author: SLEET, Judge.

text:
    Eugene T. SMITH, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1013
    District Court of Appeal of Florida, Second District.
    Opinion filed May 10, 2017
    Rehearing Denied May 16, 2017

      Howard L. Dimmig, Jr., Public Defender, and Jamie Spivey, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellee.
   SLEET, Judge.

Eugene Smith appeals, his convictions and- sentences for refusal to submit to testing (count three), driving while license suspended or canceled (count four), and reckless driving with serious bodily injury (count five). Smith was ■ initially charged with five total counts; he pleaded guilty to counts three and four, both first-degree misdemeanors, and proceeded to a jury trial on the remaining counts, all third-degree felonies. The jury acquitted him on counts one and two but convicted him on count five, reckless driving. The court sentenced Smith to 364 days’ jail for counts three and four and to five years’ prison for count five, all to be served concurrently. We affirm Smith’s convictions and sentences on counts three and four without comment. However, because the State failed to prove that Smith’s operation of his vehicle was reckless, we reverse his conviction for reckless driving with serious bodily injury.

At trial, the State presented evidence that Smith was driving northbound in the left lane of U.S. Highway 301, which is a divided highway with two lanes of travel in each direction. It was early evening but not yet dark, weather conditions were clear, and the roadway was straight. Witnesses testified that Smith was not speeding and that Smith’s vehicle had its headlights on. Smith’s vehicle then swerved to the right, crossing the other northbound lane of travel, driving up onto the sidewalk, and hitting a bicyclist. The responding Florida Highway Patrol officer testified that he observed yaw marks on the roadway, which showed that the vehicle had- turned sharply and slid before leaving the roadway but did not indicate whether the brakes had been applied prior to impact.

Smith argues on appeal that his motion for judgment of acquittal should have been granted because the State failed to present any evidence that he was driving the car in a reckless manner. He asserts that the undisputed evidence showed that- his vehicle swerved across the road and into the bicyclist when he lost control as a result of a defective steering mechanism, not because he was driving erratically or without regard to the safety of others'. We-review the denial of a motion for judgment of acquittal de novo. Beard v. State, 842 So.2d 174, 176 (Fla. 2d DCA 2003) (citing Pagan v. State, 830 So.2d 792, 803 (Fla. 2002)).

Section 316.192(l)(a), Florida Statutes (2015), defines reckless, driving as “driving] any vehicle in willful or wanton disregard for the safety of persons or property.” “‘Willful’ means intentionally, knowingly[,] and purposely,” and “ ‘[w]an-ton’ means with a conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property.” Fla. Std. Jury Instr. (Crim.) § 28.5. This court has explained that “[mjerely proving careless driving is insufficient to sustain a conviction [under section 316.192].” State v. Del Rio, 854 So.2d 692, 693 (Fla. 2d DCA 2003) (citation omitted). “In determining whether a defendant was driving recklessly, the essential inquiry is whether the defendant knowingly drove the vehicle in such a manner and under such conditions as was likely to cause ... harm.” Stracar v. State, 126 So.3d 379, 381 (Fla. 4th DCA 2013) (quoting Santisteban v. State, 72 So.3d 187, 195 (Fla. 4th DCA 2011)).

In Stracar, the Fourth District reversed the defendant’s convictions for two counts of vehicular homicide when the evidence showed that she

was driving vehicle which left the roadway, traveled [for over 500 feet at approximately forty miles per hour] along a sidewalk and a grassy area, crossed a divided roadway and hit a sign which launched the car over a median of the intersecting street and land[ed] on the victims[’] car crushing the two occupants.

Id. at 380 (second alteration in original). As in this case, there was no evidence that the defendant used her brakes or that there were any curves in the roadway, and ■yvitnesses stated that weather conditions were optimal. Id. On these facts, the Fourth District concluded that the State had only shown that the defendant was negligent, not that she was reckless. Id. at 381. Florida courts have repeatedly held that evidence that the defendant merely violated a traffic law, failed to observe pedestrians, or lost control of a vehicle is insufficient to support a reckless driving conviction. See, e.g., Del Rio, 854 So.2d at 694 (holding that evidence that the defendant was travelling at the speed limit, had failed to stop at a T-intersection, and did not see the pedestrian before hitting her while she attempted to cross the street with a stroller showed that the defendant was driving carelessly, not recklessly); Berube v. State, 6 So.3d 624, 624-25 (Fla. 5th DCA 2008) (holding that evidence that the defendant was driving on a busy road on a clear day'when he stopped in the center of an intersection and executed an improper left turn across oncoming traffic was insufficient to show that the defendant operated his vehicle in a reckless manner); State v. Esposito, 642 So.2d 25, 26 (Fla. 4th DCA 1994) (holding that evidence that the defendant drove a trolley into the victim ‘at fifteen miles per hour while she was in a crosswalk on a clear day with, no obstructions was “woefully insufficient to state a prima facie case of reckless driving”); W.E.B. v. State, 553 So.2d 323, 324-25 (Fla. 1st DCA 1989) (holding that evidence that the defendant consumed three to five beers before driving home on a clear night and crossed the center line into oncoming traffic after overcorrecting for running off the road was insufficient to prove that the defendant willfully and wantonly operated his vehicle with disregard for the safety of persons or property).

In this case, although the State may have proved that Smith was careless or negligent, there is no evidence that Smith, “in an intentional, knowing, and purposeful manner,” drove his car off the road and onto the sidewalk “with a conscious and intentional indifference to' consequences and with knowledge that damage [was] likely to be done to persons or property.” See Berube, 6 So.3d at 626. Accordingly, we reverse Smith’s conviction for reckless driving with serious bodily injury. Because Smith appears to be entitled to immediate release, we direct the clerk to issue our mandate with this opinion.

Affirmed in part and reversed in part.

CASANUEVA and SALARIO, JJ., Concur.

