text:
    IN RE: Mitchel M. EVANS, II
    NO. 2016-B-1115, NO. 2016-B-1213
    Supreme Court of Louisiana.
    12/06/2016
    Rehearing Denied January 25, 2017

      Mitchel Mark Evans, II, for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

11 This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Mitchel M. Evans, II, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The ODC filed three sets of formal charges against respondent under disciplinary board docket numbers 12-DB-057, 13-DB-025, and 14-DB-044. Respondent answered all three sets of formal charges, and each matter proceeded to a formal hearing before separate hearing committees. In November 2015, the three matters were consolidated by order of the disciplinary board. The disciplinary board then filed in this court’s docket number 16-B-1115 a single recommendation of discipline encompassing all three sets of formal charges.

In a separate proceeding, the ODC filed two counts of formal charges against respondent. After the formal hearing, the hearing committee recommended the formal charges be dismissed, and the ODC did not object to the dismissal of the first count of misconduct. Accordingly, this opinion does not address those allegations. The disciplinary board’s ruling on the second count of alleged misconduct was filed in this court’s docket number 16-B-1213.

L12-DB-057

The Bruno Matter

On March 13, 2009, Hilda Mae Bruno hired respondent to represent her in the community property partition of her ex-husband’s military retirement benefits, paying him $1,750. Respondent enrolled as Ms. Bruno’s counsel of record on March 20, 2009. Thereafter, Ms. Bruno was only able to speak to respondent once despite repeated attempts to contact him. Respondent did not file a petition for partition of community property on Ms. Bruno’s behalf until March 9, 2010. Thereafter, he performed no other work on the matter.

In August 2011, Ms. Bruno filed a complaint against respondent with the ODC. Respondent failed to file a written response to the complaint, necessitating the issuance of a subpoena to obtain his sworn statement. During the January 13, 2012 sworn statement, respondent blamed his secretary for his neglect of Ms. Bruno’s legal matter and for his failure to respond to the disciplinary complaint. Respondent agreed to contact Ms. Bruno, complete her legal matter, and provide the ODC with a copy of documentation showing this communication and his completion of the matter. While respondent did communicate with Ms. Bruno and obtain a judgment against her ex-husband, he failed to inform the ODC of the status of the matter.

The ODC alleged respondent’s 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 (failure to communicate with a client), 1.5(f)(5) (failure to refund an unearned fee), 8.1(a) (a lawyer shall not knowingly make a false statement of material fact in connection with a disciplinary matter), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(a) (violation of the Rules of Professional Conduct).

Is The Bobadilla Matter

In March 2011, Cassandra Bobadilla hired respondent to represent her in a custody matter, paying him $850. Thereafter, respondent failed to file the necessary pleadings. He also failed to communicate with Ms. Bobadilla despite her numerous attempts to contact him and meet with him at his office. Eventually, Ms. Bobadilla learned a default judgment had been entered against her and no pleadings had been filed on her behalf.

Thereafter, Ms. Bobadilla requested that respondent apply the $850 to handling her divorce from her current husband. Respondent agreed, and Ms. Bo-badilla provided respondent with the necessary documents. She did not hear from him thereafter.

In August 2011, Ms. Bobadilla filed a complaint against respondent with the ODC. Respondent failed to file a written response to the complaint, necessitating the issuance of a subpoena to obtain his sworn statement. During the January 13, 2012 sworn statement, respondent blamed his secretary for his failure to respond to the disciplinary complaint. He also agreed to provide the ODC with copies of e-mails Ms. Bobadilla sent to him but failed to do so.

At some point after the sworn statement, Ms. Bobadilla paid respondent an additional $400 in court costs to finalize her divorce. Respondent is currently working on the matter to Ms. Bobadilla’s apparent satisfaction.

The ODC alleged respondent’s conduct as set forth above violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f)(5), 8.1(a), 8.1(c), and 8.4(a).

The Hollie Matter

|Jn February 2008, Shondra Hollie and her stepmother, Deborah Hollie, hired respondent to represent Shondra in a custody dispute. The fee arrangement was not reduced to writing, but documentary evidence shows the Hollies paid respondent $3,350.

Thereafter, respondent failed to adequately communicate with the Hollies. However, in December 2008, respondent filed on Shondra’s behalf a petition to modify custody and a rule for contempt against her children’s father. Following a February 1, 2010 hearing, a stipulated judgment was entered on the custody matter. Opposing counsel prepared the judgment, but the Hollies believed the judgment was not correct according to what the judge ordered at the hearing. Respondent promised to resolve the issue but did not do so after trying to contact opposing counsel three times. The Hollies were not able to communicate with respondent after August 2010, despite numerous attempts.

In October 2011, the Hollies filed a complaint against respondent with the ODC. Respondent failed to file a written response to the complaint, necessitating the issuance of a subpoena to obtain his sworn statement. During the January 13, 2012 sworn statement, respondent blamed his secretary for his failure to respond to the disciplinary complaint. He also claimed he completed the matter by resuming visitation for Shondra. Thus, he denied owing the Hollies a refund. He agreed to provide the ODC with a copy of an e-mail he claimed would support his position regarding the fee, but he failed to do so.

The ODC alleged respondent’s conduct as set forth above violated the following provisions of the Rules of Professional Conduct; Rules 1.3, 1.4, 1.5(b) (the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation), 1.5(f)(5), 8.1(a), 8.1(c), and 8.4(a).

| ¡¡The Spencer Matter

In February 2005, Stewart Spencer hired respondent to represent him in a criminal matter and a related civil matter against the- arresting police department. Respondent resolved the criminal matter in Mr. Spencer’s favor in 2008.

On December 16,' 2005, respondent filed a lawsuit against the police department. Mr. Spencer provided respondent with a videotape of his injuries after he was beaten by the police to use as . evidence in the lawsuit. Thereafter, respondent met with Mr. Spencer and his wife, defended their depositions, and obtained medical records. He never propounded discovery to the defense. However, he did attempt to depose a. key witness several times; however, the deposition dates were canceled because Mr. Spencer could not afford the cost of the deposition. Respondent failed to communicate to Mr. Spencer the importance of obtaining the deposition, the costs associated with the deposition, respondent’s evaluation of the weakness of the case, and the upcoming deadlines associated with abandonment.

In November 2011, Mr. Spencer filed a complaint against respondent with the ODC. Respondent failed to file a written response to the complaint, necessitating the issuance of a subpoena to obtain his sworn statement. During-the January 13, 2012 sworn statement, respondent admitted he had done no work on the case since 2008 because he was having difficulty setting up the deposition of the key witness with opposing counsel.

On January 24, 2012, respondent wrote to opposing counsel threatening to file a motion to compel the taking of the deposition. On March 19, 2012, the defense filed a motion to dismiss on the grounds of abandonment. The judge signed the motion on March 21, 2012 because nothing had been filed in the case | fisince March 18, 2009. Respondent filed pleadings to appeal the ruling, but Mr. Spencer could not pay the appeal costs. In June 2012, respondent provided Mr. Spencer with his file, but he did not return the videotape documenting Mr. Spencer’s injuries.

The ODC alleged respondent’s conduct as set forth above violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation to a client), 1.3, 1.4,1.15 (safekeeping property of clients or third persons), and 8.4(a).

As previously noted, respondent answered the formal charges filed against him in 12-DB-057, essentially denying any misconduct. The matter was then set for a formal hearing on the merits, which the hearing committee conducted in December 2012.

Hearing Committee Report

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

Respondent is overburdened with his responsibilities. He has too many files, inadequate office procedures, and poor record-keeping. He lacks supervision of his files and staff, and he has consistently failed to follow up on his clients’ cases, concerns, and inquiries in a timely and adequate fashion. Overall, the committee found respondent not to be credible as to accepting responsibility and when it was apparent he should make an admission to missed deadlines, telephone calls, and follow-up with the ODC. Nevertheless, the committee determined the failure to cooperate charges against respondent did not apply to his lack of cooperation before January 2012 because his negligent staff failed to make him aware of the complaints until then.

17Regarding the specific matters subject of the formal charges, the committee found the following:

The Bruno Matter—The committee made factual findings consistent with the underlying facts set forth above. Additionally, the committee found respondent allowed Ms. Bruno’s legal matter to languish from the date of hire through January 2012 due to a lack of or substandard supervision by respondent and his secretary. While respondent ultimately earned the fee he charged, Ms. Bruno has yet to receive her portion of her ex-husband’s military retirement. Based on these facts, the committee determined respondent violated Rules 1.3,1.4, 8.1(c), and 8.4(a) of the Rules of Professional Conduct.

The Bobadilla Matter—The committee made factual findings consistent with the underlying facts set forth above. Additionally, the committee found that, in essence, respondent tried to mask his neglect of Ms. Bobadilla’s custody matter by handling her uncontested divorce for what he considered to be “zero attorney fees.” Based on these facts, the committee determined respondent violated Rules 1.3, 1.4, and 8.4(a).

The Hollie Matter—The committee made factual findings consistent with the underlying facts set forth above. Additionally, the committee found respondent’s records do little to explain the exact terms of the fee agreement between respondent and the Hollies other than showing the $3,350 received from the Hollies and one $300 court cost payment. He did not return any portion of the fee to the Hollies because he claimed he completed the legal work in this matter. Based on these facts, the committee determined respondent violated Rules 1.3, 1.4, 1.5(b), 8.1(c), and 8.4(a).

