text:
    Dominique Kareal HILL, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4489
    District Court of Appeal of Florida, First District.
    Opinion filed October 5, 2017
    Kim Anthony Skievaski, Pensacola, for Appellant.

      Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the dismissal of his postconviction motion brought pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s denial of ground two without comment. With regard to ground one, we reverse and remand.

The appellant was convicted after a jury trial of first-degree murder and armed robbery and sentenced to consecutive life sentences. In ground one of his rule 3.850 motion, he argued that his attorney misad-vised him as to the consequences of testifying at trial. The trial court dismissed this claim with prejudice on the basis that it remained facially insufficient after an opportunity to amend, as the appellant had failed to properly allege prejudice.

In the appellant’s motion, he alleged that his testimony would have provided an innocent explanation for the presence of his DNA on the firearm used in the offenses. He asserted that this testimony could have explained and minimized the only objective evidence that established his guilt, leaving the state to rely on the testimony of codefendants who were testifying pursuant to plea deals and an eyewitness who identified one of his codefendants as the shooter. He claimed that absent his testimony, there was no chance for his defense to succeed, and there is a reasonable probability that but for counsel’s error, the result of the proceedings would have been different. This was sufficient to allege prejudice, and therefore the trial court erred in dismissing this claim as facially insufficient. See Tafolla v. State, 162 So.3d 1073, 1074 (Fla. 4th DCA 2015); Nelson v. State, 126 So.3d 1195, 1996-97 (Fla. 4th DCA 2012). Under these circumstances, the trial court’s order of dismissal is reversed with regard to this claim and remanded with instructions for the trial court to either attach documents that conclusively refute the claim or conduct an evidentiary hearing. See Gay v. State, 936 So.2d 723, 724-25 (Fla. 1st DCA 2006).

AFFIRMED in part, and REVERSED and REMANDED in part for further proceedings consistent with this opinion.

ROBERTS, WETHERELL, and ROWE, JJ„ CONCUR.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Dylan Ray STEWART, Appellee.
    CASE NO. 1D16-4123
    District Court of Appeal of Florida, First District.
    Opinion filed October 5, 2017
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellant.
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.
   PER CURIAM.

The State appeals a downward departure sentence imposed by the trial court after Appellee entered an unconditional nolo contendere plea to multiple counts in five separate cases. The State argues, and Appellee concedes, that the statutory-grounds relied upon by the trial court for the downward departure sentence were not supported by competent substantial evidence. Nevertheless, Appellee argues that we should affirm his sentence because the record contains evidence of a non-statutory ground for a downward departure sentence. We reject this tipsy-coachman argument because the ground asserted by Appellee on appeal was not discussed below and, thus, the State did not have an opportunity to rebut or oppose this ground. See State v. Hodges, 151 So.3d 531, 536 (Fla. 3d DCA 2014).

Accordingly, we reverse Appellee’s sentence and remand for resentencing at which the trial court may again impose a downward departure sentence if there is evidence to support a legally-valid ground. See Bryant v. State, 148 So.3d 1251, 1258 (Fla. 2014). However, because Appellee pled unconditionally to the offenses, he has no basis upon which to seek to withdraw his plea. See State v. Jerry, 19 So.3d 1167 (Fla. 1st DCA 2009).

REVERSED and REMANDED for re-sentencing.

ROBERTS, WETHERELL, and ROWE, JJ., CONCUR.


text:
    Mark L. FOSTER Jr., Appellant, v. Venita M. FOSTER, Appellee.
    Case No. 1D16-3755
    District Court of Appeal of Florida, First District.
    Opinion filed October 5, 2017
    Mark L. Foster, Jr., pro se, Appellant.
    James M. Oliver of Liberty Law, PLLC, Jacksonville, for Appellee.
   PER CURIAM.

Appellant challenges the evidentiary support for a number of provisions in the final judgment dissolving his marriage to Appellee. The record does not contain a transcript of the evidentiary hearing underlying the final judgment and the trial court rejected the proposed statement of the evidence prepared by Appellant under Florida Rule of Appellate Procedure 9.200(b)(4). Without a transcript of the hearing or an approved statement of the evidence, we have no way to evaluate the claims raised by Appellant. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) (“When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal.”). Accordingly, the final judgment is AFFIRMED.

LEWIS, WETHERELL, and WINSOR, JJ., CONCUR.


author: PER CURIAM:

text:
    STATE EX REL. Jose MENDEZ v. STATE of Louisiana
    No. 16-KH-0962
    Supreme Court of Louisiana.
    09/22/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

| j Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to the remaining claims, relator shows no error in the thorough analysis of the courts below. We attach hereto and make a part hereof the district court’s written reasons denying relief.

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 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.

^Attachment


text:
    STATE EX REL., Jimmie BREAUX v. STATE of Louisiana
    No. 16-KH-0909
    Supreme Court of Louisiana.
    09/22/2017
   ON SUPERVISORY WRITS TO THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT, PARISH OF ST. LANDRY

PER CURIAM:

| denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to the remaining claims, jelator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

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 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:
    STATE EX REL. David Lee WILLIAMS v. STATE of Louisiana
    No. 2016-KH-1075
    Supreme Court of Louisiana.
    10/16/2017
   ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON

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.

Relator has now fully litigated several 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.

JOHNSON, C.J., would grant and remand for a hearing.

GUIDRY, J., would grant and remand for a hearing,

GENOVESE, J., would grant and remand for a hearing.

11 JOHNSON, C.J., would grant and remand for a hearing.

h GUIDRY, J., would grant and remand for a hearing.

h GENOVESE, J., would grant and remand for a hearing.


author: PER CURIAM

text:
    IN RE: Peter Brian DEROUEN
    NO. 2017-B-1289
    Supreme Court of Louisiana.
    10/16/2017
   ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

| )This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Peter Brian Derouen, an attorney licensed to practice law in Louisiana, but currently ineligible to practice.

FORMAL CHARGES

In August 2014, Danielle Garner retained respondent to represent her in a personal injury matter stemming from an automobile accident. Thereafter, respondent failed to communicate with Ms. Garner and failed to coordinate necessary medical treatment for her injuries.

In March 2015, Ms. Garner hired attorney Gabe Duhon to assume the representation. Mr. Duhon asked respondent for-a copy of Ms. Garner’s file, an accounting of settlement proceeds, and an itemization of expenses. Respondent promised to deliver the file by March 23, 2015. When he failed to do so, Mr. Duhon sent respondent two e-mails requesting the file. He also spoke with respondent by telephone and informed him that medical bill collectors were contacting Ms. Garner. Respondent assured Mr. Duhon that the bills had been paid and promised to personally deliver the file on April 29, 2015. Respondent did not deliver the file as promised. Mr. Duhon then spoke with respondent’s secretary, who said she would | ¿immediately e-mail the file. When ’this did not occur, she promised to put the contents of the file onto a disc.