      . We note that the State may still file a timely motion for rehearing pursuant to Florida Rule of Appellate Procedure 9.330; however, it should also attach a motion to recall the mandate pursuant to rule 9.340.


source: Caselaw Access Project

author: MORRIS, Judge.

license: Public Domain

text:
    Maria PUPO, Appellant, v. FLORIDA INSURANCE GUARANTY ASSOCIATION, Appellee.
    Case No. 2D15-3901
    District Court of Appeal of Florida, Second District.
    Opinion filed May 12, 2017
    George A. Yaka and Nancy A. Lauten of Vaka Law Group, Tampa; and Scott' W. McCaskill of Marshall Thomas, PL, Tampa, for AppellanVCross-Appellee.
    G. William Bissett, Jr. of Kubicki Draper, P.A., Miami, for Appellee/Cross-Appel-lant. -
   MORRIS, Judge.

This is an appeal from a final judgment entered in Maria Pupo’s breach of contract action against Florida Insurance Guaranty Association (FIGA). The breach of contract claim arose after .Pupo’s home suffered sinkhole damage and thereafter the parties disagreed over the method of rer pair and the amount of insurance proceeds to which Pupo was entitled. Although Pupo obtained a jury verdict in the amount of $28,000 for above-ground damages and $170,000 for below-ground damages, the trial court ultimately entered a final judgment in the amount of $135,515, which represented Pupo’s policy limits of $138,115 less her policy deductible and .less the statutory deductible set forth in section 631.57(l)(a)(2), Florida Statutes (2009). '

Pupo initiated this appeal arguing that contrary to this and other appellate courts’ prior holdings, the amended definition of “covered claim” in section 631.54(3)(e), Florida Statutes (2011), does not apply to claims arising out of insurance policies that were issued before the effective dates of the statutory amendment. In response, FIGA argued for an affirmance but conceded that remand was necessary because the trial court erroneously limited Pupo’s damages to Pupo’s policy limits. FIGA’s concession was based on a February 23, 2015, order entered by the Leon County Circuit Court (Second Judicial Circuit Case No. 2011-CA-3221) wherein the court determined that FIGA was permitted to pay for actual repairs for sinkhole loss that are above insurance policy limits up to the maximum combined statutory cap of $500,000 pursuant to section 631.57(l)(a)(2). As a result, FIGA agreed that the final judgment should be corrected to reflect that Pupo is required to enter into repair contracts within the jury verdict amounts and that FIGA is required to pay actual repair costs to the various contractors up to the. combined statutory cap.

At oral argument, Pupo’s counsel notified this court that the parties had reached a settlement and that Pupo agreed with FIGA that this court should affirm the final judgment but remand for correction of the amount as articulated in FIGA’s answer brief. FIGA’s counsel also acknowledged the parties’ agreement. Accordingly, we affirm the trial court’s final judgment. We direct that on remand, the trial court should correct the final judgment to reflect that Pupo is required to enter into repair contracts within the jury verdict amount's and that FIGA is required to pay actual repair costs to the contractors up to the combined statutory cap set forth in section 631.57(l)(a)(2).

Affirmed; remanded with directions.

NORTHCUTT and KELLY, JJ., Concur.

      . In Florida Insurance Guaranty Ass'n v. de la Fuente, 158 So.3d 675 (Fla. 2d DCA 2015), this court rejected the argument that an insured’s right to recover insurance proceeds from FIGA was established and vested when the insurance policy was issued. Instead, we held that the insured’s right to recover- against FIGA for a sinkhole loss did not arise until the insurer was declared insolvent and FIGA began handling the claim. Id, at 679. We also acknowledged that the effect of the 2011 amendment to the definition of "covered claim” was to prohibit FIGA from paying an insured directly for a sinkhole loss. Id. The Florida Supreme Court recently approved our decision, de la Fuente v. Fla. Ins. Guar. Ass’n, 202 So.3d 396, 403-05 (Fla. 2016).

      . Section 631.57(l)(a)(2) lists statutory cap amounts on FIGA’s liability for covered claims that are "in excess of $100 and ... less than $300,000,” as well as "an additional $200,000 for the portion of a covered claim which relates only to the damage to the structure and contents.”


author: JOHNSON, CHIEF JUSTICE WEIMER, J., GUIDRY, J., CLARK, J., HUGHES, J.,

text:
    Roger ALICEA, et al. v. ACTIVELAF, LLC, et al.
    No. 2016-CC-0708
    Supreme Court of Louisiana.
    10/19/2016
   JOHNSON, CHIEF JUSTICE

Patrons of Sky Zone Lafayette, an indoor trampoline park, are required to complete a “Participant Agreement, Release and Assumption of Risk” document (“Agreement”) prior to entering the facility and participating in Sky Zone’s activities. The Agreement contains a clause waiving the participant’s right to trial and compelling arbitration. Plaintiff, Theresa Alicea, executed the Agreement prior to her husband, Roger Alicea, taking their minor sons to Sky Zone. The Aliceas’ son, Logan Alicea, was injured while jumping on a trampoline. The Aliceas filed suit against Sky Zone, individually and on behalf of Logan, and Sky Zone responded with an exception of prematurity seeking to compel arbitration pursuant to the Agreement. The district court overruled Sky Zone’s exception and the court of appeal denied Sky Zone’s writ application.

For the following reasons, we affirm the rulings of the lower courts, and hold the arbitration clause in the Sky Zone agreement is adhesionary and therefore unenforceable.

FACTS AND PROCEDURAL HISTORY

Roger Alicea planned to take his two minor sons to Sky Zone on February 8, 2015. On that morning, his wife, Theresa Alicea, electronically executed a “Participant Agreement, Release and Assumption of Risk” document (“Agreement”), which was required for all patrons before they could enter the park and participate in activities. The Agreement requested names and dates of birth for all participants, required participants to check three boxes next to certain terms of the Agreement, and required participants to digitally sign the Agreement.

