text:
    In re Darryl JACKSON.
    No. 2009-B-2354.
    Supreme Court of Louisiana.
    Feb. 12, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

11 This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Darryl Jackson, an attorney licensed to practice law in Louisiana but currently on interim suspension based on his conviction of a serious crime. In re: Jackson, 06-2745 (La.12/6/06), 943 So.2d 371.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1990. In May 1999, he received an admonition for failing to inform a client to seek independent counsel regarding his possible malpractice and acceptance of a nuisance value settlement after he failed to timely file her lawsuit. In April 2003, this court suspended respondent from the practice of law for six months, with three months deferred, followed by one year of probation with the condition that he complete the Louisiana State Bar Association’s Ethics School, after he failed to timely file a client’s lawsuit and failed to keep the client informed of the status of his case. In re: Jackson, 02-2764 (La.4/9/03), 842 So.2d 359.

As stated above, respondent is currently on interim suspension based on his conviction of a serious crime, which misconduct is at issue in the present proceeding.

| ¡UNDERLYING FACTS

As an Assistant City Attorney for the City of New Orleans assigned to traffic court, respondent’s duties included prosecuting DWI (driving while intoxicated) cases. Nevertheless, in November 2001, respondent accepted $500 to represent a criminal client charged with DWI in traffic court. Prior to the client’s arraignment and in his capacity as an Assistant City Attorney, respondent entered a nolle pro-sequi in the case, effectively dismissing the charges against his client.

Based on these facts, respondent was indicted by an Orleans Parish grand jury on one count of malfeasance in office, a felony, in violation of La. R.S. 14:134. The indictment alleged that, while respondent was employed as an Assistant City Attorney for the City of New Orleans, he offered to assist in the fixing of tickets and fixed tickets in traffic court in exchange for compensation.

On August 23, 2006, respondent waived his right to a jury trial and was tried before Judge Arthur Hunter, who found respondent guilty as charged. On May 25, 2007, Judge Hunter sentenced respondent to serve eighteen months in prison. Judge Hunter suspended the sentence, placed respondent on probation for eighteen months, and imposed various fines and fees. On June 18, 2008, the Louisiana Fourth Circuit Court of Appeal affirmed respondent’s conviction and sentence. State v. Jackson, 07-1343 (La.App. 4 Cir. 6/18/08), 987 So.2d 851.

| .^¡Respondent filed a motion to expunge his criminal record, which was set for hearing on October 22, 2008. The record is unclear as to whether the motion was granted.

DISCIPLINARY PROCEEDINGS

In February 2007, the ODC filed one count of formal charges against respondent, alleging that his conduct violated Rule 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer) of the Rules of Professional Conduct. Respondent answered the formal charges, arguing that the trial court “erred egregiously” in finding him guilty.

Hearing Committee Report

This matter proceeded to a formal hearing, conducted by the hearing committee on October 21, 2008.

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

Respondent was convicted of the crime of malfeasance in office. While employed as an Assistant City Attorney for the City of New Orleans, respondent offered to and did dismiss one traffic ticket in traffic court, in return for compensation. He was sentenced to eighteen months in prison, which sentence was suspended, and he was placed on probation for eighteen months. He was also required to pay a $1,000 fine. The Louisiana Fourth Circuit Court of Appeal affirmed respondent’s conviction and sentence.

|4Based on these facts, the committee determined that respondent violated Rule 8.4 of the Rules of Professional Conduct. The committee further found that La. R.S. 14:134 is a felony and a “serious crime” as defined in Supreme Court Rule XIX, § 19(D). Therefore, respondent has been convicted of a serious crime that warrants discipline.

The committee determined that respondent violated duties owed to his client, the public, the legal system, and the legal profession. He acted intentionally and caused significant actual injury. The committee determined that respondent abused the authority placed in him in a position of public trust. Based on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the baseline sanction is disbarment.

The committee found the following aggravating factors present: prior disciplinary offenses, a dishonest or selfish motive, refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law (admitted 1990), and illegal conduct. The committee found the following mitigating factor present: character or reputation and the imposition of other penalties or sanctions.

