014. At the hearing, respondent was unprepared and Ms. Montejano was ordered deported. Respondent appealed the ruling, but he did not prevail. Ms. Montejano then hired a new attorney to assist her with her immigration status.

In April 2016, Ms. Montejano filed a disciplinary complaint against respondent with the ODC. A copy of the complaint was sent to respondent via certified mail to his office address and secondary registration address, both in Houston. The complaints were returned to the ODC with the notations "Return to Sender" and "Unable to Forward."

The ODC contacted respondent via telephone. At that time, respondent provided the ODC with a new address in Houston and indicated he would be updating his contact information with the Louisiana State Bar Association. In May 2016, a copy of the complaint was sent to the new registered primary address. The complaint was returned to the ODC with the notations "Return to Sender" and "Unclaimed."

The ODC eventually reached respondent via cell phone. At that time, respondent indicated he would be in Louisiana and would personally pick up the copy of the complaint on June 28, 2016. When he failed to do as promised, the ODC contacted respondent again. At that time, respondent indicated that he would personally pick up the complaint on September 9, 2016. He again failed to do as promised.

DISCIPLINARY PROCEEDINGS

In December 2016, the ODC filed formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4 (failure to communicate with a client), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). 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

After considering the ODC's deemed admitted submission, the hearing committee determined that the factual allegations in the formal charges were deemed admitted and proven by clear and convincing evidence. Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee determined that respondent violated duties owed to his client and the disciplinary agency. He acted intentionally in failing to communicate with Ms. Montejano and in failing to diligently represent her. He also acted intentionally in failing to cooperate in the disciplinary investigation. His misconduct caused the client to be ordered removed from this country immediately. His misconduct caused harm to the ODC by forcing the agency to unnecessarily expend its limited resources. Based on the ABA's Standards for Imposing Lawyer Sanctions , the committee determined that the applicable baseline sanction is suspension.

In aggravation, the committee found a prior disciplinary record, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, vulnerability of the victim, and substantial experience in the practice of law (admitted 1993). The committee found that no mitigating factors are present.

Considering the facts of this case, and the jurisprudence of the court, the committee recommended respondent be suspended from the practice of law for one year and one day, to run concurrent with his ongoing disbarment. The committee also recommended respondent be assessed with all costs of this proceeding.

Neither respondent nor the ODC filed an objection to the hearing committee's report.

Disciplinary Board Recommendation

After review, the disciplinary board adopted the factual findings and legal conclusions of the hearing committee. The board also determined that the committee correctly applied the Rules of Professional Conduct.

The board determined that respondent knowingly and intentionally violated duties owed to his client, the legal system, and the legal profession. He knowingly and intentionally failed to communicate with his client and failed to diligently represent her. His conduct caused actual and serious harm to his client, who was ordered removed from the United States to Mexico. His unpreparedness at the removal hearing reflects respondent's disregard for the legal system and the legal profession. Furthermore, respondent knowingly evaded notice of the complaint and failed to cooperate with the disciplinary investigation, causing damage by forcing the unnecessary expenditure of the limited resources of the disciplinary agency. Based on the ABA's Standards for Imposing Lawyer Sanctions , the board determined that the applicable baseline sanction is disbarment.

In addition to the aggravating factors found by the committee, the board found a pattern of misconduct and multiple offenses. The board agreed that no mitigating factors are present.

Turning to the issue of an appropriate sanction, the board noted that respondent's substantive misconduct occurred during the same time period as the misconduct subject of Vega III . Accordingly, the board determined that the approach of Louisiana State Bar Ass'n v. Chatelain , 573 So.2d 470 (La. 1991), is applicable to the substantive misconduct in this case. For respondent's failure to cooperate, which the board determined occurred outside of the time period subject to the Chatelain analysis, the board recommended the imposition of additional discipline. The board noted that because this is an original disciplinary proceeding, having been initiated by a disciplinary complaint filed with the Louisiana ODC, the constraints of Supreme Court Rule XIX, § 21(D), which set forth the standard for the imposition of discipline on a reciprocal basis, do not apply. For this reason, the totality of all of respondent's misconduct should be independently reviewed and considered in determining the appropriate sanction to be imposed under Louisiana standards.

