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    DK ARENA, INC., a Delaware corporation, and Don King, an individual, Appellants, v. EB ACQUISITIONS I, LLC, a Florida limited liability company, Appellee.
    No. 4D09-5.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2010.

      Alvin B. Davis, Tania Cruz, and Jeffrey Grossfeld of Squire, Sanders & Dempsey L.L.P., Miami, for appellants.
    Daniel L. Wallach, Kevin Markow, Gary C. Rosen, and Lawrence S. Bassuk of Becker & Poliakoff, P.A., Fort Lauderdale, for appellee.
   GROSS, C.J.

Appellant DK Arena, Inc., owned real property known as Mangonia Park Jai Alai Fronton (“arena property”). Appellee EB Acquisitions I, LLC, contracted with DK Arena to purchase the property for development. DK Arena sued EB for breach of contract, seeking to retain a $1,000,000 deposit. EB filed an answer and counterclaim attacking the real estate contract on various grounds and asserting the breach of an oral joint venture agreement that arose from the parties’ dealings while the contract was pending. After a bench trial, the court found in favor of EB, ordering the return of its $1,000,000 deposit and awarding it $500,000 in damages on its counterclaim for breach of the oral joint venture agreement.

We affirm that portion of the judgment ruling that EB was entitled to the return of its deposit, rejecting DK Arena’s arguments that rely on the statute of frauds. We reverse that portion of the judgment awarding $500,000 in damages, because the pax-ties failed to create an enforceable joint venture agreement that would support a damage award.

We state the facts in the light most favorable to EB, the pi-evailing pax-ty below. See, e.g., Blue Paper, Inc. v. Provost, 914 So.2d 1048, 1049 (Fla. 4th DCA 2005).

The July 2004 Real Estate Contract

John Markey, who later formed EB, met with Mike Masanoff of the South Florida Regional Transit Authority about developing the arena property into a “transit oriented development.” Masanoff an-anged a meeting between himself, Markey, and Don King, the celebrity boxing promoter who owned DK Arena. King was in favor of a development, and indicated that he would be able to “deliver” the community and County Commissioner Addie Greene. Markey wrote a letter to King on July 14, 2004, expressing his intent to purchase the arena property.

Markey formed EB to acquire the property. Through EB, Markey wanted to turn the arena property into a mixed use development, with both residential and commercial elements, that would integrate the Tri-Rail station already there. The estimated budget for constructing the development was $250,000,000.

On July 20, 2004, EB and DK Arena entered into a written contract where EB agreed to purchase the arena property for $23,000,000, with an escrow deposit of $1,000,000. The agreement provided for a due diligence period of 60 days, which would begin to run on July 20, the effective date of the agreement, and terminate on September 20, 2004. The closing would take place 30 days after the expiration of the due diligence period. The failure of EB to “deliver written notice to [DK Arena] prior to the expiration of the Due Diligence period of [EB]’s determination of whether or not the Property [was] acceptable” would constitute EB’s “as is” acceptance of the contract.

Paragraph 9 of the contract further provided that the deposit would be returned “in the event any condition of this Contract [was] not met and Buyer ... timely [gave] any required notice regarding the condition having not been met.” Either party could claim the deposit pursuant to paragraph 10:

10. DEFAULT:
(a) In the event the sale is not elosed due to any default or failure on the part of Seller other than failure to make the title marketable after diligent effort, Buyer may either (1) receive a refund of Buyer’s deposit(s) or (2) seek performance....
(b) In the event the sale is not closed due to any default or failure on the part of Buyer, Seller may either (1) retain all deposit(s) paid or agreed to be paid by Buyer as agreed upon liquidated damages, consideration for the execution of this Contract, and in full settlement of any claims, upon which this Contract will terminate or (2) seek specific performance....

Finally, paragraph 15 of the contract provided that modifications of the contract would “not be binding unless in writing, signed and delivered by the party to be bound.”

At the same time, DK Arena and EB also entered into an addendum that was incorporated into the above contract. Paragraph 4 of the addendum allowed EB to terminate the agreement at any time during the due diligence period. The addendum also provided additional terms concerning the deposit:

10. DEPOSIT. At the end of the Due Diligence Period, assuming that [EB] has not given notice to [DK Arena] that it intends to terminate the Contract, the parties shall take the following actions:
(a) The Deposit shall be released to [DK Arena],...

A point of contention at trial was paragraph 14 of the addendum:

14. LAND USE APPLICATION. [EB] may in its discretion, at its sole cost and expense, apply for land use and any other governmental and quasi-governmental approvals relating to its proposed development of the Property. [DK Arena] and its principal, Mr. Don King, shall cooperate in the foregoing applications and processes. [DK Arena] and its principal, Mr. Don King, shall also reasonably cooperate in the marketing and promotion of the redevelopment of the Property. In consideration of [DK Arena] and Mr. King’s efforts, [EB] shall convey title to [DK Arena] of 2(two) of the highest price residential units offered to the general public upon completion of construction of the first phase of development.... This clause shall survive the Closing. [DK Arena]’s and Mr. King’s agreement to cooperate with [EB] in connection with the obtaining of governmental approvals, marketing and promotion is a material inducement of [EB] entering into this Contract.

King understood paragraph 14 to mean that he was required to lobby for government approval of the project and speak at public meetings on its behalf. Charles Lomax, DK Arena’s general counsel, understood that King was obligated to attend the meetings of the Mangonia Town Council. Believing that paragraph 14 was “extremely significant,” Markey saw it as insuring that King would bring “his celebrity clout, his oratory[,] his ability, and his connections to the community” to support the project.

Finally, addendum paragraph 15 provided that “[t]his transaction [did] not create a joint venture or partnership relationship among the Parties.”

The Due Diligence Period Through October 4

On September 13, 2004, DK Arena and EB amended the July 20 contract to extend the due diligence period by 14 days, until October 4, 2004. Consistent with paragraph 15 of the contract, this amendment was in writing and signed by both DK Arena and EB.

At a meeting at Kng’s office, Markey and King orally agreed to convert their agreement into a joint venture, whereby DK Arena would leave some equity in the project and receive a portion of ownership. After several meetings, Markey and King hammered out important terms of the joint venture and shook hands on a “rock solid” agreement where DK Arena was to receive equity in the project and provide a mortgage to EB. Markey testified that the goal of the proposed project was 1500 residential units and about 350,000 square feet of commercial space. King told Markey to “write up” a formal proposal and give it to his lawyers.

On September 27, 2004, Markey sent King, through attorney Lomax, the formal proposal “outlining the terms of [their] joint venture,” “per [their] previous negotiations”:

1. A new single purpose entity (“the L.L.C.”) will be formed to develop the property with Don Kng as 25% member.
2. The L.L.C. will purchase the property from DK Arena for $23,000,000.
3. Closing will take place approximately 6 weeks after formation of the new L.L.C. Don Kng will receive $15,000,000 cash and a second mortgage, subordinate to the primary lender, in the amount of $8,000,000 at the closing.
4. Payment of the $8,000,000 second mortgage will be contingent upon the granting of all approvals to build the project.
5. EB Developers will fund all costs for approvals and Don Kng will have no obligation to provide additional funding.
6. Don King will assist with obtaining approvals, public relations and marketing.
• Additional equity from JKM & EB on proportionate basis.
• DK will be permitted to invest equity in shop [illegible]

If King approved the above terms, Markey testified that he would have reduced the joint venture agreement to writing.

After the September 27, 2004 letter, the parties negotiated “back and forth” and their attorneys exchanged various versions of the agreement. On September 29, EB sent DK Arena a proposed amendment to the agreement, which would have converted the purchase contract into a joint venture agreement where EB would pay DK Arena $15,000,000 in cash and DK Arena would take back an $8,000,000 mortgage and receive a 25% equity interest in EB. The September 29 amendment proposed to extend the due diligence period and eliminate paragraph 15 from the addendum to the purchase contract, which paragraph disclaimed the formation of a partnership or joint venture between DK Arena and EB.

Several attorneys working for DK Arena analyzed the September 29 amendment and pointed out areas of concern. From King’s perspective, his attorneys “never really presented” the proposal to him “with the stamp of approval,” so that no deal was ever made. However, Markey believed that he and King had already “agreed to the deal before. It was just a matter of how do you memorialize it in writing, and get the legalese correct! ].”

On October 4, 2004, the day the due diligence period was to expire, King and Markey met at King’s office. Each man had two lawyers with him. King and Mar-key agreed to hold the due diligence period “in abeyance” until they “could get the joint venture agreement memorialized.” There was no set time frame for the extension of the due diligence period, but it was tied into a late October hearing with the city of Mangonia Park, which had to approve the project before it could proceed.

The Project Falls Apart

King and Markey attended an October 4, 2004 Mangonia Town Council meeting with their attorneys. Markey pitched the project to the council. He showed them site plans and renderings of the project and explained his vision for the development. King’s presentation to the council extolled the potential benefits of the project. In response to a question from a councilperson about his involvement with the project, King said that his involvement went beyond just selling the land to EB. He said he would be a “partner owner,” a “part owner as well as a seller,” a “large minority owner in the thing.”

Generally, the feeling at the meeting was that the council and community had not been given enough notice, and there were some concerns about the project. As a result, the council scheduled an informational meeting for October 24, 2004, “where the community had enough time to have notice to attend the meeting.” King told Markey and the council he would attend this second meeting.

On October 11, 2004, representatives from EB and DK Arena held discussions about the project, which included talk of the expiration of the contract’s due diligence period. One of King’s attorneys said that even if EB terminated the agreement, DK Arena would still negotiate with them on the terms of a joint venture. In the end, EB neither gave DK Arena notice of its intent to terminate the contract, nor did it release the deposit to DK. DK Arena neither demanded the deposit nor notified EB that the due diligence period had expired.