The Agreement provided that in consideration for gaining access to Sky Zone Lafayette and engaging in the services, patrons agreed:

□ I acknowledge that my participation in [Sky Zone] trampoline games or activities entails known and unanticipated risks that could result in physical or emotional injury including, but not limited to broken bones, sprained or torn ligaments, paralysis, death, or other bodily injury or property damage to myself my children, or to third parties. I understand that such risks simply cannot be eliminated without jeopardizing the essential qualities of the activity. I expressly agree and promise to accept and assume all of the risks existing in this activity. My and/or my children’s participation in this activity is purely voluntary and I elect to participate, or allow my children to participate in spite of the risks. If I and/or my children are injured, I acknowledge that I or my children may require medical assistance, which I acknowledge will be at my own expense or the expense of my personal insurers. I hereby represent and affirm that I have adequate and appropriate insurance to provide coverage for such medical expense. .
□ In consideration for allowing me and : the minor child(ren) identified herein to participate in the [Sky Zone] activities and use the [Sky Zone] facility, I ■ expressly and voluntarily agree to forever release, acquit, indemnify and discharge [Sky Zone] and agree to hold [Sky Zone] harmless on behalf of myself, my spouse, ray children, my parents, my guardians, and my heirs, assigns, personal representative and estate, and any and all other persons and entities who could in any way represent me, or the minor children identified herein or act on our respective halves, from any and all actions or omissions, cause and causes of action,- suits, debts, dam- • ages, judgments, costs, including, but not limited to attorney’s fees, and -.claims and demands whatsoever, in .. law or in equity, for any personal injury, death, or property damages that I and/or the minor children’s use of [Sky Zone] activities, [Sky Zone] premises or at offsite and camp activities related to [Sky Zone]. This waiver is intended to be a complete release of any and all responsibility or duties owed by [Sky Zone] as indem- ■ nitees for personal injuries, death and/or property loss/damage sustained'by myself or any minor children identified herein while on the [Sky Zone] premises, or with respect to [Sky Zone] activities, whether using [Sky Zone] equipment or not, even if such injury or damage results from [Sky Zone] negligence, [Sky Zone] employee negligence, improper supervision, improper maintenance of [Sky Zone] equipment or premises or negligence by other [Sky Zone] guests.
□ I certify that I and/or my child(ren) are physically able to participate in all activities at the Location without aid or assistance. I further certify that I am willing to assume the risk of any medical or physical condition that I and/or my child(ren) may have. I acknowledge that I have read the rules, (the “Sky Zone Rules”) governing my and/or my child(ren)’s participation in any activities at the Location. I certify that I have explained the [Sky Zone] Rules to the child(ren) identified herein. I understand that the [Sky Zone] Rules have been implemented for the safety of all guests at the Location. I agree that if any portion of this Agreement is found to be void and unenforceable, the remaining portions shall remain in full force and effect. If there are any disputes regarding this agreement, I on behalf of myself and/or my ehild(ren) hereby' waive any right I and/or my child(ren) may have to a trial and agree that such dispute shall be brought within one year of the date of this Agreement and will be determined by binding arbitration before one arbitrator to be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. .1 further agree that the arbitration will take place solely in the state of Louisiana and that the substantive law of Louisiana shall apply. If, despite the representations made in this agreement, I or anyone on behalf of myself and/or my child(ren) file or otherwise initiate a lawsuit against [Sky Zone], in addition to my agreement to defend and indemnify [Sky ‘ Zone], I agree to pay within 60 days liquidated damages in the amount of $5,000 to [Sky Zone]. Should I fail to pay this liquidated damages amount within the 60 day time period provided by this Agreement, I further agree to pay interest on the $5,000 amount .calculated at 12% per annum.
I further grant [Sky Zone] the right, without reservation or limitation, to videotape, and/or record me and/or my children on closed circuit television.
I further grant [Sky Zone] the right, without reservation or limitation, to photograph, videotape, and/or record me and/or my children and to use my or my children’s name, face, likeness, voice and appearance in connection with exhibitions, publicity, advertising and promotional materials.
I would like to receive free email promotions and discounts to the email address provided below. I may unsubscribe from emails from Sky Zone at any time. By signing this document, I acknowledge that if anyone is hurt or property is damaged during my participation in this activity, I may be found by a court of law to have waived my right to maintain a lawsuit against [Sky Zone] on the basis of any claim from which I have released them herein. I have had sufficient opportunity to read this entire document. I understand this Agreement and I voluntarily agree to be bound by its terms.
I further certify- that I am- the parent or legal guardian of the children listed above on this Agreement or that I have been granted power of attorney to sign this Agreement on behalf, of the parent or legal guardian of the children listed aboye..

Ms. Alicea electronically completed the Agreement on behalf of her husband by checking the three boxes provided in the agreement, furnishing the relevant personal identifying information for Mr. Alicea and their minor sons, and clicking on an “accept” button. Later that afternoon, Mr. Alicea brought his sons to Sky Zone where Logan Alicea sustained a spiral fracture of his femur while jumping on a trampoline.

On August 21, 2015, the Aliceas, individually and on behalf of Logan, filed suit against Activelaf, L.L.C., d/b/a Sky Zone Lafayette and its insurer (“Sky Zone”) asserting Logan was injured due to Sky Zone’s negligence. In response, Sky Zone filed several exceptions, including an exception of prematurity. Sky Zone alleged that the Agreement contained, a mandatory arbitration clause, thereby rendering the Aliceas’ suit premature. The Aliceas asserted they did not knowingly consent to arbitration, and argued the Agreement was -adhesionary and ambiguous.

