author: Ciklin, J. May, J.,

text:
    Glenroy ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-4300
    District Court of Appeal of Florida, Fourth District.
    November 1, 2017
    Richard L. Rosenbaum of the Law Offices of Richard Rosenbaum, Fort Lauder-dale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   Ciklin, J.

An encounter between the defendant and another man on a public roadway re-suited in the defendant’s conviction of aggravated assault with a firearm. Because the admission of certain hearsay evidence was not harmless, we reverse and remand for a new trial.

The evidence at trial revealed the following. During the victim’s drive home from work, the defendant pulled up close behind his vehicle, even though the victim was traveling well over the speed limit. The victim, a two-time convicted felon, braked abruptly, causing the defendant to veer his Lexus into another lane. Instead of being put off, the defendant pulled his Lexus alongside the victim’s vehicle. The windows of the victim’s vehicle were down, as was the front driver’s side window of the defendant’s Lexus.

The defendant rested a gun on the windowsill of his Lexus, pointed the gun in the victim’s direction, and asked him if he had a “fing problem.” The victim responded that there was no problem, and the defendant drove ahead of him, seemingly ending the encounter. As soon as traffic came to a stop, however, the defendant opened the door of his Lexus, placed one foot on the ground, and looked back at the victim. The victim put his car in reverse and threw up his hands to indicate that he was not interested in a confrontation. The defendant sped away. The victim followed at a distance and was able to obtain the license plate number on the defendant’s Lexus, which he immediately reported to a 911 operator.

During the investigation, law enforcement officers spoke to both the victim and the defendant. The victim described the gun as “nickel plated or chrome, something along those lines,” and as a silver automatic firearm. He also stated that holes on the front of the gun were “silver because it’s stainless steel.”

When the defendant was arrested about three weeks after the incident, a gun with a silver upper portion and black lower portion was recovered from his Lexus.

The case proceeded to trial. The victim first testified that the gun was a nine-millimeter “nickel plated chrome plated gun,” and that on the portion of the gun facing him, he observed the hole “where the bullet comes out,” and a smaller hole below it. Next, an investigating officer testified over a hearsay objection that “[t]he victim [had previously] said that the gun had a silver or nickel plated top, or what we call upper, and the lower was black and then what struck me about what he said was he said it had two holes, one larger on top and one smaller hole on the bottom.”

The officer testified that the gun found in the defendant’s Lexus “was a semi-auto and it had a distinct feature that I found which was it had the stainless steel upper with black lower.” Over still another hearsay objection, the officer also testified that victim’s description of the gun was “distinctive” as he described the gun as “a stainless steel upper -with black lower,” and there was one hole over a smaller hole.

The defendant denied pointing a gun at the victim, although he acknowledged that he owned a gun and was licensed to carry a concealed weapon. The concealed firearm license was entered into evidence. The defendant and his girlfriend testified that the gun was packed away the day of the incident, as the two were in the midst of moving and did not want the gun to be accessible to the girlfriend’s toddler. The defendant’s employer testified that the defendant left work the day of the incident around the timeframe of the incident.

“The standard of review of a trial court’s decision on the admissibility of evidence is generally an abuse of discretion standard. However, the question of whether evidence falls within the statutory definition of hearsay is a matter of law, subject to de novo review.” Burkey v. State, 922 So.2d 1033, 1035 (Fla. 4th DCA 2006).

The state does not dispute that the testimony the defense objected to is hearsay. See § 90.801(l)(c), Fla. Stat. (2015) (“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). There is no question that the testimony was offered to prove the truth of the matter asserted—the physical characteristics of the gun that the defendant was alleged to have brandished during the altercation. The state did not argue at trial nor does it argue on appeal that the testimony is subject to an exception to the hearsay rule, Thus, the only issue for this court is whether the error ivas harmless,

“The harmless error test .,. places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility' that the error con-' tributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986). “The test for harmless error focuses on the éf-fect of the error on the trier of fact.” Johnson v. State, 53 So.3d 1003, 1007 (Fla. 2010). Further—we importantly note—the test is not:

a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence.

Id. (quoting DiGuilio, 491 So.2d at 1139).

The state argues that the erroneously admitted testimony was “largely cumulative” to other unobjeeted to testimony and evidence offered at trial and thus was harmless. See English v. State, 43 So.3d 871, 872 (Fla. 5th DCA 2010).(recognizing that the contents of a BOLO were inadmis-siblems they contained incriminating hearsay statements but that the error was harmless where the victim testified to the same information at "trial).

Here, the evidence :that was admitted without objection by either party characterized the victim’s description of the gun as “nickel-plated chrome-plated,” “silver,” “silver top,” and "with two holes. Conversely, the state presented the testimony of a police officer who stated that the gun found in the defendant’s car had a stainless steel upper and a black lower and over the hearsay objection at issue, that the victim had earlier described the gun as having a silver or nickel-plated top with a black lower section.

Ultimately, this case came down to credibility and to whether the jury believed the defendant’s claim that he did not have his gun on the day of the incident. The officer’s hearsay testimony was the only evidence corroborating that the victim’s previous descriptions of the gun matched one of the distinctive color features of the defendant’s gun: its silver" upper portion and black lower portion.

Considering all of the evidence—including testimony from a law eiiforcément officer, whose veracity is generally 'regarded as highly credible, and the fact that the jury made a specific request to see the gun during its deliberations—it cannot be said that there is no reasonable possibility the hearsay testimony affected the verdict.

Reversed and remanded for new trial.

Taylor, J., concurs.

May, J., dissents with opinion.

May, J.,

dissenting.

I respectfully dissent. As the majority emphasizes, the only issue for our review is whether the admission of the detective’s hearsay testimony was harmless. The State argues, and I agree, that the testimony was cumulative of the victim’s statement and trial testimony describing the gun. In short, it was harmless.

The hearsay consisted of two answers to questions asked of the detective at trial. Over defense hearsay objections, the detective testified:

The victim said that the gun had a silver or nickel plated top, or what we call upper, and the lower was black and then what struck me about what he said was he said it had two holes, one larger hole on top and one smaller hole on the bottom.
The distinctive was that it was a stainless steel upper with black lower and the hole on top which was the barrel of the gun was bigger and then the description was that there was a hole on the bottom, but I knew that just couldn’t be but I figured the [ ]hole on the bottom was the spring guide.

But, the detective also testified that he drew a sketch of the gun based on the victim’s description. The sketch showed the two holes on the front of the gun with the larger hole on top and the smaller hole below the barrel. The sketch was admitted into evidence without objection.

The defendant was arrested three weeks after the incident, and consented to a search of his car. A deputy found a gun in the glove compartment. It was a “semi-auto” with a stainless steel upper with black lower. The gun was admitted into evidence without objection.

In a recorded police interview, the defendant admitted he owned the gun found in his car, which matched the description of the gun given by the victim. But, the defendant claimed the gun was not in his car on the date of the incident. The detective informed the defendant that the victim told him about the “distinctive” feature of the large hole over the smaller hole, and the “silver top.”

The victim testified at trial that he “saw the opening to where the bullet comes out and right below it was the little opening.” He reiterated that the gun was “nickel plated or chrome, something along those lines.” The victim clarified that the two holes were on the front of the gun, and that the larger hole on top was the one where he believed a projectile would be emitted.

During closing argument, the prosecutor argued that the victim described the gun as “being a nickel back, a steel plate being on top of it,” as having “two holes, one the larger hole, and then a second smaller hole.” The prosecutor referenced the sketch.

“The harmless error test [requires] the [S]tate ... to prove ... there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986).

The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence.

Id. at 1139.

Here, most of the detective’s testimony was cumulative to the victim’s own trial testimony. The only difference between the two was the two-tone coloring of the gun. And, the victim identified the defendant as the one who threatened him with the gun.

The Fifth District has held the admission of hearsay is harmless where the victim testifies to the same information at trial. See English v. State, 43 So.3d 871, 872-73 (Fla. 5th DCA 2010). It did so even though the hearsay contained a more detailed description than the victim’s in-court description. Id.

In English, the victim reported a robbery of his cell phone. Law enforcement found the defendant nearby in clothes matching the victim’s description. When law enforcement called the victim’s cell phone number,- the phone in the defendant’s pants pocket rang. Id. at 872. The defendant objected to testimony about the suspect’s description in a BOLO. While the Fifth District found the admission of the hearsay was error, the error was harmless because the testimony was cumulative of the victim’s trial testimony.

We reached the same conclusion in Presley v. State, 839 So.2d 813, 813-14 (Fla. 4th DCA 2003). There, we held that an officer’s testimony of a BOLO description was harmless where the witness who called in the description testified at trial about her description of the defendant. Id. at 814; see also Casica v. State, 24 So.3d 1236, 1241 (Fla. 4th DCA 2009) (holding that an erroneously admitted statement the victim made to a nurse was harmless in light of the victim’s trial testimony); Miles v. State, 839 So.2d 814, 819 (Fla. 4th DCA 2003) (finding an officer’s hearsay testimony of the assailant’s description was harmless given the victim’s trial testimony); Livingston v. State, 219 So.3d 911, 916 (Fla. 2d DCA 2017) (holding that an officer’s erroneously admitted BOLO testimony was harmless considering the victim’s trial testimony).