After October 11, the parties acted as if they were still going forward together on the project. Markey wrote King about his October 12 meeting with city officials and King’s attorneys were still working on changes to the joint venture agreement. On October 18, a King attorney sent a modified version of the joint venture agreement to one of EB’s attorneys.

However, no written joint venture agreement was ever executed by the parties.

In the meantime, while negotiations with EB were ongoing, King spoke several times with his friend, County Commissioner Greene. Greene told King that MGM had approached her about an entertainment facility/theme park project for the property. She tried to persuade King to abandon the project with EB and gave him MGM’s proposal to review.

The October 26 Mangonia Town Council meeting occurred as scheduled. King did not attend, even though he was in Palm Beach County. Markey spoke on behalf of the project, but the council’s skepticism “rapidly turned to hostility.” Commissioner Greene addressed the meeting and disclosed MGM’s proposal for the arena property, which would “bring over 2,000 jobs” to the county. She said she had told King that the county preferred the MGM project, not Markey’s. Both Markey and his lawyers believed that King’s absence from the meeting was “very damaging to the prospeet[s]” of the project.

On October 27, Markey was “flabbergasted” by DK Arena’s demand to the escrow agent for the release of the $1,000,000 deposit because he believed that they were “moving forward” with the joint venture. He instructed his escrow agent not to release the deposit. Markey’s attorney fired off a letter that DK Arena had breached paragraph 14 of the addendum because King had failed “to cooperate in the governmental and quasi-governmental processes.” EB demanded a return of the deposit.

Also on October 27, King received an offer to purchase the arena property for $24,000,000 to develop it into an entertainment complex.

Markey testified he “easily” spent “half a million dollars” on the project, with almost all of the expenses coming after EB and DK Arena entered into the contract. He spent “easily $200,000” on architects’ fees, roughly $120,000 in legal fees, $50,000 to $60,000 in engineering studies, and staff costs of “conservatively another $150,000.” At trial, he offered no documentation for these expenses, explaining that EB was a defunct corporation without a “server.”

The Final Judgment

In its final judgment, the trial court found that King’s failure to attend the October 26 town council meeting breached paragraph 14 of the addendum, which required King to “do all that was reasonable to support the project.” The court found that King’s failure to attend led to “the eventual demise of the project and the parties’ relationship.” The court determined that King’s failure to attend the meeting, his demand of the deposit, and the receipt of a new offer for the property were not “coincidental.” The court concluded that the oral, indefinite extension of the due diligence period was enforceable and that an oral joint venture agreement existed for the “limited” purpose of creating “modified partnership documents containing the final details of the partnership.” The court awarded EB the return of its deposit and $500,000 in damages for breach of the oral joint venture agreement.

EB is Entitled to the Return of the $1,000,000 Deposit

On a number of grounds, DK Arena attacks the circuit court’s decision to return the deposit to EB. We address four: (1) whether there was adequate evidentia-ry support for the oral extension of the due diligence period, (2) whether the oral extension was precluded by the provision in the contract that required modifications to be in writing, (3) whether the oral extension was barred by the statute of frauds, and (4) whether the oral extension was unenforceable because it was indefinite.

First, DK Arena argues that competent, substantial evidence does not support the trial judge’s finding of an oral extension to the due diligence period. “[A] lower court’s ultimate factual determinations during a non-jury trial may not be disturbed on appeal unless shown to be unsupported by competent and substantial evidence....” Zupnik Haverland, L.L.C. v. Current Builders of Fla., Inc., 7 So.3d 1132, 1134 (Fla. 4th DCA 2009) (citation omitted). The testimony of Markey and one of his attorneys, as well as King’s statements at the October 4 Town Council meeting, support the judge’s conclusions. There was nothing “inherently incredible” or “improbable” about this testimony that would prevent the judge from relying upon it. See Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976). Thus, sufficient evidence supports the judge’s finding that the parties agreed to an oral extension of the due diligence period.

We also reject DK Arena’s apparent argument that the parol evidence rule prohibits evidence of a subsequent oral agreement to extend the due diligence period. “The parol evidence rule applies to [oral] agreements between the parties to a written contract which are made before or at the time of execution of the contract. It does not apply to the admission of subsequent oral agreements that alter, modify, or change the former existing agreement between the parties.” Pavolini v. Williams, 915 So.2d 251, 254 (Fla. 5th DCA 2005) (citing Wilson v. McClenny, 32 Fla. 363, 13 So. 873 (1893); Vorzimer v. Kaplan, 362 So.2d 451 (Fla. 3d DCA 1978)). Here, the oral modification occurred approximately 2.5 months after the July 2004 agreement, so the parol evidence rule would not serve to exclude evidence of the modification.

Next, DK Arena contends that the oral extension is not enforceable because it violates paragraph 15 of the contract, which provided that modifications of the contract would “not be binding unless in writing, signed and delivered by the party to be bound.” However, our decision in Blue Paper, Inc. v. Provost, 914 So.2d 1048 (Fla. 4th DCA 2005), upon which the circuit court relied, supports the court’s decision. There, we held that even where a written contract prohibits subsequent, unwritten amendments, “ ‘[a] written contract may be modified by an oral agreement if the parties have [1] accepted and [2] acted upon the oral agreement in a manner that would work a fraud on either party to refuse to enforce it.’ ” Id. at 1052 (quoting W.W. Contracting, Inc. v. Harrison, 779 So.2d 528, 529 (Fla. 2d DCA 2000)).

Involving an oral modification to a contract that prohibited unwritten amendments, the salient facts in Blue Paper are similar to those in this case. Id. at 1050. Blue Paper involved the purchase and sale of a townhouse. The purchaser was supposed to make a $100,000 deposit on the property, but tendered only $75,000. Id. at 1049. The purchaser “did not tender the remaining $25,000 because [the developer] [orally] told him he did not have to do so” until some later date. Id. at 1053. Nonetheless, contending that the purchaser was “in default for failure to post the additional $25,000 deposit,” the developer terminated the contract. Id. at 1050.

This court held that the oral modification allowing a $75,000 deposit was enforceable, even though the “written contract contain[ed] a provision prohibiting modification except in writing.” Id. at 1052-53. We concluded that, because the purchaser “relied on [the developer’s] assurance” that the remaining $25,000 was not due, the developer could not “ ‘. take advantage of a delay in performance which he condoned or was a party toId. at 1053 (quoting Forbes v. Babel, 70 So.2d 371, 372 (Fla.1953)). Because the parties acted upon the unwritten amendment, we held that it would work a fraud upon the purchaser to refuse to enforce it. Id. at 1052-53. Blue Paper followed law long established in Florida. See, e.g., Prof'l Ins. Corp. v. Cahill, 90 So.2d 916, 917-18 (Fla.1956); Jupiter Square S.C. Associates, Inc. v. Tomary, Inc., 571 So.2d 538 (Fla. 4th DCA 1990).

Here, like the purchaser in Blue Paper, EB relied on the extension of the due diligence period in its effort to bring the joint venture into being. Termination of the purchase contract and a request for a return of the deposit during the due diligence period would have been contrary to the proposed, evolving joint venture that, for a time, both EB and DK Arena were pursuing. Based on the evidence, the court properly enforced the oral extension of the due diligence period.

DK Arena next argues that the oral agreement to extend the due diligence period violated the statute of frauds. However, the doctrine of estoppel prevents DK Arena from relying on the statute to invalidate its agreement to extend the due diligence period. EB could therefore terminate the contract during the extended due diligence period and obtain the return of its deposit.

Under the applicable portion of Florida’s Statute of Frauds,

[n]o action shall be brought whereby ... to charge any person ... upon any contract for the sale of lands, tenements or hereditaments, or of any uncertain interest in or concerning them ... unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized.

§ 725.01, Fla. Stat. (2004). “ ‘The statute of frauds grew out of a purpose to intercept the frequency and success of actions based on nothing more than loose verbal statements or mere innuendos.’ ” Tanenbaum v. Biscayne Osteopathic Hosp., Inc., 190 So.2d 777, 779 (Fla.1966) (quoting Yates v. Ball, 132 Fla. 132, 181 So. 341, 344 (1938)); see also Rowland v. Ewell, 174 So.2d 78, 80 (Fla. 2d DCA 1965) (citing Yates). The statute’s “primary object” is “to prevent the setting up of pretended agreements and then supporting them by perjury” in swearing contests where one person’s word is pitted against that of another. Reynolds v. Dixon, 187 Va. 101, 46 S.E.2d 6, 8 (1948). While the statute of frauds “should be strictly construed to prevent the fraud it was designed to correct,” Yates, 181 So. at 344, it should not be used as an instrumentality “in aid of fraud or as a stumbling block in the path of justice.” Cramer v. Ballard, 315 Mich. 496, 24 N.W.2d 80, 86 (1946) (Boyles, J., concurring).

The circuit court found that the parties orally agreed to extend the due diligence period, that EB relied on the extension to negotiate the proposed joint venture agreement, and that EB was authorized to demand the return of the deposit during the extended period. At no time prior to its October 27 demand for the release of the deposit did DK Arena notify EB that it was withdrawing its consent to the extension of the due diligence period.