Following a hearing, the district court overruled the exception of prematurity without reasons. The court of appeal denied Sky Zone’s writ application, finding no error in the district court’s ruling. Judge Gremillion dissented,' stating he would grant the writ. Alicea v. ActiveLaf, LLC, 16-00073 (La. App. 3 Cir. 3/18/16) (unpublished).

On Sky Zone’s application, we granted supervisory review and consolidated this case for argument with Duhon v. ActiveLaf, LLC, 16-0818 (La. 6/17/16), 192 So.3d 762, decided in a separate opinion issued contemporaneously with this matter. Alicea v. ActiveLaf, LLC, 16-0708 (La. 6/17/16), 192 So.3d 762.

DISCUSSION

For the reasons assigned this day in Duhon v. ActiveLaf, LLC, 16-0818 (La. 10/19/16), — So.3d -, we find the arbitration clause in the Sky Zone Agreement is adhesionary and unenforceable. Accordingly, we find the lower courts correctly overruled Sky Zone’s exception of prematurity. Therefore, the rulings of the lower courts are affirmed.

DECREE AFFIRMED AND REMANDED TO THE DISTRICT COURT.

WEIMER, J.,

dissenting.

For the reasons assigned in my dissent in Duhon v. ActiveLaf, LLC, 16-0818, — So.3d - (La. 10/19/16), I respectfully disagree with the majority’s conclusion that analysis of the Sky Zone Agreement using Aguillard’s four factor “framework” supports a finding that the arbitration clause is adhesionary and not enforceable. Finding that the arbitration clause in the Sky Zone Agreement is valid and enforceable, I would reverse the rulings of the lower courts in this matter.

GUIDRY, J.,

dissenting.

For the reasons assigned in my dissent in Duhon v. ActiveLaf, LLC, 2016-0818 (La. 10/19/16),_ So.3d _, I respectfully dissent from the majority’s finding that the arbitration clause in the Sky Zone Agreement is adhesionary and, as such, unenforceable. Accordingly, I would reverse the rulings of the lower courts.

CLARK, J.,

concurring.

I find that the contract at issue lacks mutuality to such an extent that the contract is adhesionary. Not only does the contract bind only patrons to arbitration, the contract stipulates that if a patron files a lawsuit against Sky Zone, the patron is liable for $5,000 in liquidated damages. At the same time, Sky Zone is free to file a lawsuit against the patron without any penalty.

HUGHES, J.,

concurring.

Although I do not agree that the arbitration language was hidden, I concur that it lacked mutuality, and thus with the result.

CRICHTON, J., additionally concurs and assigns reasons.

For my reasons stated in Duhon v, ActiveLaf, LLC, 16-0818 (La. 10/19/16), — So. 3d. -(Crichton, J., concurring), I concur in this decision.

      . There is no evidence in the record regarding the exact method of execution, or location where Ms. Alicea executed the Agreement. The Aliceas' counsel suggested at oral argument before this court that the Agreement could be executed online or by phone. Regardless, it is undisputed she executed the agreement outside of the Sky Zone facility and several hours prior to Mr. Alicea and their sons arriving at Sky Zone.


author: KNOLL, J.

text:
    Dana JOHNO v. John DOE, et al.
    NO. 2016-CA-0087
    Supreme Court of Louisiana.
    12/06/2016

      UNGARINO & ECKERT, LLC, David I. Bordelon, Wayne Robert Maldonado, James Michael Benson, for Appellant.
    Paul C. Miniclier; Nanhum D. Laven-thal; PLAUCHE MASELLI PARKER-SON, LLP, Godfrey Bruce Parkerson, Elizabeth Babin Carville, Scott H. Mason, for Appellee.
   KNOLL, J.

111n this appeal, the District Court declared the immunity statute at issue, La. R.S. § 9:2800.17, unconstitutional as applied retroactively to the facts of this case. The plaintiff, Dana Johno, filed suit against Plaquemines Parish Government (“PPG”) and numerous other defendants alleging his house was unlawfully demolished by PPG and its agents after Hurricane Katrina. The plaintiff subsequently moved to have La. R.S. § 9:2800.17, which provided retroactive statutory immunity to the government and its agents for certain actions taken in the wake of Hurricane Katrina, declared unconstitutional. The District Court granted the plaintiffs motion. Significantly, the issue of immunity was never raised or argued by PPG. Only one of the defendants, Hard Rock Construction, LLC (“Hard Rock”), one of the contractors for PPG, has appealed the District Court’s ruling. For the following reasons, we affirm.

| gFACTS AND PROCEDURAL HISTORY

The plaintiff alleges he was the owner of a house located at 183 Foster Lane in Buras, Louisiana, which house was physically moved by floodwater to 220 Perry Lane, an adjacent lot. He alleges he examined his house, was unable to remove valuable materials, and placed numerous signs on his house which stated “Do Not Demolish—Property of Dana Johno” with his phone number on the signs. The plaintiff alleges, and the defendants do not contest, that this house was demolished by contractors acting on behalf of PPG before the June 15, 2006 effective date of the act creating the immunity provision found in La. R.S. § 9:2800.17. After the plaintiff filed suit for claims related to this demolition, including negligence, gross negligence, conversion and trespass, one of the contractor defendants asserted immunity under La. R.S. § 9:2800.17, which provided in pertinent part:

A. (1) The state, or any political subdivision thereof, or any public entity, meaning and including the state and any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and their agents, employees, contractors, volunteers, or representatives engaged in any operational decisions or activities in the aftermath of Hurricanes Katrina and Rita shall not be civilly liable for the death of, or any injury to, any person or damage to property as a result of such activity, except in the event of gross negligence or willful misconduct.

The statute’s implementing act, Act 402 of the 2006 Regular Legislative Session, expressly states this provision applies retroactively:

Section 2. The provisions of this Act shall have both prospective and retroactive application and shall be applied retroactively to August 29, 2005.

