author:
PER CURIAM.
     KNOLL, J.,

text:
    In re John T. BENNETT.
    No. 2009-B-2622.
    Supreme Court of Louisiana.
    April 9, 2010.
   |,ATTORNEY DISCIPLINARY PROCEEDINGS.

PER CURIAM.

This disciplinary matter arises from formal charges fried by the Office of Disciplinary Counsel (“ODC”) against respondent, John T. Bennett, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

The underlying facts of this matter are not in dispute, having been stipulated to by the parties.

Between November 1, 2006 and March 30, 2007, Theresa Desselle Adducci worked as respondent’s paralegal. As part of her regular duties, Ms. Adducci assisted in preparing client accountings related to the disbursement of personal injury settlements.

The accounting records of respondent’s personal injury eases were primarily kept at and by the Michael Carbo CPA firm in Alexandria. When a personal injury case settled, Ms. Adducci notified the Carbo firm of the settlement amount and requested checks to be used in the settlement disbursement. Respondent supplied the Carbo firm with the preliminary disbursement information, and Ms. Adducci supplied the Carbo firm with any additional information about costs and expenses that were not already reported. The Car-bo firm then prepared the settlement disbursement 12sheets, checks, and settlement accountings and forwarded them to respondent’s office. This procedure was established so the Carbo firm could assist respondent by preparing the initial settlement documents, preparing settlement checks for respondent’s signature, and providing material to respondent for review and disbursement of settlement proceeds.

By the nature of her duties, Ms. Adducci had access to respondent’s trust and operating accounts. However, she did not have signature authority on these accounts. She used her assigned tasks to gain access to the accounts for her own personal benefit.

Between November 1, 2006 and March 30, 2007, respondent was seriously ill. While he received medical care and recuperated, he was out of the office and/or he spent limited time in the office. During this time, respondent failed to properly supervise Ms. Adducci’s access to his trust and opei’ating accounts. As a result, he did not detect her actions, allowing her to commingle, convert, and/or misappropriate funds from the accounts. Through her unauthorized acts, Ms. Adducci took certain client funds and funds belonging to respondent, converting said funds from respondent’s trust and operating accounts. Respondent reported Ms. Adducci’s conduct to the Avoyelles Parish District Attorney at the end of March 2007.

Respondent identified all clients whose funds may have been taken by Ms. Adduc-ci. He made those clients whole using his personal funds, and no client was permanently deprived of money or property. In particular, Ms. Adducci’s actions affected three clients as follows:

| ;iAn $833.33 settlement disbursement check made payable to Eugene Goods was returned to respondent’s office because of an incorrect address. Ms. Adducci voided the check and had another check in that amount issued to respondent as “fee.” She then forged respondent’s signature, cashed the check, and kept the funds. On October 2, 2007, respondent paid $833.33 in restitution to Mr. Goods.

Rudolph and Rita Ponthieux’s cases settled for a combined total of $43,977.91. Respondent’s expenses totaled $4,575.08. Ms. Adducci requested two checks be issued from the settlement amount for reimbursement of the expenses — one check in the amount of $3,527.23 and another check in the amount of $3,527.22, totaling $7,054.45. She deposited the $3,527.22 check into respondent’s operating account, but she forged his signature on the other check, cashed it, and kept the funds. Ms. Adducci converted $1,047.85 due to respondent and converted $2,479.37 due to Mr. and Mrs. Ponthieux. On January 10, 2008, respondent made restitution to them from his personal funds in the amount of $2,691.97.

Charles Spataro’s case settled for $225,000. After deductions from the settlement, Mr. Spataro should have received $138,552.79. Instead, he received $15,000 less than that amount. Ms. Adducci wrote $14,615.66 in unauthorized checks from respondent’s trust account and kept the funds. On October 19, 2007, respondent made restitution to Mr. Spataro from his personal funds in the amount of $15,000.

DISCIPLINARY PROCEEDINGS

In August 2008, the ODC filed formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15(a)(b)(e) (safekeeping property of clients or third persons), 5.3 (failure to | 4 properly supervise a non-lawyer assistant), and 8.4(a) (violation of the Rules of Professional Conduct). Respondent answered the formal charges, arguing that the charges against him should be dismissed based on the evidence of Ms. Ad-ducci’s wrongdoing.

Hearing Committee Report

This matter proceeded to a formal hearing on the merits. Following the hearing, the hearing committee filed its report with the disciplinary board. In addition to the stipulated facts, the committee made the following factual findings based on the testimony and evidence presented at the hearing:

1.The accounting records kept at the Carbo firm included client ledgers for the accounting of each case. Copies of those ledgers were not kept at respondent’s office. The Carbo firm stopped reconciling respondent’s trust account in June 2006. Since the client ledgers were maintained at the Carbo firm, reconciliation of respondent’s trust account could only take place with the documents on file at the Carbo firm. While this situation may have been intended to prevent employee modification of the records, the result was that no one in respondent’s office had a clear record of the accounting for client trust accounts.
2. Details of the settlements were left to communication between respondent’s employees and the Carbo firm’s employees.
3. Respondent’s illness required hospitalization at various times.
4. During a time in 2006 and continuing through March 30, 2007, the evidence shows that Ms. Adducci embezzled a total of $14,615.66, principally by directing issuance of trust account checks to respondent’s office, intercepting those checks, forging respondent’s name, and cashing the checks. One result |aof this method of embezzlement is that, on initial investigation, it was believed that the thefts occurred out of the operating account, rather than the trust account.
5. Mr. Spataro was “shorted” $15,000, either through error or fraud, but his funds remained in respondent’s trust account, apparently to disguise the prior thefts. This transaction did not constitute a theft of client funds, but it did deprive Mr. Spataro of his full funds for a period of time.
6. When respondent learned that Ms. Adducci’s previous employer had accused her of embezzling $100,000, Ms. Adducci denied the accusation. Nevertheless, respondent advised her that she was not to deal with any financial matters in his office. However, he made no effort to restrict Ms. Adducci’s access to settlements. He also did not communicate to the Carbo firm or his own employees that Ms. Adducci was restricted from providing settlement instructions or requesting the issuance of checks.
7. The bulk of the transactions involving diversion of funds by Ms. Ad-ducci occurred in November and December 2006.
8. All client funds that were converted were restored by respondent on his own volition. No client is shown to have lost any funds.
9. Respondent was negligent in employing Ms. Adducci, continuing her employment after notice of allegations of embezzlement, and allowing her to continue to access his trust account. Respondent was also negligent in failing to properly and reasonably supervise, control, reconcile, and maintain his trust account and in allowing the trust account to be used without proper and reasonable oversight or procedures in place to protect funds belonging to clients and third parties.
IfilO. Respondent’s negligence was serious (greater than mere negligence but not rising to the level of gross negligence), and his failure to properly supervise both Ms. Adducci and his trust account facilitated Ms. Adducci’s ability to embezzle funds.
11. Respondent appears to have been under the mistaken impression that the established system (remote management of the accounting functions and records) created a barrier to employee misconduct. The Carbo firm never considered any of its systems to be theft deterrents.

Based on these facts, the committee determined that respondent violated Rule 5.3 of the Rules of Professional Conduct. The committee further found no direct violation of Rule 1.15; however, his failure to supervise Ms. Adducci caused a technical violation of Rule 1.15. The committee did not address whether respondent violated Rule 8.4(a). After considering the ABA’s Standards for Imposing Lawyer Sanctions and this court’s prior jurisprudence, the committee determined that the baseline sanction is suspension.

With respect to aggravating factors, the committee considered the following: (1) respondent delegated the duty of maintaining the trust account to his accountant, whose systems were not set up to police or prevent employee theft, and (2) respondent allowed an employee with questionable character and financial integrity to have access to his accounts. In mitigation, the committee recognized respondent’s full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings and remorse. The committee also recognized respondent’s medical condition as a mitigating factor but noted that it did not exist during the entire period when the thefts occurred.

17Under these circumstances, the committee recommended that respondent be suspended from the practice of law for six months, fully deferred, subject to one year of supervised probation. The committee also recommended that the probation be conditioned upon respondent’s attendance at the Louisiana State Bar Association’s Trust Accounting School and the requirement that respondent have a CPA reconcile his trust account and report any irregularities to the ODC. Finally, the committee recommended that any instances of improper accounting or any instances of misappropriation or conversion of trust funds should result in immediate revocation of respondent’s probation and the imposition of a one year and one day suspension from the practice of law.

The ODC filed an objection to the inconsistent nature of the hearing committee’s recommendation. The ODC also objected to the recommended length of probation. Instead, the ODC recommended that respondent be suspended from the practice of law for one year and one day, fully deferred, subject to two years of supervised probation with conditions.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings are supported by the joint stipulation of facts, the testimony, and/or the documentary evidence submitted in support of the allegations. Therefore, the board found that the factual allegations of the formal charges have been proven by clear and convincing evidence. Based on these facts, the board determined that respondent violated Rule 5.3 of the Rules of Professional Conduct. With respect to Rule 1.15, the board found that the record cannot support a finding that respondent violated the rule because he genuinely believed systems were in place that would [scomply with the rule. The board also determined that respondent violated Rule 8.4(a) through his inattention to basic standards of law office management, which in turn allowed Ms. Adducci to repeatedly steal.

The board further determined that respondent violated duties owed his clients, the legal system, and the legal profession. Respondent acted negligently, evidenced by his failure to conduct simple reviews of client settlement statements and his failure to prevent Ms. Adducci from accessing the trust account finances after learning of allegations of embezzlement. Respondent’s lack of supervision caused harm to his clients, the public, and the legal system. The harm was minimal because respondent made nearly immediate restitution, but the potential for serious harm was present because Ms. Adducci’s conduct was left unchecked for many months. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is suspension because respondent should have known of Ms. Adducci’s embezzlement activities.