The key to this case is that EB changed its position in reliance upon the oral agreement to extend the due diligence period — it did not give notice under paragraph 10 of the addendum that it intended to terminate the contract. This is the basis of an estoppel that prevents DK Arena from avoiding the extension to which it agreed. “The oral agreement does not itself create such an estoppel; there must always be a change of position in reliance upon it. Even then, the party estopped is merely held to his written promise, but on different conditions.” Young v. Pottinger, 340 So.2d 518, 521 (Fla. 2d DCA 1976) (quoting 2 Arthur L. Corbin, Corbin on Contracts § 310 (1950)). “Enforcement of the doctrine of estoppel in such a situation” does not violate the statute of frauds. Id. (quoting Warren v. Dodge, 83 N.H. 47, 138 A. 297, 299 (1927)). Instead, “the oral modification operates as a defense to a claim of the breach or nonperformance of the written contract rather than as giving any right of action for the breach of the modification.” Warren, 138 A. at 299. As the New Hampshire Supreme Court has observed, where the parties to a real estate contract orally agree to extend a deadline specified in the contract, and a party to the contract has acted in reliance on the agreement,

[i]t is not the enforcement of the oral agreement that is sought, but a legal excuse for noncompliance with the terms of the written contract that is claimed.... The written contract remains unchanged, but the [party being estopped], by reason of the situation brought about by reliance upon their own words and conduct, may not be heard to say that the [other party] has not lived up to it.

Id. “The rule is well understood that, if there is forbearance at the request of a party, the latter is precluded from insisting upon nonperformance at the time originally fixed by the contract as a ground of action.” Thomson v. Poor, 147 N.Y. 402, 42 N.E. 13, 15 (1895).

Florida courts have applied the doctrine of estoppel to defeat claims that a party’s reliance on an oral extension of the time to perform a written real estate contract violated the statute of frauds. In Young v. Pottinger, buyers exercised an option to purchase real property, but orally agreed to delay closing to allow the sellers, an elderly couple, to “continue residing on the property.” 340 So.2d at 519. During the extension, another couple, the Pottingers, swooped in and convinced the elderly couple to convey the property to them. Id. The buyers sued the Pottingers for tor-tious interference with their contract with the elderly sellers. Id. The trial court granted the Pottingers’ motion to dismiss for failure to state a cause of action. Id.

On appeal, the Pottingers urged affir-mance of the dismissal because the buyers were “relying upon an oral extension of an agreement to convey real property in violation of the statute of frauds.” Id. Quoting extensively from Warren v. Dodge, the second district reversed the dismissal, holding that the buyers had “pled themselves around” the statute of frauds defense by demonstrating an estoppel on the face of their pleading, so that the complaint stated a cause of action for tortious interference with their contract to purchase. Id. at 520-21.

Relying on Young v. Pottinger, the first district later held that a party to a real estate contract could rely on “estoppel or waiver” to avoid the statute of frauds defense to its breach of contract claim by pleading that “it detrimentally relied on an oral modification, such as an extension of the time of performance agreed to by” the other party to the contract. Affordable Homes, Inc. v. Devil’s Run, Ltd., 408 So.2d 679, 680 (Fla. 1st DCA 1982).

The third district followed Young and Affordable Homes in United of Omaha Life Insurance Co. v. Nob Hill Associates, 450 So.2d 536, 539 (Fla. 3d DCA 1984). The court recognized that where one party to a real estate contract took action in reliance upon an oral agreement to extend the time for performance, the other party is estopped from relying on the statute of frauds to claim “that it did not agree to a longer period of time for compliance.” Id. at 539.

Young, Affordable Homes, and United of Omaha each involve oral extensions of time to perform real estate contracts; all support the application of estoppel to this case. The principle is “fundamental and unquestioned,” with “roots in the yet larger principle that no one shall be permitted to found any claim upon his own inequity or take advantage of his own wrong. The statute of frauds was not intended to offer an asylum of escape from that fundamental principle of justice.” Imperator Realty Co. v. Tull, 228 N.Y. 447, 127 N.E. 263, 266 (1920) (Cardozo, J., concurring) (citations omitted).

DK Arena relies primarily on our decision in Wharfside at Boca Pointe, Inc. v. Superior Bank, 741 So.2d 542, 545 (Fla. 4th DCA 1999), which states the general rule that an “agreement that is required by the statute of frauds to be in writing cannot be orally modified.” Wharfside involved a written contract for the purchase of an interest in a commercial real estate project for $3.1 million. Id. at 543. The buyer failed to close. Id. The buyer contended that it reached an oral agreement that “provided for a reduced purchase price of $1.6 million” and an extension of the closing date. Id. at 544. The buyer later sought specific performance of the oral agreement. Id. We held that the “attempted oral modification” of the written contract was “insufficient to satisfy the requirements of ... [the] statute of frauds.” Id. at 545.

Wharfside does not control this case, and is distinguishable from Young, Affordable Homes, and United of Omaha, because the oral agreement there sought to modify the sales price, an essential term of the contract. An oral modification of an important term such as the sales price of real property is precisely the type of shenanigan that the statute of frauds was designed to eliminate. The estoppel cases do not condone oral changes to such an important term of a written contract, but prevent a party from ignoring oral modifications to conditions of performance, where to do so, in light of one party’s reliance on the modifications, creates an injustice.

We also distinguish a second case relied upon by DK Arena—Shore Holdings, Inc. v. Seagate Beach Quarters, Inc., 842 So.2d 1010 (Fla. 4th DCA 2003). Like Wharf-side, Shore Holdings involved a would-be buyer of real estate who tried to base a lawsuit upon oral representations that the seller “was prepared to ... accept substantial changes in the financial terms of the transaction” from an earlier written contract. Id. at 1012. We held that, because it had already expired, there was no written contract in existence that could have been modified by the parties. Id. In dicta, citing to Whatfside, we commented that, had there been a written contract, then the statute of frauds would have prohibited the oral modification of its financial terms “under the doctrine of promissory estoppel,” the theory under which the buyer recovered at trial. Id. This case involves neither an attempt to modify the financial terms of a written real estate contract, nor an attempt to set up a new enforceable promise under the doctrine of promissory estoppel.

Finally, DK Arena complains that the oral extension to the due diligence period was unenforceable as an agreement for an indefinite duration. This argument misunderstands the legal effect of the oral extension. Because of the operation of the statute of frauds, the oral extension of the due diligence period did not become a part of the written contract that bound the parties. Under the estoppel cases, it is the fact of the oral extension, plus the one party’s acting in reliance upon it, that prevents the other party from invoking the statute of frauds to insist upon strict performance according to the terms of the written contract. Where

one party to a contract, before the time for performance by the other party has arrived, consents, upon his request, to extend the time of performance, he must be presumed to know that the other party relies upon the consent; and until he gives notice of withdrawal he has no just right to consider the latter in default, although meanwhile the contract time has elapsed.

Thomson, 42 N.E. at 15 (italics supplied) (court pointed out that “in the absence of a valid and binding agreement to extend the time” for performance of a contract, a party that orally agreed to the extension may “revoke his consent so far as it has not been acted upon”).

Had DK Arena withdrawn its consent to the extension of the due diligence period, EB would have had a reasonable time thereafter in which to terminate the contract. Id.; see also Warren, 138 A. at 299 (quoting Scheerschmidt v. Smith, 74 Minn. 224, 77 N.W. 34, 35 (1898)) (an “oral extension of the time of payment became no part of the contract,” so that “defendant might have repudiated it,” but “he could not declare the contract forfeited for nonpayment until the plaintiff had a reasonable time ... to make payment, because the failure to pay on due day was caused by the defendant’s own conduct.”). If DK Arena’s October 27 demand for the deposit is viewed as its revocation of its consent to the extended due diligence period, then EB’s termination of the contract came within a reasonable time, so that it was entitled to a return of its deposit.

The Joint Venture Agreement was Insufficient to Support a Damage Award

We reverse the circuit court’s determination that there was a joint venture agreement sufficient to support a damage award. The evidence established, at most, an agreement to agree, which is legally insufficient to support a joint venture.

A joint venture is “an association of persons or legal entities to carry out a single business enterprise for profit. It is a partnership of limited scope ... and duration.” Kislak v. Kreedian, 95 So.2d 510, 514 (Fla.1957). “[T]he relationship of joint adventurers is created when two or more persons combine their property or time or a combination thereof in conducting some particular line of trade or for some particular business deal.” Id. at 515. A contract to enter into a joint venture is an “indispensable prerequisite” to the formation of the venture. Id. Here, the evidence fails to support the conclusion that there was a meeting of the minds on all of the essential terms of the joint venture.

The discussions about a joint venture arose after the parties had entered into a detailed written contract for the sale of land. The parties clearly contemplated that their final joint venture agreement would be reduced to writing. During October, the attorneys for both sides worked on different aspects of the agreement and weighed the implications of proposed contract terms. Where it appears

that the parties, or either of them, intended that the contract should be reduced to writing, so that its terms would be fully understood and definitely stated in the writing, the contract will not be regarded as complete or binding until it is reduced to writing and acquiesced in by both parties.

Ocala Cooperage Co. v. Fla. Cooperage Co., 59 Fla. 390, 52 So. 13, 16 (1910).

Especially where the parties intend to reduce their future joint venture agreement to writing, a purported, fully formed, oral joint venture that arose during negotiations should be viewed with suspicion. As the Supreme Court has written,

[when] the events and transactions which form the basis of the alleged relationship are not in writing, the burden of establishing the existence of such contract ... is indeed, as it should be, a heavy and difficult one.... The very fact that the agreement was not reduced to writing is evidence, however slight, that no such agreement actually existed. This is especially true in those cases where ... the alleged relationship is either in its executory stages or has not actually commenced to function to the extent that the actions of the parties themselves may tend to establish the validity of the assertion that such agreement existed.

Kislak, 95 So.2d at 515. Significantly, paragraph 15 of the written addendum specifically excluded the potential for “a joint venture or partnership relationship among the parties,” making EB’s burden, under the facts of this case, even heavier and more difficult.