The following day, members of Mr. Du-hon’s staff found a manila envelope on the sidewalk outside his office. The envelope was labeled “Garner” and contained one disc labeled “Danielle Garner.” The disc contained no settlement documentation, no copies of proceed checks, no settlement disbursement sheet, and no accounting. After reviewing the .contents of the disc, Mr. Duhon asked respondent to immediately email any settlement disbursement sheets and/or documents executed by Ms. Garner, as well as copies of checks paid on her behalf. After getting no response, Mr. Du-hon made multiple additional demands upon respondent for an accounting, to no avail.

Mr. Duhon later learned that in December 2014, Ms. Garner’s UM insurer, Esu-rance, tendered to'respondent'a check in the amount of $13,746.44. Respondent had Ms. Garner endorse the check and he then deposited it into his client trust account. Respondent had also settled the claim against the defendant ' insurer for $15,000.00. Two checks were delivered' to him in February 2015. The first, a $9,118.76 check, was to pay a medical lien, which was never paid. Respondent deposited the second check, in the amount of $5,881.24, into his trust account after Ms. Gamer endorsed it. The only sums paid by respondent were a $1,000 “loan” to Ms. Garner, $19.46 to Acadian Ambulance, and $8.50 to Louisiana State Police.

|sFollowing another unfulfilled request for an accounting and for immediate delivery of checks and/or funds in his possession, Mr. Duhon and Ms. Garner filed complaints against respondent with the ODC. Respondent faded to respond to either, necessitating the issuance of a subpoena to obtain his sworn statement. On the day before the sworn statement was scheduled, respondent contacted the ODC asking to be excused from the sworn statement and to request new copies of the complaints, claiming he had never received them. The statement was canceled. Respondent was given the copies and instructed to respond. The ODC then discovered that he had personally signed for the prior complaints. Respondent was asked to provide an explanation as to why he stated that he had never received the complaints.

In his response, respondent did not give the explanation, or address his failures to produce the file, or provide an accounting of funds, or provide any disbursement sheets of any monies/funds received, or produce an itemization of all expenses, or remit any settlement funds he received. Accordingly, the ODC asked respondent to provide a supplemental written response. Once again, respondent failed to explain the claim that he never, received the initial complaints. The ODC issued another subpoena for his sworn statement as well as a subpoena duces tecum. The statement was initially scheduled for February, but.because the ODC was unable to serve respondent, the statement was re-set for March. At that time, the documents responsive to the subpoena duces tecum were to be collected.

Respondent appeared for the statement, but he did not bring the documents. He was then instructed to produce the documents as well as. additional information that the ODC felt was necessary by March 18, 2016. At that time, respondent provided only some of the requested information. Two months later, he provided some more, but not all, of the additional information.

14Mr. Duhon moved to enforce the settlement against the insurance company in Ms. Garner’s matter. Respondent, who was not present for the hearing, was ordered to return $5,881.24 to Ms. Garner. When he failed to pay her, Mr. Duhon moved for respondent to be held in contempt. Respondent was personally served with notice of the court date, but he failed to appear and was held in contempt.

In October 2015, Mr. Duhon sued respondent on behalf of Ms. Garner. He subpoenaed respondent’s bank records and forwarded them to the ODC. A review of his trust account showed a deposit of $19,627.68 in Ms. Garner’s settlement funds but only $209.17 in the account. Because Ms. Garner received only $1,000 from respondent, $18,627.68 of her funds had been converted. During his sworn statement, respondent acknowledged that he owed Ms. Garner the funds, although he was unsure of the exact amount. Respondent also promised to “cash in” an investment to pay her. To date, he has not done so.

DISCIPLINARY PROCEEDINGS

In July 2016, the ODC filed formal charges against respondent, alleging that his conduct, as set forth above, violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4(a)(3) (failure to keep a client reasonably informed about the status of a matter), 1.15(a) (a lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property), 1.16(d) (obligations upon termination of the representation), 8.1(a) (a lawyer shall not knowingly make a false statement of material fact in connection with a disciplinary matter), 8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, |fideceit, or misrepresentation), 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, the public, the legal system, and the legal profession. His misconduct was intentional, with the most egregious being the conversion of Ms. Garner’s personal injury proceeds. His conduct caused harm to his client, as Ms. Garner was deprived of the use of her settlement proceeds. His conduct caused harm to the legal system, as Mr. Duhon had to file numerous actions against respondent in an attempt to obtain Ms. Garner’s funds. His conduct caused harm to the legal profession, by failing to preserve the integrity of the profession. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the baseline sanction is disbarment.

| (After further considering the nature and severity of respondent’s misconduct, the committee recommended respondent be disbarred. The committee also recommended he be assessed with the costs and expenses of this proceeding.

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

Disciplinary Board Recommendation

The disciplinary board noted that the factual allegations in the formal charges were deemed admitted and proven. The board determined the hearing committee correctly applied the Rules of. Professional Conduct. ;

The board determined that' respondent violated a duty owed' to his client by converting-money owed to her and to third parties on her behalf, by forcing her to obtain other legal counsel, and by failing to return her entire - file. He violated a duty owed to the legal system and to the legal profession by evading and misleading counsel and by refusing to cooperate with and making false statements to the ODC. His conduct was .knowing, if not intentional. He caused substantial harm by converting money from a client and third parties, causing the ODC to spend additional resources on this matter, and by failing to return- his client’s file, which delayed her legal matter. After, .considering the ARA’s Standards for Imposing Lawyer Sanctions, fhe board determined that the baseline.sanction is disbarment.

In aggravation, the board found a dishonest or selfish motive, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency,' mak-iftg false statements and other deceptive practices during the disciplinary process, substantial ‘experience in the practice of law (admitted 2001), and indifference to making - restitution. In mitigation, the board found the absence of a prior disciplinary record. -

17After further considering this court’s prior jurisprudence addressing similar misconduct, the board recommended respondent be disbarred and be required to provide restitution to Ms. Garner and to the appropriate third parties. The board further recommended respondent be assessed with the costs and expenses of this proceeding. One board member dissented and would, recommend a more lenient sanction,

Neither respondent nor the ODC filed an objection to the board’s report and 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 evidence in the record of this deemed admitted matter supports a finding that respondent neglected a client’s settlement and converted client and third-party |sfunds related to that settlement. He also failed to cooperate with the ODC in its investigation. As such, he has violated the Rules of Professional Conduct as alleged by the ODC.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary-proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the 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, if not intentionally, violated duties owed to his client, the legal system, and the legal profession. His misconduct caused actual harm. The applicable baseline sanction in this matter is disbarment. The aggravating and mitigating factors found by the disciplinary board are supported by the record.