The Spencer Matter—The committee made factual findings consistent with the underlying facts set forth above. Additionally, the committee found both Mr. Spencer and respondent had questionable credibility when testifying about this Rmatter; however, the documentary evidence favors Mr. Spencer. Based on these facts, the committee determined respondent violated Rules 1.1(a), 1.3,1.4, and 8.4(a).

In light of the above findings, the committee determined respondent knowingly violated duties owed to his clients and the legal profession. His conduct caused actual harm. The committee also noted that respondent is responsible for the actions of his employees and should not be allowed to avoid appropriate discipline by blaming them for his unethical conduct. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction is suspension.

In aggravation, the committee found a prior disciplinary record (a 1997 admonition for taking a recorded statement from a criminal defendant despite the defendant’s attorney prohibiting same), a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, and substantial experience in the practice of law (admitted 1989). The committee found no mitigating factors present.

Under these circumstances, the committee recommended respondent be suspended from the practice of law for two years, with one year deferred, followed by one year of supervised probation with the condition that he attend the Louisiana State Bar Association’s (“LSBA”) Ethics School. One committee member dissented and would recommend a public reprimand, reasoning that “all actions by Respondent or his staff were in the range of negligence only.”

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

L13-DB-025

The Satcher Matter

By way of background, Kenneth Satcher hired attorney Gordon N. Blackman, Jr. to represent him in a workers’ compensation claim. During the representation, Mr. Blackman arranged for Mr. Satcher to receive supplemental earnings benefits (“SEB”) payments from the workers’ compensation insurer. Mr. Blackman represented Mr. Satcher until he was interimly suspended from the practice of law in Louisiana on August 6, 2009. When Mr. Satcher stopped receiving his monthly SEB payments, he hired respondent.

On October 19, 2009, respondent filed a motion to substitute counsel with the Office of Workers’ Compensation (“OWC”). On October 20, 2009, respondent sent a letter to the workers’ compensation insurer to let the insurer know he represented Mr. Satcher and to request the status of Mr. Satcher’s SEB payments.

On January 14, 2010, respondent and Mr. Satcher entered into a contingency fee contract in the workers’ compensation matter. Nevertheless, in 2011, Mr. Satcher paid respondent $550 in fees. Eventually, Mr. Satcher’s workers’ compensation claim prescribed, and he lost all wage benefits.

In October 2011, after the claim- prescribed, Mr. Satcher hired attorney Mark Zimmerman, who was able to settle the medical portion of Mr. Satcher’s workers’ compensation claim for $15,000. He was not able to assist with the wage benefits claim because it had prescribed.

In November 2012, Mr. Satcher filed a complaint against respondent with the ODC, alleging respondent neglected his workers’ compensation matter, allowing his claim to prescribe, and failed to communicate with him. In response to the complaint, respondent claimed he was only hired to collect Mr. Satcher’s SEB payments from Mr. Blackman and not to file any pleadings with the OWC. Regarding the $550 Mr. Satcher paid him, respondent initially claimed the money 110was to represent Mr. Satcher in a divorce proceeding. However, when Mr. Satcher provided copies of receipts showing the money was for the workers’ compensation matter, respondent claimed the money was to conduct legal research.

The ODC alleged respondent’s conduct as set forth above violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a), 1.3, 1.4, and 8.4(a).

The Bonanni Matter

In January 2011, Amber and Stephen Bonanni paid respondent $1,800 to handle Stephen’s adoption of Amber’s child from a previous relationship. In December 2011, after months of inadequate communication, Ms. Bonanni was finally able to speak with respondent, who informed her that the delay in the adoption was his secretary’s fault. Respondent assured her the adoption would be completed by January 2012. The adoption was not completed by January 2012, and Ms. Bonanni again attempted to contact respondent by telephone, to no avail.

Ms. Bonanni was able to make an appointment with respondent on March 5, 2012 by pretending to be a potential new client. When she and her mother arrived at respondent’s office for the meeting, respondent became mate and threw them out of his office. At this time, Ms. Bonanni asked for a refund.

A few days later, the Bonannis received a certified letter from respondent in which he denied their request for a refund despite not having completed the adoption. Additionally, he informed the Bonannis that, because Ms. Bonanni was respondent’s distant relative, he would be informing their mutual relatives of her behavior in his office. He also indicated he had sent a copy of the letter to Ms. Bonanni’s father.

|uThe Bonannis hired another attorney to complete the adoption, which cost them an additional $500. The new attorney obtained a final judgment of adoption on August 28, 2012.

The ODC alleged respondent’s conduct as set forth above violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a), 1.3,1.4,1.5(f)(5), 1.6 (confidentiality of information), and 8.4(a).

As previously noted, respondent answered the formal charges filed against him in 13-DB-025, essentially denying any misconduct. The matter was then set for a formal hearing on the merits, which the hearing committee conducted in April 2014.

Hearing Committee Report

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

The Satcher Matter—Respondent’s claim that he was retained only to collect SEB payments from Mr. Satcher’s prior counsel and not to pursue workers’ compensation benefits was inconsistent with the documentary evidence. After firing respondent, Mr. Satcher hired a new attorney, who was only able to settle Mr. Satcher’s medical benefits claim because the SEB payments claim had prescribed. Initially, respondent claimed the $550 Mr. Satcher paid him was for a divorce matter. When Mr. Satcher provided receipts for the $550 with notations indicating the payments were for his workers’ compensation matter, respondent claimed the $550 was to conduct legal research. However, respondent had not done any legal research. Based on these facts, the committee determined respondent violated Rules 1.1(a), 1.3, and 1.4.

The Bonanni Matter—On January 15, 2011, the Bonannis paid respondent $1,800 to handle Mr. Bonanni’s adoption of Ms. Bonanni’s child. In March 2011, | ^respondent filed an intra-family adoption petition. On April 28, 2011, respondent mailed notices of the proposed adoption to the child’s biological father via certified mail. On December 15, 2011, Ms. Bonanni spoke with respondent’s office manager and realized nothing had happened in the adoption proceeding since May 2011. That same day, respondent reassured Ms. Bo-nanni he would file a motion to appoint a curator to cure the notice deficiencies. The committee then made additional factual findings consistent with the underlying facts occurring on and after March 5, .2012 as set forth above..Based on these facts, the committee determined respondent violated Rules 1.1(a), 1.3, 1.4, 1.5(f)(5), and Í.6.

The committee then determined respondent allowed Mr. Satcher’s claim to prescribe. His conduct also substantially delayed the final adoption of Ms, Bonannfs child by Mr. Bonanni, but the delay does not appear to have caused injury to the Bonannis. However, by revealing confidential information about Ms. Bonannfs legal matter to her family, respondent harmed the legal profession. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction is suspension. Finally, the committee determined that the only aggravating factor present is respondent’s prior disciplinary record and that no mitigating factors are present.

Under these circumstances, the committee recommended respondent be suspended from the practice of law for six months, fully deferred. Additionally, the committee recommended respondent be required to refund $550 to Mr. Satcher, refund $600 to the Bonannis, attend the LSBA’s Ethics School, and attend an additional hour of continuing legal education devoted to professionalism for two years.

The ODC filed an objection to the- hearing committee’s recommended sanction, arguing the sanction was too lenient.

I 1Rl4-DB-044

The Willis Matter

Respondent represented Larry Willis’ ex-wife, Jerri Willis, in a divorce proceeding against Mr. Willis. On February 20, 2009, respondent filed a petition for divorce on Ms. Willis’ behalf. On July 12, 2009, Mr. Willis purportedly signed' an affidavit, which was purportedly notarized by respondent. However, On the date Mr. Willis purportedly signed the affidavit, he was incarcerated in Texas. The affidavit was filed into the divorce proceeding on August 3, 2009.

In August 2013, Mr. Willis filed a complaint against respondent with the ODC, alleging respondent forged or had someone else forge his signature on the affidavit. Respondent denied forging Mr. Willis’ signature on the affidavit or notarizing the affidavit. He claimed his secretary created the document and signed both names to the document without his knowledge or permission. During an interview with the ODC, respondent’s secretary indicated she could not remember if she signed Mr. Willis’ affidavit. However, she did state she routinely signed documents, including documents requiring respondent’s signature, at his direction. Respondent’s office manager confirmed both he and respondent’s secretary routinely signed respondent’s name to documents, including pleadings, at respondent’s direction.

The ODC alleged respondent’s conduct as set forth above violated the following provisions of the Rules of Professional Conduct; Rules 3.4(a) (a lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value), 3.4(b) (a lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or offer ah inducement to a witness that is prohibited by law), 4.1(a) (in the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person), 4.1(b) (a lawyer shall not |14knowingly fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client), 8.4(a), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

The Westbrook Matter

I. The Eviction Matter

In November 2006, Perry Westbrook hired respondent to evict his former brother-in-law, David Broussard, from his rental property, paying respondent a flat fee of $1,700. The $1,700 included $150 for anticipated court costs and $750 for an anticipated court appearance.