“A contract is the sum of its component terms. Any variation of the parts is a variation of the whole.” Imperator Realty Co., 127 N.E. at 265-66 (Cardozo, J., concurring). Parties’ negotiations vary an evolving contract’s terms. Here, the parties continued to negotiate the terms of the joint venture throughout October and never completed the written contract that they contemplated. Those two facts show that DK Arena and EB did not agree to all the terms of this complex, multi-million dollar development project. Thus, there was an insufficient meeting of the minds to form an enforceable joint venture agreement. At best, DK Arena and EB had an “agreement to agree” on a joint venture in the future, which does not give rise to a contract that entitles a party to recover damages for breach. See Bergman v. DeI ulio, 826 So.2d 500 (Fla. 4th DCA 2002). To find that an enforceable contract arose in a case like this one would turn business negotiations into seas of peril, from which contractual liability could later rise to bite a good faith negotiator.

An oral joint venture agreement for the entire project is unenforceable for a separate reason — it violates the statute of frauds because it was an “agreement that is not to be performed within the space of 1 year from the making thereof.” § 725.01, Fla. Stat. (2004). The general rule is that

when no time is agreed on for the complete performance of the contract, if from the object to be accomplished by it and the surrounding circumstances, it clearly appears that the parties intended that it should extend for a longer period than a year, it is within the statute of frauds, though it cannot be said that there is any impossibility preventing its performance within a year.

Yates v. Ball, 132 Fla. 132, 181 So. 341, 344 (1938) (citation omitted). Following Yates, the first district held that an oral agreement was unenforceable under the statute of frauds, where the agreement contemplated the parties’ involvement in a real estate development project through its completion, and where the project would take well over a year to complete. Ballard-Cannon Dev. Corp. v. Sandman Properties & Dev., LLC, 933 So.2d 1251, 1252 (Fla. 1st DCA 2006). The proposed joint venture was for a complex $250,000,000 real estate project with 1500 residential units and about 350,000 square feet of commercial space. With an equity interest in the project, Don King was to assist in obtaining zoning approvals, in public relations and in marketing of the entire project. As in Ballardr-Cannon, the surrounding circumstances show that the parties contemplated a joint venture where “neither party’s performance was intended to be complete within one year.” Fla. Pottery Stores of Panama City, Inc. v. Am. Nat’l Bank, 578 So.2d 801, 804 (Fla. 1st DCA 1991). Even though a failure to obtain zoning approvals might have caused the project to fizzle out within a year, the statute of frauds nonetheless bars enforcement of the oral agreement because the parties intended that their cooperation in the development of the project would last longer than a year. See Hosp. Corp. of Am. v. Associates in Adolescent Psychiatry, S.C., 605 So.2d 556, 557 (Fla. 4th DCA 1992) (where court “adopt[ed] the reasoning” of All Brand Importers, Inc. v. Tampa Crown Distributors, Inc. 864 F.2d 748 (11th Cir.1989), that parties’ intent controls).

We affirm the final judgment in part and reverse in part and remand to the circuit court for entry of an amended final judgment entering judgment in favor of DK Arena on the claim involving the breach of a joint venture.

MAY and CIKLIN, JJ., concur.

      . At trial, King minimized his statements to the town council as being salesmanship:
      [I said] let's go try to sell your project.... And I put my heartfelt passion into it to sell it, you know what I mean, saying that the project would be that even to the extent that I would be a partner in the project, you know, based upon it being appropriate and right, after they analyzed it.

      . DK Arena argues that EB did not rely on the oral extension, that it did not terminate the purchase contract because to do so would have been in violation of a side contract with the South Florida Regional Transit Authority. The trial judge was justified in concluding that, with $1 million on deposit and a joint venture in the works, the side agreement with the Transit Authority was not significant to EB’s decision on whether to terminate the contract.

      . While Blue Paper, Inc. v. Provost, 914 So.2d 1048 (Fla. 4th DCA 2005), is a case decided on contract principles and is not a statute of frauds case, the same considerations that justify allowing an oral modification to a contract that prohibited unwritten amendments also form the basis for applying estoppel to avoid the operation of the statute of frauds.

      . Indeed, enforcement of the alleged oral modification in Wharfside would have amounted to a $1.5 million windfall to the buyer.

      . Given the “uniqueness of this transaction,” a court is “not authorized to draft a contract for the parties when the parties themselves have failed to reach agreement on essential details.” Craig R. Weiner Associates, Inc. v. Sherden, 444 So.2d 431, 433-34 (Fla. 4th DCA 1983).


source: Caselaw Access Project

author: FARMER, J.

license: Public Domain

text:
    E.D., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-516.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2010.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

Upon the State’s concession of error, which we accept, the judgment of conviction for criminal mischief is reversed and the case remanded for a judgment of dismissal as to that charge. There is no evidence that, in striking the vehicle of another while backing from a parking space, defendant acted willfully or maliciously. The only thing proven is negligent operation of a motor vehicle.

Reversed,.

HAZOURI and DAMOORGIAN, JJ., concur.


author: PER CURIAM.

text:
    Scott ROGO, Appellant, v. PALM BEACH COUNTY, Appellee.
    No. 4D09-1449.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2010.
    Robert Garven, Coral Springs, and Ko-gan & DiSalvo, P.A., Boca Raton, for appellant.
    Gentry Denise Benjamin, Assistant County Attorney, Palm Beach County Attorney’s Office, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affimied. See Fern v. City of Gainesville, 362 So.2d 345 (Fla. 1st DCA 1978).

FARMER, HAZOURI and MAY, JJ., concur.


author: DAMOORGIAN, J.

text:
    Eric A. RUDICIL, Appellant, v. STATE of Florida, Appellee,
    No. 4D09-1817.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2010.

      Eric A. Rudicil, Crawfordville, pro se.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Appellant, Eric Rudicil, appeals the trial court’s summary denial of his 3.800(a) motion to correct an illegal sentence in which he seeks credit for jail time served. The trial court gave Rudicil “0” days credit for time served and handwrote next to the entry “per agreement.” Rudicil argues the trial court erred in denying his 3.800(a) motion because the face of the record, without a transcript, does not refute his claim that he is entitled to credit for time served. Fenelon v. State, 932 So.2d 431, 431 (Fla. 4th DCA 2006) (holding that trial court must attach portions of record conclusively refuting a legally sufficient 3.800(a) claim)(relying on Johnson v. State, 665 So.2d 380 (Fla. 4th DCA 1996)). The State argued before the trial court that the record refuted Rudicil’s claim because the trial court noted on the sentencing sheet that Rudicil entered a negotiated plea, and that per the terms of the plea, had waived entitlement to credit for time served.

A waiver of one’s credit for time served must be knowingly and voluntarily made. Woody v. State, 993 So.2d 1158, 1159 (Fla. 4th DCA 2008)(“We disagree with the trial court’s conclusion that a notation on the disposition sheet, next to the award of credit for 154 days, stating ‘-agrees to T/S,’ conclusively refuted Woody’s claim to be entitled to 548 days”)(emphasis in original); Davis v. State, 968 So.2d 1051, 1052 (Fla. 5th DCA 2007) (holding that written statement in plea agreement that defendant would receive credit for 1531 days time served was not conclusive record evidence that defendant knowingly and voluntarily waived his right to additional credit for time served).

The written plea agreement contains no provision indicating that Rudicil waived his right to credit for time served. Therefore, if the waiver happened at all, it happened during the plea colloquy. Because the record does not contain a transcript of the plea colloquy, neither the trial court nor this court can determine whether the record conclusively refutes Rudicil’s claim.

Accordingly, we reverse and remand for attachment of portions of the record refuting Rudicil’s claim of entitlement to credit for jail time served.

Reversed and Remanded.

HAZOURI and CIKLIN, JJ., concur.


author: WARNER, J.

text:
    W.S., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D09-4625.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2010.

      Frank A. Kreidler, Lake Worth, for appellant.
    Jeffrey Dana Gillen, West Palm Beach, for appellee Department of Children and Families.
    Laura E. Lawson, Tavares, for Guardian ad Litem Program.
   WARNER, J.

A father appeals the termination of his parental rights to his son, Z.L. The father had previously been convicted and sentenced to prison for child neglect and causing great bodily harm to Z.L. We find no error or abuse of discretion in any of the three issues raised and affirm.

First, the father claims that the trial court erred in denying his motion to have Z.L. present at trial. The court heard expert testimony that requiring the child to be present would be extremely detrimental to him. The expert testified that the child suffered from Reactive Attachment Disorder, which means that he had been severely traumatized early in life, and his needs were not met. The child, with intensive therapy and good foster parents, was making progress. It would be damaging for him to see his father, who had damaged him, and it could cause regression. Based upon this evidence the court denied the motion.

Florida Rule of Juvenile Procedure 8.255(b) provides “the child has a right to be present at the hearing unless the court finds that the child’s mental or physical condition or age is such that a court appearance is not in the best interest of the child.” No one represented that the child wanted to be present. Further, the father never asked that the child be present to testify. While he suggested that he might want to examine the child, he never made a specific request. Moreover, rule 8.255(d)(2) permits in-camera examination of the child when it is in the child’s best interests. The father did not attempt to invoke rule 8.255.

Contrary to the father’s representation, the court made written, specific findings in the final judgment supporting its determination not to require the child to be present during the trial. The court clearly did not abuse its discretion.

Second, the father contends that the court’s ruling was based in part on the father’s detention in the Immigration and Customs Enforcement Detention Facility in Dade County. He correctly notes that incarceration alone is insufficient grounds to terminate parental rights. See In re J.B., 923 So.2d 1201 (Fla. 2d DCA 2006). But in this case the court did not terminate his rights because he was incarcerated. It noted the incarceration was for neglect and abuse of Z.L. The mere fact that the trial court mentioned the fact of his incarceration does not mean that the court’s sole ground for granting termination of rights was incarceration. Obviously, on this record there were many, many reasons that termination was appropriate, all supported by clear and convincing evidence.