The board found the following aggravating factors present: a pattern of misconduct (respondent’s long-term and continual negligence of his duty to supervise Ms. Adducci) and substantial experience in the practice of law (admitted 1972). In mitigation, the board found the following: absence of a prior disciplinary record, absence of a dishonest or selfish motive, personal or emotional problems, timely good faith effort to make restitution or to rectify the consequences of the misconduct, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and remorse.

| ¡After considering this court’s prior jurisprudence involving similar misconduct, the board recommended that respondent be suspended from the practice of law for one year and one day, fully deferred, subject to two years of probation, conditioned upon respondent’s attendance at Trust Accounting School, reconciliation of his trust account by a CPA, and no resulting evidence of improper accounting.

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

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

In this matter, the parties have stipulated that respondent failed to properly supervise Ms. Adducci, which allowed her to embezzle approximately $15,000 from his trust account. These facts support a finding that respondent violated Rules 5.3 and 8.4(a) of the Rules of Professional Conduct.

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).

Ms. Adducci’s embezzlement occurred over a period of five months, during which respondent was ill. During the latter part of this time period, respondent was unable to come into the office due to said illness. Furthermore, he believed the procedures he had established with the Carbo firm would prevent theft by his employees. Immediately upon learning that Ms. Adduc-ci’s embezzlement resulted in the misappropriation of client funds, respondent paid restitution to all effected clients.

The record supports a finding that respondent acted negligently in violating duties owed to his clients. His neglect caused actual harm to his clients; however, the harm was rectified through his timely restitution efforts. We agree with the hearing committee and the disciplinary board that the baseline sanction is suspension.

The record supports only one aggravating factor, that being respondent’s substantial experience in the practice of law. The mitigating factors found by the board are also supported by the record.

We addressed a similar fact situation in In re: Charles, 05-1971 (La.12/9/05), 916 So.2d 117, wherein a lawyer failed to supervise a non-lawyer employee who embezzled client funds. For Charles’ negligence in failing to supervise the employee, as well as other misconduct, we imposed a one year and one day suspension, fully deferred, pursuant to a petition for consent discipline. The fully deferred suspension |nwas subject to Charles’ successful completion of a two-year period of supervised probation governed by the conditions set forth in the petition for consent discipline.

In the instant matter, respondent has made full restitution to all clients to whom monies were owed. The amount of the funds embezzled was relatively small, and the embezzlement occurred in a relatively short time period, during which respondent was ill. Furthermore, respondent has no prior disciplinary history.

Given the similarities between Charles and the instant case, we find a similar sanction as that imposed in Charles is warranted in this case. Accordingly, we will adopt the disciplinary board’s recommendation and suspend respondent from the practice of law for one year and one day, fully deferred, subject to two years of probation with the conditions set forth in the board’s report.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that John T. Bennett, Louisiana Bar Roll number 2953, be and he hereby is suspended from the practice of law for one year and one day. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a two-year period of unsupervised probation governed by the conditions set forth in the disciplinary board’s report. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. 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.

KNOLL, J., dissents and assigns reasons.

KNOLL, J.,

dissenting.

| , With all due respect, I disagree with the sanctions imposed on respondent. I find the sanctions too harsh for his act of negligence that did not cause great harm to the legal profession or the public. The actual harm was caused by the criminal act of Theresa Desselle Adducci, the paralegal in respondent’s office; but for her criminal conduct of embezzling funds, respondent would not have been found to be negligent. Indeed, respondent was a victim of Ms. Adducci’s criminal conduct. Respondent’s honesty, integrity, and professionalism are not questioned in these proceedings; the Board found respondent genuinely believed he had systems in place for the safekeeping of his clients’ property. In my view, the sanction imposed here is inappropriate and should be reserved for the more egregious cases.

       Chief Justice Kimball not participating in the opinion.

      . In the summer of 2006, respondent learned that Ms. Adducci's previous employer had accused her of embezzling $100,000. After receiving this information, respondent informed Ms. Adducci that she was no longer allowed to handle money at his office. However, she continued to request checks from the Carbo firm.

      . In July 2007, Ms. Adducci entered into an anti-theft pre-trial intervention program and agreed to pay $16,696.02 in restitution.

      . The board determined that there was a lack of causation between respondent's illness and his failure to supervise because the record reflects that Ms. Adducci engaged in thirteen instances of forgery before respondent was hospitalized and missed work.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Yvonne NEWSOME v. HOMER MEMORIAL MEDICAL CENTER, et al. Health Center.
    No. 2010-CC-0564.
    Supreme Court of Louisiana.
    April 9, 2010.
   PER CURIAM.

| ]This matter arises out of a medical malpractice suit brought by plaintiff Yvonne Newsome against Clint C. Butler, M.D., John H. Smith, M.D., and Homer Memorial Medical Center, defendants. Defendants treated plaintiff from December 21, 2004 to December 28, 2004. The issue before us is whether, five years after the date the alleged malpractice occurred, the trial court erred in continuing a hearing on defendants’ motion for summary judgment so that the filing of the affidavit of plaintiffs expert witness opposing the motion for summary judgment would not be untimely. For the reasons that follow, we hold that it was, indeed, error for the trial court to continue the hearing.