In turn, the plaintiff submitted a motion to declare La. R.S. § 9:2800.17 unconstitutional, providing notice to the Attorney General as required pursuant to La. R.S. § 13:4448. Two of the contractor defendants submitted oppositions to plaintiffs motion, and the Attorney General filed a memorandum in support of the ^statute’s constitutionality. After oral argument, the District Court took the matter under advisement. The District Court, quoting at length this Court’s decision in Burmaster v. Plaquemines Parish Government, 07-2432 (La. 5/21/08), 982 So.2d 795, granted plaintiffs motion, stating in its Reasons for Judgment:

Based on the Supreme Court’s reasoning in Bwrmaster, it would be unconstitutional to retroactively apply La. R.S. 9:2800.17 as it existed from June 2006 to August 2008 to plaintiffs claims. Plaintiffs home was demolished prior to the effective date of the statute; thus, his cause of action accrued prior to the enactment of the statute. Because his cause of action accrued before the statute went into effect, it would be unconstitutional to apply the statute retroactively.

Hard Rock, alleged to be the supervising contractor in the demolition, filed supervisory writs to the Court of Appeal, which properly found it had no jurisdiction and transferred Hard Rock’s application to this Court pursuant to La. Const, art. V. § 5(D). No other defendant, including PPG, has joined in this appeal; neither is the Attorney General appearing before us.

DISCUSSION

Defending the constitutionality of the retroactive application of La. R.S. § 9:2800,17 to plaintiffs claims, Hard Rock insists that Burmaster v. Plaquemines Parish Government, 07-2432 (La. 5/21/08), 982 So.2d 795 is “easily distinguishable” because it involved a claim regarding failure to maintain a levee rather than a debris removal issue. Hard Rock avers the statute at issue does not negate any cause of action the plaintiff may have, but that it merely prescribes the method of enforcement of plaintiffs rights. We disagree.

We affirm the District Court’s finding that this Court’s decision in Bwrmaster is directly on point. The statute at issue in that case, designated as La. R.S. § 9:2800(H) and originating from La. Act 545 of 2006, provided in pertinent part:

(1) Notwithstanding any provision of law to the contrary, except for gross negligence or willful and wanton misconduct, no person shall have a cause of action based solely upon liability imposed for pCivil Code Articles 2317 and 237.1 against a public entity for any damages arising from hurricanes Katrina or Rita, including aftereffects of either hurricane and post hurricane restoration, repair, cleaning, and construction.

Burmaster involved a different plaintiff who filed a suit against PPG, seeking damages for harm allegedly caused by PPG’s failure to properly maintain the hurricane protection levees in the parish. After noting that La. Act 454 of 2006 clearly expressed the Legislature’s intent for its provisions to be retroactive, this Court looked to past precedent, finding:

When a party acquires a right to assert a cause of action prior to a change1 in the law, that right is á vested property right which is protected by the guarantee of due process. Walls v. American Optical Corp., 98-0455, p. 8 (La. 9/8/99), 740 So.2d 1262, 1268. See also Cole [v. Celotex Corp.], 599 So.2d [1058] at 1063 [ (La.1992) ]; Crier v. Whitecloud, 496 So.2d 305, 308 (La.1986); Faucheaux v. Alton Ochsner Medical Found. Hosp. & Clinic, 470 So.2d 878, 878-79 (La.1985); Lott [v. Haley], 370 So.2d [521] at 524 [ (La.1979) ]; Burmaster v. Gravity Drainage Dist. No. 2, 366 So.2d 1381, 1387 (La.1978). Thus, a cause of action, once accrued, cannot be divested by subsequent legislation.

Burmaster v. Plaquemines Par. Gov’t, 982 So.2d at 807-08, quoting Bourgeois v. A.P. Green Indus., Inc,, 2000-1528 (La. 4/3/01), 783 So.2d 1251 at 58-59.

Accordingly, the Court in Búrmasier found the plaintiffs claim for-negligence against PPG had already accrued at the time the immunity statute at issue‘ was implemented; thus, plaintiff could not be constitutionally divested -of its cause of -action through retroactive application of the statute. Although the nature of defendants’ alleged actions in this case are different from those alleged by the plaintiffs in Bur-master, this distinction is without a difference. We find the demolition of the plaintiffs house falls as squarely under the immunity provisions of La. R.S. § 9:2800.17 as the alleged failure to properly maintain the levees fell -under the immunity provision applicable in Bumas-ter. Thus, as in Bwrmaster, the plaintiff in this case may not. be retroactively deprived of causes of actions which Invested when his house was demolished, prior to the. implementation of the immunity statute at issue.

Hard Rock cites to Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331 (La. 1978) in support of its* assertion that the statute at issue merely proscribes' the burden of proof for plaintiffs -claim. We find Ardoin is distinguishable from the present case. In Ardoin, this Court approved the retrospective application of a statute which further defined the:.standard of care in medical malpractice eases for ^-different types of physicians. Id. The plaintiff, representing a decedent who had passed away after heart by-pass surgery, sued the doctors who performed the- surgery and who had held themselves out as specialists. Subsequent to the surgery, the Legislature specified that specialists would be held to the degree of care practiced by other specialists, even if not practicing in the same locality. Finding the lower courts erred in failing to apply the statute retroactively, this Court found it to be merely procedural and interpretative, more precisely determining the standard of care or skill required by certain classes of physicians. Id. at 1339.