Here, a gun matching the victim’s description was found in the defendant’s car and admitted without objection. A sketch drawn by the detective, exhibiting the distinctive two holes at the front of the gun described by the victim, was admitted without objection. The victim testified about the incident and described the gun as chrome or silver with two holes in the front, the larger being at the top. While the admission of the hearsay was error, the detective’s hearsay testimony was cumulative of other evidence describing the gun, including the victim’s trial testimony.

I would affirm.

      . ‘’[W]here the key witness's credibility has been put in issue, it cannot be doubted that corroborating testimony may play a substantial role in the jury’s weighing of the evidence,'’ Conley v. State, 620 So.2d 180, 184 (Fla. 1993).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Dontavion Jermal KING, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2072
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 3, 2017

      Dontavion Jermal King, Indiantown, pro se. ■ . ■ ■
    No Appearance for Appellee.
   PER CURIAM.

Dontavion King appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. King raised seven grounds iii his motion. We affirm, without further discussion, the postconviction court’s summary denial of grounds one through six. As to ground seven of King’s motion, because it is insufficiently pled, we reverse that part of the order and remand to allow King an opportunity to amend that claim.

In ground seven, King alleged that his trial counsel was constitutionally ineffective for failing to move for a mistrial based upon the prosecutor’s repeated improper commenits, elicitation of hearsay testimony, violation .of a previously granted motion in limine, and misstatements of both the law and .the “facts” of the case. In summarily denying this ground, the court held that allegations of prosecutorial misconduct are issues that should be raised on direct appeal and are inappropriate for rule 3.850 relief. The court also found that King was procedurally barred from attempting to argue that the cumulative effect of multiple errors at trial entitled him to postcon-viction relief, concluding that these are issues also for direct appeal.

The lower court is correct that claims of prosecutorial misconduct and trial court error are required to be raised on direct appéal and are not cognizable in a rule 3.850 motion. Henry v. State, 933 So.2d 28, 29 (Fla. 2d DCA 2006) (citing Brown v. State, 894 So.2d 137, 145 (Fla. 2004)). However, King’s claim in ground seven was based on the alleged ineffectiveness of his counsel in not objecting to or moving for mistrial based upon the prosecutor’s alleged repeated acts of misconduct during the trial. This type of claim is cognizable in a rule 3.850 motion. See Stites v. State, 841 So.2d 681, 681-82 (Fla. 5th DCA 2003). Nevertheless, King’s allegations of ineffective assistance of counsel in this ground are vague and conclusory. Under the circumstances, “[a] defendant who has filed a legally insufficient rule 3.850 motion must be given at least one opportunity to correct the deficiency, unless it is apparent that the defect cannot be corrected.” Lamb v. State, 202 So.3d 118, 120 (Fla. 5th DCA 2016) (citing Luckey v. State, 979 So.2d 353, 355 (Fla. 5th DCA 2008); Fla. R. Crim. P. 3.850(f)).

Because our record does not show that King has previously sought or been given leave to amend his rule’ 3.850 motion, and since the pleading deficiency in ground seven may be correctable, he should be given the chance to do so. Thus, we reverse the summary denial and remand with directions that the postconviction court provide King with sixty days to amend ground seven of his motion, if, in good faith, he can amend it.

AFFIRMED in part; REVERSED in part; and REMANDED,

SAWAYA, LAMBERT, and EISNAUGLE, JJ., concur.


author: PER CURIAM. LAMBERT, J.,

text:
    Demond MANSFIELD as Personal Representative of the Estate of Thelma Brown, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, Philip Morris USA and Lorillard Tobacco Company, Appellees.
    Case No. 5D16-1826
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 3, 2017

      Willie E. Gary, Donald N. Watson, and Charles L. Scott, Jr., of Gary, Williams, Parenti, Watson & Gary PLLC, Stuart, for Appellant.
    Geoffrey J, Michael, of Arnold & Porter LLP, Washington, D.C., Cathy A. Kamm, Daniel F. Molony and Kristopher J. Vena, of Shook, Hardy & Bacon LLP, Tampa, and Jennifer Blues Kenyon, of Shook, Hardy & Bacon LLP, Kansas City, Mo. for Appellee, Philip Morris USA.
    Jason T. Burnette of Jones Day, Atlanta, GA, Troy A. Fuhrman and Marie A. Borland, of Hill, Ward & Henderson, P.A., Tampa for Appellee, R.J. Reynolds Tobacco Company. Dawn Giebler Millner, of Greenberg Traurig, P.A., Orlando, for Ap-pellee, R.J. Reynolds Tobacco Company as successor-by merger of Lorillard Tobacco Company.
   PER CURIAM.

Demond Mansfield, as Personal Representative of the Estate of Thelma Brown, deceased, appeals the final summary judgment entered in favor of R.J. Reynolds Tobacco Company and Philip Morris USA (collectively, “Tobacco Companies”) on their statute of limitations defense. We reverse and, consistently with Strax Rejuvenation and Aesthetics Institute, Inc. v. Shield, 49 So.3d 741 (Fla. 2010), remand for an evidentiary hearing to determine if Mansfield’s complaint was timely filed.

Mansfield sued Tobacco Companies, alleging that the decedent, Thelma Brown, purchased and smoked cigarettes containing nicotine that were designed, manufactured, advertised, and marketed by Tobacco Companies and that as a result, the decedent became addicted to these cigarettes. Mansfield asserted that the decedent’s addiction to cigarettes caused her to contract illnesses that proximately led to her death. Mansfield further alleged that the decedent was a member of the class that initially brought a class action suit against Tobacco Companies for injuries caused by smoking and that obtained a final judgment for punitive damages. In Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006), the Florida Supreme Court vacated this final judgment and decertified the class, but it allowed each individual class member to separately bring his or her own action for damages, provided that any such suit must be filed within one year of the court’s mandate. 945 So.2d at 1276-77. Mandate issued in Engle on January 11, 2007, thus giving each individual class member until Friday, January 11, 2008, to timely file a complaint. The question that we address in the instant case is whether Mansfield’s counsel filed his complaint against Tobacco Companies on Friday, January 11, 2008, or Monday, January 14, 2008.

The filing of a complaint “is complete once the pleading is delivered to and received by the proper officer.” Brooks ex rel. McCook v. Elliott, 593 So.2d 1209, 1210 (Fla. 5th DCA 1992) (citing Bituminous Cas. Corp. v. Clements, 148 Fla. 175,3 So.2d 865 (1941)). In this case, the proper officer was the Clerk of the Circuit Court in Osceola County. Because the complaint filed in this case bears an Osceola County Clerk of Court date stamp of January 14, 2008, Tobacco Companies moved for summary judgment based on their statute of limitations defense that Mansfield did not file his complaint by the Engle-imposed deadline. The trial court granted the motion and entered the final summary judgment now on review.

The effect of a clerk’s date stamp on a document is to create a rebuttable presumption that the document was filed on that day. Strax Rejuvenation, 49 So.3d at 744. Nevertheless, the clerk’s date stamp is not conclusive proof of the filing date and may be rebutted by the submission of competent substantial evidence that the complaint was actually received in the clerk’s office by the filing deadline. Id. at 745; Brooks, 593 So.2d at 1210. Here, although the presumption exists that Mansfield’s complaint was untimely filed on January 14, Mansfield filed evidence, in opposition to Tobacco Companies’ motion for summary judgment indicating that on January 11, 2008, the subject complaint and a filing fee check was delivered to the clerk of court in Osceola County and that the clerk of court issued a receipt showing that the complaint was filed by Mansfield against Tobacco Companies on that day. These circumstances present an unresolved question of fact. In Stmx, the court ruled that in those rare cases where a paper is delivered to the clerk’s office within the jurisdictional time frame but, for some reason, through inadvertence or error is not timely stamped by the clerk, it is appropriate to remand for an evidentia-ry hearing to determine if the document was timely filed. 49 So.3d at 744-45. Accordingly, we remand this matter back to the trial court for an evidentiary hearing to allow Mansfield the opportunity to rebut the presumption that his suit was filed on January 14, 2008, with competent substantial evidence that the complaint was in fact timely received by the Osceola County Clerk of Court on January 11, 2008.

REVERSED and REMANDED for an evidentiary hearing consistent with this opinion.

SAWAYA and EVANDER, JJ., concur.

LAMBERT, J., concurs specially, with opinion.

LAMBERT, J.,

concurring specially, with opinion.