Finally, the father argues that he should have been entitled to a jury trial on the petition. While he acknowledges that section 39.809, Florida Statutes provides for an adjudicatory hearing without a jury, he argues that because TPR cases are tantamount to a “civil death penalty” in parental rights cases, he should be entitled to a jury trial pursuant to Article I, Section 22, of the Florida Constitution. That section provides “The right of trial by jury shall be secure to all and remain inviolate.” He also relies on Article I, Section 9 (which provides “no person shall be deprived of life, liberty, or property without due process of law....”).

While the father wishes to treat termination of parental rights cases more like criminal cases, with the panoply of constitutional protections afforded to criminal defendants, our supreme court has already determined that such proceedings are not entitled to the protections of a criminal trial, because the procedures and goals in place in child dependency and termination proceedings are different than those for criminal prosecutions. See S.B. v. Dep’t of Children and Families, 851 So.2d 689, 693 (Fla.2003). In addition, the right to trial by jury under Article I, Section 22, is limited to those types of proceedings in which a trial by jury existed prior to the adoption of our constitution. See O’Neal v. Fla. A & M Univ. ex rel. Bd. of Trs. for Fla. A & M Univ., 989 So.2d 6, 8-9 (Fla. 1st DCA 2008). The father has not provided us with any authority to show that termination of parental rights proceedings or proceedings of that nature were afforded jury trials in Florida prior to the adoption of our present constitution. We are not aware of any such right.

We have addressed this issue because we have seen it raised in other briefs, not because of its merit. Indeed, for the many reasons outlined by our supreme court in S.B., we agree that termination proceedings do not require all of the protections of a criminal trial. A jury trial for termination proceedings would be highly detrimental to the child, the focus of the state’s concern.

Affirmed.

DAMOORGIAN and LEVINE, JJ., concur.


text:
    Mary Ann Charles CALBERT v. Orlando J. BATISTE.
    Nos. 2009-C-2646.
    Supreme Court of Louisiana.
    March 12, 2010.
   PER CURIAM.

11 Finding the Court of Appeal erred in reversing the district court’s judgment sustaining defendants’, Lafayette City-Parish Consolidated Government’s (Lafayette) and State through Department of Transportation and Development’s (DOTD), exceptions of lis pendens, we grant this writ to reinstate the District Court’s judgment.

On July 23, 2007, Raymond Calbert (Raymond) passed away from injuries he sustained earlier that day when struck by a vehicle driven by Orlando Batiste (Batiste). On July 14, 2008, Mary Ann Charles Calbert (Mary Ann), as the surviving spouse and on behalf of Raymond’s and her minor son, Rashaun Calbert, filed the instant wrongful death action against Batiste in the 15th Judicial District Court, docket number 2008-4022-B. On August 28, 2008, Major Calbert (Major), as Raymond’s surviving son, filed his own wrongful death and survival action against Batiste, DOTD, and Lafayette in the 15th Judicial District Court, docket number 2008^1932-A. In response, DOTD and Lafayette filed exceptions of prescription, vagueness, and ^improper service. Then on December 1, 2008, Major filed a petition of intervention, seeking to intervene in the present suit filed by Mary Ann and to add DOTD and Lafayette as defendants. In response, DOTD and Lafayette brought exceptions of lis pendens, claiming the existence of Major’s first filed suit, docket number 2008^4932-A, prevented him from intervening in the present matter, docket number 2008-4022-B.

The District Court sustained the exceptions of lis pendens, dismissing Major’s claims with prejudice. The Court of Appeal reversed, finding because the first filed suit existed in name only, multiple suits were not pending.

Under the provisions of La.Code Civ. Proc. art. 531, “[w]hen two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto....” In the instant matter, Major has pending in the 15th Judicial District Court two virtually identical civil tort suits, alleging the same causes of action on the same occurrence against the same defendants in the same capacities. In accordance with Article 531, DOTD and Lafayette are entitled to have all but the first suit dismissed. Therefore, we find the District Court properly sustained the exceptions of lis pen-dens, and the Court of Appeal erred in its reversal. Accordingly, the judgment of the Court of Appeal is reversed, and the judgment of the District Court sustaining the exceptions of lis pendens is reinstated and rendered.

J^REVERSED and RENDERED.

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

      . On January 12, 2009, the district court heard these exceptions and ordered the suit be transferred to the instant suit, docket number 2008-4022-B.

      . DOTD and Lafayette also filed exceptions of prescription, vagueness, and no cause of action.

      .The District Court sustained the exceptions of prescription as well. However, our finding the exceptions of lis pendens were properly sustained renders all other issues moot, and therefore, we pretermit discussion of these issues.


text:
    In re Calvin LESTER.
    No. 2009-B-1849.
    Supreme Court of Louisiana.
    March 16, 2010.

      Charles Bennett Plattsmier, Baton Rouge, Robert Samuel Kennedy, Jr., Shreveport, for Applicant.

      The Schiff Law Corporation, Leslie J. Schiff, Calvin Benjamin Lester, Jr., for Respondent.
   | ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Calvin Lester, an attorney licensed to practice law in Louisiana but currently on interim suspension pursuant to a joint motion of the parties filed in December 2007. In re: Lester; 07-2318 (La.12/5/07), 969 So.2d 609.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In September 2002, the ODC filed the first of four sets of formal charges against respondent in 02-DB-100. In April 2006, a second set of charges was filed in 06-DB-019. Respondent answered both sets of formal charges, denying the alleged misconduct. The two matters were consolidated by order of the hearing committee chair before proceeding to a formal hearing on the merits conducted by the hearing committee in September 2006.

The third set of formal charges, 06-DB-035, was filed in July 2006. Respondent answered the formal charges, denying the alleged misconduct. The matter then proceeded to a formal hearing on the merits conducted by the hearing committee in April 2007.

|2The fourth set of formal charges, 07-DB-055, was filed in October 2007. 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.

Thereafter, the four sets of formal charges were consolidated by order of the disciplinary board. The board subsequently filed in this court a single recommendation of discipline encompassing all four sets of formal charges.

02-DB-100

Counts I & II

As a partner in the law firm of Lester & Lester, respondent handled personal injury matters for Patricia Cooper, Pattie Cooper, and Dexter Crutchfield, all of whom had been treated by Chiro-Plus. In late 1998 and early 1999, respondent settled his clients’ cases and withheld sums from the settlements to pay medical expenses, as follows: Patricia Cooper ($1,200); Pattie Cooper ($1,200); Mr. Crutchfield ($944). However, respondent failed to promptly remit these funds to Chiro-Plus. While the funds, a total of $3,344, should have been in respondent’s trust account, the balance of the account fell below zero.

In September 1999, respondent sent Chiro-Plus a $400 check as partial payment of the three client accounts. However, a representative of Chiro-Plus denied receiving the check. In January 2000, respondent sent Chiro-Plus a $3,000 check, which was dishonored by his bank due to insufficient funds in the account. In June | c.2000, respondent sent Chiro-Plus another $3,000 check, which Chiro-Plus accepted as settlement in full of all three client accounts.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15(a) (safekeeping property of clients or third persons) and 1.15(b) (failure to timely remit funds to a client or third person).

06-DB-019

Count I

In 2001, Bernadine Gibbs hired respondent, who at that tune worked at the English & Lester law firm, to garnish her ex-husband’s wages in order to collect past-due child support. Beginning in August 2001, the garnishment payments were sent directly to respondent twice a month. Initially, respondent forwarded these funds to Ms. Gibbs. However, beginning in March 2002, after respondent left English & Lester, he failed to forward the funds to Ms. Gibbs on a consistent basis and would not return her telephone calls. In June 2002, after Ms. Gibbs’ numerous attempts to contact respondent, he sent her a partial payment of $1,000, but thereafter he failed to forward her any future garnishment payments. While these funds should have been in respondent’s trust account, the balance of the account consistently fell below the amount of garnishment funds in his possession.

Ms. Gibbs was eventually forced to obtain the services of a new attorney to have the garnishment payments routed directly to her, and she filed suit against respondent in Shreveport City Court to collect the funds owed to her. In March 2003, Ms. Gibbs obtained a default judgment against respondent. Ms. Gibbs received |4$2,000 from respondent in June 2003; however, an accounting revealed that respondent still owes Ms. Gibbs $1,500.

In June 2002, Ms. Gibbs filed a disciplinary complaint against respondent. Respondent failed to respond to the complaint, necessitating the issuance of a subpoena to obtain his sworn statement. Despite being personally served with the subpoena, respondent failed to appear.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.15(a), 1.15(b), 1.15(c) (when a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of then- interests), and 8.1(c) (failure to cooperate with the ODC in its investigation).

Count II

In 2001, Mary Wilson (King) hired respondent’s law firm, English & Lester, to handle her criminal matter. After she was convicted, respondent agreed to handle the appeal for $1,500. It is undisputed that Ms. Wilson paid $1,000 of the $1,500 fee. However, Ms. Wilson claimed that she paid the entire $1,500 before respondent filed the appeal, while respondent maintained that she only paid $1,000. Nonetheless, | ¡-.respondent filed Ms. Wilson’s appeal, and the court of appeal reversed her conviction in June 2002.

Respondent also agreed to handle, on a contingency basis, Ms. Wilson’s claim for damages for wrongful arrest and filed a lawsuit on her behalf. In July 2002, she paid respondent an additional $150 and received a receipt indicating a balance due of $350. Thereafter, respondent left English & Lester and began campaigning for a seat on the Shreveport City Council. He retained Ms. Wilson’s file to pursue her civil case. Eventually, though, respondent transferred the civil case to his former law partner, Larry English, at Ms. Wilson’s request.

In September 2002, Ms. Wilson filed a disciplinary complaint against respondent. Respondent failed to respond to the complaint, necessitating the issuance of a subpoena to obtain his sworn statement. Despite being personally served with the subpoena, respondent failed to appear. Respondent finally submitted a written response to the complaint in March 2004.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.16(d) (obligations upon termination of the representation), and 8.1(c).