Prior to bringing suit, plaintiff had filed a request for a medical review panel with the Louisiana Patients’ Compensation Fund on December 28, 2005, a full year after the alleged malpractice; however the attorney chairperson was not appointed until November 3, 2006. Following a lengthy delay of over two years, during which time plaintiff missed five deadlines to submit her evidence and required that the life of the panel be extended three times, the panel met on February 11, 2009, and rendered a unanimous decision in favor of defendants.

Plaintiff filed suit on June 10, 2009, but withheld service on defendants for ninety days, until the last day allowed to request service, September 9, 2009. Defendants propounded discovery to plaintiff on October 1, 2009, specifically asking | ¡jf plaintiff had obtained an expert witness. Plaintiff had not responded to the discovery as of March 12, 2010, the date the application was filed in this Court.

Defendants, on December 9, 2009, filed a Motion for Summary Judgment, which was set for hearing on January 22, 2010. On January 7, 2010, plaintiffs counsel contacted defendants’ counsel and asked for a continuance of the hearing based on plaintiff’s counsel’s trial schedule. Defendants’ counsel agreed to the continuance, with the caveat, to which plaintiffs counsel agreed, that the matter would not be continued again. The hearing was rescheduled for February 11, 2010.

On February 4, 2010, seven days prior to the scheduled date for the hearing of the motion for summary judgment, plaintiff filed a “Motion for Continuance or in the Alternative, Motion for Permission to File Affidavits Late.” The trial court set the hearing on plaintiffs motion for the same date as the date of the hearing of defendants’ motion for summary judgment, February 11, 2010. At the hearing of plaintiffs motion, plaintiff presented to the trial court an expert’s affidavit, and requested that the hearing of defendants’ motion for summary judgment be continued so “the late filed affidavit [would] be considered timely.” Transcript at p. 2, 1. 30.

After listening to the arguments of both counsel, the trial court stated:

Well, I guess my inclination is to deny the continuance, and also the time to give for the affidavit, but I don’t want to punish your client because of something that you failed to do, and I think even if I ruled against you, maybe the Court of Appeal would probably send it back saying that’s possibly what I’m doing. So, I’m going to go — what I’m going to do is, I’m going to allow the continuance as to — or the alternate, time to let you file the affidavit ...

Transcript at p. 15,1.13.

The denial of a motion for continuance will not be disturbed absent a showing of an abuse of discretion by the trial court. Hargrove v. Goods, 41,817 (La.App. 2 Cir. 2/28/07), 953 So.2d 968, 971. A continuance may be granted in any case if there is a good ground therefor. C.C.P. art. 1601.

With regard to motions for summary judgment, the law provides:

The motion for summary judgment and supporting affidavits shall be served at least fifteen days before the time specified for the hearing. For good cause, the court shall give the adverse party additional time to file a response, including opposing affidavits or depositions. The adverse party may serve opposing affidavits, and if such opposing affidavits are |3served, the opposing affidavits ... shall be served ... at least eight days prior to the date of the hearing ...

C.C.P. art. 966(B).

Here, plaintiff requested a continuance of the hearing of a motion for summary judgment just seven days prior to the date of the hearing, and attempted to file an affidavit on the day set for the hearing of the motion for summary judgment, which violates the eight-day limit contained in Article 966(B). Plaintiffs “good cause” for the continuance was solely to allow the affidavit to be filed at least eight days before the date of the hearing. Plaintiffs counsel’s reason for not having obtained an expert or an expert’s affidavit earlier was that her one-week trial scheduled in January turned into a three-week trial. Plaintiffs counsel’s reasoning ignores the fact that, despite having had one year to obtain an expert prior to requesting the medical review panel, one year to obtain an expert prior to requesting the appointment of an attorney chairperson for the panel, two years to obtain an expert during the pen-dency of the medical review panel, nine months to obtain an expert prior to defendants filing their motion for summary judgment, and two months to obtain an expert prior to the scheduled hearing of the motion for summary judgment, she waited until the day prior to the scheduled hearing date to obtain the affidavit of an expert with whom she had been in contact for over a month regarding the case and whom she had used on several previous occasions.

Under the facts of this case, the trial court abused its discretion in granting the motion for continuance solely in order to allow plaintiffs expert’s affidavit to be filed in compliance with the eight-day limit contained in Article 966. The lower courts are reversed and the matter is remanded to the trial court, which is ordered to conduct a hearing on defendants’ motion for summary judgment based on the pleadings, depositions, answers to interrogatories, and admissions on file on February 11, 2010, together with any affidavits served at least eight days prior to that date.

REVERSED AND REMANDED.

      . Kimball, C.J., did not participate in the deliberation of this opinion.


text:
    Linda TORRES v. LOUISIANA SHRIMP AND PACKING COMPANY.
    No. 2009-C-2792.
    Supreme Court of Louisiana.
    April 9, 2010.
   ORDER

WRIT GRANTED. It is not disputed by the parties that a timely filed tort suit interrupts the running of prescription on a workers’ compensation claim. Isaac v. Lathan, 01-2639, pp. 4-6 (La.App. 1 Cir. 11/8/02), 836 So.2d 191, 194-95. In this case, the tort suit filed by the relator against the respondent was dismissed by judgment of the trial court after the withdrawal of the respondent’s prescription exception. When a party withdraws a plea of prescription in the trial court, he thereby renounces the prescription originally pleaded and, having thus abandoned it, may not thereafter re-urge it. Foster v. Breaux, 263 La. 1112, 270 So.2d 526, 529 (1972). Accordingly, the timely tort suit interrupted the running of the prescriptive period for filing relator’s workers’ compensation claim. Moreover, having abandoned the prescription objection to the timeliness of the tort suit, respondent may not now re-urge it. Therefore, the ruling by the trial court granting respondent’s exception of prescription, and the court of appeal decision affirming the ruling, are reversed. The case is remanded to the office of workers’ compensation for further proceedings consistent with the views expressed herein.