The board considered respondent's numerous acts of misconduct forming the basis of Vega III , for which disbarment was imposed, his additional substantive misconduct, which resulted in serious harm to a vulnerable client, as well as his knowing failure to cooperate with the disciplinary investigation. The board acknowledged while his misconduct does not fit squarely within the permanent disbarment guidelines, his consistent pattern of misconduct and failure to address his professional obligations have demonstrated a clear lack of moral fitness. Accordingly, the board recommended he be permanently disbarred. The board also recommended that respondent be assessed with the costs and expenses of this proceeding.

Neither respondent nor the ODC filed an objection to the disciplinary board's recommendation.

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 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)(3) 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 the rule violations found by the disciplinary board. Essentially, respondent neglected his client's immigration matter and failed to communicate with her. He then failed to cooperate with the ODC in its investigation. Based on these facts, respondent has violated the Rules of Professional Conduct as alleged in the formal charges.

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 profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis , 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington , 459 So.2d 520 (La. 1984).

The record further supports a finding that respondent knowingly and intentionally violated duties owed to his client, the legal system, and the legal profession, resulting in actual harm to his client. We agree with the board that the baseline sanction for this type of misconduct is disbarment. We also agree with the aggravating factors found by the board, and the finding that there are no mitigating circumstances present.

Turning to the issue of an appropriate sanction, we agree with the disciplinary board's finding that the misconduct in both Vega III and the current matter occurred during the same time frame and involved the same type of misconduct. As previously discussed, the substantive misconduct forming the basis of Vega III commenced as early as 2007 and continued through February 2016, when the Supreme Court of Texas accepted respondent's resignation. This court disbarred respondent as reciprocal discipline on September 6, 2016. In the instant matter, the substantive misconduct commenced when respondent was retained to represent Ms. Montejano in September 2012 and continued through April 2016, when Ms. Montejano submitted her disciplinary complaint. Accordingly, the discipline to be imposed should be determined as if both proceedings are being considered simultaneously, pursuant to the approach established in Chatelain , supra.

Had Ms. Montejano's complaint been added to the proceedings in Vega III , we would have permanently disbarred respondent. As a result of his conduct, respondent's vulnerable client was ordered deported from the United States to Mexico. Taken together with the misconduct in Vega III , it is obvious that respondent does not possess the moral fitness to practice law in this state. Rather, his consistent pattern of misconduct and failure to attend to his professional obligations indicates that he should not be allowed the opportunity to return to the practice of law in the future.

Based on this reasoning, we find permanent disbarment is the appropriate sanction in this case. Accordingly, we will accept the disciplinary board's recommendation and permanently disbar respondent.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Jose W. Vega, Louisiana Bar Roll number 22216, be and he hereby is permanently disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. 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. 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.

      Pursuant to the acceptance of his resignation, the Supreme Court of Texas set forth conditions for respondent's reinstatement to the practice of law. Because Louisiana prohibits reinstatement following resignation in lieu of discipline, we imposed disbarment, which is the most equivalent form of reciprocal discipline.

      Rule 8.5(a) of the Louisiana Rules of Professional Conduct provides that a lawyer admitted to practice in Louisiana "is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs." As to the choice of which jurisdiction's rules of professional conduct are to be applied in such circumstances, Rule 8.5(b)(2) states that the rules of the jurisdiction in which the lawyer's conduct occurred shall apply "[i]n any exercise of the disciplinary authority of this jurisdiction."
      In this case, respondent is admitted to practice in Louisiana, while his misconduct occurred in Texas. Therefore, respondent is subject to the disciplinary authority of this court, but the Texas Rules of Professional Conduct apply. In any event, the distinction is largely academic, as the Texas rules in question are substantially identical to the Louisiana rules.

      In Chatelain , we observed that when a second attorney disciplinary proceeding involves conduct that occurred during the same time period as the first proceeding, the overall discipline to be imposed should be determined as if both proceedings were before the court simultaneously.


author: GENOVESE, Justice, dissents in part.

text:
    Jewel VAUGHN, III v. DIS-TRAN STEEL, LLC
    NO. 2018-C-396
    Supreme Court of Louisiana.
    May 9, 2018
    ON WRIT OF CERTIORARI TO THE THIRD CIRCUIT COURT OF APPEAL, PARISH OF RAPIDES
    Writ denied.
   GENOVESE, Justice, dissents in part.