On November 15, 2006, respondent sent Mr. Broussard a notice to vacate premises via certified mail. The certified letter was returned unclaimed. Respondent never filed an eviction proceeding in court on Mr. Westbrook’s behalf.

Sometime in 2007, Mr. Westbrook fired respondent and requested the return of his file. Upon receipt of his file, Mr. West-brook learned that the notice sent to Mr. Broussard had been returned unclaimed. He also found an affidavit of mailing that was never filed into court. Despite not filing anything in court or appearing in court on Mr. Westbrook’s behalf, respondent did not refund any portion of the $1,700 Mr. Westbrook paid him.

II. . The Divorce and Child Custody Matter

In September 2006, Mr. Westbrook hired respondent to represent him in a divorce and child custody matter against Kathrine Weibel. Mr. 'Westbrook paid | ^respondent a total of $12,500 for this matter. Mr. Westbrook requested a written fee agreement numerous times, but respondent never complied. ■

During the representation, respondent handled only one hearing, which involved an exception of improper venue. .Respondent prevailed on the exception, and the case was transferred to another parish. Even though Ms. Weibel was cast with, the related costs, respondent directed Mr. Westbrook to pay an additional $954 to have the case transferred. Respondent filed motions on Mr. Westbrook’s behalf, but none were ever, heard, having been continued without Mr. Westbrook’s knowledge.

Mr. Westbrook fired respondent on April 1, 2007. On February 28, 2008, Mr. Westbrook was. in court with his new attorney for a hearing. Respondent was present on another matter and spoke to Mr. Westbrook’s mother . without Mr. Westbrook’s permission. After this conversation, Mr. Westbrook’s mother insisted he rehire respondent. Respondent demanded an additional $1,800 to continue the representation, which Mr. Westbrook paid. Mr. Westbrook asked for an. accounting, but respondent never provided one.

A trial on the custody issue was scheduled for November 10, 2009. On the morning of the trial, respondent informed Mr. Westbrook he and opposing counsel had negotiated a custody agreement. Respondent did not discuss the agreement with Mr. Westbrook and reached said agreement without Mr. Westbrook’s1 knowledge or consent. When respondent would not pursue a pending contempt charge against Ms. Weibel, Mr. Westbrook again fired him.

Mr. Westbrook’s new attorney realized respondent had never reduced the latest judgment to writing for the court’s signature. She ordered the transcript of the proceedings and drafted the judgment, which cost Mr. Westbrook additional attorney’s fees and costs. Mr. Westbrook has requested an accounting from respondent numerous times, but respondent has never complied.

| iJII. The Allstate Matter

Respondent represented Mr. Westbrook in a claim against Allstate, his homeowner’s insurance company, following a burglary at his home. Respondent accepted the case on a contingency fee basis, but despite Mr. Westbrook’s numerous requests for a written fee agreement, respondent never provided one.

Mr. Westbrook fired respondent on April 1, 2007. When his new attorney learned Allstate had already denied his claim because Allstate alleged Mr. West-brook had made material misrepresentations under oath, the new attorney terminated the representation. Three other attorneys declined to represent Mr. Westbrook, and he returned to respondent for representation.

Respondent requested an immediate $1,500 payment and a 25% contingency fee. Mr. Westbrook requested a written fee agreement numerous times, but respondent never complied. Mr. Westbrook also repeatedly requested respondent move the matter toward trial, but respondent kept telling Mr. Westbrook they were going to settle the matter. Mr. Westbrook again fired respondent and ultimately settled with Allstate on his own for $25,000.

Respondent filed a lien against Mr. Westbrook, arguing he was owed $5,000 in attorney’s fees. Mr. Westbrook agreed to pay respondent the $5,000 fee to resolve the matter but argued he should get a credit for the $1,500 paid to respondent. Respondent refused to give Mr. West-brook the $1,500 credit and never provided Mr. Westbrook with an accounting of the $1,500.

IV. The GEICO Matter

Mr. Westbrook’s ex-wife struck him with a car, and Mr. Westbrook filed a claim with GEICO, which provided the automobile insurance coverage for the vehicle. Mr. Westbrook then hired respondent to represent him in the matter. Respondent agreed to represent Mr. Westbrook for a 25% contingency fee. Mr. 117Westbrook repeatedly requested a written fee agreement, but respondent never complied.

Eventually, Mr. Westbrook learned GEICO had denied his claim because his damages resulted from what GEICO perceived to be an intentional act and because respondent had withheld information from GEICO. Respondent knew for some time GEICO had denied the claim but never informed Mr. Westbrook. Consequently, Mr. Westbrook fired respondent on April 1, 2007.

Mr. Westbrook obtained new counsel. However, upon learning GEICO had already denied the claim, the new attorney terminated the representation. The new attorney did, however, file a lawsuit on Mr. Westbrook’s behalf to prevent the claim from prescribing, and Mr. Westbrook paid the attorney for this service. Three other attorneys declined to represent Mr. West-brook, and he returned to respondent for representation.

Respondent requested an immediate $1,500 payment and a 25% contingency fee. Mr. Westbrook requested a written fee agreement numerous times, but respondent never complied.

Ultimately, the matter was mediated, and the parties reached a $24,731.91 settlement. Respondent was not in the office when Mr. Westbrook arrived to receive his portion of the settlement proceeds on July 9, 2009. The disbursement statement indicated a 25% contingency fee and deducted a $1,100 Medicare lien and $8,393.75 for fees and costs related to Mr. Westbrook’s divorce and child custody matter, leaving $9,256.25 for Mr. Westbrook. A check for $9,256.25 made payable to Mr. Westbrook was also with the file. However, Mr. West-brook objected to the $8,393.75 being deducted, claiming he had already paid these fees and costs. After respondent’s secretary called respondent, Mr. Westbrook took the check but noted his objection in writing on the copy of the disbursement statement left for respondent. Because the mediator’s $2,360 fee was not deducted from the |18settlement proceeds, respondent paid the mediator himself and then sued Mr. Westbrook for reimbursement.

The ODC alleged respondent’s conduct as set forth above violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(a) (charging an unreasonable fee), 1.5(b), 1.5(c) (contingency fee agreements), 1.5(f)(5), 1.6, 8.4(c), and 8.4(d).

As previously noted, respondent answered the formal charges filed against him in 14-DB-044, essentially denying any misconduct. The matter was then set for a formal hearing on the merits, which the hearing committee conducted in March and June 2015.

Hearing Committee Report

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

The Willis Matter—Respondent clearly allowed his staff to sign his name to documents requiring his signature, including pleadings and affidavits. Respondent did not notarize the affidavit, and there was no intent to deceive anyone. The committee concluded this was the result of an untrained staff member thinking she was doing the proper thing. Respondent’s lack of supervision and instruction resulted in his secretary believing it was appropriate to sign respondent’s name on the affidavit since she had signed his name to other documents. The committee also concluded respondent’s secretary more than likely signed Mr. Willis’ name to the affidavit. Based on these facts, the committee found no clear and convincing evidence that respondent violated or attempted to violate the Rules of Professional Conduct in this matter.

The Westbrook Matter—In the eviction matter, the committee found that, beyond sending the initial eviction letter, respondent did little, if any, work on the 119matter. However, respondent was prevented from pursuing the eviction because Mr. Westbrook took possession of the house, which led respondent to believe the matter was resolved. Additional delays occurred because Mr. Westbrook’s ex-wife was given temporary rights to live in the house through the ongoing divorce proceedings. The failure for the eviction to occur timely resulted from circumstances beyond respondent or Mr. Westbrook’s control. Thus, the committee found respondent’s actions did not cause any harm to Mr. Westbrook. The committee further found respondent agreed to a $1,700 fee, which included costs. As such, Mr. West-brook is owed a refund of a portion of the fee. Finally, the committee found Mr. Westbrook repeatedly asked for a status and an accounting, which respondent never provided. Based on these facts, the committee determined respondent violated Rule 1.5(f)(5).

In the divorce and child custody matter, the committee found respondent agreed to a fee of $12,500 for his services. Mr. West-brook repeatedly requested a written fee agreement and a status update, but respondent did not provide either. Mr. West-brook was satisfied with respondent’s work except for respondent not moving the custody matter to trial even though the custody matter Resulted in a stipulation that was beneficial to Mr. Westbrook. Respondent also filed-many motions in the matter, and the continuances were not .respondent’s fault.or atypical of trial matters. Regarding the $964 change-of-venue cost respondent directed Mr. Westbrook to pay, the committee found the payment necessary under the circumstance to move the matter forward. The committee also found that, after Mr. Westbrook fired him, respondent’s communication with Mr. Westbrook’s mother was improper and self-serving because Mr. Westbrook rehired respondent at his mother’s insistence. When rehired, respondent demanded an' additional $1,800. Mr. Westbrook requested' an accounting of fees paid, which he never ^received. Based on these facts, the committee determined respondent violated Rules 1.3,1.4,1.5(f)(5), 1.5(a), 1.5(b), and 1.6.