In recommending a sanction, the board cited the recent case of In re: Weber, 15-0982 (La. 8/28/15), 177 So.3d 106. In Weber, an attorney represented a homeowner in an insurance claim. The insurance company issued a living expenses check made payable to both the attorney and the client. The attorney accepted the check and told his client that he would hold the funds in his trust account until the client needed them. Thereafter, the client was unable to contact the attorney. The client never received the check and had to expend additional resources to hire another attorney to resolve his case. The attorney had not deposited the funds into his trust account, made no attempts to return the money to the client, did not cooperate with the ODC’s investigation, and allowed the formal charges to become | adeemed admitted. His only mitigating factor was the lack of prior disciplinary record. For this misconduct, we disbarred the attorney.

In determining the appropriate sanction in Weber, we relied upon the seminal case of Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La. 1986), which set forth guidelines for imposing discipline in a conversion case. According to Hinriehs, disbarment is warranted when

one or more of the following elements are present: the lawyer acts in bad faith and intends á 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.

Respondent’s misconduct, like the misconduct at issue in Weber, falls into this category. The magnitude or duration of the deprivation of funds is extensive, the client was significantly damaged and greatly inconvenienced, and respondent has failed to make any restitution to his client. This conduct warrants disbarment.

Accordingly, we will accept the disciplinary board’s recommendation and 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 Peter Brian Der-ouen, Louisiana Bar Roll number 27436, 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 full restitution of all monies owed to Danielle Garner and her medical providers. All costs and expenses in the matter are assessed against respondent in [ tnaccordance 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.

      . Respondent has been ineligible to practice law since June 1, 2017 for failing to comply with mandatory continuing legal- education requirements.

      . As of January 20, 20IS, Ms. Gamer's medical bills totaled $18,975.95, and the following providers had not been paid:
      Shawn Johnson, D.C. $3,925.00
      Acadian Ambulance $1,752.56
      Our Lady of Lourdes Hospital $11,398.45
      Acadian Radiology $859.00
      Dr. Pierce $95.00
      Acadiana Acute Care $870.94
      Randall Faulk, M.D. $75.00


text:
    STATE EX REL. Edward Darnell OWENS v. STATE of Louisiana
    No. 2016-H-199
    Supreme Court of Louisiana.
    10/16/2017
   ON SUPERVISORY WRITS TO THE ELEVENTH JUDICIAL DISTRICT COURT, PARISH OF SABINE

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, 93-330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his fourth 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.


author: PER CURIAM Hughes, J., CRICHTON, J.,

text:
    IN RE: Mark G. SIMMONS
    NO. 2017-B-1043
    Supreme Court of Louisiana.
    10/16/2017
   ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

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

UNDERLYING FACTS

The Client Trust Account Matter

The ODC received notice from respondent’s bank that his client trust account was overdrawn on September 6, 2012. Despite receiving notice of the overdraft from the ODC via certified mail, respondent failed to respond to the ODC’s request for an explanation and request for copies of records related to the account.

Eventually, the ODC was able to audit the account for the period from May 2012 to June 2013. The audit revealed that, on June 30; 2013, respondent had not yet disbursed at least $5,296.29 to clients or third parties. At that time, the balance in the account was $1,696.31, indicating that respondent had converted $3,599.98 in funds belonging to clients or third parties.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15 (safekeeping property of clients or third persons), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(a) (violation of the Rules of Professional Conduct).

| ¿The Cormier Matter

In April 2010, Patricia Cormier hired respondent to represent her regarding an EEOC claim against the Lafayette Parish School System. She paid respondent a total of $2,000 for the representation. Respondent participated in mediation in the matter and corresponded with a representative of the school system in an attempt to present Ms. Cormier’s demands to the full school board. On November 16, 2011, respondent sent a letter to the school system representative regarding the school board’s alleged breach of the mediation agreement and his intent to contact the EEOC regarding the breach. Thereafter, respondent took no meaningful action regarding the matter. Ms, Cormier tried to contact respondent several times via email, telephone, text message, and letter to obtain the status of the matter, but respondent failed to respond.

In April 2013, Ms. Cormier filed a disciplinary complaint against respondent. Despite receiving notice of the complaint via certified mail, respondent failed to respond. The ODC issued a subpoena to obtain respondent’s sworn statement. Respondent was personally served with the subpoena but requested, via fax, that the sworn statement be rescheduled. The ODC attempted to contact respondent by telephone, e-mail, and fax regarding his request, to no avail. Respondent did not appear at the sworn statement.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.16(d) (obligations upon termination of the representation), 8.1(c), and 8.4(a).

^DISCIPLINARY PROCEEDINGS

In November 2014, the ODC filed formal charges against respondent. Respondent answered the formal charges, and the matter proceeded to a formal hearing on the merits.

Formal Hearing

The hearing committee conducted the formal hearing in May 2016. The ODC introduced documentary evidence and called Ms. Cormier to testify before the committee. Respondent testified on his own behalf and on cross-examination by the ODC.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee made the following factual findings with respect to the client trust account matter: (1) Respondent commingled his own funds with his clients’ fund; (2) Respondent did not cooperate with the ODC in its investigation of this matter; and (3) The ODC did not prove that respondent converted client funds. The committee also noted that, in his answer to the formal charges, respondent stated the overdraft situation did not involve client funds but his own funds he had left in his client trust account, and this statement was not contradicted. Furthermore, during his testimony, respondent referred to some personal matters involving deaths in his family that may have contributed to his inattention to the account. Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in this matter in the formal charges.

Regarding the Cormier matter, the committee found the following: Respondent testified that he was retained to represent Ms. Cormier in the mediation. Respondent suggested he successfully completed the mediation, but the [ ^mediation settlement agreement placed into the record appears to be unsigned by the school board. The evidence indicated that, under any set of circumstances, any proposed mediation agreement would have been subject to school board review and approval, which was not forthcoming. Furthermore, there was no written contract for legal services, and the fee arrangement changed during the course of the representation. Nevertheless, Ms. Cormier paid most, but not all, of the legal fees assessed by respondent. In all, respondent did not act with reasonable diligence and promptness in representing Ms. Cormier; he failed to keep Ms. Cormier reasonably informed about the status of her legal matter; he did not provide her with reasonable notice upon termination of the representation; and he did not cooperate with the ODC in its investigation of this matter. Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in this matter in the formal charges.

The committee then determined that'respondent acted negligently, except when he intentionally failed to cooperate with the ODC’s investigations. The committee also determined that respondent’s actions or omissions generally relate to his inattention to detail and failure to clearly and timely communicate with his clients and the ODC.