I fully concur with the majority opinion to reverse and remand this case for the trial court to hold an evidentiary hearing consistent with Stmx. Mindful that appellate courts are not empowered to make findings of fact, Boyles v. A & G Concrete Pools, Inc., 149 So.3d 39, 51-52 (Fla. 4th DCA 2014), I nevertheless write to explain why, in my view, the evidence suggests that Mansfield’s complaint was timely filed.

The record summary judgment evidence shows that on January 11, 2008, the Osceola County clerk issued an “official clerk receipt,” which clearly states that on that day the clerk received a $259 check from Mansfield’s attorneys as a filing fee for a complaint that it received that day that was described in the receipt as “Mansfield v. R.J. Reynolds.” The receipt also indicates that the complaint was assigned ease number CI-08-ON-288. What also appears undisputed is that the law firm’s check for the filing fee was inadvertently made payable to the Orange County Clerk of Court instead of the Osceola County Clerk of Court. The affidavits filed by Mansfield’s attorneys state that the Osceola Clerk of Court’s office later telephoned counsel about this discrepancy and that on Monday, January 14, 2008, the attorneys delivered a second check to the clerk’s office, this time payable to the Osceola County Clerk of Court. At 4:47 P.M. on January 14, 2008, the Osceola County clerk time-stamped a complaint titled “Mansfield v. R.J. Reynolds Tobacco Company,” but assigned case number CI-08-ON-311 to the complaint. It is the complaint assigned case number CI-08-ON-311 that was later determined by the trial court to be untimely filed. .

Tobacco Companies and the trial court appear to place great significance on the fact that there were two different case numbers. This would be significant' only if there'- was a separate, unrelated suit filed by Mansfield against Tobacco Companies on January 11- and the instant suit “filed” on January 14. At the first of two summary judgment hearings held below,'the trial court determined that case number CI-08-ON-238 did “not belong to a case in the clerk’s system.” However, the evidence suggests that something was filed by Mansfield on January 11, 2008, against Tobacco Companies; otherwise, the clerk would not have issued the receipt for a filing fee reflecting the filing of a complaint by Mansfield on that date., ,

What appears to be the most pláusible explanation here is that only one complaint was filed by Mansfield against Tobacco Companies and that it was received by the Osceola County clerk on January 11. The case was assigned case number CI-08ON-238, but because the filing fee check was made payable to the wrong clerk of court, the clerk backed that case number out of its system. Then, when the check properly payable to the Osceola County Clerk of Court was-delivered to the clerk on Monday, January 14, the clerk assigned the complaint a new case number (CI-08ON-331), because other unrelated cases had been filed in. the interim and other case numbers had been assigned to these separate cases. This explanation is further supported by a close review of the more detailed, photographed copy of Mansfield’s complaint contained in the supplemental records filed with this court. It is evident that something was “whited out” on the first page of the complaint oyer which the clerk’s date stamp. of January. 14, 2008, 4;47 P.M. stamp was later placed. An examination of the reverse side of the first page of this same document appears to show, through, the “white put,” an Osceola County Clerk of Court date stamp bearing a date and time of January 11, 2008 at 9:42 A.M. Assuming that the competent evidence at the evidentiary hearing bears all this out, then Mansfield’s complaint was timely filed and Tobacco Compánies’ Engle statute of limitations defense is without merit.

      . Black’s Law Dictionary also defines the "filing date” as being "the date when any document is delivered to the appropriate authority.” Filing date, Black's Law Dictionary (10th ed. 2014).

      . Our present system of electronic filing was not in effect in the Osceola County clerk’s office back in 2008. Back then, a white liquid substance was at times used to correct mistakes on documents; hence, the term "white out.”


author: PER CURIAM

text:
    IN RE: Timmy James FONTENOT
    NO. 2017-B-1661
    Supreme Court of Louisiana.
    11/28/2017
   ATTORNEY DISCIPLINARY PROCEEDING .

PER CURIAM

, | iThis disciplinary, matter arises from formal- charges filed by the Office of Disciplinary. Counsel (“ODC”) against respondent, Timmy James Fontenot, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Francis-and Ellen Ortego were involved in a motorcycle accident on - June 26, 2006. The other driver involved in the accident, Calvin Guillory, was insured by Progressive Security Insurance Company (“Progressive”) with ' policy limits of $100,000. The Ortegos attempted to negotiate a settlement with Progressive, but they were unsuccessful as they were interested in receiving policy limits and Progressive’s settlement offer was only $51,000. They then retained respondent, a close family friend, to represent them in the matter. The Ortegos agreed to pay respondent a contingency fee of one-third of any settlement they received in excess of $51,000. This agreement was not reduced to writing.

In 2007, respondent filed a lawsuit on behalf of the Ortegos in the 13th Judicial District Court for the Parish of Evangeline against Mr. Guillory and Progressive. Lafayette attorney Ian Macdonald represented the defendants.

| ¿Respondent negotiated a settlement with Progressive in the amount of $52,500. The Ortegos were not aware of the settlement and did not consent to it. On April 24, 2008, Mr. Macdonald sent respondent a settlement check along with a release and a joint motion to dismiss. Respondent signed his clients’ names on the release and executed the motion to dismiss, then returned the documents to Mr. Macdonald. Respondent deposited the settlement check into his client trust account on May 6, 2008. Unbeknownst to the Ortegos, their lawsuit was dismissed on November 3, 2008.

By late 2012 or early 2013, Mr. Ortego had begun to question respondent about the status of the case. Respondent falsely informed Mr. Ortego that Progressive was willing to settle the matter for the policy limits of $100,000, but wanted to pay the settlement over a period of time in four payments. Mr. Ortego rejected a four-installment payment plan, but he did inform respondent that he was willing to accept one-half of the settlement -as long as he was paid the remainder by the end of 2013. On February 28, 2013, respondent issued a check drawn on his client trust account payable to Mr. Ortego in the amount of $50,000. Mr. Ortego asked whether he would be required to sign anything for the insurance company, and respondent told him that he would not. On December 20, 2013, respondent issued a trust account check in the amount of $33,333.33 to Mr. Ortego and wrote “Full and Final Settlement” on the memo line of the check.

In January 2014, Mr. Ortego consulted Ville Platte attorney Kathy Fontenot-Meyers regarding the settlement. Ms. Fontenot-Meyers contacted Mr. Mac-donald and requested copies of the settlement documents. After reviewing the documents,_J¿¡Ms. Fontenot-Meyers informed Mr. Macdonald that the settlement proceeds that were paid to the Ortegos were not disbursed until five years after the settlement. She also indicated that respondent told the Ortegos that Progressive was paying the settlement quarterly, and that the Ortegos could not confirm that the signatures on the settlement release were their own.

In February 2014, Mr. Macdonald filed a complaint against respondent with the ODC. In December 2014, the ODC received a complaint from the Ortegos. In his response to the complaint, respondent stated that when the case settled in April 2008, he signed the settlement documents with the implied permission of the Orte-gos. Respondent further admitted that he acted improperly and explained that at the time of the settlement, he was involved in a very bitter, highly contested and protracted divorce that also involved four children.

After receiving respondent’s response, the ODC requested a copy of his client trust account records and his client file. A review of this information indicates that respondent made at least four checks payable to “cash” from his trust account—two written in June 2010 and two written in November 2011. No documentation exists in the client file regarding the distribution of the funds.

Respondent accepted a settlement of $52,500 contrary to his clients’ wishes and without their knowledge or consent. The Ortegos specifically were not aware that respondent received settlement proceeds from Mr. Macdonald in April 2008; they did not sign the release forms sent to respondent by Mr. Macdonald; and he dismissed their lawsuit without their consent. The ODC alleges that respondent’s actions in this matter constitute a violation of the following provisions of the Rules of Professional Conduct: Rules 1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(c) (a contingent fee agreement shall be in writing), 1.15(f) (cash withdrawals and checks made payable to “cash” are prohibited on client trust accounts), 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), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

DISCIPLINARY PROCEEDINGS

In October 2015, the ODC filed formal charges against respondent as set forth above. Respondent, through counsel, answered the formal charges and generally admitted the factual allegations therein; however, he denied telling the Ortegos that Progressive would pay their settlement quarterly. Respondent also denied forging the Ortegos’ signatures on the settlement documents. He admitted that he signed the Ortegos’ names on these documents; however, he stated that he believed he had their authority and permission to do so. Respondent admitted that he violated Rules 1.3,1.4,1.5(c), and 1.15(f) of the Rules of Professional Conduct, but denied violating Rules 8.4(a), 8.4(b), and 8.4(c).