In the Allstate matter, the committee found respondent and Mr. Westbrook agreed to $1,500 fee plus a 25 percent contingency fee. Mr. Westbrook requested a written fee agreement, but respondent never complied. When Mr. Westbrook fired respondent on April 1, 2007, respondent already knew the claim had been denied. However, because he was involved in other matters, he did not keep Mr. Westbrook informed of the status of this matter. Mr. Westbrook returned to respondent because he could not find another attorney to represent him. He again requested a written fee agreement, but respondent admitted no written fee agreement was ever prepared. Because the fee agreement was never reduced to writing, the committee could not determine the purpose of the $1,500 fee, and respondent never accounted for the fee. Mr. West-brook settled the matter himself for $25,000 but only after respondent filed the lawsuit against- Allstate and handled the entire matter, resulting in Allstate wanting to settle. As such, the committee found respondent was entitled to the $5,000 fee. Based on these facts, the committee determined respondent violated Rules 1.3, 1.4, 1.5(b) and 1.5(c).

Finally, in the GEICO matter, the committee found that, just before Mr. West-brook fired respondent on April 1, 2007, he learned his claim had been denied. Respondent was aware of the denial but failed to inform Mr. Westbrook primarily because respondent was handling several other matters for Mr. Westbrook. Mr. Westbrook’s new attorney filed a lawsuit to interrupt prescription but terminated the representation because the claim had already been denied. Mr. Westbrook paid the attorney for his services and ultimately returned to respondent, as he could not find another attorney to represent him. The claim was settlement through mediation for $24,731.91. When Mr. Westbrook went to claim his portion of the settlement on July 9, 2009, the disbursement statement deducted an l2i additional $8,393.75 for fees related to the divorce and' custody matter and $1,100 for a Medicare lien, resulting in net proceeds of $9,256.25 for Mr. Westbrook. Although the mediator’s $2,360 fee was listed on the disbursement statement as a cost, this amount was not actually deducted from Mr. Westbrook’s funds. When Mr. Westbrook complained about the deduction of the divorce and custody fees, which he claimed he had already paid, respondent’s secretary called respondent. Mr. Westbrook was told he could accept the check for $9,256.25 or never get paid. Mr. Westbrook took the check but noted his objection on a copy of the disbursement statement. Regarding the mediator’s fee, the committee found either respondent, his secretary, or both made. errors, and this amount was not deducted from Mr. Westbrook’s funds. Respondent later sent Mr, Westbrook letters trying to get him to pay the mediator fee, but he did not tell Mr. Westbrook he had made an error. Instead, respondent paid the fee himself under threat of a lawsuit from the mediator and later sued Mr. Westbrook for this amount. Based on these facts, the committee determined respondent violated Rules 1.3,1.4,1.5(b), and 1.5(c).

In light of the above, the committee determined respondent acted negligently, and the rule violations stemmed from mismanagement of his office and staff. The committee also found that respondent’s actions did not cause any significant harm. After considering the ABA’s Standards for Imposing Laivyer Sanctions, the committee determined the baseline sanction is suspension.

In aggravation, the committee found a pattern of misconduct and multiple offenses. In mitigation, the committee found the absence of a dishonest or selfish motive and full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings.

After also considering this court’s prior jurisprudence addressing similar misconduct, the committee recommended respondent be suspended from the practice of law for six months, with three months deferred, followed by one year of | gasupervised probation. Additionally, the committee recommended respondent be required to attend the LSBA’s Trust Accounting School and Ethics School. Finálly, the committee recommended that respondent provide a detailed accounting of all fees received from Mr. Westbrook and refund any unearned fees.

The ODC filed an objection to the committee’s report and recommendation. Specifically, the ODC objected to the committee’s determination that respondent did not violate the Rules of Professional Conduct in the Willis matter. The ODC also argued the recommended sanction is too lenient.

Disciplinary Board Recommendation

12-DB-057, 13-DB-025, and 14-DB-044

After reviewing the consolidated matters, the disciplinary board determined that each hearing committee’s factual findings are not manifestly erroneous and are supported by the record. The board also determined that each committee correctly applied the Rules of Professional Conduct, with the following exceptions:

In the Bonanni matter, the board rejected the committee’s conclusion that respondent violated Rule 1.6. The board reasoned that the committee did not specifically find respondent revealed information about the Bonannis’ legal matter to Ms. Bonanni’s family members. There is no evidence in the record that respondent actually sent a copy of the March 5, 2012 letter to Ms. Bonanni’s father. Respondent denied sending a copy to Ms. Bonanni’s father, and although he did talk to her family members, he denied discussing her case with them.

In the Willis matter, the board agreed with the committee’s conclusion that respondent did not violate any of the Rules of Professional Conduct alleged in the formal charges. However, because the committee found respondent failed .to properly supervise his non-lawyer staff, which likely led to Mr. Willis’ name being forged on the affidavit, the board concluded respondent violated Rule 5.3(b) (a | ^lawyer having direct supervisory authority over a non-lawyer shall make reasonable efforts to ensure that the person’s conduct is compatible.,with the professional obligations of the lawyer). The board reasoned that this determination of a rule violation was appropriate because the factual allegations of the formal charges provided respondent with adequate notice that his failure to supervise his staff was an issue.

Finally, in the Westbrook divorce and child custody matter, the board rejected the committee’s conclusion that respondent •violated Rules 1.5(a) and 1.5(f)(5) because the committee’s factual findings do not include findings of charging or collecting an excessive fee or failing to return an unearned fee. The record, likewise, does not indicate respondent charged an excessive fee or failed to refund an unearned fee.

The board then determined respondent knowingly violated duties owed to his clients. His actions caused actual harm to his clients and had the potential to cause even greater harm. The board further determined respondent’s misconduct’ stemmed, at least partly, from his poor office management and poor staff supervision. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is suspension.

In aggravation, the board found a prior disciplinary record, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law. The only mitigating factor the board found was the remoteness of respondent’s prior disciplinary offense.

After further considering this court’s prior jurisprudence addressing similar misconduct, the board recommended respondent be suspended from the practice of law for three years. The board further recommended respondent refund $600 to the Bonannis and refund $550 to Mr. Satcher. Finally, the board recommended ^respondent provide Mr. Westbrook with a detailed accounting and a refund of any unearned fees. One board member dissented and would recommend a three-year suspension, with two years deferred.

Respondent filed an objection to the board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b). On July 7, 2016, we issued a briefing notice in this matter.

16-B-1213

In the latter part of 2006, Olga Shirley hired respondent to represent her in a redhibition claim involving her purchase of a mobile home. The parties apparently agreed to a contingency fee arrangement, but the contingency fee agreement was never reduced to writing.

In October 2007, respondent filed a lawsuit on Ms. Shirley’s behalf. On March 27, 2008, judgment was rendered in Ms. Shirley’s favor, awarding her a total of $28,150 plus legal interest. The judgment further awarded attorney’s fees of 25 percent because respondent told the judge that was the fee amount on which he and Ms. Shirley had agreed.

In November 2008, after its post-trial motions were denied, the defendant issued a $35,187.50 settlement check. Respondent withheld 40 percent for attorney’s fees and $382.50 for expenses, leaving $20,730 for Ms. Shirley.

In May 2009, Ms. Shirley filed a disciplinary complaint against respondent. On May 20, 2011, after the ODC filed formal charges against him, respondent refunded $5,278.25 to Ms. Shirley, which effectively reduced his attorney’s fees to 25 percent.

In November 2010, the ODC filed formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5(a), 1.5(b), 1.5(c), 3.3(a)(1) (a lawyer shall not | {.¿knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer), and 8.4(a).

Respondent answered the formal charges, essentially denying any misconduct. The matter was then set for a formal hearing on the merits, which the hearing committee conducted in December 2011.

Hearing Committee Report

After considering the testimony and other evidence presented at the hearing, the committee found the 40 percent attorney’s fee was reasonable for the work respondent performed on Ms. Shirley’s red-hibition case because the 25% respondent stated to the judge did not include the post-trial work respondent performed. Furthermore, Ms. Shirley did not question respondent about the fee prior to filing her complaint with the ODC, and respondent reduced his fee to 25% when requested to do so. Based on these facts, the committee recommended the formal charges be dismissed.

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

Disciplinary Board Ruling

After review, the disciplinary board determined the hearing committee’s factual findings are not manifestly erroneous as they are supported by the testimony and evidence presented in the record. Based on these facts, the board determined respondent violated Rules 1.5(b), 1.5(c) and, 8.4(a) of the Rules of Professional Conduct. Specifically, the board found respondent failed to communicate the 40% contingency fee to Ms. Shirley. As such, respondent violated Rule 1.5(b). The board also found respondent’s own testimony made it |giiclear he did not have a written contingency fee agreement signed by Ms. Shirley. Thus, he violated Rule 1.5(c). Finally, the board found that, in violating Rules 1.5(b) and 1.5(c), respondent also violated Rule 8.4(a).

The board then determined respondent negligently violated duties owed to his client, causing limited actual injury. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is a public reprimand.

In aggravation, the board found a prior disciplinary record and substantial experience in the practice of law. In mitigation, the board found the absence of a dishonest or selfish motive, timely good faith effort to rectify the consequences of the misconduct, remorse, and the remoteness of the prior disciplinary offense.

After further considering the board’s prior rulings and this court’s prior jurisprudence addressing similar misconduct, the board ordered that respondent be publicly reprimanded.