I agree with the majority's denial of this writ; however, I dissent only to the extent that I would award attorney fees to the plaintiff. In workers' compensation cases, an increase in attorney fees is awarded on appeal when the defendant appeals, obtains no relief, and the appeal has necessitated more work on the part of the plaintiff's attorney, provided that the plaintiff requests such an increase. McKelvey v. City of Dequincy , 07-604, pp. 11-12 (La.App. 3 Cir. 11/14/07), 970 So.2d 682, 689 ; Pitcher v. Hydro-Kem Services, Inc. , 551 So.2d 736, 740 (La.App. 1 Cir.1989), writ denied , 553 So.2d 466 (La.1989). On appellate review, the plaintiff must answer the appeal to be awarded attorney fees; however, this matter is a writ application rather an appeal. There is no set procedure for seeking attorney fees when successfully defending against a writ filed in this Court. Here, the plaintiff, in his opposition to defendant's writ application before this Court, has sought attorney fees for work done in this matter and, in my view, should be awarded same. La. C.C.Pr. art. 2164.


text:
    STATE of Louisiana v. Kevin Dale DAIGLE
    No. 2018-KD-0634
    Supreme Court of Louisiana.
    April 30, 2018
    ON SUPERVISORY WRITS TO THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU
   PER CURIAM

Writ granted; stay lifted.

In Rippo v. Baker , 239 U.S. 807, 137 S.Ct. 905, 907, 197 L.Ed.2d 167 (2017), the United States Supreme Court recently ruled that "[r]ecusal is required when, objectively speaking, the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable." (internal quotes omitted). This court has very recently examined the Rippo recusal standard in State v. LaCaze , 16-0234 (La. 3/13/18), 239 So.3d. 807, 2018 WL 1281112, and observed that under Rippo's mandate, "evidence of actual bias is not necessary to require recusal."

La Caze , 16-0234, p. 10, 239 So.3d. at 813. In other words, recusal may be required as a constitutional safeguard against the risk of bias and, because the defendant here faces the possibility of a death sentence, every reasonable effort must be made to ensure constitutional safeguards are met.

The record here demonstrates that the trial judge had a longtime working relationship with Mrs. Vincent, the victim's widow and a court employee; has a social media relationship with Mrs. Vincent that he initially denied in a formal opinion, but later admitted under oath; and has taken steps barred by the Code of Criminal Procedure which, if not corrected by the appellate court, would have thwarted another judge from considering his recusal. Mrs. Vincent is not only the victim's widow, she is designated as a penalty phase witness in this capital case.

Another judge allotted to hear the recusal motion referred to some of the events surrounding the recusal procedure as "very odd," and commented, "I still don't quite understand why these things happened."

Perhaps, if viewed in isolation, any one of these facts would not be sufficient to require recusal. However, viewed collectively, this record satisfies both prongs of proof required by this court in LaCaze . First, "[t]he Rippo standard clearly requires proof that an appearance of bias gives rise to a 'probability of actual bias,' also referred to as a 'risk of bias' or 'potential for bias.' " LaCaze , 16-234 at 13, 239 So.3d. at 816. "Secondly, the defendant must prove that the probability of actual bias rises to a level that 'is too high to be constitutionally tolerable' under the circumstances." Id. Thus, the trial judge must be recused.

We hasten to add that there has been no allegation or showing that the trial judge harbors any actual bias or that he is not a diligent district court judge. However, on these unique facts, the standard recently enunciated by the Supreme Court dictates recusal on this matter.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-653816
    NO. 2017-BA-0757
    Supreme Court of Louisiana.
    May 2, 2018
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

The Committee on Bar Admissions ("Committee") denied petitioner's application to take the Louisiana Bar Examination, citing his record of criminal offenses. Petitioner then applied to this court for permission to take the bar exam. We granted the application, with the condition that upon petitioner's successful completion of the exam, he apply for the appointment of a commissioner to take character and fitness evidence.

Upon passing the bar exam, and on petitioner's application to this court, we remanded this matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence. Following the proceedings, the commissioner filed his report with this court, recommending that petitioner be conditionally admitted to the practice of law. Neither party objected to this recommendation.