VICTORY and KNOLL, JJ., would deny.


text:
    STATE of Louisiana v. Cynthia HOLDEN.
    No. 2009-K-1714.
    Supreme Court of Louisiana.
    April 9, 2010.
   PER CURIAM.

11 Granted. The court of appeal decision is reversed, defendant’s conviction and sentence are reinstated, and this case is remanded to the district court for execution of sentence.

The court of appeal vacated defendant’s conviction and sentence because defendant “did not expressly enter a guilty plea or waive her rights.” State v. Holden, 08-2191, p. 4 (La.App. 1st Cir.6/23/09)(McDonald, J., dissenting) (unpub’d). However, we have cautioned that neither Boykin v. Alabama, 895 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), nor our implementation of Boykin in State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), sets out a “magic word formula” which may “serve as a technical trap for conscientious trial judges who conduct a thorough inquiry into the validity of the plea.” State v. Bowick, 403 So.2d 673, 675 (La.1981). In the present case, defendant | .¿acknowledged at the outset that she would “have to take the ten” years offered to her on a guilty plea to theft as a third offender, and not gamble on a trial and face possible sentencing as a fourth offender to a term anywhere from 20 years to life imprisonment at hard labor. The trial court then admonished defendant that her attorney “can give you advice and make a recommendation to you to plea guilty, but he can’t plead guilty for you.” The court advised defendant of the charge to which she was pleading guilty, and that by entering a guilty plea, she waived her right to trial by jury, to confront and cross-examine the witnesses against her, and her right to remain silent. Defendant stated that she understood her rights. Finally, the trial court prompted the prosecutor to state on the record the factual basis for the plea. The court then asked defendant, “Is that what happened?” She replied, “Yes, sir.”

The record of the guilty plea colloquy shows clearly and unequivocally that defendant’s conviction rests on an express and counseled admission of the facts constituting the charged offense after she received advice from the court on the rights she could assert if she went to trial. See Henderson v. Morgan, 426 U.S. 637, 648, 96 S.Ct. 2253, 2259, 49 L.Ed.2d 108 (1976)(“[C]entral to the plea and the foundation for entering judgment against the defendant is the defendant’s admission in open court that he committed the acts charged in the indictment.”)(internal quotation marks and citation omitted). Waiver of those trial rights was implicit in her admission to the crime charged and the failure of defendant to conclude the colloquy by stating “I plead guilty” does not render and otherwise knowing, intelligent, and voluntary guilty plea invalid. See State v. Brooks, 38,963, p. 7 (La.App. 2nd Cir.4/22/04), 882 So.2d 724, 728 (valid guilty Ispleas even though defendant did not expressly state that he “plead guilty” to each of the charges joined in a single Boykin proceeding), writ denied, 04-2634 (La.2/18/05), 896 So.2d 30; State v. Paoli, 01-1733 (La.App. 1st Cir.4/11/04), 818 So.2d 795, 798 (same), writ denied 02-2137 (La.2/21/03), 837 So.2d 628; see also Com. v. Cavanaugh, 12 Mass.App.Ct. 543, 427 N.E.2d 496, 497 (1981)(absence of express statement by defendant that he “pleaded guilty” did not invalidate otherwise knowing and voluntary guilty plea).

      . Kimball, C.J., not participating.


text:
    STATE of Louisiana v. Bryan MEANS.
    No. 2009-OK-1716.
    Supreme Court of Louisiana.
    April 9, 2010.
   PER CURIAM.

| granted. La.C.Cr.P. art. 914(A) provides in part that “[a] motion for an appeal may be made orally in open court or by filing a written motion with the clerk.” We have repeatedly emphasized that this article “should be construed liberally to effectuate a defendant’s constitutional right of appeal in Louisiana.” State v. Murphy, 07-2032 (La.2/22/08), 974 So.2d 1290 (citing State v. Goodley, 423 So.2d 648, 651 (La.1982)). Although somewhat inarticulate, defense counsel’s remarks in open court following sentencing, liberally construed, constituted the requisite motion for an appeal as authorized by La.C.Cr.P. art. 914(A) because counsel expressed his client’s “desire to proceed forward to Reconsideration [of sentence] and Appeal as quickly as possible as he has been incarcerated for sometime now.” It further appears that in • response to defendant’s written pro se motion for an appeal which followed some months later, the trial court signed an order of appeal without objection by the | ¡.state. Although that order of appeal carried only the docket number for the charged offense and not the separate docket number given the subsequent habitual offender proceeding, the order necessarily encompassed both defendant’s conviction and sentence. Habitual offender proceedings do not charge a separate crime but are a part of the original proceeding leading to conviction, State v. Alexander, 325 So.2d 777, 779 (La.1976), and a defendant generally may appeal only from “[a] judgment which imposes sentence.” La.C.Cr.P. art. 912(C)(1). The clerk’s office in the district court thus prepared separate records for appeal of defendant’s conviction and appeal of his sentence to accommodate the separate docket numbers in the district court but included a sentencing transcripts in both records.