Both respondent and the ODC filed an objection to the board’s ruling. On June 29, 2016, we ordered the parties to submit written briefs addressing the issue of whether the record supports the board’s report.

CONSOLIDATION OF 2016-B-1115 AND 2016-B-1213

On July 7, 2016, the ODC filed a motion to consolidate 16-B-1115 with 16-B-1213. On July 14, 2016, respondent filed a request for an extension of time to file his briefs in both 16-B-1115 and 16-B-1213. Respondent additionally requested that 16-B-1115 be remanded to the disciplinary board so he could submit new evidence.

In response to these various motions, on July 25, 2016, we issued an order granting the motion to consolidate and establishing a new briefing schedule for the 127consolidated cases. We also referred respondent’s motion for remand to the merits, and we now deny the motion to remand.

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 voluminous records of these consolidated matters indicate that respondent neglected numerous legal matters, failed to communicate with numerous clients, failed to provide competent representation, failed to refund unearned fees, failed to provide accountings to clients, failed to reduce contingency fee agreements to writing, failed to properly supervise non-lawyer assistants, failed to keep one client’s information confidential, and failed to cooperate with the ODC in two investigations. Based on this misconduct, respondent has violated the Rules of Professional Conduct as found by the disciplinary board.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of 12Seach 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).

At times, respondent acted negligently, but at other times, he acted knowingly. His misconduct violated duties owed to his clients and the legal profession, causing actual and potential harm. The baseline sanction for this type of misconduct is suspension.

Aggravating factors present include a prior disciplinary record, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law. The only mitigating factor is the remoteness of the prior disciplinary offense.

Turning to the issue of an appropriate sanction, the board noted respondent’s actions seem to stem, at least partly, from his poor office management and poor staff supervision. This court’s prior jurisprudence addressing similar misconduct caused by poor office management indicates that, while a lengthy suspension is warranted, it can be appropriate to defer a significant portion of the suspension. For example, in In re: Vix, 08-2290 (La. 5/15/09), 11 So.3d 1090, an attorney neglected several legal matters, failed to communicate with her clients, failed to timely refund unearned fees, and failed to cooperate with the ODC in its investigations. Finding that the attorney’s misconduct stemmed from poor management of her private practice while she was dealing with an excessive case load at the indigent defender’s office and her mother’s health problems, and noting these issues appeared to have been resolved, the court suspended the attorney for two years, with all but three months deferred, followed by a two-year period of supervised probation with conditions.

Accordingly, we will reject the- board’s recommended sanction in 16-B-1115 and its ruling in 16-B-1213 and instead suspend respondent from the practice of law for three years, with two years deferred, for his misconduct in these | ^consolidated matters. Following the active portion of the suspension, respondent shall be placed on supervised probation for two years governed by the following conditions: (1) respondent shall attend the LSBA’s Ethics School, (2) respondent shall refund $600 to the Bonannis, (3) respondent shall refund $550 to Mr, Satcher, and (4) respondent shall provide Mr. Westbrook with a detailed accounting and a refund of any unearned fees.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record of these consolidated matters, as well as the briefs and oral argument, it is ordered that Mitchel M. Evans, II, Louisiana Bar Roll number 19322; be and he hereby is suspended from the practice of law for three years. It is further ordered that two years of the suspension shall be deferred. Following the active portion of the suspension, respondent shall be placed on supervised probation for two years governed by the conditions set forth in this opinion. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds' for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the-date of finality of this court’s judgment until paid.


source: Caselaw Access Project

author: CRICHTON, Justice.

license: Public Domain

text:
    ARROW AVIATION COMPANY, LLC v. ST. MARTIN PARISH SCHOOL BOARD TAX SALES DEPT.
    NO. 2016-CA-1132
    Supreme Court of Louisiana.
    12/06/2016

      BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC, Robert Louis Wollfarth, Jr., Andrew C. Kolb, for Appellant.
    LOUISIANA DEPARTMENT OF JUSTICE, Hon. Jeffrey Martin Landry, Attorney General; RAINER, ANDING, TALBOT, MULHEARN, Drew Michael Talbot, for Appellee.
   CRICHTON, Justice.

| ¶ Under the Louisiana Constitution, La. Const, art. VI, § 29(D)(1), the legislature may provide for exemptions and exclusions from sales or use taxes for local tax authorities—such as parishes. At issue in this case is a tax exclusion, La. R.S. 47:301(14)(g)(i)(bb), which provides exclusions from state and local sales tax of charges for repairs on certain property that is delivered to customers out of state. At the local tax level, the 2013 version of this tax exclusion is mandatory for tax authorities in East Feliciana Parish and optional for all other parishes, municipalities and school boards. The question before us is, when the legislature enacts a tax exclusion, whether La. Const, art. VI, § 29(D)(1) requires the legislature to treat tax authorities in all parishes the same or to make tax authorities in all parishes act the same. We hold that this uniformity provision of the constitution—based on its plain and unambiguous meaning—requires that a legislative tax exclusion treat tax authorities in all parishes the same.

We find La. R.S. 47:301(14)(g)(i)(bb), as amended in 2013, to be unconstitutional because tax authorities in all parishes are not required to apply the tax exclusion in the same form, manner, or degree. However, the portion of this statutory provision— mandating tax authorities in East Felicia-na Parish apply the 12exclusion—is severa-ble from the rest. Therefore, we sever this portion, leaving the balance of the statutory provision unchanged. Accordingly, we affirm the district court ruling and remand this matter to the district court for further proceedings.

BACKGROUND

The St. Martin Parish School Board Sales Tax Department (the “Collector”) inspected the tax returns of Arrow Aviation Company, LLC (“Arrow”)—a company that does business in St. Martin Parish. Arrow leases and repairs helicopters, including shipping repaired helicopters- to customers outside of Louisiana. From January 1, 2010 to December 31, 2012 (the “audit period”), the Collector found that Arrow failed to pay a use tax and charge a parish sales tax to its customers. Because of these findings, the Collector sent a notice of intent to assess Arrow for additional tax ($472,971.22), penalties ($118,-242.80), and interest ($173,712.12).

Under protest, Arrow paid the full amount ($764,926.14). Arrow then filed a pfetition to recover the amount paid to the Collector, claiming the Collector failed to apply a legislative tax exclusion, La. R.S. 47:301(14)(g)(i)(bb) (the “exclusion”), which excludes from state and local sales tax the charges for repairs on certain property that is delivered to customers out of state. When Arrow delivered repaired helicopters to customers located in other states, it did not charge a sales tax. Arrow specifically disputed whether it should have to charge out-of-state customers the parish sales tax. However, the Collector’s cross-petition claimed that none of the tax authorities in St. Martin Parish adopted the exclusion.

Both parties also sought declarations on the constitutionality of the exclusion. Under the Louisiana Constitution, the legislature may provide for “exclusions uniformly applicable to the taxes of all local governmental ^subdivisions, school boards, and other political subdivisions whose boundaries are not coterminous with those of the state.” La. Const, art. VI, § 29(D)(1), The parties disagreed on the interpretation of this constitutional provision. Further, because the exclusion was amended during and after the audit period, the parties also disagreed on what versions of the exclusion raise constitutional concerns.

After the parties filed motions for partial summary judgment, the district court ruled in favor of the Collector. The district court found that during the audit period the Collector did not have to apply the exclusion to its assessment of Arrow. Further, the district court found that the 2013 version of the exclusion is unconstitutional. Specifically, the 2013 version of the exclusion is unconstitutional because it mandates that East Feliciana Parish grant the exclusion, while at the same time gives other parishes the option to grant the exclusion. The district court then severed the mandatory language applicable to East Fe-liciana Parish. The effect, going forward, is tax authorities in St. Martin Parish do not have to apply the exclusion authorized by La. R.S. 47:301(14)(g)(i)(bb).

Arrow then directly appealed to this Court. This case falls within the Court’s appellate jurisdiction under La. Const, art. V, § 5(D), which provides in part that a case shall be appealable to this Court “if ... a law or ordinance has been declared unconstitutional....”

DISCUSSION

Under the Louisiana Constitution, Article VI, Section 29(D) governs the legislature’s power to enact tax exclusions. Section 29(D)(1) ■ limits the legislature’s authority to enacting tax exclusions that are “uniformly applicable to the taxes of all local governmental subdivisions, school boards, and other political subdivisions.” But it does not require the tax exclusions to be uniformly applied by these local tax authorities. In 2013, the legislature amended the exclusion provided for in La. R.S. 47:301(14)(g)(i)(bb)— which was previously optional for all | .(parishes, municipalities, and school boards—to make it mandatory for tax authorities in East Feliciana Parish. For the following reasons, we affirm the district court ruling that declared the 2013 amendment to La. R.S. 47:301(14)(g)(i)(bb) to be unconstitutional and severed the mandatory language in this statutory provision applicable to tax authorities in East Feliciana Parish.

The Uniformity Requirement under La. Const, art. VI, § 29(D)(1).