Considering the commissioner's recommendation, the absence of any objection from the parties, and the entire record of this proceeding, we conclude petitioner is eligible to be admitted to the practice of law in Louisiana, subject to the following conditions:

1. Petitioner shall continue to comply with the terms of the recovery agreement he signed with the Judges and Lawyers Assistance Program ("JLAP") on November 14, 2017.

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

3. Petitioner shall authorize the Executive Director of JLAP to report any violations of the JLAP agreement to the Office of Disciplinary Counsel ("ODC").

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

5. Following receipt of the report from JLAP, 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.

6. Petitioner shall cooperate with JLAP and the ODC, and shall comply with any and all requirements imposed upon him by JLAP and the ODC.

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

CONDITIONAL ADMISSION GRANTED.


author: PER CURIAM:

text:
    STATE EX REL. Blake THOMPSON v. STATE of Louisiana
    No. 2017-KH-0567
    Supreme Court of Louisiana.
    May 9, 2018
    ON SUPERVISORY WRITS TO THE TWENTIETH JUDICIAL DISTRICT COURT, PARISH OF EAST FELICIANA
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated two applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


author: Guidry, J., recused.

text:
    IN RE: Patrick Hale DEJEAN
    NO. 2018-B-0684
    Supreme Court of Louisiana.
    May 9, 2018
    ORDER
   Considering the Joint Petition for Interim Suspension filed by respondent, Patrick Hale DeJean, and the Office of Disciplinary Counsel,

IT IS ORDERED that Patrick Hale DeJean, Louisiana Bar Roll number 30324, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

Guidry, J., recused.


text:
    IN RE: Hilliard Charles FAZANDE, III
    NO. 2018-B-0683
    Supreme Court of Louisiana.
    May 9, 2018
    ORDER
   Considering the Joint Petition for Interim Suspension filed by respondent, Hilliard Charles Fazande, III, and the Office of Disciplinary Counsel,

IT IS ORDERED that Hilliard Charles Fazande, III, Louisiana Bar Roll number 26638, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.


text:
    IN RE: Anthony T. MARSHALL
    NO. 2018-OB-0656
    Supreme Court of Louisiana.
    May 9, 2018
    ORDER
   Considering the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that Anthony T. Marshall, Louisiana Bar Roll number 24164, be and he hereby is transferred to disability inactive status. All disciplinary proceedings against respondent shall be deferred until such time as he resumes active status.

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


text:
    STATE EX REL. Larry WILLIAMS v. STATE of Louisiana
    No. 2016-KH-2245
    Supreme Court of Louisiana.
    May 9, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, his sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE of Louisiana v. Brian DIETRICH
    No. 2017-KP-0801
    Supreme Court of Louisiana.
    May 9, 2018
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

Writ denied. Relator shows no error or abuse of discretion in the district court's dismissal of his claims on procedural grounds. See La.C.Cr.P. arts. 930.4 & 930.8 ; see also State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated at least three applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    IN RE: Stuart H. SMITH
    NO. 2018-B-0506
    Supreme Court of Louisiana.
    May 9, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

Respondent and the Office of Disciplinary Counsel ("ODC") submitted a joint petition for consent discipline, in which respondent acknowledges that he violated Rule 8.4(b) of the Rules of Professional Conduct based upon his conviction of cyberstalking. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Stuart H. Smith, Louisiana Bar Roll number 17805, be suspended from the practice of law for a period of three months. This suspension shall be deferred in its entirety, subject to respondent's successful completion of a one-year period of unsupervised probation governed by the 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.


text:
    STATE EX REL. Fernand Paul AUTERY v. STATE of Louisiana
    No. 2017-KH-0030
    Supreme Court of Louisiana.
    May 9, 2018
    ON SUPERVISORY WRITS TO THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF IBERIA
   PER CURIAM:

Denied. Relator shows no lower court error.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

GENOVESE, J., recused.


text:
    STATE of Louisiana v. Matthew S. DAUZAT
    NO. 2018-KK-0681
    Supreme Court of Louisiana.
    May 9, 2018
    Stay denied. Writ denied.


text:
    IN RE: Troy J. CHARPENTIER
    In re: Bradley C. Myers
    NO. 2018-OB-0687
    Supreme Court of Louisiana.
    May 4, 2018
    Denied.