This matter then proceeded to a formal hearing on the merits conducted by the hearing committee on January 25, 2017. Both parties introduced documentary evidence. The ODC called the following witnesses to testify before the hearing committee: Kathy Fontenot-Meyers, Ian Macdonald, and Francis and Ellen Ortego. Respondent did not call any witnesses; however, he testified on his own behalf and on cross-examination by the ODC.

| r,Hearing Committee Report

After reviewing the testimony and the evidence presented at the hearing, the hearing committee made the following findings of fact and law:

1. On February 19, 2014, the ODC received a complaint from Ian Mac-donald. Mr. Macdonald represented Calvin Guillory and Progressive in a personal injury action brought by Francis and Ellen Ortego.
2. , The Ortegos were involved in a June 26, 2006 motor-vehicle accident, and respondent represented the Ortegos in the personal injury lawsuit,
3. The Ortegos attempted to negotiate a settlement with Progressive on their own,
4. Progressive offered the Ortegos a settlement of $51,000, which the Ortegos rejected.
■5. The Ortegos were aware- that the policy limits were $100,000.
6. The agreement between the Ortegos and respondent for attorney’s fees indicated respondent would earn one-third of any settlement in excess ‘ of $51,000,
7. The contingency fee agreement was not reduced to writing. {Violation of Rule 1.5(c)}
8. Respondent negotiated a settlement with Progressive and Mr. Guillory in the amount of $52,500- {Violation of . Rule 8.4(a) as to violating or at- . tempting to violate the Rules and Rule 8.4(c) as to deceit or misrepresentation}
9. -On April 24, 2008, Mr. Macdonald sent respondent the settlement proceeds along . with a Release of All Claims and a Joint Motion and Order to Dismiss.
10. Respondent returned the executed Release of; All Claims [purportedly] signed by the Ortegos and the executed Joint Motion and Order to Dismiss. {Violation of Rule 1.3 as to diligence; Rule 1.4 as to keeping the client [(¡reasonably informed; Rule 8.4(a) as to violating or attempting to violate the Rules; and Rule 8.4(c) as to deceit or misrepresentation}
11. -The dismissal was filed on October 30, 2008, and the suit was-dismissed on November 3, 2008. {Violation of Rule 8.4(a) as to violating or attempting to violate the Rules and Rule 8.4(c) as to deceit or misrepresentation}
12. On January 14, 2014, Mr. Mac-. . donald received correspondence from another attorney, Kathy Fon-tenot-Meyers, who informed Mr. Macdonald, that the settlement proceeds, were not disbursed to the Ortegos until five years after the settlement.
13. Respondent told the Ortegos that Progressive was paying the settlement quarterly. {Violation of Rule 1.3 as to diligence; Rule 1.4 as to keeping .the client reasonably informed; Rule 8.4(a) as to violating or attempting to violate the Rules; and Rule 8.4(c) as to deceit or mis- ' representation}
14. Respondent forged the Ortegos’ signatures, {Violation of Rule 8.4(a) as to violating or attempting to violate the Rules and Rule 8.4(e) as to deceit or misrepresentation}
15. Respondent paid the Ortegos $38,333,33 on December 20, 2013, though Mr. Macdonald sent him the settlement proceeds on April 24, 2008. {Violation of Rule 1,3 as ■ to diligence; Rule 1.4 as to keeping the client reasonably informed; Rule 8.4(a) as to violating or attempting to violate the Rules; and Rule 8.4(c) as to deceit or misrepresentation}
16.' Respondent’s trust account records indicate respondent made at least four checks payable to “cash” from his trust account. {Violation of Rule 1.15(f) as to checks drawn on client trust accounts made payable- to “cash" prohibited}
a. The bank statement ending on June 30, 2010 indicates checks 1381 and 1382 were made payable to “cash”; and
Jjb. The bank statement ending on November 30, 2011 ' indicates checks 1471 and 1472 were made payable to “cash.”
17. Respondent informed Mr. Ortego in March 2013 that Progressive was willing to settle the matter for $100,000, but wanted to pay the settlement over a period of time in four payments. {Violation of Rule 1.3 as to diligence; Rule 1.4 as to keeping the client reasonably informed; Rule 8.4(a) as to violating or attempting to violate the Rules;, and Rule 8.4(c) as to deceit or misrepresentation}
18. Mr. Ortego was unwilling to accept four payments, but he would accept one-half of the settlement as long as he was paid the remainder by the end of the year 2013.
19. On February 28, 2013, respondent issued a trust account check to Mr. Ortego in the amount of $50,000. {Violation of Rule 1.3 as to diligence; Rule 1.4 as to keeping the client reasonably informed; Rule 8.4(a) as to violating or attempting to violate the Rules; and Rule 8.4(c) as to deceit or misrepresentation}
20. On December 20, 2013, respondent issued a trust account check to.Mr, Ortego in the amount of $33,333.33 and wrote “Full and Final -Settlement” on the memo line of the check. {Violation of Rule 1.3 as to diligence; Rule 1.4 as to keeping the client reasonably informed; Rule 8.4(a) as to violating or attempting to violate the Rules; and Rule 8.4(c) as to deceit or misrepresentation}
21.Respondent accepted a settlement of $52,500 contrary to his clients’ wishes and without their knowledge or consent, {Violation of Rule 1.3 as to diligence; Rule 1.4 as to keeping the client reasonably informed; Rule 8.4(a) as to violating or .attempting to violate the Rules; and Rule 8.4(c) as to deceit or misrepresentation}
b22. The Ortegos were not. aware, nor made aware, that their matter settled in 2008 for $52,500; they did not sign the release forms sent to Mr. Macdonald by respondent; and they were not aware that respondent dismissed their lawsuit, • as he did so without their consent. {Violation of Rule 1.3 as to diligence; Rule 1.4 as to keeping the client reasonably informed; Rule 8.4(a) as to violating or attempting to violate the Rules; and Rule 8.4(c) as to deceit or. misrepresentation} .

The committee did not address the violation of Rule 8.4(b) alleged-in the formal charges.

The committee determined that respondent violated duties owed to his clients, the public, the legal system, and the profession. His conduct was intentional. He settled his clients’ legal matter without their consent and forged their names- on the settlement check and release documents. He lied to and misled his clients-regarding the amount of the settlement. Finally, although he settled the matter in 2008 and dismissed their lawsuit without permission, respondent did not pay the settlement proceeds to his clients until 2013. This conduct caused actual and serious harm to the Ortegos, who lost their home, and business and went bankrupt. The applicable baseline sanction in this matter is disbarment.

In aggravation, the committee found the following factors: a prior disciplinary record, a dishonest or selfish motive, a pattern of misconduct, and multiple offenses. In mitigation, the committee recognized that respondent was going through a divorce at the time of the misconduct.

^Considering the facts of this case, in particular the financial harm that befell the Ortegos in the five years they did not have access to their settlement funds, the hearing committee recommended respondent be disbarred.

Respondent filed an objection to the severity of the sanction recommended by the hearing committee. He urged that a three-year sanction is appropriate under the circumstances.

Disciplinary Board Recommendation

After review, the disciplinary board found that the hearing committee’s factual findings are not manifestly erroneous and are supported by the record. Furthermore, neither party objected to the committee’s factual findings. Accordingly, they were adopted by the board. Based on these facts, the board determined that the committee correctly applied the Rules of Professional Conduct to determine that respondent violated Rules 1.3, 1.4, 1.5(c), 1.15(f), 8.4(a), and 8.4(c). While the formal charges also allege a violation of Rule 8.4(b) in regard to the claim that respondent forged his clients’ signatures on the settlement check and documents, the committee failed to discuss this rule. Respondent testified that he believed he had implied authority to sign for his clients. On the other hand, Mr. Ortego testified that he never gave respondent permission to sign on his behalf. Because it specifically found that respondent had forged his clients’ signatures, the committee apparently believed Mr. Ortego’s testimony and rejected respondent’s testimony. Given the clear finding by the committee that respondent forged his clients’ signatures, the board concluded a violation of Rule 8.4(b) has been established.

The board determined that respondent violated duties owed to his clients, the public, and the legal profession. He acted intentionally. He settled his clients’ case 1 ^without their consent, forged his clients’ signatures and purposefully misled his clients, despite their repeated inquiries. While respondent was not specifically charged with converting the funds to his own use, he failed to disburse the Ortegos’ settlement proceeds for more than five years during a period of time when they were experiencing significant financial struggles. The board agreed with the committee that respondent caused serious and actual harm to his clients, who lost their home and business and went bankrupt. Respondent’s failure to reduce the contingent fee agreement to writing was knowing, if not intentional, as was his conduct in making cash withdrawals from his client trust account. The applicable baseline sanction for the various misconduct at issue in this case is suspension or disbarment.

The board adopted the aggravating and mitigating factors found by the committee. In mitigation, the board also considered respondent’s efforts, albeit delayed, to rectify the consequences of his misconduct by making a payment of $33,383.33- to the Ortegos in December 2013. After this payment, the Ortegos received a total of $83,333.33, representing the amount they would have received had their case been settled for the full policy limits of $100,000, less the agreed one-third contingency fee.