The decision below is reversed and the matter is remanded to the court of appeal to hear the merits of defendant’s appeal of his adjudication and sentence as an habitual offender under La. R.S. 15:529.1.

      . Kimball, CJ, not participating.


author: PER CURIAM

text:
    In re Percy J. BOOTH, IV.
    No. 2010-B-0415.
    Supreme Court of Louisiana.
    April 9, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM

Respondent pled guilty in federal court to unauthorized access to information by use of a computer, a misdemeanor offense. Prior to the filing of formal charges, respondent and the Office of Disciplinary Counsel (“ODC”) submitted a joint petition for consent discipline, in which the parties stipulated respondent has violated Rules 8.4(a) and 8.4(b) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Perry J. Booth, IV, Louisiana Bar Roll number 29096, be suspended from the practice of law for a period of six months, fully deferred, subject to a two-year period of unsupervised probation. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan.

IT IS FURTHER ORDERED 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.

       Chief Justice Kimball not participating in the opinion.


text:
    Wayne URSIN v. AMERICAN ALTERNATIVE INSURANCE CORPORATION.
    No. 2010-CC-0300.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re American Alternative Ins. Co.;— Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. C, No. 66,892; to the Court of Appeal, Fifth Circuit, No. 09-C-1072.

Granted. The case is remanded to the trial court, which is directed to conduct an in camera inspection of the claims file to determine if the requested documents are relevant and discoverable. See Stelly v. Mouret, 609 So.2d 827 (La.1992).


text:
    STATE of Louisiana v. Anthony MORGAN, et al.
    No. 2010-KK-0321.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Bentley, Alvin; Brumfield, Clyde; Lee, Dennis; Magee, Frank; Morgan, Anthony et al.; Rayford, Richard; — Defendants); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, Nos. 271-267, 342-359, 359-171, 371-067, 389-832; to the Court of Appeal, Fourth Circuit, No. 2009-K-1395.

Granted and remanded to the Court of Appeal, Fourth Circuit for briefing, argument and full opinion.

GUIDRY, J., would grant and docket.


text:
    Heriberto RODRIGUEZ v. BOLLINGER SHIPYARDS, et al.
    No. 2010-CC-0336.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re B & D Contracting Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 07-16236; to the Court of Appeal, Fourth Circuit, No. 2009-C-1690.

Granted and remanded to the court of appeal for briefing, argument, and full opinion. In its opinion, the court should discuss Rodriguez v. Bollinger Gulf Repair, 07-1476 (La.App. 4 Cir. 5/21/08), 985 So.2d 305, writ denied, 08-1586 (La.10/31/08), 994 So.2d 536.


text:
    In re Timothy L. SPRATT.
    No. 2010-OB-0583.
    Supreme Court of Louisiana.
    April 16, 2010.
   In re Spratt, Timothy; — Plaintiff; Applying For Petition for Admission to the Bar.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination. Upon satisfactorily passing the examination, petitioner may apply to this court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, section 9, to take evidence and report to this court as to whether petitioner has the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana.


text:
    Donna HOWARD, individually and on Behalf of her Two Minor Children, Chad Howard and Kendra Howard, Clarence Johnson, Joyce Johnson, Orville Johnson and Helen Johnson v. UNION CARBIDE CORPORATION.
    No. 2009-C-2750.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Union Carbide Corporation; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Charles, 29th Judicial District Court Div. D, Nos. 50,339, 50,561, 50,739, 50,758, 50,896, 51,138, 51,-264; to the Court of Appeal, Fifth Circuit, No. 08-CA-750.

Granted.


text:
    Dennis ALBRITTON, Mona Albritton and Timothy Albritton o/b/o Donald Albritton (D) v. Greg SALARD, M.D., John Reeves, M.D. and Glenwood Reginal Medical Center.
    No. 2009-CC-2645.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Reeves, M.D.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. C, No. 2009-1842; to the Court of Appeal, Second Circuit, No. 45139-CW.

Granted.


text:
    Emile POISSENOT v. ST. BERNARD PARISH SHERIFF’S OFFICE.
    No. 2009-C-2793.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re St. Bernard Parish Sheriffs Office; — Defendant; Applying For Writ of Certiorari and/or Review Office of Worker’s Compensation Dist. 7, No. 06-02282; to the Court of Appeal, Fourth Circuit, No. 2009-CA-0636.

Granted.


text:
    Monna MATHIEU v. NEW ORLEANS PUBLIC LIBRARY.
    No. 2009-C-2746.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re New Orleans Public Library;— Defendant; Applying For Writ of Certio-rari and/or Review, Parish of Orleans, Orleans City Civil Service Commission, No. 7452; to the Court of Appeal, Fourth Circuit, No. 2008-CA-1503.