text:
    IN RE: Troy J. CHARPENTIER
    In re: Bradley C. Myers
    NO. 2018-OB-0708
    Supreme Court of Louisiana.
    May 4, 2018
    Denied.


author: GUIDRY, J., recused.

text:
    Sherri PRATCHER, Individually and on Behalf of Her Minor Son, Owen Hills v. CORRAL GULFSOUTH, INC. d/b/a Golden Corral and James River Insurance Company
    NO. 2018-CC-0675
    Supreme Court of Louisiana.
    May 3, 2018
    Denied.
   GUIDRY, J., recused.


text:
    IN RE: Proceedings for the Claims of Amy HARRIEL, individually, and on behalf of the estate of Daniel Harriel and on behalf of Cailyn Daniel Harriel
    NO. 2018-CC-0413
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.


text:
    STATE of Louisiana v. Zed SMITH
    NO. 2018-KK-0421
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.


author: HUGHES, J., would grant.

text:
    Henry I. KLEIN, et al. v. LEWIS TITLE INSURANCE COMPANY, et al.
    NO. 2018-CC-0431
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.
   HUGHES, J., would grant.


author: JOHNSON, C.J., recused.

text:
    James ENGLAND v. Alina Julia ENGLAND
    James England v. Alina Julia England
    NO. 2018-CJ-0515
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.
   JOHNSON, C.J., recused.


text:
    GREENFIELD ADVISORS, LLC v. Cämilo K. SALAS, III änd Salas & Co., L.C.
    NO. 2018-00471
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.


text:
    Sidney MARCHAND and Christy Marchand v. Dr. Lura L. WIGHT
    NO. 2018-CC-0472
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. David ADAMS
    NO. 2018-KK-0673
    Supreme Court of Louisiana.
    May 11, 2018
    Stay denied. Writ denied.


text:
    STATE of Louisiana v. Willie C. PLATER
    NO. 2017-KP-1021
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.


text:
    Mary McIntyre TOCA v. David Joseph TOCA
    NO. 2018-CC-0462
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Joe SMITH, Jr.
    NO. 2018-KH-0374
    Supreme Court of Louisiana.
    May 11, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE of Louisiana v. Andre PICKETT
    NO. 2018-KH-0508
    Supreme Court of Louisiana.
    May 11, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Tommy William MANCHESTER
    NO. 2018-KH-0519
    Supreme Court of Louisiana.
    May 11, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    Travis HIGGINS v. WILLIAMS ENERGY PARTNERS, L.P.; Williams Olefins, L.L.C.; The Williams Company, Inc.; XYZ Insurance Company; Chicago Bridge and Iron Company; and X Insurance Company
    Kelvin Marrell York, Sr. and Tracy Denise York v. The Williams Companies, Inc., et al.
    Ken Haydel v. The Williams Companies, Inc.; et al.
    NO. 2018-C-0468
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.


text:
    STATE of Louisiana v. Virgil SMITH
    NO. 2018-KH-0524
    Supreme Court of Louisiana.
    May 11, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE of Louisiana v. Norbert DOUNSEROUX
    NO. 2018-KK-0715
    Supreme Court of Louisiana.
    May 11, 2018
    Stay denied. Writ denied.


text:
    STATE of Louisiana v. Marcel Dewayne THOMPSON
    NO. 2017-KO-1199
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.


text:
    STATE of Louisiana v. Anthony Ed JAMES
    NO. 2018-KH-0507
    Supreme Court of Louisiana.
    May 11, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    GIBBS CONSTRUCTION, L.L.C. v. NATIONAL RICE MILL, L.L.C.
    NO. 2018-C-0464
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.


text:
    Leigh Ann SCHELL and McGready L. Richeson v. KUCHLER POLK SCHELL WEINER & RICHESON, L.L.C.
    NO. 2018-CC-0644
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.


text:
    STATE of Louisiana v. Gregory PERRIERA
    NO. 2018-KH-0371
    Supreme Court of Louisiana.
    May 11, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    In the MATTER OF the SUCCESSION OF Mark Howard BUHLER
    NO. 2018-C-0478
    Supreme Court of Louisiana.
    May 11, 2018
    Not considered. Not timely filed. See La.S.Ct. Rule X, § 5(a) and Rule XLII, § 6(e).