The board then turned to an analysis of this court’s prior jurisprudence addressing similar misconduct, and found this case is similar to In re: Scott, 09-2364 (La. 4/5/10), 32 So.3d 789. In that case, Mr. Scott reached a settlement agreement for $75,000 on behalf of a client in a workers’ compensation matter. Rather than disbursing the entirety of the funds as ordered, he deducted his own fee, made a partial distribution to the client, and offered the false excuse to the client that he was attempting to secure the remainder of the funds. Instead, Mr. Scott used the funds to pay personal and business obligations. After three months, the client complained, and when confronted by the judge, Mr. Scott acknowledged that he had improperly retained the client’s funds. Mr. Scott essentially stipulated to the facts and violations Inpf Rules 1.3, 1.4, 1.15, and 8.4(c). After noting the baseline sanction of disbarment for respondent’s intentional and dishonest conduct, the court deviated downward from the baseline due to the extensive mitigating factors present and imposed a three-year suspension.

The board noted that although the facts of this case and the Scott case are alike, there is some variation in the charged Rule violations. Here, respondent was not charged with a violation of Rule 1.15 (conversion), but he was charged with engaging in criminal conduct in violation of Rule 8.4(b) inasmuch as he forged his clients’ signatures on the settlement documents. Furthermore, relative to harm, it is notable that the duration of the deprivation in Scott was three months whereas the Orte-gos were deprived of their funds for more than five years. Finally, the evidence shows that the Ortegos were experiencing significant financial troubles at the time that respondent withheld the money owed to them.

■ The board was most troubled by respondent’s dishonesty. He settled the Ortegos’ case for $52,500 in 2008, but failed to make any payment to his clients until he issued a $50,000 check to them on February 28, 2013. Even on that date, however, respondent had not yet disclosed to his clients that he had settled their case; he tried to hide the facts and told them further untruths. Given the circumstances of this case and respondent’s prior discipline in Fontenot I, which also involved misrepresentation, the board agreed with the committee that disbarment is warranted.

Based on this reasoning, the board recommended that respondent be disbarred. The board also recommended that respondent be assessed vrith the costs and expenses of this proceeding.

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

I ^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.

Respondent represented his clients in a personal injury matter. He subsequently settled the case without their consent, forged their signatures on the settlement documents, misled them as to the status of the. case, and failed to disburse the settlement proceeds for five years. He also failed to reduce the contingent fee agree: ment to writing and made cash 'withdrawals from his client trust account. This conduct constitutes, a violation of the Rules of Professional Conduct as charged in the formal charges.

Haviiig found evidence of professional misconduct, we now tuín tp a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the. offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La. 1984).

haWe agree with the board that respondent’s conduct in handling his clients’ personal injury case was intentional. The misconduct relating to the contingent fee agreement and the cash withdrawals from the trust account was at least knowing, if not intentional. Respondent violated duties owed to his clients, the public, and the legal profession. We also agree that he caused significant actual harm to his clients, who lost their home and business and went bankrupt, during the time that they did-not have access to their settlement funds. For the heartland of the misconduct at issue in this matter, the applicable baseline sanction is disbarment.

The aggravating and mitigating factors found by the board are supported by the record. In addition, the record suggests that the mitigating factor of remorse-is present. ■

Notwithstanding the presence of mitigating'.factors, we see no reason to deviate from the baseline sanction of disbarment. Respondent’s- conduct was clearly intentional. He settled his clients’- case without informing them, forged their signatures on the settlement documents, purposefully misled them as to the status of the case, despite their repeated inquiries, and failed to disburse their settlement funds for five years. This type of deception cannot be tolerated by attorneys; Moreover, respondent has previously been disciplined for misconduct which included -misrepresentation, suggesting that the fully deferred suspension imposed in Fontenot I did not have the intended effect of reforming respondent’s behavior. Accordingly, we will disbar respondent.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board,’ and considering the record, it is ordered that Timmy James Fontenot, Louisiana Bar Roll number 23738, be and he hereby is disbarred. His name shall be stricken from the roll of attorneys and -his license to practice law in 114the State of Louisiana shall be revoked. 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.

      . The settlement included a payment of $50,478 to the Ortegos and a total of $2,022 to two medical providers.

      . The sum of $33,333.33 was paid by respondent to Mr. Ortego from his fee earned in another case. The total amount received by the Ortegos, $83,333.33, is equal to what they would have received had their personal injury case been settled for the full policy limits of $100,000, less payment of the contingency fee owed to respondent.

      . During the hearing before the hearing committee, the ODC stipulated that respondent has not been charged with conversion of the Ortegos’ settlement funds.

      , In his pre-hearing memorandum, however, respondent did not dispute that he violated Rules 8.4(a) or 8.4(c).

      . In In re: Fontenot, 11-0989 (La. 6/17/11), 63 So.3d 130 ("Fontenot I”), this court accepted a petition for consent discipline and suspended respondent from the practice of law for one year, fully deferred, subject to a two-year period of supervised probation. The misconduct at issue in that matter involved allegations that respondent neglected a legal matter, failed to communicate with a client, charged an excessive fee, and made misrepresentations.


text:
    IN RE: Darryl L. ROBERTSON
    NO. 2017-B-1169
    Supreme Court of Louisiana.
    11/28/2017
   ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

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

PRIOR DISCIPLINARY HISTORY

Before we. address the current matter, we And it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 2002. In 2009, we suspended respondent from the practice of law for one year, fully deferred, subject to one year of probation with conditions, for neglecting his client’s legal matter, causing the case to be dismissed, failing to communicate with his client, failing to return the client’s file, failing to respond to opposing counsel’s requests, and failing to comply with federal court orders. In re: Robertson, 09-1353 (La. 10/16/09), 19 So.3d 1186 (“Robertson I").

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

FORMAL CHARGES

In January 2014, Melissa Veal’s son, a middle school student in East Baton Rouge Parish, was physically attacked at the school system’s bus transfer hub. In ^February 2014, Ms. Veal retained respondent to handle the matter, but thereafter she had difficulty contacting respondent by telephone. She then went to the clerk of court and could find no evidence that respondent had filed suit on her son’s behalf. In June 2015, Ms. Veal filed a complaint against respondent with the ODC.

In reply to Ms. Veal’s complaint, respondent stated that he had been in contact with Ms. Veal several times, that he had filed suit under “Number 636,496, Section 25,” and that there were “ongoing negotiations with the school system to reach an amicable settlement.” The response gave no other information and no documentation was attached.

The ODC took respondent’s sworn statement in January 2016. During the statement, respondent confirmed that a school student was responsible for the attack against Ms. Veal’s son. A juvenile proceeding was brought against the attacker. Because juvenile records are sealed, respondent was unable to discover the identity of the attacker or the outcome of the juvenile adjudication. Respondent indicated there was no police report on the attack.

Respondent stated that he filed suit in January 2015 against the East Baton Rouge Parish School System, the East Baton Rouge Sheriffs Office, and the parents of the unknown juvenile attacker. In error, respondent served the school superintendent instead of the school board. The school system and the sheriffs office both filed exceptions to the suit. Respondent did not file responsive pleadings to the exceptions. The trial court ruled on the exceptions in September 2015, giving respondent thirty days to amend the petition to cure the defects. Respondent did not amend the petition or file any other pleadings in the matter.

During his sworn statement, respondent did not appear to understand the complexities of civil law practice and procedure. When questioned about same, respondent stated that his primary area of expertise is criminal law, not civil law. Respondent realized soon after filing suit that Ms. Veal did not have a viable legal | ¡¡claim against the school system or the sheriffs office and would not be able to recover against either of those defendants.

Due to his lack of experience with Louisiana civil procedure, respondent was unable to offer competent representation to Ms. Veal. Respondent admitted that he failed to properly research the case law for this type of claim and filed suit against the wrong parties.

DISCIPLINARY PROCEEDINGS

In July 2016, the ODC filed formal charges against respondent, alleging that his conduct, as set forth above, violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation to a client), 1.3 (failure to act with reasonable diligence and promptness in representing a client), and 1.4 (failure to communicate with a client). Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

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

jyThe committee determined that respondent negligently violated duties owed to his client, causing harm to his client. The committee determined that, under the ABA’s Standards for Imposing Lawyer Sanctions, the baseline sanction ranges from reprimand to suspension.

In aggravation, the committee found only a prior disciplinary record. In mitigation, the committee found the absence of a dishonest or selfish motive. The committee added that respondent primarily practices criminal law, working as a public defender.

After also considering this court’s prior jurisprudence addressing similar misconduct, the committee recommended respondent be suspended from the practice of law for one year, with six months deferred, subject to a one-year period of supervised probation. The committee further recommended respondent be required to attend the Louisiana State Bar Association’s Ethics School,

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

Disciplinary Board Recommendation

After review, the disciplinary board determined that the factual allegations of the formal charges are deemed admitted and proven by clear and convincing evidence. The board also determined that the legal conclusions of the hearing committee are supported by the factual allegations asserted in the formal charges and/or by the evidence submitted in support of the allegations. The board further determined that the committee correctly applied the Rules of Professional Conduct.