Although the committee found that respondent’s misconduct falls within the scope of the permanent disbarment guidelines, the committee also determined that his testimony regarding his character militates in favor of imposing a sanction less than permanent disbarment. As such, the committee recommended that respondent be disbarred.

|sThe ODC filed an objection to the hearing committee’s recommendation based solely on the committee’s failure to recommend permanent disbarment.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings are not manifestly erroneous. Moreover, the committee’s determination that respondent violated Rule 8.4(d) of the Rules of Professional Conduct is correct.

The board adopted the committee’s findings with respect to duties violated, respondent’s mental state, harm caused, and aggravating and mitigating factors. The board also determined that the committee correctly found the baseline sanction to be disbarment.

Considering respondent’s misconduct in light of the permanent disbarment guidelines and the prior jurisprudence of this court, the board recommended that respondent be permanently disbarred.

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

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). When the disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990).6 The discipline to be imposed depends on the seriousness of the offense and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

In August 2006, respondent was convicted of malfeasance in office, which is a felony. In June 2008, the Louisiana Fourth Circuit Court of Appeal affirmed respondent’s conviction. Therefore, his conviction is now final. Based on these facts, respondent has violated Rule 8.4(b) of the Rules of Professional Conduct as charged by the ODC.

Respondent’s testimony at the formal hearing indicates that he acted intentionally. He violated duties owed to the public, the legal system, and the legal profession, causing actual harm to the legal system and the legal profession and potentially serious harm to the public. Standards 5.11(a) and 5.21 of the ABA’s Standards for Imposing Lawyer Sanctions apply in this matter and establish disbarment as the baseline sanction. Standard 5.11(a) states in pertinent part that disbarment is appropriate when “a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft ...” Standard 5.21 states in pertinent part that “[disbarment is generally appropriate when a lawyer in an official or governmental position knowingly misuses the position with the intent to obtain a significant benefit or advantage for himself or another ...” Respondent’s conduct fits squarely within these Standards and reflects poorly on his honesty, trustworthiness, and integrity. Among the aggravating factors present is respondent’s absolute refusal to acknowledge the wrongful nature of his conduct.

|7Under these circumstances, we find a downward departure from the baseline sanction is not warranted. Therefore, the only remaining question is whether respondent’s conduct is so egregious as to warrant permanent disbarment.

Guidelines 2 and 7 of the permanent disbarment guidelines provide as follows:

GUIDELINE 2. Intentional corruption of the judicial process, including but not limited to bribery, perjury, and subornation of perjury.

GUIDELINE 7. Malfeasance in office which results in a felony conviction, and which involves fraud.

Respondent fraudulently used his position as an Assistant City Attorney to dismiss DWI charges against his own client. In doing so, respondent intentionally interfered with the administration of justice and misused his governmental position to obtain a significant benefit for his client. We find this conduct amounts to intentional corruption of the judicial process. This conduct led to respondent’s conviction of malfeasance in office, which is a felony.

The case of In re: Burks, 07-0687 (La.8/31/07), 964 So.2d 298, involves similar misconduct. In Burks, an Assistant City Attorney for the City of New Orleans assigned to prosecute cases in traffic court accepted $1,000 to nolle prosequi several traffic citations for an undercover FBI agent posing as a taxi drive. The attorney eventually pled guilty to a felony in federal court. We permanently disbarred the attorney under Guidelines 2 and 7.

As in Burks, we find Guidelines 2 and 7 apply here. Accordingly, we will accept the disciplinary board’s recommendation and impose permanent disbarment.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of 18Parryl Jackson, Louisiana Bar Roll number 20233, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . A breathalyzer test was administered on the client following his involvement in an automobile accident. The result of the breathalyzer test was .119, which was over the legal limit for intoxication.

      . Respondent did not testify at his criminal trial. However, at the formal hearing of this matter, respondent testified as follows:
      ... I wanted to state why I dismissed [the DWI case]. You know, I dismissed it. But I’ve never told any tribunal, but this one, that. Did I take any money is the crime? I say all that to say a City Attorney can do whatever they want to with a case, at any time. Pure and simple. Yeah, I dismissed it. It was my church member. Did I take $500.00 for it? No. It’s never been proven. The NOPD said that they had no proof of that.