Granted.


text:
    IBERIA MEDICAL CENTER v. Wendy WARD.
    No. 2009-C-2705.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re Iberia Medical Center; — Plaintiff; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation, Dist. 04, Nos. 06-06495, 06-06990; to the Court of Appeal, Third Circuit, Nos. 09-0380, 09-0381.

Granted.


text:
    STATE of Louisiana v. Terrence Roshun SCOTT.
    No. 2009-K-1658.
    Supreme Court of Louisiana.
    April 23, 2010.
   In re State of Louisiana;' — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 433311; to the Court of Appeal, First Circuit, No. 2008 KA 2418.

Granted.


author: DENNIS R. BAGNERIS, SR., Judge. ARMSTRONG, C.J.,

text:
    Stacey and Charles SUBERVIELLE v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Brendon V. Mistrot, Richard V. Mistrot, Jr., Rechel Renee Austin Mistrot, Chris Wagner, Dino Huy, Jr., and Usagencies Casualty Insurance Company, Inc.
    No. 2008-CA-0491.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 7, 2009.
    See also 995 So.2d 1239.
    Terrence J. Lestelle, Andrea S. Lestelle, Jeffery B. Struckhoff, Lestelle & Lestelle, APLC, Metairie, LA, for Plaintiffs/Appel-lees.

      Fred M. Trowbridge, Jr., Porteous, Hainkel & Johnson, New Orleans, LA, for Defendant/Appellant, State Farm Mutual Automobile Insurance Company.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS, SR., and Judge PAUL A. BONIN).
   DENNIS R. BAGNERIS, SR., Judge.

|, The Appellant, State Farm Mutual Automobile Insurance Company (“State Farm”), appeals the judgment of the district court granting the Appellees’ Motion for Declaratory Judgment. We reverse and remand.

This case stems from an automobile accident that occurred on January 16, 2005. Stephanie Subervielle died in the accident on Old Gentilly Road after a drag racing incident. Stacey and Charles Subervielle, the parents of Stephanie, filed suit to recover wrongful death and survival damages. State Farm is one of the named defendants in the suit. State Farm is the insurer of Brendon Mistrot who was operating the vehicle in which Stephanie was a passenger. It is also the UM carrier for the Subervielles.

In a judgment dated March 11, 2008, the district court denied State Farm’s Motion for Summary Judgment and the Suberv-ielle’s cross-claim for Summary Judgment. However, the district court granted the Subervielle’s Motion for Declaratory Judgment finding that “the economic only uninsured motorist policy issued by State Farm to plaintiffs provides coverage for all economic losses that Plaintiffs have incurred, up to the limits of liability ...” It is from this judgment that State Farm appeals.

| .¿State Farm offers the following two assignments of error: (1) under Louisiana Law, funeral and medical expenses are the only “economic damages” that are recoverable by wrongful death and/or survival claimants. Therefore, the plaintiffs have received the compensation to which they are entitled under the policy at issue, and the claims against State Farm, in its capacity of the UEO insurer should be dismissed and (2) the plain and clear language of the policy issued by State Farm in its capacity as the underinsured motorist carrier of the plaintiffs unambiguously limits the claims of the Subervielles to the per person limit.

The issue before the court is one of contract interpretation, which is subject to de novo review on appeal. French Quarter Realty v. Gambel, 2005-0933, p. 3 (La.App. 4 Cir. 12/28/05), 921 So.2d 1025, 1027. An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. Louisiana Ins. Guar. Ass’n v. Interstate Fire Cas. Co., 93-0911 (La.1/14/94), 630 So.2d 759, 763; Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993); Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342, 345 (La.1991). If the words of the policy are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent and the agreement must be enforced as written. Smith, supra at 1379; Central Louisiana Elec. Co. v. Westinghouse Elec. Corp., 579 So.2d 981, 985 (La.1991); Pareti v. Sentry In-dem. Co., 536 So.2d 417, 420 (La.1988); see La. C.C. art. 2046.

Thus far the Subervielles received a total of $11,830.23 to pay for funeral and medical expenses incurred as a result of the death of their daughter. The Suberv-ielle’s maintain that they have a total loss of $128,468.91 which includes |amedical expenses, lost wages, benefits and other economic losses that are all directly attributable to their wrongful death action. Alternatively State Farm maintains that the only other wrongful death elements of damages still available to the Subervielles are loss of love and affection and that loss of love and affection are non-economic damages which are not covered under the policy.

The insurance policy states:

When Coverage UEO Does Not Apply THERE IS NO COVERAGE FOR NON-ECONOMIC LOSS. NON-ECONOMIC LOSS MEANS ANY LOSS OTHER THAN ECONOMIC LOSS AND INCLUDES BUT IS NOT LIMITED TO PAIN, SUFFERING, INCONVENIENCE, MENTAL ANGUISH, AND OTHER NON-ECONOMIC DAMAGES OTHERWISE RECOVERABLE UNDER THE LAWS OF LOUISIANA.