text:
    Irma DORSEY v. PURVIS CONTRACTING GROUP, LLC and Jon P. Purvis Cay
    Irma Dorsey v. Scottsdale Insurance Company, et al.
    NO. 2018-C-0199
    Supreme Court of Louisiana.
    May 11, 2018
    Not considered. See La.S.Ct. Rule IX, § 6.


author: CRICHTON, J., recused.

text:
    STATE of Louisiana v. Fredrick Lujuan BROWN
    NO. 2017-KO-1154
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.
   CRICHTON, J., recused.


text:
    STATE of Louisiana v. Willie C. PLATER
    NO. 2017-KO-1190
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.


text:
    STATE of Louisiana v. Lavar J. WILLIAMS
    NO. 2018-KH-0356
    Supreme Court of Louisiana.
    May 11, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Stormy Nicole COFER. a/k/a Stormy Cofer
    NO. 2017-KO-1150
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.


text:
    STATE of Louisiana v. Kirklan PIERSON
    NO. 2017-KO-1207
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.


text:
    STATE of Louisiana v. Owen OCKMAN
    NO. 2017-K-1739
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.


text:
    In re: Todd STIPELCOVICH v. Emery A. MINNARD, MD, et al.
    NO. 2018-CC-0378
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.


text:
    STATE of Louisiana v. Michael ROBERTSON
    NO. 2018-KK-0381
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.
    WEIMER, J., would grant and docket.
    HUGHES, J., would grant and docket.


text:
    STATE EX REL. Trent DUBROC v. STATE of Louisiana
    NO. 2017-KH-0304
    Supreme Court of Louisiana.
    May 11, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE EX REL. Clinton BELL v. STATE of Louisiana
    NO. 2018-KH-0482
    Supreme Court of Louisiana.
    May 11, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    Darnell LEWIS v. Arthur MORRELL
    NO. 2018-KH-0357
    Supreme Court of Louisiana.
    May 11, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    Charles STEWART v. STATE of Louisiana
    NO. 2018-KH-0398
    Supreme Court of Louisiana.
    May 11, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE of Louisiana v. Damien GUIDRY
    NO. 2018-KH-0422
    Supreme Court of Louisiana.
    May 11, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Dennis Ray DAVIS, Jr.
    NO. 2018-KH-0460
    Supreme Court of Louisiana.
    May 11, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    In re: Todd STIPELCOVICH v. Emery A. MINNARD, MD, et al.
    NO. 2018-CC-0377
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.


text:
    STATE of Louisiana v. Duane PARKER
    NO. 2018-KH-0483
    Supreme Court of Louisiana.
    May 11, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE of Louisiana v. Iren COOPER
    NO. 2017-KO-1205
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.


text:
    Ernest Armando HOWARD, Jr. v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA; Garda CL Southeast, Inc.; and Marcus Rene Slaughter
    NO. 2018-C-0435
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.


text:
    STATE of Louisiana
    Wayne BRIGALIA, Jr.
    NO. 2018-KK-0434
    Supreme Court of Louisiana.
    May 11, 2018
    Denied.


author: GUIDRY, J.

text:
    BLOCK CONSTRUCTION, LLC v. RECREATION & PARK COMMISSION FOR the PARISH OF EAST BATON ROUGE
    NUMBER 2017 CA 0110
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JANUARY 19, 2018
    Scott E. Frazier, Baton Rouge, LA, Counsel for Plaintiff/Appellee Block Construction, LLC
    Murphy J. Foster, III, Steven B. Loeb, Jacob E. Roussel, Baton Rouge, LA, Counsel for Defendant/Appellant, Carolyn McKnight, in her official capacity as Superintendent for the Recreation & Park Commission for the Parish of East Baton Rouge
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   GUIDRY, J.