      . Respondent testified about his career as a military officer, stating that he joined the Army reserve in 1995 and joined the Air Force Reserve in 1997, where he continues to serve. Respondent also testified that he is a Judge Advocate General, was an adjunct professor at Southern University in New Orleans for twelve years, and taught paralegal school at Phillips in New Orleans.


source: Caselaw Access Project

author:
      PER CURIAM.
     JOHNSON, Justice,

license: Public Domain

text:
    Lucille McCORMIC, et al. v. Judith Ann RIDER.
    No. 2009-CJ-2584.
    Supreme Court of Louisiana.
    Feb. 12, 2010.
   PER CURIAM.

11 In this child custody matter, the biological parents seek review of a ruling of the court of appeal which reversed a judgment of the district court modifying a custody order. For the reasons that follow, we reverse the judgment of the court of appeal and reinstate the judgment of the district court.

FACTS AND PROCEDURAL HISTORY

Lucille Marie McCormic (hereinafter referred to as “mother”) and Jason Ray Craft (hereinafter referred to as “father”) are the unmarried biological parents of a son born May 31, 2000. In April 2001, the father’s mother, Judith Ann Rider (hereinafter referred to as “grandmother”) adopted the child. From 2002 to approximately 2005, the parties lived as a family unit in a duplex in Lake Charles, with the father and mother residing in one side of the duplex, and the grandmother and the child living on the other side.

In 2005, the mother and father ended their relationship. Although the father moved, the living arrangement at the duplex between the mother, grandmother and child continued.

[2In 2006, the mother and father filed a petition for custody of the child. In support, they alleged the grandmother was in ill health and unable to properly care for the child.

At the trial, the district court noted that this case presents somewhat of an anomaly because the grandmother adopted the child. Thus, the court found that the father and mother were actually nonparents and the grandmother was a parent for purposes of La. Civ.Code art. 133. Based on the evidence adduced at the trial, the district court determined that substantial harm would result to the child if the grandmother maintained sole custody. Accordingly, the court awarded all three parties (father, mother and grandmother) joint custody of the child, with the mother designated as the domiciliary parent.

The grandmother appealed. The court of appeal reversed and rendered judgment in favor of the grandmother, dismissing the petition of the mother and father. In its opinion, the court of appeal concluded that under La. Civ.Code art. 133, the grandmother, as parent, enjoyed the paramount right of custody, with the mother and father, as nonparents, bearing a heavy burden of proof of showing sole or joint custody with the grandmother would result in substantial harm to the child. The court reasoned that, because the district court found the grandmother was still entitled to joint custody, the mother and father obviously failed to prove that custody in the |sgrandmother’s favor would result in substantial harm to the child. Thus, the court concluded that, since no substantial harm was proven, the district court was prohibited from granting custody to the mother and father.

The mother and father have now applied to this court, seeking review of the judgment of the court of appeal.

DISCUSSION

As recognized by the lower courts, this case arises under unusual facts. By virtue of her adoption of the child, the grandmother is considered to be the child’s parent, while the child’s biological mother and father are relegated to the status of nonparents. Pursuant to La. Civ.Code art. 133, a nonparent is only entitled to custody upon a showing that “an award of joint custody or of sole custody to either parent would result in substantial harm to the child.... ”

In the instant case, the district court made a factual finding that allowing the grandmother to retain sole custody would be detrimental to the child. However, the court also recognized that the child would benefit from being part of a family unit that included the mother, father, and grandmother.

As shown by these seemingly inconsistent findings, the unique facts of this case do not fit cleanly into the parameters of La. Civ.Code art. 133. Nonetheless, it is well-established that each child custody case must be viewed in light of its own particular set of facts and circumstances, with the paramount goal of reaching a decision that is in the best interest of the child. Barberousse v. Barberousse, 556 So.2d 930 (La.App. 3 Cir.1990). The trial court has great discretion in this area, and its determination will not be disturbed in the absence of a clear abuse of discretion. Bagents v. Bagents, 419 So.2d 460 (La.1982). The primary consideration and [4prevailing inquiry is whether the custody arrangement is in the best interest of the child. See Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731.