The board determined that respondent violated a duty owed to his client. In failing to communicate with his client, he acted at least negligently, but potentially knowingly. In failing to diligently pursue his client’s matter, he acted knowingly. Respondent was aware that the petition was insufficient and that he did not | investigate the matter sufficiently to discover the name of the alleged perpetrator; however, he did not intend to accomplish any unfavorable result for his client. In accepting the representation despite knowing that he was not competent in civil law, and by failing to become competent in the required area of the representation or to obtain help from competent counsel, respondent acted knowingly. Respondent caused actual injury as a portion of his client’s suit was dismissed with prejudice, resulting in her losing the ability to pursue further legal action against that particular defendant. The board determined that, under the ABA’s Standards for Imposing Lawyer Sanctions, the baseline sanction is suspension.

, In aggravation, the board found only a prior disciplinary record. In mitigation, the board found only the absence of a dishonest or selfish motive.

After further considering this court’s prior jurisprudence involving similar misconduct, the board recommended respondent be suspended from the practice of law for one year and one day. The board further recommended respondent be' assessed with all costs and expenses of this matter.

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

DISCUSSION

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

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are, deemed admitted. Supreme Court Rule XIX, § 11(E)(3)., Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La. 1/10/03), 838 So.2d 715.

The evidence in the record of this deemed admitted matter supports a finding that respondent provided incompetent representation to a client, neglected a legal matter, causing a portion' of his client’s case to be dismissed, and failed to communicate with a client. As such, he has violated the Rules of Professional Conduct as alleged by the ODC.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La. 1984).

^Respondent negligently ánd knowingly violated duties owed to his client, causing actual harm. The baseline sanction for this type of misconduct is suspension.’ The aggravating and mitigating factors found by the board are supported by the record. As an additional aggravating factor, respondent has substantial expedience in the-practice of law.

Turning to the issue of an appropriate sanction, we take guidance from In re: Kehr, 07-0071 (La. 3/23/07), 952 So.2d 668, and In re: Kurzweg, 03-2902 (La. 4/2/04), 870 So.2d 978. In Kehr, we suspended an attorney for one year and one day for neglecting a legal matter, failing to communicate with a client, and failing to cooperate with the ODC 'in its investigation. We noted that the attorney’s “conduct caused significant and .actual harm to [her client] by delaying resolution of her case and depriving her of funds.” We also found • that her prior discipline for similar misconduct was “most significant.” In Kurzweg, we suspended an attorney for one year-and one day for neglecting a’legal matter, failing to communicate with his client, and failing* to cooperate with the ODC. We noted that his actions caused actual injury to his client, whose lawsuit was dismissed on grounds of abandonment,' There were no mitigating factors present, and the applicable aggravating factors included'th'e attorney’s substantial experience in the practice of law and prior disciplinary record.

In light of this jurisprudence, as well as respondent’s prior discipline for similar misconduct, we will adopt the board’s recommendation and suspend respondent from the practice of law for one year and one day.

DECREE

Upon review of the findings arid recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Darryl L. Robertson, Louisiana Bar Roll number 28202, be and he hereby is suspended from |sthe practice of law for one year and one day. 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. '

      . According to the testimony respondent provided in his sworn statement, both the sheriff’s office and the school system were dismissed without prejudice when the trial court heard the defendants’ exceptions in September 2015. Thereafter, the school system moved to be dismissed with prejudice, That motion was set to be heard in February 2016. The parents of the unknown juvenile attacker remain a party to the lawsuit.


author: PER CURIAM:

text:
    STATE EX REL. George BARNETT v. STATE of Louisiana
    No. 2016-KH-1753
    Supreme Court of Louisiana.
    11/28/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

11 Denied. Relator does not identify an illegal term in his sentence, and. therefore, his filing is properly.construed as an application for post-conviction relief. State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator’s application was not timely filed in the district court, and he fails to carry his burden to show that an exception- applies. La. C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. In .addition, relator’s sentencing .claim is not cognizable on collateral, review. La. C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against 1 ¡..successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Darnell TURNER v. STATE of Louisiana
    No. 2016-KH-1575
    Supreme Court of Louisiana.
    11/28/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

| TDenied. Relator shows no error in the lower court rulings.

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


text:
    STATE EX REL. Joshua WYATT v. STATE of Louisiana
    No. 2016-KH-1568
    Supreme Court of Louisiana.
    11/28/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FIFTH JUDICIAL DISTRICT COURT, PARISH OF PLAQUEMINES

PER CURIAM:

| denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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


text:
    STATE EX REL. Mario Devon STEWART v. STATE of Louisiana
    No. 2016-KH-1541
    Supreme Court of Louisiana.
    11/28/2017
   ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO

PER CURIAM:

| iDenied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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


text:
    STATE EX REL. Wilbert KELLY, Jr. v. STATE of Louisiana
    No. 2016-KH-1524
    Supreme Court of Louisiana.
    11/28/2017
   ON SUPERVISORY WRITS TO THE TWENTIETH JUDICIAL DISTRICT COURT, PARISH OF WEST FELICIANA

PER CURIAM:

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

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


text:
    STATE EX REL. Brandon J. OFFICE v. STATE of Louisiana
    No. 2016-KH-1475
    Supreme Court of Louisiana.
    11/28/2017
   ON SUPERVISORY WRITS TO THE THIRTIETH JUDICIAL DISTRICT COURT, PARISH OF VERNON

PER CURIAM:

| denied. Relator knowingly and intelligently waived his right to a trial by jury. See La.C.Cr.P. arts. 780(A) & 782(B). He also shows no error or abuse of discretion in the district court’s dismissal of his remaining claims on procedural grounds. See La.C.Cr,P. art. 930.4,

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

Hughes, J., would grant.


text:
    STATE of Louisiana v. Michael Evan HANES
    No. 2016-KP-1120
    Supreme Court of Louisiana.
    11/28/2017
   ON SUPERVISORY WRITS TO THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES

PER CURIAM:

| jDenied. Relator fails to show that he received ineffective -assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In addition, relator’s sentencing claims are not cognizable on collateral review. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Thomas, 08-2912 (La. 10/16/09), 19 So.3d 466.

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


text:
    STATE EX REL. Brandon J. OFFICE v. STATE of Louisiana
    No. 2017-KH-1005
    Supreme Court of Louisiana.
    11/28/2017
   ON SUPERVISORY WRITS TO THE THIRTIETH JUDICIAL DISTRICT COURT, PARISH OF VERNON

PER CURIAM:

| denied. The application was not timely filed in the district court, and relator, fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. Moreover, relator has previously exhausted his right to state collateral review. See State ex rel. Office v. State, 16-1475 (La. 11/27/17), 230 So.3d 200, 2017 WL 5712706.


text:
    STATE EX REL. Keith KISACK v. STATE of Louisiana
    No. 2016-KH-2129
    Supreme Court of Louisiana.
    11/28/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

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

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


text:
    STATE EX REL. Ronnie S. HOWARD, Sr. v. STATE of Louisiana
    No. 2016-KH-1761
    Supreme Court of Louisiana.
    11/28/2017
   ON SUPERVISORY WRITS TO THE THIRTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF TER-REBONNE

PER CURIAM:

[ denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, relator fails to show they remain subject to consideration. La.C.Cr.P. art. 930.4.

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

WEIMER, J., recused.


text:
    Pauline Moss RODOCK v. Brad Allen POMMIER
    NO. 2017-CC-1877
    Supreme Court of Louisiana.
    November 8, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Vernon, 30th Judicial District Court Div. B, No. 79,820; to the Court of Appeal, Third Circuit, No. CW 17-00866;

It Stay denied. Writ denied.


text:
    Noretta THOMAS and Demetrice Butler, Each Individually, and on behalf of all others similarly situated v. A. WILBERT & SONS, LLC and XYZ Insurance Company Troy Robichaux, Shannon Robichaux, Michael J. Tuminello, Sr. and Olive D. Tuminello v. State of Louisiana, through the Department of Health and Hospitals and through the Department of Environmental Quality and Dow Chemical Company
    NO. 2017-C-0967
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div., No. 55,127 C/W 56,803; to the Court of Appeal, First Circuit, No. 2015 CA 0928 C/W 2015 CA 0929;

h Denied.

WEIMER, J., would grant.


text:
    STATE of Louisiana v. Robert J. MOODY
    NO. 2017-KO-0298
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 1, No. 310,113; to the Court of Appeal, Second Circuit, No. 50,-955-KA

h Denied.


text:
    STATE of Louisiana v. Cornelius YOUNG
    NO. 2017-K-0472
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Webster, 26th Judicial District Court Div. B, No. 68,148 & 88,173; to the Court of Appeal, Second Circuit, No. 51,175-KA C/W 51,176-KA;

| denied.