Relying , on La. Const, art. .VI, § 29(D)(1), both parties argue the constitution requires some form of uniformity for a legislative tax exclusion. Although mentioned previously by the Court in BP Oil. Co. v. Plaquemines Parish Gov’t, 93-1109 (La. 9/6/94), 651 So.2d 1322, 1337 (on reh’g (La. 10/13/94)), we declined to interpret the uniformity requirement of then Article VI, Section 29(D) because it was not necessary to resolving the issue before the Court. Arrow argues the legislature cannot provide for an exclusion that is not uniformly applied. In contrast, the Collector argues the legislature can provide for all parishes to have the option to offer the exclusion, but the form of that option must be the same for all parishes.

The starting point in interpreting a constitutional provision is its language. Ocean Energy, Inc. v. Plaquemines Par. Gov’t, 04-0066, pp. 6-7 (La. 7/6/04), 880 So.2d 1, 7. When a constitutional provision is plain and unambiguous and its application does not lead to absurd consequences, its language must be given effect. Id. An unequivocal constitutional provision should be applied by giving words their generally understood meaning. Id. But where the constitutional | (¡provision is subject to more than one reasonable interpretation, a court must determine the intent of the provision. Id.

In its entirety, Section 29(D), governing exclusions and protection of bonds, states:

Except when bonds secured thereby have been authorized, the legislature may provide for the exemption or exclusion of any goods, tangible persondl property, or services from sales or use taxes only pursuant to one of the following:
(1) Exemptions or exclusions uniformly applicable to the taxes of all local governmental subdivisions, school boards, and other political subdivisions whose boundaries are not coterminous with those of the state.
(2) Exemptions or exclusions applicable to the taxes of the state or applicable to political subdivisions whose boundaries are coterminous with those of the state, or both.
(3) Exemptions or exclusions uniformly applicable to the taxes of all the tax authorities in the state.

As previously indicated, we are called on to interpret the uniformity requirement in Section 29(D)(1). Therefore, the issue presented is the meaning of a legislative tax exclusion being “uniformly applicable to the taxes of all local governmental subdivisions, school boards, and other political subdivisions whose boundaries are not coterminous with those of the state.”

We hold that the plain and unambiguous meaning of this constitutional provision is that a legislative tax exclusion must treat “all local governmental 1 ^subdivisions, school boards, and other political subdivisions” the same. Otherwise, it is prohibited by the constitution.

This holding conforms to the generally understood meaning of the words “uniform” and “applicable.” “Uniform” means “having always the same form, manner, or degree,” and “applicable” means “able to be applied or used in a particular situation.” Merriam-Webster’s Online Dictionary (2016), http://www.merriam-webster. com/. Within the context of Section 29(D)(1), “uniformly applicable” means “all local governmental subdivisions, school boards, and other political subdivisions” must be able to apply a legislative tax exclusion in the same form, manner, or degree, (emphasis added).

Under Arrow’s interpretation, if one parish adopts a permissive tax exclusion, then every other parish must adopt the tax exclusion. But this interpretation is flawed. First, this interpretation ignores the fact that Section 29(D) is a limitation on the legislature, not on local tax authorities. That is, because Section 29(D) imposes a limitation on the legislature when establishing a tax exclusion, see Caddo-Shreveport Sales & Use Tax Comm’n v. Office of Motor Vehicles Through Dep’t of Pub. Safety & Corr. of State, 97-2233 (La. 4/14/98), 710 So.2d 776, 779, this constitutional provision does not go as far as to compel statewide local tax authorities to apply a permissive tax exclusion.

Second, permitting one local tax authority to direct the actions of another would undermine each authority’s power to tax. See La. Const, art. VI, § 29(A) ^(constitutional grant to local governmental subdivisions and school boards the power to levy and collect taxes). This would be inconsistent with the overall Louisiana local tax scheme, which only imposes “uniformity to the extent possible in the assessment, collection, administration, and enforcement of the sales and use taxes imposed by taxing authorities .... ” La. R.S. 47:337.2(A)(l)(b). Optional tax exclusions and exemptions are allowed. La. R.S. 47:337.10 (paragraph (D)(3)(F) references the exclusion at issue in this case).

In sum, La. Const, art. VI, § 29(D)(1) requires that a legislative tax exclusion treat “all local governmental subdivisions, school boards, and other political subdivisions” the same. It does not mean that all these local tax authorities must uniformly apply a legislative tax exclusion.

The Exclusion

With the evaluation of this constitutional provision in mind, we turn to the tax exclusion at issue in this case, La. R.S. 47:301(14)(g)(i)(bb), which ■ has been amended several times. For sales and use tax purposes, “sales of service” is defined in La. R.S. 47:301(14). Under paragraph (g)(i)(bb), the “charges for the furnishing of [certain] repairs” are excluded from the definition of “sales of services.” Because the versions of the exclusion before the Court are clear and unambiguous, we apply them as written. See La. R.S. 1:4; see also La. C.C. art. |R9.

In its most recent form, the exclusion in question states:

For purposes of the sales and use tax levied by the state and by tax authorities in East Feliciana Parish, charges for the furnishing of repairs to tangible personal property shall be excluded from sales of services, as defined in this Subparagraph, when the repaired property is (1) delivered to a common carrier or to the United States Postal Service for transportation outside the state, or (2) delivered outside the state by use of the repair dealer’s own vehicle or by use of an independent trucker. However, as to aircraft, delivery may be by the best available means. This exclusion shall not apply to sales and use taxes levied by any other parish, municipality or school board. However, any other parish, municipality or school board may apply the exclusion as defined in this Subparagraph to sales or use taxes levied by any such parish, municipality, or school board. Offshore areas shall not be considered another state for the purpose of this Subpara-graph.

La. R.S. 47:301(14)(g)(i)(bb) as amended by 2013 La. Act No. 172, § 1, effective July 1, 2013 (“2013-amendment”) (emphasis added).

As emphasized in the quoted text, the exclusion is mandatory for the state and tax authorities in East Feliciana Parish because the statutory language provides that the “charges for the furnishing of [certain] repairs ... shall be excluded from sales of services.” (emphasis added). But the exclusion is permissive for all other local tax authorities because the statute goes on to provide “any other parish, municipality or school board may apply the exclusion.” See La. R.S. 1:3 (“The word ‘shall’ is mandatory and the word ‘may’ is permissive.”).

The exclusion was not always worded as quoted above. During the audit period, the exclusion was permissive for all named tax authorities. See La. R.S. 1947:301(14)(g)(i)(bb) as amended by 2007 La. Act No. 173, § 1 (“2007-amend-ment”); see also La. R.S. 47:301(14)(g)(i)(bb) as amended by 2011 La. 1st Ex. Sess. Act No. 42, § 1 (“2011-amendment”). Specifically, the 2007-amendment provided “charges for the furnishing of [certain] repairs ... may be excluded from sales of services” “by the state and by tax authorities in the parishes with a [defined population].” It also stated “any other parish, municipality, or school board may apply the exclusion .... ” In the 2011-amendment, the legislature replaced the population requirement with East Feliciana Parish, But again, in the 2007-amendment and 2011-amendment, the exclusion was permissive for all named tax authorities, as well as other unnamed local tax authorities.

After the audit period, in 2013 the legislature again amended La. R.S. 47:301(14)(g)(i)(bb) by 2013 La. Act No. 172 (“2013-amendment”). The |1nexclusion was amended to provide that “charges for the furnishing of [certain] repairs ... shall be excluded from the sales of services” in connection with “sales and use tax levied by the state and by tax authorities in East Feliciana Parish.” Id. (emphasis added). Therefore, in the 2013-amend-ment, the state and tax authorities in East Feliciana Parish must apply the exclusion, while “any other parish, municipality, or school board” may apply the exclusion. Constitutionality of the Exclusion

To properly analyze the constitutionality of the exclusion, we note there is a “strong presumption that the Legislature in adopting a statute has acted within its constitutional powers.” Bd. of Directors of La. Recovery District v. All Taxpayers, Property Owners and the Citizens of the State of Louisiana, 529 So.2d 384, 387 (La. 1988). Thus, “it must be shown clearly and convincingly that it was the constitutional aim to deny the Legislature the power to enact the statute.” Id. at 388.

Preliminarily, we reject Arrow’s assertion that La. Const, art. VI, § 29(D)(1) applies to some, but not all, tax exclusions. Because provisions in the constitution “are limitations on the otherwise plenary power of the people exercised through the legislature,” Caddo-Shreveport Sales & Use Tax Comm’n, 710 So.2d at 779, all legislative tax exclusions aré subject to Section 29(D)(1).

During the audit-, period, the 2007-amendment and 2011-amendment'are applicable. In those amendments, all named tax authorities had the option to apply the exclusion, like-the unnamed local tax authorities. Therefore, under La. Const, art. VI, § 29(D)(1), both are constitutional because tax authorities in all parishes could apply the exclusions in the same form, manner, or degree. That is, both amendments treated all local tax authorities the same. Even so, Arrow’s as-applied constitutional challenge requests that this Court mandate the Collector offer the exclusion to Arrow. Arrow believes this is an appropriate remedy because it In claims some, but not all, parishes applied the exclusion. But, as already stated, the constitution does not require this degree of uniformity. Nothing in La. Const, art. VI, § 29(D)(1) requires tax authorities in all parishes to apply the same exclusions—it only requires that the legislature' uniformly authorize tax authorities-in all parishes to offer the same exclusions. The Collector, therefore, during the audit period did not have to offer the exclusion to Arrow. ;

Turning to after the audit period, only the 2013-amendment is relevant. In addition to Arrow’s as-applied constitutional challenge, the Collector argues the 2013-amendment is facially unconstitutional. See LaPointe v. -Vermilion Parish School Bd., 15-0432, p. 10 (La. 6/30/15), 173 So.3d 1152, 1159-60 (noting a facial constitutional challenge requires proof that “no set of circumstances exists under which the statute would be valid, that -is, that the law is unconstitutional in all its applications.”). Because of the uniformity requirement in La. Const, art. VI, § 29(D)(1), tax authorities in all parishes are left to wonder if they, like those in East Feliciana Parish, must apply the exclusion.