Based on our review, we conclude that the tripartite custody arrangement fashioned by the district court comports with the best interest of the child. While we agree that an award of sole custody to the grandmother would be detrimental to the child, we believe the joint custody arrangement, with the mother designated as domiciliary parent, will alleviate any concerns in this regard. This joint custody arrange-merit will further benefit the child by keeping intact the family unit in which he has lived for virtually his entire life. Under similar circumstances, courts have approved joint custody arrangements between parents and nonparents. See, e.g., Whitman v. Williams, 08-1133 (La.App. 3 Cir. 2/4/09), 6 So.3d 852; Smith v. Tierney, 04-2482 (La.App. 1 Cir. 2/16/05), 906 So.2d 586.

In the absence of any clear abuse of discretion by the district court, we find the court of appeal erred in reversing the district court’s judgment. Accordingly, we must reverse the judgment of the court of appeal and reinstate the judgment of the district court.

DECREE

For the reasons assigned, the writ is granted. The judgment of the court of appeal is reversed, and the judgment of the district court is reinstated.

JOHNSON, J., concurs and assigns additional reasons.

JOHNSON, Justice,

concurs and assigns additional reasons:

|, There is sufficient evidence in this record that allowing continued custody with the grandmother, Judith Ann Rider, would be detrimental to this child. In 2002, Rider, the adopted domiciliary parent, went to California and left the child for one year without informing the unmarried biological parents, Lucille Marie McCormic and Jason Ray Craft. The record demonstrated that in a counseling session, which was ordered by the court, the child reported that Rider disciplined him by “whip[ping]” him “with a ping-pong paddle” on his head, shoulders, and legs. In August 2006, the Office of Community Services (“OCS”) removed the child from Rider’s care based on allegations that he was a child in need of care. Specifically, there were allegations that Rider placed the child in a harness, and tethered him to his bed. Jason testified that he witnessed his son “hogtied” and locked in a room. The record contained evidence that Rider regularly medicated the child with numerous prescription medications, including Clonidine (sleeping pills), Risperdal (antipsychotic), and Concerta. According to Rider, the child had an anger problem, and she gave him Risperdal to keep his anger under control. Rider stated that she gave the child Concerta to keep him focused and calm. The district court judge was “troubled” by the evidence that Rider administered these medications to the child for Attention Deficit Hyperactivity Disorder (“ADHD”) without the child having been ^thoroughly evaluated and assessed by his pediatrician. In my view, substantial harm would result to the child if Rider had primary custody. I would grant the petition, which continues the tripartite custody and gives domiciliary custody to the biological mother.

       Chief Justice Kimball not participating in the opinion.

      . The child was removed from the grandmother’s care by the State in 2006, but was returned to her some time later. The child remained in the grandmother's custody at the time of trial.

      . La. Civ.Code art. 133 provides:
      If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.


author: PER CURIAM.

text:
    In re John C. GEIGER.
    No. 2009-B-2344.
    Supreme Court of Louisiana.
    Feb. 12, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

11 This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, John C. Geiger. For the reasons that follow, we will accept the recommendation of the disciplinary board and suspend respondent for a period of one year and one day, fully deferred, subject to a two-year probationary period with conditions.

FORMAL CHARGES

In Count I of the formal charges, the ODC alleged that between December 1996 and March 2002, respondent employed Tasha Blanchard in a clerical/bookkeeper capacity. According to the ODC, respondent provided Ms. Blanchard with access to all of his attorney bank accounts, including his trust, real estate trust, and operating accounts. The ODC further alleged respondent improperly delegated to her the authority to prepare and sign checks and to reconcile these accounts, and that respondent failed to supervise her handling of the bank accounts, bookkeeping and related functions. As a result of respondent’s failure to 12properly supervise Ms. Blanchard’s handling of these accounts, the ODC alleged that funds may have been misappropriated from your trust accounts. It charged that respondent’s failure to supervise his trust accounts violated Rules 1.15(a)(b)(c), 5.3(a)(b), and 8.4(a) of the Rules of Professional Conduct.