Count III

Respondent represented Fellan Whitaker in a suit pending in the United States District Court for the Western District of Louisiana. In August 2002, while he was seeking a seat on the Shreveport City Council, respondent failed to participate in a telephone pre-hearing conference with the magistrate judge. Respondent was ordered to show cause on September 3, 2002 why he should not be held in contempt for failing to cooperate with the court. Respondent failed to appear for the show cause |nhearing, and the magistrate judge recommended that he be disbarred from practicing before the court.

Thereafter, the defendants filed a motion for summary judgment. Respondent claimed that he notified Mr. Whitaker to seek other counsel, as he intended to withdraw from the representation. However, respondent did not file a motion to withdraw. When another attorney called him about the case, respondent believed the attorney was going to enroll as Mr. Whitaker’s counsel of record. As such, he did not file an opposition to the motion for summary judgment. On May 5, 2003, the district judge granted summary judgment in favor of the defendants. At that time, the district judge also disbarred respondent from the practice of law in the Western District. Respondent filed a motion to set aside the judgment of disbarment but failed to attend the related hearing. As such, the disbarment order was maintained.

In August 2003, the federal court sent the ODC notice of respondent’s disbarment. Respondent did not respond to the ODC’s request for an explanation about his federal court disbarment until April 2004.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.16(d), 3.4(c) (knowing disobedience of an obligation under the rules of the tribunal), 8.1(c), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

Count IV

Cedric Williams hired respondent to defend him in a criminal matter and to handle his civil claim of excessive force by the police. Respondent handled the criminal matter, but Mr. Williams alleged that respondent would not respond to his requests for information about his civil claim.

|7In July 2003, Mr. Williams filed a disciplinary complaint against respondent. Respondent failed to respond to the complaint until April 2004.

The ODC alleged that respondent’s conduct violated Rule 8.1(c) of the Rules of Professional Conduct.

Heaving Committee Report

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

The Cooper and Crutchfield matters■— Respondent was a partner in the Lester & Lester law firm and was jointly responsible for managing the trust account to ensure funds were appropriately disbursed. He signed blank trust account checks and turned them over to a bookkeeper without any meaningful practices and procedures to ensure funds were properly disbursed. He also failed to advise Chiro-Plus when its patients’ personal injury cases settled. Respondent withheld $944 from Mr. Crutchfield’s settlement in September 1998 to pay Chiro-Plus. Respondent withheld $1,200 from each of the Coopers’ settlements in early 1999 to pay Chiro-Plus. Nonetheless, the funds were not paid to Chiro-Plus. When Chiro-Plus contacted him, respondent failed to promptly correct the problem. He made an initial $400 payment in September 1999. In January 2000, he sent Chiro-Plus a $3,000 check, which was returned for insufficient funds. In June 2000, respondent sent Chiro-Plus another $3,000 check, which completely paid Chiro-Plus the funds withheld from the three settlements. However, while respondent was holding Chiro-Plus’ funds in his trust account, the account’s balance fell below zero, resulting in multiple instances of conversion of third-party funds. He also deprived Chiro-Plus of its funds for an | ^extended period of time. Respondent violated Rules 1.15(a) and 1.15(b) of the Rules of Professional Conduct in these matters.

The Gibbs matter — Respondent received child support checks on Ms. Gibbs’ behalf and deposited them into his trust account. He then converted some of the funds to his own use. Despite Ms. Gibbs’ repeated demands, respondent failed to forward the checks to her. On at least one occasion, the balance of his trust account fell below the amount deposited on Ms. Gibbs’ behalf. Respondent deposited four of the checks in a non-trust account. Ms. Gibbs obtained a default judgment against respondent in the amount of $3,000, which represented the child support payments due her and converted by respondent. At the formal hearing of this matter, respondent admitted that he still owes Ms. Gibbs $1,500. Respondent failed to respond to Ms. Gibbs’ disciplinary complaint or appear to give the ODC a sworn statement, despite being served with a subpoena. Respondent’s conduct was knowing. Respondent violated Rules 1.3, 1.4, 1.15(a), 1.15(b), 1.15(c), and 8.1(c) of the Rules of Professional Conduct in this matter.

The Wilson matter — Respondent was not inclined to pursue Ms. Wilson’s civil case because she still owed him money for the appeal. When she became belligerent and demanded her file, respondent provided her with her file. She then retained Mr. English. As such, she was properly represented in the civil case. The ODC failed to prove this count by clear and convincing evidence.

The Whitaker matter — Respondent failed to participate in a status conference with the court and opposing counsel. He also failed to attend the resulting rule to show cause, despite receiving notice. He failed to file a response to the motion for summary judgment. As such, he was disbarred in the Western District. He filed a motion to set aside the disbarment but failed to attend the related hearing due to a 19scheduling conflict. As a result, his disbarment became final. He explained that he thought his client had retained new counsel, but he failed to file a motion to withdraw. He also failed to timely respond to the ODC’s notice of the disciplinary complaint. Respondent violated Rules 1.3, 1.4, 1.16(d), 3.4(c), 8.1(c), and 8.4(d) of the Rules of Professional Conduct.

The Williams matter — Respondent told Mr. Williams that he would not pursue his civil case. He requested that Mr. Williams retrieve his file, but Mr. Williams never picked it up. He also attempted to get in touch with Mr. Williams by telephone and correspondence, but he never heard back from Mr. Williams. The ODC failed to prove this count by clear and convincing evidence.

Based on these findings, the committee determined that respondent violated duties owed to his clients, the public, the legal system, and the legal profession. His actions in dealing with Chiro-Plus were grossly negligent and knowing with respect to Ms. Gibbs and his federal court disbarment. He harmed Chiro-Plus and Ms. Gibbs by withholding their funds for months. In fact, he did not make full restitution to Ms. Gibbs until after the formal hearing. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the baseline sanction is suspension.

In aggravation, the committee found a pattern of misconduct, vulnerability of the victims, and indifference to making restitution. As additional aggravating factors, the committee noted respondent’s “failure to respond to his client’s and the federal court’s requests” and “failure to respond [to] and cooperate with the ODC.” The committee further found that “respondent cannot be trusted in a fiduciary capacity.” In mitigation, the committee found inexperience in the practice of law (admitted 1997), character or reputation, and imposition of other penalties or sanctions.

|10In light of the above findings and this court’s prior jurisprudence, the committee recommended that respondent be suspended from the practice of law for three years.

Respondent filed an objection to the hearing committee’s recommendation, requesting leniency in the sanction to be imposed.

06-DB-035

Count I

In June 2003, Sandra Jordan consulted with respondent about her employment discrimination claim, paying him a $50 consultation fee. In October 2003, Ms. Jordan hired respondent to handle the claim, paying him $350. On October 7, 2003, respondent wrote a letter to the United States Equal Employment Opportunity Commission (“EEOC”) on Ms. Jordan’s behalf. In February 2004, respondent prepared an EEOC “Charge of Discrimination” complaint form, which Ms. Jordan signed on February 24, 2004. In April 2004, Ms. Jordan received notice from the EEOC that it had dismissed her claim because it was “unable to conclude that the information obtained establishes violations of the statutes.” However, the notice gave her until July 26, 2004 to file a lawsuit based on the Age Discrimination in Employment Act.

Between June 2, 2004 and March 3, 2005, respondent was declared ineligible to practice law due to his failure to comply with the mandatory continuing legal education requirements. On July 25, 2004, while ineligible to practice law, respondent informed Ms. Jordan that her claim would soon prescribe and that she should “bring in what money [she] had.” Ms. Jordan then paid respondent an additional $400. On July 26, 2004, a lawsuit was filed on Ms. Jordan’s behalf in the | n United States District Court for the Western District of Louisiana. The lawsuit was filed under the name of attorney Marcus Patillo, who shared office space with respondent. It is undisputed that respondent signed Mr. Pa-tillo’s name to the lawsuit. However, the $150 filing fee was never paid, despite the fact that Mr. Patillo received notice of the deficiency. As such, the lawsuit was stricken from the court’s record on August 25, 2004. Later, Ms. Jordan inquired about a docket number for her lawsuit, but respondent never provided her with the information. Therefore, believing respondent had not filed her lawsuit, she requested a refund of her $400 fee. Respondent did not provide Ms. Jordan with a refund.

In March 2005, Ms. Jordan filed a disciplinary complaint against respondent. Respondent failed to respond to the complaint.

In October 2005, Ms. Jordan sued respondent in Shreveport City Court. Respondent answered the lawsuit and included a copy of the federal lawsuit filed on Ms. Jordan’s behalf under Mr. Patillo’s name. On November 22, 2005, the trial judge dismissed Ms. Jordan’s lawsuit against respondent.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5 (failure to account for or refund an unearned fee), 5.5(a) (engaging in the unauthorized practice of law), and 8.1(c).

Count II

On May 5, 2003, the United States District Court for the Western District of Louisiana disbarred respondent for two years. He was eligible to apply for | preadmission after May 1, 2005. On July 28, 2005, without having applied for readmission, respondent appeared in the Western District and enrolled as counsel for Chevell Hamilton in a criminal matter. Respondent then handled Mr. Hamilton’s arraignment and questioned the federal government’s witnesses during a detention hearing. On August 12, 2005, upon learning of respondent’s disbarment, the magistrate judge vacated and set aside respondent’s enrollment as Mr. Hamilton’s counsel.

On August 26, 2005, the above events were reported in the Shreveport newspaper. In response to the article, a concerned citizen filed a disciplinary complaint against respondent. The ODC forwarded respondent notice of the complaint in December 2005. However, respondent failed to respond to the complaint.

The ODC alleged that respondent’s conduct violated Rule 5.5(a) of the Rules of Professional Conduct.