HUGHES, J., would grant.


text:
    AMERICAN TURBINE TECHNOLOGY, INC. v. OMNI BANCSHARES, INC. d/b/a Omni Bank, Nicole Nicholas, Clinton Nicholas, and Edward Shan
    NO. 2017-C-1103
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. A, No. 699-121; to the Court of Appeal, Fifth Circuit, No. 16-CA-707

| denied.

GENOVESE, J., would grant.


text:
    STATE of Louisiana v. Kenneth E. HICKS, III
    NO. 2017-KO-0445
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. John, 40th Judicial District Court Div. B, No. 13,82; to the Court of Appeal, Fifth Circuit, No. 16-KA-462

11 Denied.


text:
    STATE of Louisiana v. Kuzay H. RESIT
    NO. 2017-KK-1455
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 566449; to the Court of Appeal, First Circuit, No. 2017 KW 0824;

| j Denied.

GUIDRY, J., would grant.

CLARK, J., would grant.


text:
    Ryan KELLEY v. UNIVERSITY MEDICAL CENTER and Jane Doe
    NO. 2017-CC-1483
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 16-8528; to the Court of Appeal, Fourth Circuit, No. 2017-C-0564

|! Denied.


text:
    Chasity PRIER, et al. v. Victor P. WILLIAMS, et al.
    NO. 2017-CC-1441
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 2016-3684; to the Court of Appeal, Third Circuit, No. CW17-00514

|! Denied.


text:
    Ricardo ARANGO v. BRAND ENERGY SOLUTIONS, LLC
    NO. 2017-CC-1480
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Supervisory and/or Remedial Writs Office of Workers’ Compensation District 7, No. 17-01200; to the Court of Appeal, Fifth Circuit, No. 17-C-330;

| denied.


text:
    STATE of Louisiana v. Rot MORGAN
    NO. 2017-KK-1484
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Supervisory and/or Remedial Writs, Pariah of E. Baton Rouge, 19th Judicial District Court Div. G, No. 10-81-0785; to the Court of Appeal, First Circuit, No. 2017 KW 0067

| T Denied.


text:
    STATE of Louisiana v. Ronnie SMITH
    NO. 2017-KK-1867
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. 3, No. 665-707; to the Court of Appeal, Fourth Circuit, No. 2017-K-0894;

| denied.


text:
    LOUISIANA WORKERS’ COMPENSATION CORPORATION v. INDUSTRIAL HELICOPTERS, LLC
    NO. 2017-CC-1466
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, Office of Workers’ Compensation, District 4, No. 16-00536; to the Court of Appeal, Third Circuit, Nos. 17-428,17-419;

11 Denied.


text:
    Artie HUDSON, Jeffery D. Wells v. WILLIAMS OLEFINS DEVELOPMENT, LLC, Williams Olefins, LLC, Williams Olefins Feedstock Pipelines, LLC, XYZ Insurance Company, Cajun Paving & Construction of Acadiana, LLC, X Insurance Company, Turner Industries Group LLC, Y Insurance Company, Brock Services, LLC, and X-Y Insurance Company, Bridget Hanna, Clerk
    NO. 2017-CC-1444
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div,. D, No. 109301; to the Court of Appeal, First Circuit, No. 2017 CW 0705

|! Denied.


text:
    Frederick E. YORSCH v. Stephen D. MOREL
    NO. 2017-C-1475
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. K, No. 763-663; to the Court of Appeal, Fifth Circuit, No. 16-CA-662;

h Denied.

HUGHES, J., would grant.


text:
    Arthur B. TREGRE, Jr. v. Greg CHAMPAGNE in his Capacity as Sheriff for St. Charles Parish, et al. Lynsey P. Watson, et al. v. Dallas J. Veillon, et al. Frank Clavelle, et al. v. St. Charles Parish Sheriff's Office, et al. Dallas J. Veillon v. Greg Champagne in His Official Capacity as Sheriff for St. Charles Parish, et al. Auto Club Family Insurance, et al. v. Greg Champagne, et al.
    NO. 2017-C-1470
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Charles, 29th Judicial District Court Div. C, No. 77,419 C/W 78,739; 78,745; 78,753; 78,619; to the Court of Appeal, Fifth Circuit, No. 16-CA-681 C/W 16-CA-682 C/W 16-CA-683 C/W 16-CA-684 16-CA-685;

| denied


text:
    Arthur B. TREGRE, Jr. v. Greg CHAMPAGNE in His Capacity as Sheriff for St. Charles Parish, et al. Lynsey P. Watson, et al. v. Dallas J. Veillon, et al. Frank Clavelle, et al. v. St. Charles Parish Sheriff's Office, et al. Dallas J. Veillon v. Greg Champagne in His Official Capacity as Sheriff for St. Charles Parish, et al. Auto Club Family Insurance, et al. v. Greg Champagne, et al.
    NO. 2017-C-1477
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Charles, 29th Judi-eial District Court Div. C, No. 77,419 C/W 78,739; 78,745; 78,753; 78,619; to the Court of Appeal, Fifth Circuit, No. 16-CA-681 C/W 16-CA-682 C/W 16-CA-683 C/W 16-CA-684, 16-CA-685;

| denied.


text:
    TREE OF LIFE BAPTIST CHURCH OF LEGONIER, LA v. Leslie DRAPER, III & Tree of Calvary Baptist Church, Inc.
    NO. 2017-C-1492
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Pointe Coupee, 18th Judicial District Court Div. C, No. 46851; to the Court of Appeal, First Circuit, No. 2016 CA 1544;

I, Denied.


text:
    Catherine COBB v. LAFAYETTE PARISH SCHOOL BOARD
    NO. 2017-C-1481
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Writ of Certiorari and/or Review. Office of Workers’ Compensation, District 04,. No. 01-03123; to the Court of Appeal, Third Circuit, No.-16-990;

h Denied.


text:
    Doris H. USIE v. SUNSHINE HOMES INC., et al.
    NO. 2017-CC-1500
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Martin, 16th 'Judicial District Court Div. G, No. 082841; to the Court of Appeal, Third Circuit,- No. 16-780;

| jDenied.


text:
    Soumaya EL-HADAJI, Individually and o/b/h of Her Deceased Husband, Hatem Zarrugh and Their Minor Children Jury and Judy Zarrugh v. KENWORTH TRUCK COMPANY, a Division of PACCAR, Inc., et al. Soumaya El-Hadaji, Individually and on Behalf of Her Deceased Husband, Hatem Zarrugh, and Their Minor Children and Judy Zarrugh v. Kenworth Truck Company, a Division of PACCAR, Inc., Indiana Mills and Manufacturing, Inc., Kenworth of South Louisiana, LLC, Stars Oil Co., Inc., Tiger Fuel, Inc., Mahmdod Mahammad, National Fire & Marine Insurance Company, Ameer, L.L.C., Franklin Avenue, L.L.C., City of Orleans and Shannon Morris
    NO. 2017-CC-1474
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. A, No. 2015-9480; to the Court of Appeal, Fourth Circuit, No. 2017-C-0567 C/W 2017-C-0596;

| tDenied.


text:
    Wayne MARABLE Individually and as Curator on Behalf of Connie Marable v. EMPIRE TRUCK SALES OF LOUISIANA, LLC and Curtis Wayne Hudspeth Wayne Marable Individually and as Curator on Behalf of Connie Marable v. Empire Truck Sales of Louisiana, LLC and Curtis Wayne Hudspeth William “Bill” Jones and Engelique Jones v. Empire Truck Sales, LLC, Curtis Wayne Hudspeth, Wayne Marable, Great West Casualty Company, Daimler Trucks North America, LLC and KLLM Transport Services, LLC
    NO. 2017-C-1469
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. I, No. 2012-10471 C/W 2012-10523 C/W 2013-4560; to the Court of Appeal, Fourth Circuit, No. 2016-0876 C/W 2016-0877 C/W 2016-0878;

| denied.

GUIDRY, J., would grant and docket.


text:
    STATE EX REL. Jason A. CLEGG v. STATE of Louisiana
    NO. 2016-KH-1343
    Supreme Court of Louisiana.
    November 13, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 514-940; to the Court of Appeal, Fourth Circuit, No. 2016-K-0615;

| denied.


text:
    STATE of Louisiana v. Steven SHELBY
    NO. 2017-KK-1895
    Supreme Court of Louisiana.
    November 14, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 526-608; to the Court of Appeal, Fourth Circuit, No. 2017-K-0874;

|, Stay denied. Writ denied.