A public entity appeals a writ of mandamus directing it to award a contract to the sole bidder on a project that was cancelled because the sole bid received was in excess of the amount budgeted for the project. For the following reasons, we reverse and remand this matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On December 12, 2014, the Recreation & Park Commission for the Parish of East Baton Rouge (BREC) let for bid the "Wards Creek Multi-Use Pathway Bridge Project," which was a part of a larger, ten-year capital improvement program that included creating pedestrian walking trails throughout Baton Rouge. Only one company, Block Construction, LLC, submitted a bid for the project. BREC ultimately rejected the lone bid as being "significantly over budget." Following the rejection of its bid and its request for reconsideration, Block filed a petition for declaratory and injunctive relief, and alternatively, for a writ of mandamus, to be awarded a contract for construction of the Wards Creek Bridge project. BREC filed an answer generally denying the claims of Block's petition. BREC also filed a peremptory exception urging the objection of no cause of action, asserting that Block's claims were barred, in whole or in part, by Louisiana Public Bid Law. A hearing on Block's petition for declaratory, injunctive, and alternatively, mandamus relief and BREC's objection of no cause of action was held on March 12, 2015. On July 7, 2015, the trial court signed a judgment in favor of Block, wherein it issued a writ of mandamus directing BREC to award Block a contract for the Wards Creek Bridge project.

BREC suspensively appealed the July 7, 2015 judgment. On appeal, BREC again raised the objection of no cause of action, but on the basis that Block improperly sought the issuance of a writ of mandamus under La. C.C.P. art. 3863. Article 3863 requires that the writ be directed to a public officer; however, in its petition, Block did not name a public officer, but only BREC, as a defendant in the action. This Court found merit in the objection and reversed the July 7, 2015 judgment. The matter was further remanded to the trial court with instructions to allow Block to amend its pleadings to add a public officer as a party defendant, or alternatively, for the trial court to consider BREC's remaining causes of action. Block Construction, LLC v. Recreation & Park Commission for the Parish of East Baton Rouge, 15-1323, p. 6 (La. App. 1st Cir. 4/15/16), 2016 WL 1545620, at *3.

On remand, Block filed a supplemental and amended petition naming the superintendent of BREC, Carolyn McKnight, as a party defendant. McKnight, in her capacity as superintendent of BREC, generally denied the allegations of the supplemental and amended petition and further raised as an affirmative defense that Block's claims were barred under the Louisiana Public Bid Law, as well as raised the objections of no cause of action and res judicata. McKnight subsequently filed exceptions urging the objections of res judicata, no cause of action, and lack of subject matter jurisdiction for mootness.

A hearing on Block's supplemental and amended petition, in addition to the various exceptions filed by McKnight, was held on October 24, 2016. Following argument by counsel for the parties, the trial court denied the exceptions raised by McKnight and again issued a writ of mandamus, this time directed at McKnight in her capacity as superintendent of BREC. Pursuant to the writ of mandamus, McKnight was ordered to award Block a contract for the Wards Creek Bridge project. McKnight suspensively appealed the judgment that was signed by the trial court November 28, 2016.

DISCUSSION

On appeal, McKnight raises five assignments of error, the first being that mandamus was improperly granted, citing the following ruling by this court in Wiginton v. Tangipahoa Parish Council, 00-1319, p. 5 (La. App. 1st Cir. 6/29/01), 790 So.2d 160, 163 : "mandamus is an extraordinary remedy available only if relief is not available through ordinary process. We have held a mandamus is unavailable when injunctive relief and declaratory relief is also sought." We find merit in this assignment of error, and in so finding, we pretermit discussion of the remaining assignments of error raised by McKnight.

In its supplemental and amended petition, filed after the case was remanded by this court, Block again sought the following relief, which was the same as what it sought originally: (1) a preliminary injunction to enjoin BREC from re-letting the project for contract; (2) after due proceedings, a permanent injunction mandating that a contract for the project be awarded to Block; (3) after due proceedings, a declaratory judgment declaring that BREC lacked just cause or no just cause existed for BREC to reject Block's bid and thus Block was entitled to be awarded the contract for the project; and (4) in the alternative, after due proceedings, a writ of mandamus directing McKnight to award Block the contract for the project.

Consequently, not only did Block seek injunctive and declaratory relief in this matter, such relief was the principal relief sought, and mandamus was only sought "in the alternative." Nevertheless, in support of the trial court's grant of mandamus relief, Block points out that Wiginton and other cases that have held that mandamus should not be granted when other relief is available do not involve the public bid law. Thus, Block argues that it was rightfully granted mandamus relief in this case under the general principle that mandamus can be granted to compel the performance of a non-discretionary, ministerial act, citing New Orleans Rosenbush Claims Service, Inc. v. City of New Orleans, 94-2223, p. 15 (La. 4/10/95), 653 So.2d 538, 546, wherein the Louisiana Supreme Court held that where a public entity lacks just cause to reject all bids, mandamus can issue to direct the award of a contract to the lowest bidder.