In Count II, the ODC alleged that between February 1, 2000 and April 30, 2003, respondent settled personal injury cases on behalf of clients, deposited the settlement proceeds into his trust account, and withheld funds to pay third-party medical providers. According to the ODC, respondent failed to properly maintain those funds in his trust account, resulting in a commingling and conversion of either client or third-party funds in varying amounts, at various times, up to a total amount of $26,977.83 as of September 15, 2006. The ODC charged that the commingling and conversion of these funds violated Rules 1.15(a)(b)(c) and 8.4(a)(c) of the Rules of Professional Conduct.

Thereafter, the ODC and respondent filed joint stipulations. Respondent stipulated to the facts as alleged by the ODC, although he reserved his right to contest the legal conclusions following from those facts. At the hearing, respondent orally stipulated that his conduct violated Rules 1.15(a)(b)(e), 5.3(a)(b), and 8.4(a). He denied violating Rule 8.4(c).

| .DISCIPLINARY PROCEEDINGS

Hearing Committee Report

Based on respondent’s stipulations and other evidence in the record, the hearing committee made a finding of fact that respondent’s non-lawyer assistant, Tasha Blanchard, embezzled money from respondent’s trust account. It further found respondent’s trust account was overdrawn on several occasions, but the only reason it was overdrawn was due to Ms. Blanchard’s embezzlement. The committee determined respondent’s conduct violated Rules 1.15(a)(b)(c), 5.3(a)(b), and 8.4(a), but it declined to find a violation of Rule 8.4(c).

In assessing a baseline sanction, the committee noted that respondent was negligent in dealing with third-party and client property, because he gave his employee access to this property without appropriate checks and balances, thereby allowing his employee to misappropriate these funds. It also found the misappropriation caused actual harm to third-party providers who were not paid when payment was due. However, the committee pointed out respondent did not personally benefit from the misappropriated funds, did not convert any of these funds to his own use, and had no personal knowledge of the misappropriation of the funds. Considering these findings, the committee concluded the baseline sanction was a suspension.

In mitigation, the committee identified the following factors: absence of a prior disciplinary record; absence of a dishonest or selfish motive; timely good faith effort to make restitution or to rectify the consequences of misconduct; good character and reputation; full and free cooperative attitude toward the disciplinary proceedings; and remorse. The sole aggravating factor found by the committee was respondent’s substantial experience in the practice of law, having been admitted to the bar since 1980.

14After considering these factors, the committee recommended that respondent be suspended from the practice of law for one year, fully deferred, subject to a one-year period of probation, with the conditions that he successfully complete the Louisiana State Bar Association’s Ethics School, and pay all costs and expenses of the disciplinary proceedings.

Disciplinary Board Recommendation

The disciplinary board found the hearing committee’s factual findings were not manifestly erroneous. It further agreed with the rule violations as identified by the hearing committee.

In determining an appropriate baseline sanction, the board determined that although the actual conversion in this case was a result of respondent’s negligence, his failure to safeguard the client/third-party property was knowing. In support, the board cited respondent’s testimony that if he had merely reviewed a trust account statement, he would have noticed the problems caused by Ms. Blanchard’s embezzlement. Citing Standard 4.1 of the ABA Standards of Imposing Lawyer Discipline, the board explained the baseline sanction for this misconduct was a suspension.

The board noted that respondent is guilty of at least a high degree of negligence, and the nature of the conversion was extensive. Nonetheless, the board | ^recognized that there were significant mitigating factors in this case. It also emphasized the fact that respondent did not benefit in any way from the conversion.

Relying on these findings and jurisprudence from this court, the board recommended that this court impose a fully-deferred one year and one day suspension. The board further recommended respondent be placed on probation for a period of two years, with certain conditions.

Neither respondent nor the ODC objected to the disciplinary board’s recommendation. Accordingly, the matter was presented to this court for entry of an order of discipline pursuant to Supreme Court Rule XIX, § ll(G)(a).