We find the 2013-amendment does not treat all local governmental subdivisions, school boards, and other political subdivisions the same because tax authorities in all parishes are not able to apply the exclusion in the same form, manner, or degree. That the exclusion is mandatory for tax authorities in East Feliciana—but optional for tax authorities in all other parishes—is an example of non-uniformity prohibited by the constitution. Therefore, we, like the district court, hold that, under La. Const, art. VI, § 29(D)(1), the exclusion provided for in La. R.S. 47:301(14)(g)(i)(bb), as amended in 2013, is unconstitutional.

| iaIn doing so, we are mindful of the strong presumption to construe a statute to preserve its constitutionality. See Bd. of Directors of La. Recovery District, 529 So.2d at 387. But it is also this Court’s duty to interpret and apply the constitution, which is the “supreme law of this state to which all legislative instruments must yield.” Louisiana Fed’n of Teachers v. State, 13-0120, 13-0232, 13-0350, pp. 22 (La. 5/7/13), 118 So.3d 1033, 1048. We find the district court correctly ruled on the constitutionality of the 2013-amendment.

Severability

Because we find that a portion of the 2013-amendment violates Article VI, Section 29(D)(1) of the Louisiana Constitution, next we must decide what effect this has on the statute.

The unconstitutionality of one portion of a statute does not necessarily render the entire statute unenforceable. World Trade Ctr. Taxing Dist. v. All Taxpayers, Prop. Owners, 05-0374, p. 21 (La. 6/29/05), 908 So.2d 623, 637. If the offending portion of the statute is severable from the remainder, this Court may strike only the offending portion and leave the remainder intact. Pierce v. Lafourche Par. Council, 99-2854, p. 9 (La. 5/16/00), 762 So.2d 608, 615. But where the purpose of the statute is defeated by the invalidity of the offending portion, the entire statute is void. World Trade Ctr. Taxing Dist., 908 So.2d at 638. To decide whether a portion of a statute is severable, the question is whether the legislature would have passed the statute had it been presented with the invalid features removed. Id. at 637.

Here, the constitutionally offensive portion of the La. R.S. 47:301(14)(g)(i)(bb) (2013) is the portion mandating tax authorities in East Feliciana Parish apply the exclusion. We find that this portion of the exclusion is severable because the legislature’s 2007 and 2011 versions of the exclusion did not mandate that tax authorities in East Feliciana Parish apply the exclusion. The |^purpose of the statute, therefore, is not dependent on the unconstitutional portion. See World Trade Ctr. Taxing Dist., 908 So.2d at 638. Thus, the district court properly ordered the severing of the offending mandatory language of the exclusion applicable to tax authorities in East Feliciana Parish.

CONCLUSION

The Louisiana Constitution limits the legislative authority to provide tax exclusions for local tax authorities. Under La. Const, art. VI, § 29(D)(1), a legislative tax exclusion must treat all local tax authorities the same. Because La. R.S. 47:301(14)(g)(i)(bb) (2013) mandates that tax authorities in East Feliciana Parish apply the exclusion—but for tax authorities in all other parishes application of the exclusion remains optional—La. R.S. 47:301(14)(g)(i)(bb) (2013) is unconstitutional. Consequently, the offending mandatory language in La. R.S. 47:301(14)(g)(i)(bb) (2013) applicable to tax authorities in East Feliciana Parish is severed.

DECREE

The following rulings by the district court are affirmed: The denial of Arrow’s motion for partial summary judgment; the grant of the Collector’s cross-motion for partial summary judgment; the declaration that, during the audit period, La. R.S. 47:301(14)(g)(i)(bb) as enacted and effective prior to July 1, 2013, was not unconstitutionally applied by the Collector to Arrow in violation of La. Const, art. VI, § 29(D)(1); and the declaration that the portion of La. R.S. 47:301(14)(g)(i)(bb), as amended by 2013 La. Act No. 172, effective July 1, 2013, making it mandatory for tax authorities in East Feliciana Parish to exclude repairs to tangible personal property from the definition of “sales of services” when the repaired property is delivered out of state, while permitting—but not requiring—other parishes to grant the same exclusion, is unconstitutional on its face in violation of La. Const, art. VI, § 29(D)(1), and the offending mandatory language 114in La. R.S. 47:301(14)(g)(i)(bb) (2013), applicable to tax authorities in East Feliciana Parish, should be severed and is hereby removed.

We remand this case to the district court for further proceedings consistent with this opinion.

AFFIRMED; REMANDED.

      . The parties dispute whether the Collector’s assessed tax includes both sales and use tax. In this case, only the sales tax is germane because at issue is the application of an exclusion from the sales tax.

      . After the BP Oil decision, Section 29(D) was amended by 1996 La, Act No, 46, § 1, approved by voters on November 5, 1996; and became effective on December 11, 1996, which amended the language in paragraph (D) and added items (1) through (3). The previous version of paragraph D read:
      Except when bonds secured thereby have been authorized, the legislature by law may uniformly exempt or exclude any goods, tangible personal property, or services from sales or use taxes, levied by local governmental subdivisions, school boards, and the state,

      3. " 'Local governmental subdivision’ means any parish or municipality.” La. Const, art. VI, § 44(1).

      4. " ‘Political subdivision’ means a parish, municipality, and any other unit of local government, including a school board and a special district, authorized by law to perform governmental functions.” La. Const, art. VI, § 44(2).

      . A parish is a local governmental subdivision or a political subdivision. See La. Const, art. VI, § 44(1)—(2). Therefore, at issue here is Section 29(D)(1) because the dispute centers on the required parish-to-parish uniformity.

      . To the extent that language in Anthony Crane Rental, L.P. v. Fruge, 02-0635 (La.App. 3 Cir. 12/11/02), 833 So.2d 1070, reversed in part on other grounds, 03-0115 (La. 10/21/03), 859 So.2d 631, can be interpreted differently, we find it to be incorrect.

      .Concerning the authority to impose a sales tax, La. Const, art. VI, § 29(A) provides:
      Except as otherwise authorized in a home rule charter as provided for in Section 4 of this Article, the governing authority of any local governmental subdivision or school board may levy and collect a tax upon the sale at retail, the use, the lease or rental, the consumption, and the storage for use or consumption, of tangible personal property and on sales of services as defined by law, if approved by a majority of the electors voting thereon in an election held for that purpose. The rate thereof, when combined with the rate of all other sales and use taxes, exclusive of state sales and use taxes, levied and collected within any local governmental subdivision, shall not exceed three percent.

      .By 2015 La. Act No. 1, § 1, (“2015-amend-ment”), the legislature amended the exclusion. This amendment designated the exclusion at issue in this case as La. R.S. 47:301(14)(g)(i)(bb)(I) and added sub item (II):
      For purposes of the sales and use tax levied by the tax authorities in Calcasieu Parish, charges for the furnishing of repairs to aircraft shall be excluded from sales of services, as defined in this Subparagraph, provided that the repairs are performed at an airport with a runway that is at least ten thousand feet long, one hundred sixty feet wide, and fourteen inches thick.
      We note that the latter provision is not currently before the Court.

      . Although tax exclusions are “construed liberally in favor of the taxpayers and against the taxing authority,” Harrah’s Bossier City Inv. Co., LLC v. Bridges, 09-1916, p. 10 (La. 5/11/10), 41 So.3d 438, 446, this presumption does not apply here because this case involves a determination of the constitutionality, and not simply an interpretation, of the exclusion. See Ocean Energy, 880 So.2d at 7, n.2. (stating that the constitutional limitation on the taxing power of local governments is "not the same as a tax exemption that exempts certain property from taxation” and so the interpretive presumption of tax exemptions is inapplicable).

      . As previously noted, this exclusion was re-designated as La, R.S. 47:301(14)(g)(i)(bb)(I) in 2015.

      . See La. R.S. 47:301(14)(g)(i)(bb) (2007), which provided:
      For the purposes of the sales and use tax levied by the state and by tax authorities in the parishes with a population between twenty-one thousand three hundred and twenty-one thousand four hundred and fifty according to the most recent federal decennial census, charges for the furnishing of repairs to tangible personal property may be excluded from sales of services, as defined in this Sub-paragraph, when the repaired property is delivered to the customer in another state either by common carrier or the repair dealer’s own vehicle, however, as to aircraft, delivery may be by the best available means. This exclusion shall not apply to sales and use taxes levied by another parish, municipality, or school board. However, any other parish, municipality, or school board may apply the exclusion as defined in this Subparagraph to the sales and use taxes levied by any such parish, municipality, or school board. Offshore areas shall not be considered another state for the purposes of this Subsection, (emphasis added).