Initially, we should point out that the proscription against granting mandamus when other relief is available is not simply a jurisprudential rule. Instead, the proscription is legislative, coming directly from La. C.C.P. art. 3862, which statute provides, in pertinent part, that "[a] writ of mandamus may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice." (Emphasis added.) And while we recognize that there have been several public bid law cases in which mandamus as well as injunctive and declaratory relief was granted, we do not find those cases to be authority for disregarding the express dictates of Article 3862. Instead, we observe that the issue of other relief being available in those cases did not appear to have been expressly raised. Moreover, the other relief that was granted in those cases, in addition to mandamus, arguably made any objection to the mandamus relief pointless, because, in effect, the mandamus relief was duplicative of the other relief granted. Such cannot be said in this case, where mandamus was the sole relief granted despite other relief being sought and despite there being no trial regarding the other relief.

Hence, we find the trial court erred in granting a writ of mandamus without first finding that relief was not available through ordinary process or that the delays involved would cause an injustice.

CONCLUSION

Based on the foregoing, we reverse the issuance of a writ of mandamus in the November 28, 2016 judgment, and this matter is remanded to the trial court for a trial on the injunctive and declaratory relief requested by Block. All costs of this appeal are cast to the appellee, Block Construction, LLC.

REVERSED AND REMANDED.

J. Pettigrew, concurs.

      See La. R.S. 38:2211 -2227.

      As noted in the concurring opinion, the trial court granted the request for issuance of a writ of mandamus without considering the original relief requested by Block, which was for declaratory and injunctive relief. Block Construction, LLC v. Recreation & Park Commission for the Parish of East Baton Rouge, 15-1323, p. 7 (La. App. 1st Cir. 4/15/16), 2016 WL 1545620, at *4.

      The objection of lack of subject matter jurisdiction for mootness was premised on the following resolution passed by the BREC Commission on August 27, 2015:
      That the Commission will not under any circumstances appropriate any funds for the construction of that project that was the subject of Bid # 1603-Wards Creek Multi-Use Bridge project as currently designed. The Commission intends to substantially redesign the bridge and rebid a separate project or cross the creek by accessing the owner's bridge.

      The parties stipulated to the admissibility and introduction of all the exhibits and testimony from the March 12, 2015 hearing, and other than the minutes from an August 27, 2015 meeting of BREC, no new evidence was introduced at the October 24, 2016 hearing.

      See e.g., New Orleans Rosenbush Claims Service, Inc., 94-2223 at p. 15, 653 So.2d at 546 ; Grady Crawford Construction, Inc. v. City of Baton Rouge, 11-0377, pp. 2-3 (La. App. 1st Cir. 8/17/11), 76 So.3d 513, 516 ; and Pittman Construction Company, Inc. v. Parish of East Baton Rouge, 493 So.2d 178, 180 (La. App. 1st Cir.), writ denied, 493 So.2d 1206 (La. 1986).

      Notably, in the exception raising the objection of res judicata filed by McKnight on remand, she sought dismissal of Block's requests for declaratory and injunctive relief, arguing that the silence in the July 7, 2015 judgment as to those claims constituted a denial of the claims by the trial court, which was not appealed. In response, Block argued that the trial court never reached the claims of declaratory and injunctive relief, because those claims are ordinary proceedings and the mandamus relief granted by the trial court was a summary proceeding. Hence, counsel for Block argued "simply for the purpose of stating if we ended up going down the road on this matter, that we would have these requests for declaratory relief and injunctive relief as an ordinary proceeding." As noted earlier in this opinion, the objection of res judicata was denied by the trial court. See Zachary Mitigation Area, LLC v. Tangipahoa Parish Council, 16-1675, pp. 1 n. 1 and 6 (La. App. 1st Cir. 9/21/17), --- So.3d ----, ---- n. 1 and ---- (2017 WL 4215896, at *1 n. 1 and *3).