In light of the above, the committee recommended respondent be suspended from the practice of law for one year and one day, fully deferred, subject to two years of probation with the following conditions: (1) respondent successfully complete trust account-management training; (2) respondent successfully complete at least one hour of continuing legal education on the subject of law office practice; and (3) respondent’s trust account be audited and found to be in compliance on a quarterly basis.

Neither respondent nor the ODC filed an objection to the Hearing committee’s report.

I ^Disciplinary Board Recommendation

After review, the disciplinary board found that the hearing .committee’s factual findings are not manifestly erroneous, except for its finding in the client trust account matter that respondent did not convert client funds. The board noted that, during the hearing, respondent stipulated to the findings of the ODC’s audit in the client trust account matter. The audit concluded that respondent converted, commingled, and misused the funds in his client trust account and that there were procedural and accounting errors in the account records. The audit further revealed that the client trust account balance fell below the amount necessary to honor funds deposited and that respondent failed to properly document his records to ensure he was handling the account' properly. Finally, the audit indicated that the total amount of funds converted was $3,599.98 because funds due to nine parties at the end of the audit period had not yet been disbursed and the funds in the account were insufficient to cover all of these pending disbursements. Based on these facts, the board determined that respondent violated the Rules of Professional Conduct as charged.

The board then determined that respondent violated duties owed to his clients and the legal profession. He acted negligently with respect to his client trust account management and his handling of Ms. Cor-mier’s legal matter but acted knowingly and intentionally when he failed to cooperate with the ODC in its investigations. The board determined that, while no clients were harmed by respondent’s mismanagement of his client trust account, the potential for harm was great. Furthermore, Ms. Cormier suffered great frustration and possible injury due to respondent’s failure to properly communicate with her or properly terminate the representation following the mediation process. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is suspension.

16In aggravation, the board found multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, and substantial experience in the practice of law (admitted 1990). In mitigation, the board found only the absence of a prior disciplinary record.

After further considering this court’s prior, jurisprudence addressing similar misconduct, the board recommended respondent be suspended from the practice of law for one year and one day, with all but sixty days deferred, followed by two years of supervised probation with the following conditions: (1) respondent successfully complete the Louisiana State Bar Association’s (“LSBA”) Trust Accounting School; (2) respondent successfully complete the LSBA’s Ethics School; and (3) respondent’s trust account be audited on a quarterly basis.

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 mismanaged his client trust account, neglected a legal matter, failed to communicate with a client, and failed to cooperate with the ODC in two investigations. This conduct amounts to a violation of the Rules of Professional Conduct as charged.

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).

We agree with the hearing committee and the disciplinary board that respondent acted negligently except with respect to his knowing and intentional failure to cooperate with the ODC in its investigations. The record also supports a finding that respondent violated duties owed to his clients and the legal profession, causing potential and actual harm. The baseline sanction for this type of misconduct is suspension. The aggravating and mitigating factors found by the board are supported by the record.

Turning to the issue of an appropriate sanction, we find guidance from In re: Schmidt, 13-2023 (La. 12/10/13), 130 So.3d 908, and In re: Richard, 16-0076 (La. 4/4/16), 188 So.3d 1035. In Schmidt, an attorney neglected legal matters, failed to communicate with clients, failed to promptly refund unearned fees and client files, and failed to cooperate with the ODC in one investigation. For this misconduct, |swe suspended the attorney from the practice of law for one year and one day, with all but sixty days deferred, followed by two years of supervised probation with conditions. In Richard, an attorney allowed his client trust account to become overdrawn on one occasion and failed to cooperate with the ODC in its investigation. For this misconduct, we suspended the attorney from the practice of law for one year and one day, with all but sixty days deferred, followed by one year of unsupervised probation.

In light of this case law, we will adopt the board’s recommendation and suspend respondent from the practice of law for one year and one day, with all but sixty days deferred, followed by two years of supervised probation with the following conditions: (1) respondent successfully complete the LSBA’s Trust Accounting School; (2) respondent successfully complete the LSBA’s Ethics School; and (3) respondent’s trust account be audited on a quarterly basis.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Mark G. I Simmons, Louisiana Bar Roll number 19995, be and he hereby is suspended from the practice of law for a period of one year and one day. It is further ordered that all but sixty days of the suspension shall be deferred. Following the active portion of the suspension, respondent shall be placed on supervised probation for a period of two years, subject to the conditions recommended by the disciplinary board. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension execu-tory, or imposing additional discipline, as appropriate. All costs |fland 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.

Hughes, J.,

dissents with reasons.

Respectfully, I would impose,the sanctions recommended by the Hearing Committee, to which there was no objection by either party.

CRICHTON, J.,

dissents and assigns reasons:

hi dissent from the majority’s imposition of discipline in-this case because I find it to be unduly lenient. Primarily, the underlying conduct warranting this discipline is unacceptable, including respondent’s failure to communicate with a client, neglect of a legal matter, and mismanagement of his client trust accoünt. To make matters worse,'not only did respondent fail to cooperate with two disciplinary investigations, but also he was late—by over two months—in filing an objection to the disciplinary board’s recommendation. With such conduct, I question whether respondent can competently represent clients. Therefore, I would impose a harsher discipline.

      . On September 26, 2017, over three months after notice of the filing of the board’s recommendation was mailed to the parties on June 19, 2017, respondent purportedly filed an objection to the board’s recommendation. Because this objection was filed well outside of the twenty-day delay for filing objections mandated by Supreme Court Rule XIX, § 11(G)(1)(b), we decline to consider it.


author: PER CURIAM CLARK, J., CRICHTON, J.,

text:
    IN RE: Michael Louis MARTIN
    NO. 2017-B-1288
    Supreme Court of Louisiana.
    10/16/2017
   ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

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

FORMAL CHARGES

The ODC received notice from Regions Bank that respondent’s client trust account was overdrawn on eight occasions during the period of December 4, 2012 through January 18, 2013. Notice of the overdraft was' forwarded to respondent along with instructions to provide the ODC with copies of bank statements, canceled checks, and disbursement sheets, as well as a written explanation of the circumstances relating to the overdraft and any steps that had been taken to resolve the matter. Respondent failed to respond to the ODC’s requests for information.

The ODC subpoenaed respondent’s trust account records for the period from June 2012 through August 2013. After reviewing various bank documents from the account, including bank statements and canceled checks, the ODC staff auditor, Traci D. Fontenot, concluded that respondent had converted and commingled client trust funds and had misused his trust account on numerous occasions by writing checks payable to cash and by paying personal bills from the account.

|2The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15(a) (safekeeping property of clients or third persons), 1.15(f) (cash withdrawals and checks made payable to “Cash” are prohibited on client trust accounts), and 8.4(a) (violation of the Rules of Professional Conduct).