The Burmaster case, which followed this Court’s decision in Ardoin, declined to extend Ardoin’s holding, addressing at length the argument that the statute at issue merely heightened the burden of proof to require a showing of gross negligence or willful misconduct:

Black’s Law Dictionary 209 (8th ed.2004) defines “burden of proof’ generally as “[a] party’s duty to prove a disputed assertion or charge.” Black’s entry for “burden of proof’ also includes this definition of “middle burden of proof’: “A party’s duty to prove a fact by clear and convincing evidence. This standard lies between the preponderance-of-the-evidenee standard and the beyond-a-reasonable-doubt standard.” Id. The following quote also appears in Black’s “burden of proof’ entry:
The expression “burden of proof’ is tricky because it has been used by courts and writers to mean various things. Strictly speaking, burden of proof denotes the duty of establishing by a fair preponderance of the evidence the truth of the operative facts upon which the issue at hand is made to turn by substantive law. Burden of proof is 1 (¡sometimes used in a secondary sense to mean the burden of going forward with the evidence. In this sense it is sometimes said that a party has the burden of countering with evidence a prima facie case made against that party.
Id. (quoting William D. Hawkland, Uniform Commercial Code Series § 2A-516:08 (1984)).
Thus, even though the term “burden of proof’ to [sic] is used to refer to “various things,” the term technically applies only to the three levels of burden of proof that are recognized by courts—i.e., (1) preponderance of the evidence, (2) clear and convincing evidence, and (3) beyond a reasonable doubt. These are the three levels of burden of proof recognized by Louisiana courts. Even though one might imprecisely refer to a plaintiffs burden of proving ordinary negligence, as opposed to proving gross negligence, as the plaintiffs “burden of proof,” that term does not technically apply.
Burmaster, 982 So.2d at 809.
The Burmaster Court further concluded:
The fact that the statute provides an exception in cases where the plaintiff can prove gross negligence or willful and wanton misconduct does not mean that the only effect of 2006 La. Act 545 was a procedural change in the burden of proof under La. Civ.Code arts. 2317 and 2317.1. Indeed, 2006 La Act 545 established a new rule, making it substantive under the definition set forth by this court in Manuel [v. La. Sheriffs Risk Mgmt. Fund, 95-0406 (La. 11/27/95), 664 So.2d 81) ] and Sudwischer [v. Estate of Hoffpauir, 97-0785 (La. 12/12/97), 705 So.2d 724] Despite the existence of the exception, the effect of 2006 La. Act 545 is to eradicate a large portion of the liability that could otherwise have been imposed on public entities for damages caused by Hurricane Katrina. For the foregoing reasons, we find no merit to PPG’s argument that 2006 La. Act 545 did not divest the plaintiffs of any vested rights, but merely changed the plaintiffs’ burden of proof.
Id. at 810 (emphasis supplied).

Applying our analysis in Burmaster to this case, we find retroactive application of La. R.S. § 9:2800.17 does not merely change the plaintiffs burden of proof but clearly deprives the plaintiff of his vested right to bring causes of action beyond those arising from the defendants’ gross negligence or willful misconduct.

DECREE

When a party acquires a right to assert a cause of action prior to a change in the law, that right is a vested property right which is protected by the guarantee of [7due process. Burmaster, 982 So.2d at 807-08 (citations omitted). Thus, a cause of action, once accrued, cannot be divested by subsequent legislation. Id. Accordingly, we affirm the District Court’s finding that La. R.S. § 9:2800.17 is unconstitutional as applied retroactively, because the plaintiffs causes of action accrued before effective date of the statute. We remand this matter for further proceedings consistent with this opinion.

AFFIRMED AND REMANDED.

      . Although originally designated as La. R.S. § 9:2800.16, the statute at issue in this case was later renumbered to La. R.S. § 9:2800.17, and will be referred to as such for the purpose of this opinion. Additionally, this statute expired in 2008 and the section number has been reassigned to a different provision. The pertinent text of La. R.S. § 9:2800.17 is contained below on page two.

      . The plaintiff alleges he discovered the house had been destroyed on January 11, 2006.


author: PER CURIAM

text:
    IN RE: Gregory F. WILLIAMS, Sr.
    NO. 2016-B-1253
    Supreme Court of Louisiana.
    12/06/2016
    OFFICE OF DISCIPLINARY COUNSEL, Charles Bennett Plattsmier, for Applicant.
    Gregory Francis Williams; SCHIFF, SHECKMAN & WHITE, Leslie J. Shiff, for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

|-i This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Gregory F. Williams, an attorney licensed -to; practice law in Louisiana'but currently on interim suspension based upon his conviction of .a serious crime. In re: Williams, 13-0234 (La. 2/8/13), 107 So.3d 613.

UNDERLYING FACTS

At all times pertinent to these proceedings, respondent was employed as an assistant district attorney for the 15th Judicial District. In 2007, the district attorney, with the consent óf a district judge, set up a process' in the' 16th JDC by which a select group • of individuals could' "receive what was referred to as “immediate 894 pleas” in DWI cases. In order to qualify for the “immediate 894 plea,” the district attorney required that the charged individual complete all legal prerequisites prior to entering the plea, including community service, a substance abuse program, and a driver safety program. The individual cases selected for “immediate 894 pleas” were withheld from,, or removed from, the normal DWI docket, and special court sessions were, held to handle these cases. Respondent served as the prosecuting attorney for all cases disposed of by “immediate 894 plea.” The DWI defendant, at the time of the “immediate 894 plea,” would appear with certifications that he/she had completed the community service requirements, |Rthe substance abuse program, and the driver safety program. The documents would be filed into the court record at the time of the guilty plea. Pursuant to La. Code Crim. P. art. 894, the judge would then immediately grant the 894 motion dismissing the conviction, which served as an acquittal, thereby allowing the DWI defendant to have his/her driving privileges immediately reinstated.

Beginning in 2010, respondent became aware that personnel in the District Attorney’s Office and a non-lawyer by the name of Robert Williamson were, utilizing the “immediate 894 plea” sessions to provide favorable dispositions of DWI cases for defendants willing to pay Mr. Williamson. Respondent was aware that the individuals who were being allowed to plead in the “immediate 894 plea” sessions were paying Mr. Williamson, and he also knew that Mr. Williamson had never been licensed to practice law. In 2010 and 2011, respondent accepted a series of gifts and a cash payment from ,Mr. Williamson, “intending to be influenced and rewarded in connection with” the DWI scheme. The gifts included an autographed New Orleans Saints hat, bicycles for respondent and his family members, and clothing for respondent, ranging from shoes to business suits. In December 2011, Mr. Williamson gave respondent a cash payment of $500.