      . See La. R.S. 47:301(14)(g)(i)(bb) (2011), which provided:
      For the purposes of the sales and use tax levied by the state and by tax authorities in East Feliciana Parish, charges for the furnishing of repairs to tangible personal property may be excluded from sales of services, as defined in this Subparagraph, when the repaired property is delivered to the customer in another state either by common carrier or the repair dealer’s own vehicle, however, as to aircraft, delivery may be by the best available means. This exclusion shall not apply to sales and use taxes levied by any other parish, municipality, or school board. However, any other parish, municipality, or school board may apply the exclusion as defined in this Subparagraph to the sales and use taxes levied by any such parish, municipality, or school board. Offshore areas shall not be considered another for the purpose of this Sub-paragraph. (emphasis added).

      . Both parties have standing to challenge the constitutionality of the 2013-amendment. See City of Baton Rouge/Par. of E. Baton Rouge v. Myers, 13-2011, p. 10 (La, 5/7/14), 145 So.3d 320, 330-31, (“To have standing, a party must complain of a constitutional defect in the application of the statute to himself, not of a defect in its application to third parties in hypothetical situations.”). The non-uniformity in the 2013-amendment is a constitutional defect that applies to both parties.


author: CALLOWAY, J.

text:
    Scott BOURQUE v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    2016 CA 1342
    Court of Appeal of Louisiana, First Circuit.
    APRIL 12, 2017

      Scott Bourque, Louisiana State Penitentiary, Angola, Louisiana, Appellant/Pro Se
    Terri L. Cannon, Angola, Louisiana, Attorney for Appéllee, Louisiana Department of Public Safety and Corrections
    BEFORE: PETTIGREW, McDonald, and calloway
       jj.

      . Hon. Curtis Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   CALLOWAY, J.

I aPlaintiff, Scott Bourque, an inmate in the custody of . the Louisiana Department of Public Safety and Corrections (“the Department”), housed at the Louisiana State Penitentiary in Angola, Louisiana, appeals the district court’s dismissal of his petition for judicial review. Based on our review of the record, we reverse.the district court’s judgment.

FACTS AND PROCEDURAL HISTORY

On March 17, 2014, Bourque initiated a complaint under the Louisiana Corrections Administrative Remedy Procedure Act (“CARP”), La. R.S. 15:1171, et seq. The warden denied Bourque’s request for hip replacement surgery* stating that surgery was not medically indicated and that Bo-urque had been afforded the opportunity .to have his concerns addressed. Bourque then filed a “second-step complaint,” which was also denied on July 21, 2014. Bourque subsequently filed a petition for judicial review in the Nineteenth Judicial District Court for the Parish of East Baton Rouge seeking review of ARP No. 2014-0781. The petition was stamped as received by the Clerk of Court on September 19, 2014, and as filed on September 25, 2014.

The Department filed exceptions of per-emption, no right of action, and lack of subject matter jurisdiction, claiming that Bourque failed to timely seek judicial review within thirty days of the receipt of the final Department decision, which it claimed was received by Bourque on July 29, 2014. See La. R.S. 15:1177(A). Bourque filed an opposition to the exceptions claiming that the petition is deemed filed at the moment of delivery to prison authorities, which in this case he asserted was August 28, 2014.

|sThe Commissioner (“Commissioner”) issued a recommendation pursuant to La. R.S. 15:1177(A)(5) and (9) denying the relief sought by Bourque based on the untimeliness of the petition. The district court adopted the recommendation of the Commissioner after a de novo review of the record. It is from this judgment that Bourque appeals.

LAW AND DISCUSSION

Louisiana Revised Statute 15:1177(A) provides that an inmate aggrieved by an adverse decision of the Department may “within thirty days after receipt of the decision, seek judicial review of the decision only in the Nineteenth Judicial District Court.” In order for the jurisdiction of the reviewing court to attach, the petition for judicial review must be timely filed. Tatum v. Lynn, 98-1559 (La. App. 1 Cir. 5/20/94), 637 So.2d 796, 797; See also Carter v. Lynn, 93-1583 (La. App. 1 Cir. 5/20/94), 637 So.2d 690, 691 (“Once the plaintiff failed to seek judicial review within thirty (30) days as provided in La. R.S. 15:1177, his right to relief ceased to exist.”) Moreover, this thirty-day period is peremptive, rather than prescriptive, and may not be interrupted or suspended. Evans v. Louisiana Dept. of Public Safety and Corrections, 2013-1345 (La. App. 1 Cir. 4/25/14), 147 So.3d 195, 197.

In recommending that the petition be dismissed, the Commissioner noted that Bourque signed and dated the petition on August 21, 2015, within the thirty days allowed, but it was not mailed off until September 18, 2014. The Commissioner noted that a delay of filing the petition longer than thirty days after receipt of the decision deprived the district court of jurisdiction to review the |4decision. See La. R.S. 15:1177(A); Carter, 637 So.2d at 691; Tatum, 637 So.2d at 797. It is unclear from the record how the Commissioner determined that the petition was mailed by prison authorities on September 18, 2014. However, we agree with Bourque that the timeliness of the petition for a pro se inmate is not determined by the date prison authorities mailed the petition.

Bourque objected to the Commissioner’s Report, invoking the “mailbox rule.” The “mailbox rule” states that a pro se prisoner’s petition for judicial review is deemed filed at the time it was delivered to the prison authorities for forwarding to the district court. Tatum, 637 So.2d at 799 (citing Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988)). Bo-urque claimed in his opposition that he delivered the petition to prison officials for mailing on August 28, 2014. (R. 24). At the hearing, the attorney for the Department of Corrections argued that Bourque received the second-step response on July 29, 2014. The petition was signed on August 21, 2014 and notarized on August 22, 2014. A second signature-and notary signá-ture took place on August 26, 2014. After the Commissioner issued his report, Bo-urque filed an opposition asserting that he signed and dated the petition on August 22, 2014, and then turned it over to prison officials.

The exceptions filed by the Department state as follows:

Also attached are the mail slips for all documents the plaintiff sent to the 19th Judicial District [Court] during the months July, August and September, the earliest of which is dated September 1 of 20U. The Clerk of court did not receive plaintiffs filing until September 19, 2014, (Emphasis added).

In support of its exceptions, the Department refers to mail slips being attached that are not contained in the appellate record. At the hearing on the exceptions, the Department’s counsel discusses these slips and an affidavit, but she did not offer the exhibits into evidence at the hearing. The Department also refers to an affidavit of Carmen Shipley, a classification officer, who apparently testified that Bourque only gave documents to the classification officer in September of |fi2014, and none in the months of July and August. The Commissioner and attorneys also discussed that on September 12, 2014, the Clerk of Court returned the petition to Bourque requesting his signature, meaning it had his petition prior to that date. The Department further argued that Bourque sent the petition to the classification officer to be filed on September 9, 2014, although the exception refers to a September 1, 2014 date.

We note that neither the affidavit nor mailing slips referred to in the exception and at the hearing are in the record or were introduced into evidence at the hearing. Generally, this court’s appellate review is limited to the evidence that was in the record at the time the trial court rendered its judgment. See La. C.C.P. art. 2164; Gatlin v. Kleinheitz, 2009-0828 (La. App. 1 Cir. 12/23/09), 34 So.3d 872, 874 n.2, writ denied, 2010-0084 (La. 2/26/10), 28 So.3d 280. Further, arguments of counsel contained in appellate briefs, and references to facts and issues not currently before the court, are not considered record evidence. Harrelson v. Arcadia. 2010-1647 (La.App. 1 Cir. 6/10/11), 68 So.3d 663, 665 n.4, writ denied, 2011-1531 (La. 10/7/11), 71 So.3d 316. We cannot consider the Department’s referenced exhibits that are not attached to the exception as it appears in the appellate record, and the Department did not introduce the referenced exhibits at the hearing. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Niemann v. Crosby Development Co., L.L.C., 2011-1337 (La.App. 1 Cir. 5/3/12), 92 So.3d 1039, 1044-45.

In this case, although it is difficult to determine from the record when the petition was delivered to prison officials, Bo-urque signed the petition on August 21, and had it notarized on both August 22 and August 26. He also signed an affidavit to proceed in forma pauperis on August 21, 2014. Given that the | ^Department has offered no other evidence, we find that the petition was not untimely.

CONCLUSION

For the above and foregoing reasons, the district court’s July 7, 2016 judgment dismissing the petition of Scott Bourque is reversed, and we remand the matter for further proceedings. As Scott Bourque was granted leave to pursue this appeal in forma pauperis and the Department of Public Safety and Corrections has not filed a brief, we will not assess any costs in this matter.

REVERSED AND REMANDED.

      . The office of commissioner of the Nineteenth Judicial District Court was created by La. R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. La. R.S. 13:713(A). The commissioner’s written findings and recommendations are submitted to a district court judge, who may accept, reject, or modify them. La. R.S. 13:713(C)(5); see Martinez v. Tanner, 2011-0692 (La.App. 1 Cir. 11/9/11), 79 So.3d 1082, 1084 n.3, writ denied, 2011-2732 (La. 7/27/12), 93 So.3d 597.