DISCIPLINARY PROCEEDINGS

In December 2015, the ODC filed formal charges against respondent. 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 reviewing the ODC’s deemed admitted submission, the hearing committee found 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 that respondent violated the Rules of Professional Conduct as charged. In addition, the committee found a violation of Rule 8.1(c) (failure to cooperate with the ODC in its investigation).

|aThe committee cited Standard 4.12 of the ABA’s Standards for Imposing Lawyer Sanctions which provides that suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client. The committee also cited Standard 7.2 which provides that suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty as a professional and causes injury or potential injury to a client, the public, or the legal system.

In aggravation, the committee found a dishonest or selfish motive and substantial experience in the practice of law (admitted 1984). The committee also noted respondent’s failure to cooperate with the ODC. In mitigation, the committee found the absence of a prior disciplinary record and the imposition of other penalties and sanctions.

After considering the aforementioned factors and the collective misconduct, the committee recommended respondent be suspended from the practice of law for three years. The committee also recommended respondent be ordered to account for funds in the trust account during the audit period and pay restitution. The committee further recommended respondent be assessed with the costs and expenses of this proceeding.

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

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.

[4In 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 a finding that respondent grossly mishandled his client trust account, resulting in the commingling and conversion of client funds. Based on these facts, respondent has violated the Rules of Professional Conduct as charged.

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 violated a duty owed to his clients. His conduct was grossly negligent and caused potential harm to his clients. Based on the ABA’s Standards for Imposing Lawyer Sanctions, the applicable baseline is suspension. The aggravating and mitigating factors found by the disciplinary board are supported by the record.

Because respondent has clearly engaged in misconduct, the sole question presented to the court is the appropriate sanction. As in other conversion cases, Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La. 1986), is instructive in determining the baseline sanction. In Hinrichs, we established the following guidelines:

In a typical case of disbarment for violation of DR 9-102 [now 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.

Hinrichs, 486 So.2d at 122-123 (citations omitted).

Applying the guidelines of Hinrichs, we note that respondent is guilty of at least a high degree of negligence in mismanaging his trust account. Although the record does not clearly establish the extent of harm to clients, the potential for harm certainly existed. However, no other fraudulent acts were committed in connection with the misconduct. Respondent did not directly benefit from the infraction and he represents that the overdraft was resolved. Under Hinrichs, these factors support a sanction in the range recommended by the board. It is also noteworthy that the ODC has not objected to the board’s recommendation, suggesting that the disciplinary agency is satisfied that a two-year suspension is responsive to the charged misconduct.

Under the circumstances, we will adopt the disciplinary board’s recommendation and suspend respondent from the practice of law for two years.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Michael Louis Martin, Louisiana Bar Roll number 14171, be and he hereby is suspended from the practice of law for two years. It is further ordered that respondent shall make restitution plus legal interest to Gabriela Bou-langer, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10,1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

CLARK, J., dissents and assigns reasons.

CRICHTON, J., dissents and assigns reasons.

CLARK, J.,

dissenting with reasons.

Jjl respectfully dissent for the following reasons. I find the imposition of a two-year suspension is overly lenient. In my view, respondent’s actions represent serious misconduct that warrants a three-year suspension, as recommended by the hearing committee. Respondent’s mismanagement of his trust account amounts to gross negligence that approaches intentional misconduct. That Respondent did not directly benefit from the mismanagement is negated by the finding that he nonetheless acted with a dishonest or selfish motive. Moreover, despite the absence of a formal allegation, it is noted that respondent intentionally failed to comply with the investigation by the ODC. Thus, I believe a three-year suspension is appropriate.

CRICHTON, J.,

dissents and assigns reasons:

| TI dissent from the majority’s imposition of discipline in this case and would suspend Respondent from the practice of law for three years—as recommended by the Hearing Committee and Justice Clark’s dissent. See In Re: Michael Louis Martin, 17-B-1288 (Clark, J., dissenting). Without question, Respondent committed serious misconduct by mismanaging his trust account. However, what I strongly believe exacerbates Respondent’s conduct is his total lack of responsiveness to the disciplinary proceedings. Specifically, Respondent did not respond to the formal charges filed by the Office of Disciplinary Council (“ODC”), forward his trust account statements to the ODC (as he said he would), object to the Hearing Committee’s report and recommendation, or object to the Disciplinary Board’s -report and recommendation. In light of the scant evidence that Respondent cares about his bar license, I believe a harsher, three-year suspension is more appropriate.

      . After receiving notice of the overdraft from Regions Bank, the ODC sent a certified letter to respondent seeking a substantive response with documentation. The letter was returned unclaimed. The ODC then sent an e-mail message to respondent. In reply to the e-mail, respondent explained the circumstances leading to tire overdrafts and indicated that he would forward hard copies of his trust account statements. The ODC never received the hard copies and had to issue a subpoena to Regions Bank to obtain the documentation.


text:
    IN RE: Richard E. SMITH
    NO. 2017-B-1537
    Supreme Court of Louisiana.
    10/16/2017
   ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

LThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent mishandled his client trust account and practiced law while ineligible to do so. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline in which respondent admitted that his conduct violated Rules 1.15(a) and 5.5 of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Richard E. Smith, Louisiana Bar Roll number 27723, be suspended from the practice of law for a period of one year and one day. It is further ordered that all but sixty days of this suspension shall be deferred. Following completion of the active portion of the suspension, respondent shall successfully complete a two-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 portion of the suspension executory, or imposing additional discipline, as appropriate.

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


text:
    STATE EX REL. Joshua JOHNSON v. STATE of Louisiana
    No. 2017-KH-1641
    Supreme Court of Louisiana.
    10/16/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

JjWRIT NOT CONSIDERED. Untimely filed pursuant to La.S.CtR. X § 5.

Relator has now exhausted the right to obtain 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 has filed an application for post-conviction relief in the district court, and the district court’s ruling denying relief is now final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted the right to state collateral review. The district court is ordered to record a minute entry consistent with this per cu-riam.


text:
    STATE EX REL. Arthur RHODES v. STATE of Louisiana
    No. 2017-KH-1534
    Supreme Court of Louisiana.
    10/16/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

JjWRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.

Relator has now exhausted the right to obtain 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 has filed an application for post-conviction relief in the district court, and the district court’s ruling denying relief is now final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted the right to state collateral review. The district court is ordered to record a minute entry consistent with this per cu-riam.


text:
    STATE EX REL. Joseph BROWN v. STATE of Louisiana
    No. 2017-KH-1397
    Supreme Court of Louisiana.
    10/16/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

|,WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.