On January 16, 2013, the United States Attorney for the Western District of Louisiana filed a bill of information charging respondent with one count of conspiracy to commit bribery. The following day, respondent pleaded guilty as charged. According to the factual basis for the guilty plea, respondent “was aware that [Mr. Williamson] was receiving payments from the individuals being placed in the ‘immediate 894 sessions.’ Based upon the large number of [Mr. Williamson’s] ‘clients’ being placed in the ‘immediate 894 sessions,’ [respondent] knew that the amount of money involved in the series of transactions totaled far in excess of $5,000.” On July 10, 2015, United States District Judge Elizabeth Foote sentenced ^respondent to two years of supervised probation for his participation in the scheme, and ordered him to participate in a monitoring program.

DISCIPLINARY PROCEEDINGS

In February 2013, the ODC filed formal charges against respondent, alleging that his conduct violated the following pro-visions of the Rules of Professional Conduct: Rules 8.4(a) (violation of the Rules of Professional Conduct), 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).

Respondent answered the formal charges. He admitted to the allegations in the charges, but denied providing “a quid pro quo or benefit in exchange for any gift he may have received.”

This matter then proceeded to a formal hearing, which was conducted by the hearing committee in May 2015. Prior to the hearing, the ODC filed a pre-hearing memorandum in which it argued that the appropriate sanction in this matter is permanent disbarment. In his pre-hearing memorandum, respondent argued that he should be suspended from the practice of law for three years, retroactive to February 8, 2013, the date of his interim suspension.

Heaving Committee Report

After considering the evidence and testimony presented at the hearing, the hearing committee made factual findings consistent with the underlying facts set forth above.

I ¿Additionally, the committee found that respondent submitted a transcript into the record, post-hearing, of his sentencing before Judge Foote. During the course of the sentencing hearing, it was represented to Judge Foote that respondent had voluntarily surrendered his law license. However, there is nothing in the record of this disciplinary proceeding which indicates that the loss of respondent’s license was voluntary. This representation was made by respondent’s counsel in the presence of respondent, and the transcript does not reflect that respondent corrected this false assertion. Judge Foote appeared to have been swayed by this assertion in her sentencing, as she expressly noted:

The Court is. impressed with that humility and with your acceptance of responsibility for what you have done by voluntarily turning in your license and by pleadings of the Bill of Information and based on the degree of cooperation that you have shown. [Emphasis added.]

The court record clearly reflects respondent’s presence at .all times during the sentencing proceeding. The assertion that his law license had been voluntarily surrendered was made twice, the second occasion coming after Judge Foote specifically inquired. “And he voluntarily did that?” In reply, respondent’s counsel stated, “He voluntarily did that, Judge. He voluntarily did that.” Respondent was subsequently given an opportunity to address the court directly and no attempt was made to correct the false assertion.

In his' post-hearing brief, respondent pointed to the apparent leniency of the court-in the sentencing phase as grounds for deviating downward from the baseline sanction of disbarment. However, there is reasonable cause to conclude that the leniency was influenced at least in part by the false assertion that • respondent had voluntarily surrendered his law license.

15As previously noted, respondent received $500 in cash, an autographed New Orleans Saints hat, clothing, and bicycles from Mr. Williamson. Respondent never brought any of this to the attention of the district attorney or to the other assistant district attorneys in his office. The cash payment was made in respondent’s office at the 15th JDC, but respondent did not inquire with anyone at the office about the propriety of receiving the cash payment or other gifts. There is no evidence that he took any steps to even inquire if an investigation should be conducted into the conduct of Mr. Williamson.

It has been established through respondent’s guilty plea, the nature of his charge and various other charges against other individuals involved with the scheme that there were benefits given through the actions of respondent that inured to the benefit of others. It was also established at the hearing that respondent did not have any relationship with Mr. Williamson, the one who provided the gifts and cash payment to respondent, and who ushered clients through the “expedited 894” proceedings in which respondent represented the 15th JDC. There was no evidence of any social or professional relationship with Mr. Williamson in respondent’s private practice.

Despite his assertions that he did not know he was doing or intended to do anything wrong, and was not aware that there was any benefit being given, respondent’s written consent to the charges establishing just the opposite belies his assertions. Respondent presented testimony through one witness that sought to place blame for his actions on District Attorney Michael Har-son, who has never been charged .with any wrongdoing. Moreover, and as previously discussed, respondent made no attempt whatsoever to bring any of the activity to the attention of Mr. Harson.

| ^Respondent also testified that for a period of five years he handled over two hundred DWI cases in which he knew that Mr. Williamson was involved, that is, approximately forty cases per year.

The committee did not specifically discuss the Rules of Professional Conduct in its report, but found respondent’s guilty plea conclusively established that he was guilty of intentional corruption of the judicial process as a result of his acceptance of bribes, and also guilty of malfeasance in office which resulted in a felony conviction involving fraud. The committee did not see sufficient or ample reason to deviate from the sanction of disbarment, which is the baseline sanction for an attorney convicted of a felony.

After considering respondent’s conduct in light of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E, as well as this court’s prior jurisprudence addressing similar misconduct, the committee recommended he be permanently disbarred.

Respondent filed an objection to the hearing committee’s recommendation, arguing that the sanction recommended by the committee was too harsh. Respondent also argued that the committee made factually unsupported assumptions and placed undue emphasis on the federal court’s sentencing procedure. Respondent denied that he misled or attempted to mislead the sentencing federal judge.

17Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings are supported by the record and are not manifestly erroneous. This includes the committee’s consideration of the statements made in the federal sentencing transcript. Based on these findings, the board determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The board determined respondent violated duties owed to the public and the legal profession. Respondent participated in a conspiracy that allowed others to misuse the DWI program in the 15th JDC. His failure to notify his superiors' of the inappropriate behavior occurring with the DWI program allowed the criminal activity to continue. This caused harm to the public by casting a negative light on the criminal justice system in the 15th JDC. Respondent’s criminal conviction also harmed the legal profession by casting it in a negative light. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is disbarment.

In aggravation, the board found a dishonest and selfish motive, a pattern of misconduct, substantial experience in the practice of law (admitted 1998), and illegal conduct. In mitigation, the board found the absence of a prior disciplinary record, full and free disclosure to the ODC and a cooperative attitude toward the proceeding, character or reputation, imposition of other penalties or sanctions, and remorse.

After considering respondent’s conduct in light of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E, as well as this 1 scourt’s prior jurisprudence addressing similar misconduct, the board recommended he be permanently disbarred.

Respondent filed an objection to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). When the disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re:Bou dreau, 02-0007 (La. 4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La. 1990). The discipline to be imposed in a given case depends upon the seriousness of the offense, the circumstances of the offense, and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La. 1989).

Respondent pleaded guilty to conspiracy to commit bribery, which he committed while employed as an assistant district attorney for the 15th JDC. This crime is a felony under federal law and clearly warrants serious discipline. Indeed, in their respective reports, the hearing committee and the disciplinary board have concluded that respondent’s offenses are so egregious that he should be permanently prohibited from applying for readmission to the bar.

We agree. In Appendix E to Supreme Court Rule XIX, the court set forth guidelines illustrating the types of conduct which might warrant permanent disbarment. While these guidelines are not intended to bind this court in its decision-making process, they present useful information concerning the types of ^conduct which might be considered worthy of permanent disbarment. For purposes of the instant case, Guidelines 2 and 7 are relevant:

GUIDELINE 2. Intentional corruption of the judicial process, including but not limited to bribery, perjury, and subornation of perjury.
GUIDELINE 7. Malfeasance in office which results in a felony conviction, and which involves fraud.

According to the bill of information filed against him, respondent corruptly accepted and agreed “to accept a cash payment in the amount of $500, as well as other things, of value from currently uncharged co-conspirators, intending to be influenced and rewarded in connection with the transaction and serious of transactions of the District Attorney’s Office for the 15th Judicial District Court.” Respondent subsequently pleaded guilty as charged. His conduct clearly amounts to intentional corruption of the judicial process under Guideline 2. Guideline 7 is implicated as respondent’s conduct led to his felony criminal conviction.

Turning to the jurisprudence of this court, the following cases are instructive and involve similar misconduct: In re: Bell, 11-1330 (La. 10/7/11), 72 So.3d 825; In re:Jackson, 09-2354 (La. 2/12/10), 27 So.3d 273; and In re: Burks, 07-0637 (La. 8/31/07), 964 So.2d 298. In Bell, the respondent was employed as a senior prosecutor at the Baton Rouge City Court. He solicited and accepted bribes from individuals with criminal and traffic matters pending before that court in exchange for dismissing or otherwise “fixing” the charges. In Jackson, the respondent was an assistant city attorney for the City of New Orleans assigned to Traffic Court, where his duties included prosecuting DWI cases. Nevertheless, Jackson accepted $500 to represent a criminal client charged with DWI in Traffic Court. Prior to the client’s arraignment and in his capacity as an assistant city attorney, Jackson entered a nolle pro-sequi in the case, effectively dismissing the charges against his client. In Burks, an assistant city attorney for the City of New Orleans assigned to |inprosecute cases in Traffic Court accepted $1,000 to nolle pro-sequi traffic citations for an undercover FBI agent posing as a taxi driver. Each of these attorneys was convicted of felony criminal charges, and they were permanently disbarred under Guidelines 2 and 7.

Based on this jurisprudence and the aforementioned guidelines, we find that permanent disbarment is the appropriate sanction in this case. Accordingly, we will accept the disciplinary board’s recommendation and permanently disbar respondent.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that the name of Gregory F. Williams, Louisiana Bar Roll number 25538, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. 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.

WEIMER, J., concurs in the result.

      . Terms of respondent’s probation include, but are not limited to, restriction to his residence as directed by the probation officer, ■ subject to curfew, and two hundred hours of unpaid community service.

      . On January 23, 2013, the ODC filed a petition for interim suspension based upon respondent’s conviction of a serious crime. Respondent was served with the petition but did not file any response within the fifteen-day period set forth in Supreme Court- Rule XIX, § 19(C). Accordingly, on February 8, 2013, we granted the ODC’s petition for ■ interim suspension.

      . See In re: Bell, 11-1330 (La. 10/7/11), 72 So.3d 825 (an attorney, in his role as a senior prosecutor in the Baton Rouge City Court, accepted bribes in exchange for “fixing” criminal and traffic matters pending in the court; permanent disbarment imposed), and In re: Burks, 07-0637 (La. 8/31/07), 964 So.2d 298 (assistant city attorney for the City of New Orleans assigned to prosecute cases in traffic court accepted $1,000 to nolle prosequi
        traffic citations for an undercover FBI agent posing as a taxi driver; permanent disbarment imposed).

      . The board noted that the court considers the facts and circumstances surrounding a criminal conviction when determining an appropriate sanction. In re: Kirchberg, 03-0957 (La. 9/26/03), 856 So.2d 1162. This would include the circumstances surrounding the sentencing phase of a conviction. Second, respondent moved to hold the record open to introduce the sentencing transcript into evidence. Thus', respondent was the party who introduced the facts he now argues the committee should not have considered. Accordingly, the board concluded the committee did not err in considering and making findings based upon the statements in the criminal sentencing transcript.