Hearing Committee Report

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

Respondent was ineligible to practice law in Louisiana from June 2, 2004 until March 3, 2005. He was disbarred from practicing law in the United States District Court for the Western District of Louisiana by order dated May 5, 2003. He was eligible to apply for readmission to practice before the Western District after May 1, 2005. However, respondent mistakenly assumed his readmission to the Western District would be automatic after two years.

|,Jn Count I, the committee found that between October 2003 and February 2004, respondent corresponded with Ms. Jordan’s employer and assisted Ms. Jordan in filing out the EEOC “Charge of Discrimination” complaint form. On April 26, 2004, the EEOC sent Ms. Jordan a rejection notice but indicated that she had ninety days to file a lawsuit to preserve her claim.

Between April 26, 2004 and July 25, 2004, there was some communication between Ms. Jordan and respondent about the lawsuit. This communication took place while respondent was disbarred from the Western District. It is unclear how much communication took place after respondent became ineligible to practice law in Louisiana. Although respondent told Ms. Jordan he could not practice in the Western District and another attorney in his office would file her lawsuit in federal court, Ms. Jordan believed respondent was her attorney and was responsible for handling her case. He did not inform Ms. Jordan in writing of his disbarment in the Western District and never told her of his ineligibility to practice law in Louisiana.

Respondent and Mr. Patillo shared office space, expenses, and staff but were not law partners. They maintained separate filing cabinets for their respective clients. In July 2004, respondent asked Mr. Patillo to assist in filing Ms. Jordan’s lawsuit in federal court. Mr. Patillo allowed respondent to set the fee for handling the lawsuit. Respondent decided to charge Ms. Jordan $2,500 and relayed that figure to her. Ms. Jordan “waited until the last minute to decide to file the lawsuit and advance funds for the related legal services. Respondent told Ms. Jordan to bring what money she could so he could at least get the lawsuit filed on time. Respondent met with Ms. Jordan on July 25, 2004, and she brought $400 in cash. The $2,500 fee was not a flat fee. Respondent drafted the federal lawsuit and spoke ⅛° Mr. Patillo about its contents. Mr. Patillo did not have any “substantial substantive input” into the lawsuit Jj/espondent drafted. Mr. Patillo authorized respondent to sign his name to the lawsuit, which respondent did. Respondent did not turn over Ms. Jordan’s file to Mr. Patillo, who never saw the file or the lawsuit. The $400 Ms. Jordan paid is commensurate with the amount of work respondent performed. Mr. Patillo told respondent to apply the $400 to his portion of the office telephone bill, which respondent did without depositing the $400 in a trust account first. On July 26, 2004, respondent had someone from his office file the lawsuit in federal court. However, the filing fee was not paid at that time. Respondent never discussed the filing fee with Ms. Jordan.

After July 25, 2004, respondent lost contact with Ms. Jordan. Mr. Patillo received notice from the federal court that the filing fee needed to be paid. Respondent attempted to reach Ms. Jordan by telephone, but she did not return his calls. However, he never wrote to Ms. Jordan to explain the situation. Neither respondent nor Mr. Patillo did anything to fix the problem with the filing fee, and the lawsuit was dismissed on August 25, 2004. Neither respondent nor Mr. Patillo communicated this to Ms. Jordan. Later, when Ms. Jordan began inquiring about when her case would go to court, respondent never responded. Therefore, she assumed the lawsuit never got filed. She left messages that she wanted a refund, but respondent did not return her calls.

Ms. Jordan sued respondent in Shreveport City Court, alleging that he failed to file her lawsuit after being paid $400. Respondent answered, stating that Ms. Jordan’s lawsuit was filed and she owed him $2,100. He attached a copy of the federal lawsuit and the receipt showing Ms. Jordan owed a balance of $2,100. Ms. Jordan’s lawsuit against respondent was dismissed.

In Count II, the committee found that on July 28, 2005, respondent appeared in the United States District Court for the Western District of Louisiana and enrolled 11sas counsel for Mr. Hamilton. Respondent enrolled as “shadow counsel” for attorney Shonda Stone, who had never handled a federal criminal case. Both respondent and Ms. Stone appeared in court at the detention hearing. Ms. Stone was to handle the cross-examination of the government witnesses, but she panicked and was unable to do so out of nervousness. In order to help Ms. Stone and Mr. Hamilton, respondent conducted the cross-examination. Subsequently, the court learned that respondent was disbarred in the Western District and rescinded its earlier order enrolling respondent as Mr. Hamilton’s counsel. Respondent was honest and remorseful about cross-examining witnesses while disbarred in the Western District. When he realized he needed to apply for readmission to practice in the Western District, he did so. However, his application was denied.

Based on these facts, the committee determined that respondent did not violate Rule 8.1(c) of the Rules of Professional Conduct in either count because the ODC did not question respondent about his lack of cooperation at the formal hearing. In Count I, when Ms. Jordan disputed the $400 fee, respondent did not provide her with an accounting, did not place the disputed funds in a trust account, and did not suggest a means of resolving the dispute. Respondent technically violated Rule 1.5 even though the committee did not find the $400 unreasonable for the amount of work performed. Furthermore, the committee found that it is clear respondent was acting as an attorney and performing legal sendees, albeit under Mr. Patillo’s license, while he was ineligible to practice law; however, the committee did not specifically state that respondent violated Rule 5.5(a). The committee failed to address the Rule I.3 and Rule 1.4 allegations. In Count II, the committee determined that respondent violated Rule 5.5(a).

11fiWith respect to sanctions, in Count I, the committee determined that respondent’s misconduct stems from poor office management and procedures, rather than from malice or ill intent. Nonetheless, respondent’s conduct harmed Ms. Jordan. Accordingly, the committee recommended that respondent be suspended from the practice of law for two years, with all but six months deferred, and be required to complete a “substantial amount” of additional continuing legal education in law office management procedures. In Count II, the committee found no malice or ill intent on respondent’s part and no harm. Accordingly, the committee recommended that respondent be publicly reprimanded.

Respondent filed an objection to the hearing committee’s recommendation, requesting leniency in the sanction to be imposed.

07-DB-055

Count I

In July 2005, Michael Sawyer hired respondent to handle a community property partition matter. Mr. Sawyer paid respondent a $500 fixed fee. Nonetheless, respondent did not enroll as Mr. Sawyer’s attorney and did not file any pleadings on Mr. Sawyer’s behalf. He took no significant action on Mr. Sawyer’s legal matter. On October 19, 2006, respondent withdrew from the representation.

On October 31, 2006, Mr. Sawyer filed a disciplinary complaint against respondent. Respondent failed to file a written response to the complaint.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5(f)(5) (failure to refund an unearned fee) and 8.1(c).

_JjjCount II

In February 2005, Erma Sudds hired respondent to handle a personal injury matter. Respondent had Ms. Sudds sign a contingency fee agreement that included the following clause:

10. It is further agreed that, in the event the attorney negotiates and recommends acceptance of what the attorney, in his sole discretion, considers to be a fair and equitable settlement of the claim for which the attorney is hereby employed, and if the client refuses to accept said settlement, the attorney shall thereupon have the right to withdraw from representation of said client, and the client shall be indebted to said attorney for the amount of the attorney’s fee and costs and expenses herein-above provided based upon the of [sic] settlement recommended by the attorney.

In January 2007, Ms. Sudds filed a disciplinary complaint against respondent. Respondent did not timely respond to the complaint, necessitating the issuance of a subpoena to obtain his sworn statement. During his March 7, 2007 sworn statement, respondent agreed to submit a written response to the complaint within twenty days. He did not submit the written response until October 8, 2007.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.8, 1.5 (charging an unreasonable fee), and 8.1(c).

11 ^Hearing Committee Report

As previously indicated, respondent failed to answer the formal charges, which were consequently deemed admitted. After considering the ODC’s deemed admitted submission, the hearing committee determined that the factual allegations in the formal charges are proven by clear and convincing evidence and the alleged rule violations are deemed admitted.

The committee reviewed the ABA’s Standards for Imposing Lawyer Sanctions to determine that the baseline sanction is suspension. In aggravation, the committee found multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, substantial experience in the practice of law (admitted 1997), and indifference to making restitution. In mitigation, the committee found only the absence of a dishonest or selfish motive.

After also considering this court’s prior jurisprudence, the committee recommended that respondent be suspended from the practice of law for one year and one day.

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

Disciplinary Board Recommendation

02-DB-100 & 06-DB-019 & 06-DB-035 & 07-DB-055

After reviewing these consolidated matters, the disciplinary board determined that the hearing committees’ factual findings are not manifestly erroneous and adopted same. Additionally, the board found that, in the Wilson matter, respondent initially failed to respond to Ms. Wilson’s disciplinary complaint and failed to appear | ^to give the ODC a sworn statement, despite being subpoenaed. The board also found that, in the Jordan matter, respondent admittedly failed to cooperate with the ODC in its investigation.

Based on these facts, the board made the following determinations regarding respondent’s violations of the Rules of Professional Conduct: in the Cooper matter, respondent violated Rules 1.15(a) and 1.15(b); in the Crutchfield matter, respondent violated Rules 1.15(a) and 1.15(b); in the Gibbs matter, respondent violated Rules 1.3, 1.4, 1.15(a), and 8.1(c), but not Rules 1.15(b) and 1.15(c); in the Wilson matter, respondent violated Rule 8.1(c) but not Rules 1.3, 1.4, and 1.16(d); in the Whitaker matter, respondent violated Rules 1.3, 1.4, 1.16(d), 3.4(c), 8.1(c), and 8.4(d); in the Williams matter, respondent violated Rule 8.1(c); in the Jordan matter, respondent violated Rules 1.3, 1.4, 1.5, 5.5(a), and 8.1(c); in the unauthorized practice of law matter, respondent violated Rule 5.5(a); in the Sawyer matter, respondent violated Rules 1.5(f)(5) and 8.1(c); and in the Sudds matter, respondent violated Rules 1.3,1.5, and 8.1(c).