Relator has now exhausted the right to obtain 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 has filed an application for post-conviction relief in the district court, and the district court’s ruling denying relief is now final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted the right to state collateral review. The district court is ordered to record a minute entry consistent with this per cu-riam.


text:
    STATE EX REL. Anthony YOUNG, Jr. v. STATE of Louisiana
    No. 2017-KH-1380
    Supreme Court of Louisiana.
    10/16/2017
   ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO

PER CURIAM:

JjWRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.

Relator has now exhausted the right to obtain 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 has filed an application for post-conviction relief in the district court, and the district court’s ruling denying relief is now final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted the right to state collateral review. The district court is ordered to record a minute entry consistent with this per cu-riam.


author: PER CURIAM: WEIMER, J.

text:
    STATE of Louisiana v. Shane FOSS
    No. 2017-KK-0744
    Supreme Court of Louisiana.
    10/16/2017
   ON WRIT OF CERTIORARI TO THE FIRST CIRCUIT COURT OF APPEAL, PARISH OF ST- TAMMANY

PER CURIAM:

| ]Writ granted. The parties do not dispute' that the officer was justified in approaching defendant for questioning and conducting a limited search of his outer clothing for a weapon, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and the trial court correctly determined that the contraband—which was seized from the inside of a cigarette pack recoveréd during the Terry pat down—is not admissible pursuant to the “plain feel” exception to the warrant requirement. Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993) (“If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons ....”). The district court, however, prematurely ruled before hearing testimony by the defense witness or considering the State’s argument that the evidence is admissible under the “plain smell” exception. As a result, it is difficult to determine from the record whether the “plain smell” exception, which was invoked by the court of appeal, should be applied. See State v. Gray, 13-1326 (La. 6/28/13), 122 So.3d 531; State v. Ingram, 14-0896 (La. 10/10/14), 157 So.3d 1101. Therefore, mindful of the district court’s role in assessing credibility at a suppression hearing, see State v. Vessell, 450 So.2d 938, 943 (La. 1984), we grant the- application for the limited purpose of remanding the matter to the district court to conduct-a new hearing on defendant’s motion to suppress the evidence and to issue a ruling on defendant’s motion thereafter.

WEIMER, J., would deny.

GUIDRY, J., would deny.

CLARK, J., would deny.

WEIMER, J.

: hi would deny the writ.

| T GUIDRY, J., would deny.

JjCLARK, J., would deny.


text:
    STATE of Louisiana v. Jarrod GOURGUES
    No. 2016-K-2255
    Supreme Court of Louisiana.
    10/16/2017
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ST. BERNARD

PER CURIAM:

1 Writ granted. The trial court’s ruling granting defendant’s motion to quash is reversed and the matter is remanded for further proceedings. La.C.Cr.P, art. 434 “prohibits the divulgence of testimony and other matters occurring during grand jury meetings.” State v. Gutweiler, 06-2596, 14 (La. 4/8/08), 979 So.2d 469, 479. Therefore, divulgence by the sheriffs office of two subpoenas duces tecum, which did not include testimony or evidence presented to the grand jury in the instant matter, did not violate grand jury secrecy. Moreover, revealing the mere existence of a grand jury investigation is not a statutory ground for filing a motion to quash under La. C.Cr.P. art. 532 or art. 533. Accordingly, we reinstate the indictment.

| jWEIMER, J., concurs in the result.

| ¶ GUIDRY, J., concurs in the result.

1!HUGHES, J., concurs in the result.


text:
    STATE EX REL. Terrence PAYNE v. STATE of Louisiana
    No. 2016-KH-2067
    Supreme Court of Louisiana.
    10/16/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

h Denied. Relator has previously exhausted his right to state collateral review. See State ex rel Payne v. State, 16-1189 (La. 10/16/17), 226 So.3d 1121, 2017 WL 4641357.


text:
    STATE EX REL. Bryan RUCKER v. STATE of Louisiana
    No. 2016-KH-1417
    Supreme Court of Louisiana.
    10/16/2017
   ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY

PER CURIAM:

| iDenied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We attach hereto and make a part hereof the district court’s written reasons denying relief.

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 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.

|2Attachment


text:
    STATE EX REL. Michael WATKINS v. STATE of Louisiana
    No. 2016-KH-1193
    Supreme Court of Louisiana.
    10/16/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

|, Denied. Relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his third 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 EX REL. Terrence PAYNE v. STATE of Louisiana
    No. 2016-KH-1189
    Supreme Court of Louisiana.
    10/16/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

| iDenied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Relator also fails to show the state withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). As to the remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

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 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:
    STATE EX REL. Norman J. DEAN v. STATE of Louisiana
    No. 2016-KH-1129
    Supreme Court of Louisiana.
    10/16/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

11Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

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 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.

Hughes, J., would grant in part.


text:
    STATE EX REL. Timothy HARTFORD v. STATE of Louisiana
    No. 2016-KH-0987
    Supreme Court of Louisiana.
    10/16/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

|,WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.

Relator has now exhausted the right to obtain 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 has filed an application for post-conviction relief in the district court, and the district court’s ruling denying relief is now final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted the right to state collateral review. The district court is ordered to record a minute entry consistent with this per cu-riam.


text:
    STATE EX REL. Patrick MATTHEWS v. STATE of Louisiana
    No. 2016-KH-0986
    Supreme Court of Louisiana.
    10/16/2017
   ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY

PER CURIAM:

| j 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 claims are non-cognizable and repetitive. La.C.Cr.P. arts. 930.3 and 930.4; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/16/10), 45 So.3d 1030.

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 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.


author: KEATY, Judge.

text:
    Debra Bergeron DUHON v. PETRO “E” LLC, et al.
    2017-587
    Court of Appeal of Louisiana, Third Circuit.
    08/09/2017

      William W. Goodell, Jr., Goodell Law Firm, Post Office Box 52663, Lafayette, Louisiana , 70505-2663, Counsel for Plaintiff: Debra Bergeron Duhon
    Stephen B. Murray, Murray Law Firm, 650 Poydras Street, Suite 2150, New Or¿ leans, Louisiana 70130, Counsel for Plaintiff: Debra Bergeron Duhon
    Michael G. Stag, Smith Stag, LLC, 365 Canal Street, Suite 2850, New Orleans, Louisiana 70130, Counsel for Plaintiff: Debra Bergeron Duhon
    . Barry J. Sallinger, Attorney at Law, Post Office Box 2433, Lafayette, Louisiana 70502-2433, Counsel for Plaintiff: Debra Bergeron Duhon
    Elizabeth A. Roche, Burns Charest, LLP, 365 Canal Street, Suite 1170, New Orleans, - Louisiana 7Ó130, Counsel for Plaintiff: Debra Bergeron Duhon
    Stephen M. Larzelere, Larzelere Picou Wells Simpson Lonero, LLC, Two Lake-way Center, Suite 1100, 3850 N. Causeway Boulevard. Metairie, Louisiana 70002, Counsel for Defendant And Cross-Claimant: EnérQuest Oil & Gas, LLC
    F, Barry Marionneaux, F. Barry Mar-rionneaux, APLC, 23615 Railroad Avenue, Plaquemine, Louisiana 70764, Counsel for Defendant: Dow Chemical Company
    Robert E. Kerrigan, Jr., Deutsch Kerri-gan, LLP, 755 Magazine. Street, New Orleans, Louisiana 70130-3672, Counsel' for Defendant: Estis Well Service, Inc. .
    David M. Bienvenu, Jr., Biehvenu, Bonnecase, Foco, Viator & Holinga, APLLC, 4210 Bluebonnet Boulevard, Baton Rouge, Louisiana 70809, Counsel for Defendant: Dow Chemical Company
    Charles R. Minyard, Attorney at Law, Post Office Box 3642, Lafayette, Louisiana 70502-3642, Counsel for Defendant: Apache Corporation
    Court composed of Phyllis M. Keaty, Van H. Kyzar, and Candyce G. -Perret,' Judges.
   KEATY, Judge.