GUIDRY, J., would grant.


text:
    JSB HIGHWAY 21, LLC, JSB Northpark II, LLC, Barrister Global Services Network, Inc. v. Stephen C. AERTKER, Jr., and XYZ Insurance Company
    NO. 2017-CC-1520
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 2012-15912; to the Court of Appeal, First Circuit, No. 2017 CW 0492;

JjNot considered. Not timely filed. See Supreme Court Rule X, § 5.


text:
    Noel BANANNO, individually and on behalf of her deceased minor child, Michael Bananno v. OCCIDENTAL FIRE AND CASUALTY INSURANCE COMPANY OF NORTH CAROLINA, State of Louisiana, through the Department of Child and Family Services, State of Louisiana, through the Department of Social Services, Candice Bray, Robert Curtis Bray, and Agnes Baygents
    NO. 2017-CC-1590
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 639960; to the Court of Appeal, First Circuit, No, 2017 CW 0601

11 Granted and remanded to the court of appeal for briefing, oral argument and full opinion.


text:
    STATE of Louisiana v. Landon D. QUINN
    NO. 2016-KP-1285
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 489-027; to the Court of Appeal, Fourth Circuit, No. 2016-K-0150;

I (Granted.


text:
    Wayne MARABLE Individually and as Curator on Behaft of Connie Marable v. EMPIRE TRUCK SALES OF LOUISIANA, LLC and Curtis Wayne Hudspeth Wayne Marable Individually and as Curator on behalf of Connie Marable v. Empire Truck Sales of Louisiana, LLC and Curtis Wayne Hudspeth William “Bill” Jones and Engelique Jones v. Empire Truck Sales, LLC, Curtis Wayne Hudspeth, Wayne Marable, Great West Casualty Company, Daimler Trucks North America, LLC and KLLM Transport Services, LLC
    NO. 2017-C-1469
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Applying for- Reconsideration of this Court’s action dated November 13, 2017, Parish of Orleans, Civil District Court Div. I, No.' 2012-10471 C/W 2012-10523 C/W 2013-4560; to the ■ Court of Appeal, Fourth Circuit, No. 2016-0876 C/W 2016-0877 C/W 2016-0878;

Reconsideration denied.

GUIDRY, J., would grant ■ . reconsideration and grant the writ application and docket.

CLARK, J., would grant reconsideration and grant the writ application and docket.

CRICHTON, J., would grant reconsideration and grant the writ application and docket.


text:
    Terri Lewis STEVENS and Jennifer Fruchnicht Wife of/and Craig Rivera v. ST. TAMMANY PARISH GOVERNMENT
    NO. 2017-CC-1558
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 2015-10649; to the Court of Appeal, First Circuit, No. 2017 CW1012;

hNot considered. Not timely filed. See Supreme Court Rule X, § 5.


text:
    STATE EX REL. Marquez HURST v. STATE of Louisiana
    NO. 2016-KH-1201
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. A, No. 15-CR-001750, 12-CR-000598, 15-CR-1770; to the Court of Appeal, Third Circuit, No. KW 16-00341;

| denied; moot.


text:
    STATE of Louisiana v. Kermitt BERNHART
    NO. 2017-KO-0395
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. C, No. 515-118; to the Court of Appeal, Fourth Circuit, No. 2016-KA-0534;

| iDenied.


text:
    STATE IN the INTEREST OF M.H., I.T.
    NO. 2017-CP-1555
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Allen, 33rd Judicial District Court Div. A, Nos. J-2012-032, J-2016-028; to the Court of Appeal, Third Circuit, Nos. 17-128,17 00129-JAC

|, Not considered. Not timely filed. See La.S.Ct. Rule X, § 5.

HUGHES, J., would consider on the merits.


text:
    George JARRETT v. LOUISIANA DEPARTMENT OF SAFETY AND CORRECTIONS
    NO. 2016-CI-1458
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 633004; to the Court of Appeal, First Circuit, No. 2015 CA 1507;

|, Denied.


text:
    STATE of Louisiana v. Novell CAMPBELL
    NO. 2015-KO-1457
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. H, No. 499-519; to the Court of Appeal, Fourth Circuit, No. 2Q15-KA-0017;

Denied.

JOHNSON, C.J., would grant and docket.

HUGHES, J., would grant and docket.


text:
    STATE of Louisiana v. Shon WILLIAMS
    NO. 2017-KK-1361
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans,. Criminal District Court Div. B, No. 364508; to the Court of Appeal, Fourth Circuit, No. 2017-K-0557

11 Denied.

GENOVESE, J., would grant.


text:
    STATE EX REL. John Shane NICOSIA v. STATE of Louisiana
    NO. 2017-KH-0251
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. D, No. 307,171; to the Court of Appeal, Third Circuit, No. KH 16-00819;

|,Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Nicosia v. State, 16-1563 (La. 11/20/17).


text:
    STATE EX REL. Cevero GARCIA v. STATE of Louisiana
    NO. 2016-KH-1716
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 13063-95; to the Court of Appeal, Third Circuit, No. KH 16-00182

| ¶ Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Garcia v. State, 16-1137 (La. 11/7/16), 204 So.3d 612.


text:
    STATE of Louisiana v. Brian SMITH
    NO. 2017-KK-1479
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of St. John, 40th Judicial District Court Div. C, No. 2012-CR-313; to the Court of Appeal, Fifth Circuit, No. 17-K-383;

I denied.


text:
    STATE EX REL. John Shane NICOSIA v. STATE of Louisiana
    NO. 2017-KH-0732
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. A, No. 307,171; to the Court of Appeal, Third Circuit, No. CW 17-00047

h Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Nicosia v. State, 16-1563 (La. 11/20/17).


text:
    STATE of Louisiana v. Ranell JOSEPH
    NO. 2017-KO-0299
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. G, No. 14-5701; to the Court of Appeal, Fifth Circuit, No. 16-KA-191

|, Denied.


text:
    Brendan SHARP, Ray Sharp and Christine Andrews v. MORGAN CITY
    NO. 2017-C-1557
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. G, No. 127812; to the Court of Appeal, First Circuit, No. 2016 CA1673

|! Denied.

GENOVESE, J., would grant.


text:
    STATE of Louisiana v. Roy Lee MELSON, III
    NO. 2017-KK-1578
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. J, No. 530820; to the Court of Appeal, First Circuit, No. 2017 KW 0881;

|! Denied.


text:
    FLORIDA GAS TRANSMISSION COMPANY, LLC v. TEXAS BRINE COMPANY, LLC
    NO. 2017-CC-1551
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Assumption, 23rd Judicial District Court Div. B, No. 34,316; to the Court of Appeal, First Circuit, No. 2017 CW 1030

11 Denied.


text:
    STATE of Louisiana v. Royal JOHNSON
    NO. 2017-KK-1550
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 532-424; to the Court of Appeal, Fourth Circuit, No. 2017-K-0613

I denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Hamid GHASSEMI
    NO. 2017-KK-1562
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 09-15-0430; to the Court of Appeal, First Circuit, No. 2017 KW 0624;

Denied.


text:
    Steven ODSTRCIL v. STATE FARM MUTUAL AUTO INS. CO.
    NO. 2017-C-1517
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson Davis, 3.1st Judicial District Court Div. 0, No. C-335-15; to the Court of Appeál, Third Circuit, No. 16-881

h Denied.


text:
    STATE of Louisiana v. Michael GRIFFIN
    NO. 2017-KK-1560
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 522-335; to the Court of Appeal, Fourth Circuit, No. 2017-K-0667;

Denied.


text:
    IN RE: The ROBERT P. BREAZEALE, JR. TRUST
    NO. 2017-C-1566
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 643,303; to the Court of Appeal, First Circuit, No. 2016 CA 1003;

• h Denied.


text:
    STATE of Louisiana v. Michael BOEH
    NO. 2017-KK-1570
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 578,771 & 578,772; to the Court of Appeal, First Circuit, No. 2017 KW 0960;

|, Denied.


text:
    Rupert Gary MADDEN, M.D. v. L.L. GOLSON, INC.
    NO. 2017-C-1503
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Red River, 39th Judicial District Court Div. 0, No. 36326; to the Court of Appeal, Second Circuit, No. 51,-366-CA

| denied.


text:
    Dana Lovett HUMPHREYS v. Clay HUMPHREYS
    NO. 2017-CJ-1728
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, The Family Court, No. 161,114; to the Court of Appeal, First Circuit, No, 2017 CU 0414

| denied.

HUGHES, J., would grant.


text:
    Camille LANDRY, et al. v. PEDIATRIC SERVICES OF AMERICA, INC., et al.
    NO. 2017-CC-1552
    Supreme Court of Louisiana.
    November 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. D, No. 2013-2251; to the Court of Appeal, Third Circuit, No. CW 17-00484;

| iDenied.

HUGHES, J., would grant.

GENOVESE, J., recused.


text:
    STATE of Louisiana v. Keddrick KENNON
    NO. 2016-KO-0947
    Supreme Court of Louisiana.
    November 17, 2017
   Applying for Reconsideration of this Court’s order May 19, 2017, Parish of Webster, 26th Judicial District Court Div. F, No. 89,051; to the Court of Appeal, Second Circuit, No. 50,511-KA

liNot considered. See Supreme Court Rule IX, § 6.