The board determined that respondent violated duties owed to his clients, the legal system, and the legal profession. His conduct was intentional in some instances and knowing and negligent in other instances. He caused actual and substantial harm. Based on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction ranges from suspension to disbarment.

The board found the following aggravating factors: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, substantial experience in the practice of law, and indifference |i>nto making restitution (in the Sawyer matter). In mitigation, the board found imposition of other penalties or sanctions and remorse.

Turning to the issue of an appropriate sanction, the board determined that case law indicates disbarment is appropriate. Accordingly, the board recommended that respondent be disbarred. The board also recommended that respondent be ordered to provide an accounting and make restitution to Mr. Sawyer.

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

DISCUSSION

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

The record of this consolidated matter reveals the following misconduct by respondent:

In the Cooper and Crutchfield matters, respondent violated Rules 1.15(a) and 1.15(b) of the Rules of Professional Conduct by failing to timely remit funds due to Chiro-Plus and allowing his trust account balance to fall below zero while he was 12i holding the funds. In the Gibbs matter, respondent violated Rules 1.3, 1.4, 1.15(a), 1.15(b), 1.15(c), and 8.1(c) by failing to timely remit funds clue to Ms. Gibbs, allowing his trust account balance to fall below the amount of garnishment funds in his possession, failing to communicate with her, and failing to cooperate with the ODC in its investigation. In the Wilson matter, respondent violated Rule 8.1(c) by failing to cooperate with the ODC in its investigation. However, the record does not contain clear and convincing evidence that respondent violated Rules 1.3, 1.4, and 1.16(d). In the Whitaker matter, respondent violated Rules 1.3, 1.16(d), 3.4(c), 8.1(c), and 8.4(d) by disobeying the federal court’s orders, failing to file a response to the defendant’s motion for summary judgment, failing to file a motion to withdraw, and failing to cooperate with the ODC in its investigation. However, the record does not contain clear and convincing evidence that respondent violated Rule 1.4. In the Williams matter, respondent violated Rule 8.1(c) by failing to cooperate with the ODC in its investigation. In the Jordan matter, respondent violated Rules 1.3, 1.4, 1.5, 5.5(a), and 8.1(c) by acting as Ms. Jordan’s attorney while he was ineligible to practice law in Louisiana, contributing to the dismissal of her federal lawsuit, failing to respond to Ms. Jordan’s requests for information about her lawsuit’s docket number and a refund, and failing to cooperate with the ODC in its investigation. In the Hamilton matter, respondent violated Rule 5.5(a) by representing a client in federal court while disbarred in said court. Although not specifically alleged, the record supports a finding that respondent also violated Rule 8.1(c) as he admitted he did not respond to the disciplinary complaint. In the Sawyer matter, respondent violated Rules 1.5(f)(5) and 8.1(c) by failing to refund the unearned fee to Mr. Sawyer and failing to cooperate with the ODC in its investigation. In the Sudds matter, respondent violated Rules 1.5 and 8.1(c) by including a clause in his 122contingency fee agreement that allowed him to collect an unreasonable fee and failing to cooperate with the ODC in its investigation. However, the record does not contain clear and convincing evidence that respondent violated Rule 1.3 as related facts were not alleged in the formal charges, and thus were not deemed admitted, and the record reveals a conflict between respondent and Ms. Sudds over this issue.

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).

While respondent’s early misconduct appears to have been caused by negligence, over time respondent began acting more knowingly and in some instances intentionally. He violated duties owed to his clients, the public, the legal system, and the legal profession, causing actual harm. The ABA’s Standards for Imposing Lawyer Sanctions indicate that the baseline sanction for most of respondent’s conduct |¾3⅛ suspension. However, we find that Standard 4.41, which calls for a baseline sanction of disbarment, also applies with respect to the Gibbs matter.

The record supports the following factors in aggravation: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, and bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency. Mitigating factors consist of a delay in the disciplinary proceedings, imposition of other penalties or sanctions, and remorse.

Respondent’s most egregious conduct involves his unauthorized practice of law and his failure to timely remit funds to Ms. Gibbs and Chiro-Plus, which funds he converted to his own use by allowing his trust account balance to fall below the amount he was holding for them.

Respondent argues that his misconduct is due to poor law office management skills and, therefore, urges the court to impose a lenient sanction. However, with respect to his failure to timely remit funds to Ms. Gibbs, his conduct in failing to make full restitution after Ms. Gibbs obtained a judgment against him was intentional. Under this court’s holding in Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La.1986), respondent’s misconduct would warrant disbarment, as he “[failed] to make full restitution or [did] so tardily after extended pressure of disciplinary or legal proceedings.” Disbarment is further supported by In re: Smith, 09-1141 (La.9/25/09), 17 So.3d 927, wherein we disbarred an attorney who practiced law while ineligible, failed to pay funds due to third-party medical providers, neglected legal matters, failed to communicate with clients, failed to fulfill his obligations upon | germinating the representation of his clients, failed to refund unearned fees, and failed to cooperate with the ODC.

Under all these circumstances, we will adopt the disciplinary board’s recommendation and disbar respondent. We will further order that respondent make full restitution to Ms. Gibbs and Mr. Sawyer.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Calvin Lester, Louisiana Bar Roll number 25141, be and he hereby is disbarred, retroactive to December 5, 2007, the date of his interim suspension. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. It is further ordered that respondent make full restitution to Bernadine Gibbs and Michael Sawyer. 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.

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

      . During the formal hearing, the ODC withdrew Count III of 02-DB-100. Accordingly, this opinion does not address that alleged misconduct.

      . At oral argument, respondent's counsel represented that Ms. Gibbs was paid in full following the formal charge hearing, which took place in September 2006. However, there is no documentation of the payment in the record of this matter.

      . With respect to the Rule 1.15 violations, the formal charges actually allege violations of Rules 1.5(a)(b)(c) (dealing with fee arrangements) with a parenthetical reference to "commingling and conversion of client funds.” However, in the ODC’s pre-hearing memorandum, it argues that respondent violated Rule 1.15. Accordingly, the Rule 1.5 allegations appear to be a typographical error and should read Rules 1.15(a)(b)(c).

      . With respect to the Rule 1.5 violation, the formal charges actually allege a violation of Rule 1.15 (dealing with safekeeping property of clients or third persons) with a parenthetical reference to "failure to account/return property belonging to client.” However, in the ODC's post-hearing memorandum, it argues that respondent violated Rule 1.5. Accordingly, the Rule 1.15 allegation appears to be a typographical error and should read Rule 1.5.

      . It is unclear why the committee recommended separate sanctions for each count of die formal charges.

      . Despite the charge that respondent violated Rule i.3, the deemed admitted facts do not include any allegation that respondent neglected Ms. Sudds’ legal matter. Indeed, the record reveals a dispute between Ms. Sudds and respondent over this issue. In her complaint, Ms. Sudds alleged that respondent failed to communicate with her and neglected her legal matter, causing her claim to prescribe. In response to the complaint, respondent stated he informed Ms. Sudds that she would need to produce evidence of her damages in order to move the matter forward, but she never did so. He also denied that he failed to communicate with her. Instead, he stated that they lost contact, and then her claim prescribed.

      . With respect lo Rule 1.15(b) and 1.15(c), the board mistakenly referred to a version of the rules that took effect after respondent's alleged misconduct.

      . See In re: Doman, 01-3058 (La.1/10/03), 838 So.2d 715, wherein this court held:
      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 other words, mere allegations of a rule violation, without specific factual allegations or supporting evidence, is insufficient to prove misconduct by the requisite "clear and convincing" standard.

      . Standard 4.41 provides that disbarment is generally appropriate when (a) a lawyer abandons the practice and causes serious or potentially serious injury to a client; or (b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or (c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.


text:
    In re Kevin R. REES.
    No. 2010-OB-0510.
    Supreme Court of Louisiana.
    March 31, 2010.
   ORDER

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into numerous complaints of serious professional misconduct filed against respondent. The complaints allege that respondent settled his clients’ cases without their knowledge or consent, forged the clients’ endorsements on settlement checks, and misappropriated the settlement funds. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Permanent Resignation from the Practice of Law filed by Kevin R. Rees, Louisiana Bar Roll number 2066, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Kevin R. Rees for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.

IT IS FURTHER ORDERED that Kevin R. Rees shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.


text:
    In re Randal Bryan TANNEHILL.
    No. 2010-OB-0444.
    Supreme Court of Louisiana.
    March 31, 2010.
   ORDER

The Office of Disciplinary Counsel (“ODC”) is currently investigating eight complaints filed against respondent alleging serious attorney misconduct, including neglect of his clients’ legal matters and failure to refund unearned legal fees. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Permanent Resignation from the Practice of Law filed by Randal Bryan Tannehill, Louisiana Bar Roll number 22626, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Randal Bryan Tannehill for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.

IT IS FURTHER ORDERED that Randal Bryan Tannehill shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

/s/ Jeffrey P. Victory

Justice, Supreme Court of Louisiana


text:
    In re William F. HENDERSON.
    No. 2010-B-0674.
    Supreme Court of Louisiana.
    March 31, 2010.
   ORDER

Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that respondent, William F. Henderson, Louisiana Bar Roll number 21291, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court.

IT IS FURTHER ORDERED that the Office of Disciplinary Counsel may seek the appointment of a trustee(s) to protect the interests of respondent’s clients pursuant to the provisions of Supreme Court Rule XIX, § 27, if appropriate.

Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately-

/s/ Bernette J. Johnson

Justice, Supreme Court of Louisiana