The district court reasoned in its judgment that:

The economic only insured motorist policy issued by State Farm to Plaintiff’s provide coverage for all economic losses that Plaintiffs have incurred, up to the limits of liability, as a result of the wrongful death of their daughter, Stephanie Subervielle, assuming the fact finder determines that the mental and emotional injuries sustained by Plaintiffs rise to the level of severe and debilitating so as to meet the definition of ‘bodily injury’ as defined in the policy.

In Hebert v. Webre, 2008-0060 (La.5/21/08) 982 So.2d 770, the Supreme Court examined the exact language of the State Farm policy questioned in this case. In that case, Mr. Hebert was killed in an automobile accident and survived by his wife and three children. The Supreme Court reasoned:

The elements of wrongful death are loss of love and affection, loss of services, loss of support, medical expenses and funeral expenses. Smith v. Municipality of Ferriday, 2005-755 (La.App. 3rd Cir.2/1/06), 922 So.2d 1222, 1231. The elements of damage for a wrongful death action are loss of love, affection, companionship, |4services, support, medical expenses and funeral expenses. See, Bujol v. Entergy Services, Inc., 00-1621, p. 46 (La.App. 1st Cir.8/14/02), 833 So.2d 947, 983; Clark v. G.B. Cooley Service, 35,675, p. 9 (La.App. 2nd Cir.4/5/02), 813 So.2d 1273, 1280. Additionally, the courts have allowed damages in wrongful death actions for mental pain, suffering, and distress resulting from the death of the victim. Bryant v. Sullivan, 1997-2008 (La.App. 4th Cir.3/25/98), 712 So.2d 145, 147; Hasha v. Calcasieu Parish Police Jury, 651 So.2d 865, 876 (La.App. 3rd Cir.1995).

08-0060 at p. 11, 982 So.2d. at 778, n. 8

We are of the opinion that in the instant matter that the Subervielles are entitled to recover under the UEO limits of the State Farm policy, however their recovery is limited to their out of pocket expenses resulting from the accident. For additional expenses the Subervielles would have to prove that they suffered a “bodily injury” as defined by the policy.

State Farm followed the suggestion of Crabtree (citation omitted) and amended its definition of “bodily injury” to require that such injury be “physical” in nature to differentiate it from a mental or emotional injury. Although Crabtree also suggested the use of the word “external” in addition to “physical” to clarify the definition of “bodily injury,” the use of the word “external” could have had unintended consequences. For example, if an external, physical injury were required to qualify as a “bodily injury” to trigger a separate “each person” limit, a person who sustained internal injuries, such as a damaged organ, without sustaining external injuries such as bruises or lacerations, would not be entitled to a separate “each person” limit. As that result was not intended by the policy and would lead to inequitable and illogical results, we 'find that the addition of the word “physical” is sufficient under Crabtee to differentiate a “bodily injury” sustained in a physical manner, which would be entitled to separate per person limits, from an injury which is emotional in nature and, though might have physical consequences, is not a “physical” bodily injury.

08-0060 at 9-10, 982 So.2d at 776-777.

|sThe Subervielles sued for wrongful death and survival actions under Louisiana Civil Code Articles 2315.1 and 2815.2 and they must prove that they are legally entitled to the damages that they claim are economic. For a survival action, the elements of damages are the deceased’s “pain and suffering, loss of earnings, fright, fear or mental anguish while the ordeal is in progress.” Dawson v. James Stewart and Deaton, Inc., 437 So.2d 974 (La.App. 4th 1983). The elements of damages for wrongful death are loss of love and affection, loss of services, loss of support, medical expenses and funeral expenses. Broussard v. Medical Protective Co., 2006-331, p. 6 (La.App. 3rd Cir. 2/21/07), 952 So.2d 813, 819.

Further, we ruled in Subervielle v. State Farm Mut. Auto. Ins. Co., 995 So.2d 1239, 2008 WL 4489695 (La.App. 4 Cir., 10/01/08), that considering the specific policy language at issue, the wrongful death claims arising from the automobile accident are subject to a single “Each Person” limit.

The Subervielles do not have a separate claim for “bodily injury” arising out of the death of their daughter. Their claim against State Farm in its capacity as their UEO carrier is limited to the economic damages arising out of their wrongful death claims.

Decree

For the reasons stated above, this Court reverses the judgment of the district court granting the Appellees’ declaratory judgment and we remand this matter for proper calculation of the Subervielle’s economic-only losses consistent with this opinion.

REVERSED AND REMANDED.

ARMSTRONG, C.J., concurs.

ARMSTRONG, C.J.,

concurs.

I respectfully concur. Hebert v. Webre, 08-0060 (La.5/21/08), 982 So.2d 770 and Subervielle v. State Farm Mut. Auto. Ins. Co., 995 So.2d 1239, 2008 WL 4489695 (La.App. 4 Cir. 10/01/08), compel us to limit the plaintiffs’ recovery to economic damages they sustained in connection with their daughter’s death, e.g., medical expenses and funeral expenses, and such other economic damages they sustained arising out of direct physical bodily injury to themselves as distinguished from emotional injury they may have suffered, even if the emotional injury has physical or economic consequences.