| iThis court issued a rule ordering Appellant, EnerQuest Oil & Gas, LLC (Ener-Quest), to show cause, by brief only, why its appeal should not be dismissed for having been taken from a judgment lacking proper decretal language. See State v. White, 05-718 (La.App. 3 Cir. 2/1/06), 921 So.2d 1144. For the reasons that follow, we dismiss the appeal without prejudice and remand the matter to the trial court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Debra Bergeron Duhon (Duhon) filed a petition for damages naming EnerQuest as a defendant. EnerQuest asserted a cross-claim against Estis Well Service, LLC (Es-tis). In response, Estis filed a motion for summary judgment seeking to have Ener-Quest’s claims against it dismissed. Following a hearing op the matter, the trial court granted Estis’ motion for summary judgment and designated the judgment as final. However, the judgment did not dismiss EnerQuest’s claims against Estis.

A devolutive appeal relative to the judgment on Estis’ motion for summary judgment was filed on behalf of EnerQuest. When the record was lodged in this court, a rule was issued ordering EnerQuest to show cause why its appeal should not be dismissed for the above-stated reason.

DISCUSSION

The rule to show cause order indicated that Appellant was to show cause, if there was any, why the appeal should not be dismissed as having been taken from a judgment lacking decretal language. Appellant concedes that the judgment “does not contain the following specific decretal language, ‘and all claims asserted by Ener-Quest Oil & Gas, LLC against Estis Well Service, Inc. are dismissed, with prejudice, and at EnerQuest’s costs’ ” but “merely contains language confirming |2that the Motion for Summary Judgment filed by Estis (in which it requested a dismissal of all claims asserted against it by Ener-Quest) was granted.”

The jurisprudence is clear that “[a] final appealable judgment must contain de-cretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied.” Thomas v. Lafayette Parish Sch. Sys., 13-91, p. 2 (La.App. 3 Cir. 3/6/13), 128 So.3d 1055, 1056 (quoting White, 921 So.2d at 1146).

In Board of Supervisors of Louisiana State University & Agricultural & Mechanical College v. Mid City Holdings, L.L.C., 14-506, p. 2-3 (La.App. 4 Cir. 10/15/14), 151 So.3d 908, 910, the court stated:

We cannot determine the merits of an appeal unless our jurisdiction is properly invoked by a valid final judgment. See Input/Output Marine Sys., Inc. v. Wilson Greatbatch, Tech., Inc., 10-477, p. 12 (La.App. 5 Cir. 10/29/10); 52 So.3d 909, 915. “A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled.” La. C.C.P. art. 1841. “A valid judgment must be precise, definite and certain.... The decree alone indicates the decision.... The result decreed must be spelled out in lucid, unmistakable language.The quality of definiteness is essential to a proper judgment. Input/Output Marine, 10-477, pp. 12-13; 52 So.3d at 915-16 (citations omitted).
... “The specific relief granted should be determinable from the judgment without reference to an extrinsic source such as pleadings or reasons for judgment.” Input/Output Marine, 10-477, p. 13; 52 So.3d at 916.

While the judgment in this case clearly grants the motion for summary judgment filed by Estis, it does not state whether any or all of the claims of EnerQuest asserted against Estis are dismissed. Therefore, this judgment “does not contain all of the necessary decretal language to meet the requirements of a final judgment.” Dietz v. Dietz, 13-186, p. 8 (La.App. 3 Cir. 11/6/13), 128 So.3d 1215, 1220. Accordingly, the appeal must be dismissed. When a final judgment is rendered with the proper decretal language, Appellant may file a new appeal with this court. See Smith v. State, Dep’t of Transp. & Dev., 15-962 (La.App. 4 Cir. 2/17/16), 186 So.3d 1180.

DECREE

For all the reasons given, this court lacks jurisdiction to consider the merits of EnerQuest’s appeal because it was taken from a judgment that lacks proper decre-tal language. Accordingly this appeal is dismissed without prejudice, and the matter is remanded to the trial court for further proceedings in accordance with this opinion.

APPEAL DISMISSED WITHOUT PREJUDICE. REMANDED FOR FURTHER PROCEEDINGS.


author: SAUNDERS, Judge.

text:
    Damien Jarome MORRIS v. Crystal Danielle FREEMAN
    2017-565
    Court of Appeal of Louisiana, Third Circuit.
    08/23/2017

      Lucretia Pecantte, Lucretia Pecantte & Associates, P. 0. Box 9010, New Iberia, LA 70562-9010, (337) 374-1202, COUNSEL FOR PLAINTIFF/APPLICANT: Damien Morris
    Charles Stanislaus “Stan” Feucht, Attorney at Law, LLC, 440 North Second Street, Eunice, LA 70535, (337) 550-1115, COUNSEL FOR DEFENDANT/RESPONDENT: Crystal Freeman
    Court composed of John D. Saunders, Shannon J. Gremillion, and John E. Conery, Judges.
   SAUNDERS, Judge.

|, This case involves a child custody and support dispute between Relator and Defendant, Crystal Freeman, who have a minor child together. On December 1, 2011, a judgment was signed granting the parties shared custody of the child, with one parent having the child for seven days and the other parent having the child for the next seven days. On October 21, 2016, Defendant filed a motion for contempt and for modification of custody and child support. Defendant alleged that Relator, had become employed outside of Louisiana and that he was threatening to relocate the child to New York in violation of La.R.S. 9:355.1, et seq. The trial court denied Defendant’s request for temporary custody of the child but issued an order enjoining either parent from . removing the . child from the state without first complying with La.R.S. 9:355.1, et seq.

On January 9, 2017, Defendant propounded interrogatories and requests for production of documents on Relator. Defendant did not receive Relator’s responses until March 3, 2017. Defendant filed a motion to compel, asserting that Relator had given vágue, non-specific responses to some of the discovery requests and had objected to the other discovery'requests. Following a hearing held on April 28, 2017, the trial court granted Defendant’s motion to compel and gave Relator 15 days to respond to interrogatories 4, 6; and 7, and to produce the documents sought by requests for production of documents 2, 3, 4, and 8.. A judgment to that effect was signed on May 17, 2017.

“The proper procedural vehicle to contest an interlocutory judgment that does not cause irreparable harm is an application for supervisory writs. See La. C.C.P. arts. 2087 and 2201.” Brown v. Sanders, 2006-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 931, 933. But see La. Code Civ.P. art. 2083, comment (b), |2“Irreparable injury continues to be an important (but not exclusive) ingredient in an application for supervisory writs.” (Citation omitted.)

Relator asserts that the trial court erred when it granted Defendant’s motion to compel and ordered Relator to answer interrogatories 4, 6, and 7, and to comply with requests for production 2, 3, 4, and 8. Relator notes that on- October 21, 2016, Defendant filed a motion seeking, among other things, an increase in 'child support payments from Relator. Relator contends that Defendant alleges that she recently learned that Relator’s wages have increased since the last child support order was rendered and that she is in need of additional support for the child. However, Relator notes that Defendant has not indicated how she learned of the alleged change in Relator’s income. At any rate, Relator contends that Defendant has propounded the discovery requests, at issue in an effort to prove the alleged change in Relator’s circumstances. Relator also notes that before the motion, to compel was filed, the parties had a conference with a hearing officer and the hearing officer recommended that Defendant’s motion for modification of child support and custody be passed due to lack of evidence. Relator apparently feels that since no one challenged the hearing officer’s recommendation, the information sought is no longer relevant.

By the requests for production of documents that are at issue, Defendant seeks discovery of the following information: a copy of Relator’s work schedule for the past year; pay stubs or evidence. of all income received by Relator since January 2015; and Relator’s state, and federal income tax returns for 2013, 2014, and 2015. Relator contends that he responded to those requests by indicating that he did not have the requested information in his possession but would sign an authorization form for Defendant to obtain it. Relator maintains that since | ¡¡Defendant knows where Relator works and whei’e to obtain his tax records, she should have provided authorizations in order to obtain the requested information.

With regard to the interrogatories that Relator has been ordered to answer, Relator maintains that he- has already given sufficient answers or made appropriate objections thereto. By interrogatory number 4, Defendant seeks to discover the addresses of the places where Relator has lived for the last three years. Relator contends that he responded sufficiently to that interrogatory when he stated that he does not- recall where he lived for the last three years. Also, Relator contends that he properly objected to interrogatory number 6, which seeks information regarding Relator’s sources of income since January 2014, and interrogatory number 7, which seeks Defendant’s banking information, including all deposits and withdrawals made regarding any accounts since Jánúary 2014. Relator maintains that' he is self-employed. Thus, Relator argues that requiring him to produce bank account records is unlawful and not in accord with La.R.S. 9:315.2. With regard to the issue, of calculating child support, La.R.S. 9:315.2., in pertinent part, provides as follows:

A. Each party shall provide to the court a verified income statement showing gross income and adjusted gross income, together with documentation of current and past earnings. Spouses of the parties shall also provide any relevant information with regard to the source of payments of household expenses upon request of the court or the opposing party, provided such request is filed in a reasonable time prior to the hearing. Failure to timely file the request shall not be grounds for a continuance. Suitable documentation of current earnings shall include but not be limited to pay stubs or employer statements. The documentation shall include a copy of the party’s most recent federal tax return. A copy of the statement and documentation shall be provided to the other party. When an obligor has an ownership interest in a business, suitable documentation shall include but is not limited to the last three personal and business state and federal income tax returns, including all attachments and all schedules, specifically Schedule K-l and W-2 forms, 1099 forms, and amendments, the most recent profit and loss statements, balance sheets, financial statements, quarterly sales tax reports, personal and business bank account statements, | receipts, and expenses. A copy of all statements and documentation shall be provided to the other party,

(emphasis added).

In the instant case, Relator asserts that he is in compliance with La.R.S, 9:315.2 because he provided the hearing officer with copies of his last three income tax returns, along with the attachments and schedules. Relator contends that he has objected to producing the banking and source of income information requested in interrogatories numbers 6 and 7 because those discovery requests seek information beyond what is required by La.R.S. 9:315.2.

In her opposition to the instant writ application, Defendant asserts that although Relator alleges that he has complied with La.R.S. 9:315.2, Relator has not presented any evidence to support that assertion. In fact, Defendant contends that the record does not contain the following: Relator’s tax return for the last year as required by La.R.S. 9:315.2; a verified income statement showing Relator’s adjusted gross income; or any documentation, other than one paycheck stub, of Relator’s past and current earnings. Defendant asserts that the banking records sought to be discovered are relevant and likely to lead to the discovery of admissible evidence that would be helpful in determining if Relator has any extraordinary expenses or additional sources of income. Also, Defendant maintains that La.R.S. 9:315.2 does not limit the scope of discovery and does not prohibit a party from requesting the opposing party’s bank records via La. Code Civ.P. art. 1461 or from having a court order the production of such records via a motion to compel. Rather, Defendant contends that the statute only mandates that the financial information listed therein must be provided.

We find that there is merit to Defendant’s argument that the information regarding Relator’s sources of income and his banking records is relevant and Rlikely to lead to the discovery of admissible evidence pertaining to Defendant’s claim for an increase in child support. We also find that there is merit to Defendant’s assertion that La.R.S. 9:315.2 does not limit the scope of discovery to only the information listed in that statute. In that regard, we note that La.R.S. 9:315.2(A) expressly states that the information required to be provided by self-employed parents “shall include but is not limited to .... ” Additionally, we note that in her motion for contempt and for modification of child support and custody, Defendant alleges that Relator had become employed outside of Louisiana and that he was threatening to relocate the child to New York. Thus, we find that the information regarding Relator’s addresses for the last three years is relevant. As noted by Defendant, it appears that Relator is being disingenuous when he claims that he does not recall where he has lived for the last three years.

The trial court did not abuse its discretion when it granted Defendant’s motion to compel.

WRIT DENIED. Relator filed a writ application with this court seeking supervisory review of the trial court’s May 15, 2017 ruling compelling Relator to respond to Defendant’s discovery requests upon a finding that he failed to do so pursuant to La.R.S. 9:315.2. Our review of the record and jurisprudence reveal that there is no error in the trial court’s ruling. Accordingly, Relator’s writ application is denied at his cost.