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. In re Sharp, 09-0207 (La.6/26/09), 16 So.3d 343. In general, we defer to the credibility Revaluations made by the hearing committee members, as they have had the benefit of hearing the live testimony of witnesses, and act as the eyes and ears of this court. See In re Holliday, 09-0116 (La.6/26/09), 15 So.3d 82; In re: Bolton, 02-0257 (La.6/21/02), 820 So.2d 548.

In the instant case, the hearing committee made a finding of fact that respondent’s non-lawyer assistant embezzled money from respondent’s trust account, causing respondent’s trust account to become overdrawn on several occasions. Based on this finding, the committee determined respondent violated Rules 1.15(a)(b)(c), 5.3(a)(b), and 8.4(a). We see no error in these factual and legal conclusions, and therefore adopt them as our own.

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. In re Coffman, 09-1165 (La.9/25/09), 17 So.3d 934. 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. In re Smith, 09-1141 (La.9/25/09), 17 So.3d 927.

The record reveals that respondent acted negligently by giving his non-lawyer employee access to accounts containing client and third-party funds without imposing sufficient safeguards, which allowed his employee to misappropriate these funds. Respondent’s negligence caused actual harm to third-party providers who were not paid properly. Nonetheless, we recognize respondent did not personally benefit from the misappropriated funds, did not convert any of these funds to his own use, and had no personal knowledge of the misappropriation of the funds. Our jurisprudence indicates that the baseline sanction for negligent conversion without any ^accompanying fraudulent actions is a suspension. See generally Louisiana State Bar Association v. Hinrichs, 486 So.2d 116 (La.1986). We have imposed fully-deferred suspensions in cases where the misconduct stems from the lawyer’s failure to adequately supervise non-lawyer staff members. See In re Overton, 09-2125 (La.11/6/09), 20 So.3d 479 (fully-deferred one year and one day suspension (by consent) imposed on lawyer who failed to adequately supervise her non-lawyer staff).

Numerous mitigating factors are present in this case: absence of a prior disciplinary record; absence of a dishonest or selfish motive; timely good faith effort to make restitution or to rectify the consequences of misconduct; good character and reputation; full and free cooperative attitude toward the disciplinary proceedings; and remorse. The sole aggravating factor is respondent’s substantial experience in the practice of law.

Considering all the facts and circumstances of this case, we find the appropriate sanction is a suspension from the practice of law for a period of one year and one day. However, in light of the significant mitigating factors and the fact that respondent did not personally benefit in any way from the conversion, we will defer that suspension in its entirety and place respondent on probation for a period of two years, subject to the specific conditions recommended by the disciplinary board. Any violation of these conditions or any other misconduct by respondent during the probationary period may result in either making the deferred suspension exec-utory or additional discipline, as appropriate.

DECREE

Upon review of the findings and recommendations of the disciplinary board, and considering the record, it is ordered that John C. Geiger, Louisiana Bar Roll number 6000, be suspended from the practice of law for a period of one year and one |sday. It is further ordered that this suspension be deferred in its entirety, and that respondent be placed on probation for a period of two years, subject to the conditions recommended by the disciplinary board. Any violation of these conditions or any other misconduct by respondent during the probationary period may result in either making the deferred suspension executory or additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . In addition to the two counts of formal charges currently before the court, the ODC filed a third count involving allegations of commingling. The hearing committee and disciplinary board recommended this count be dismissed on the ground that the ODC failed to prove the allegation by clear and convincing evidence. The ODC has not objected to this recommendation. Accordingly, we will not discuss this count of the formal charges. See In re Carr, 03-3138 (La.5/25/04) atp. 3, n. 2, 874 So.2d 823, 825.

      . At the time of the misconduct, Rule 1.15(a)(b)(c) provided that a lawyer shall (1) keep the property of clients and third parties separate from the lawyer's own property; (2) promptly notify clients and third parties upon receiving funds in which they have an interest; and (3) keep property separate in which the lawyer and another person claim an interest until there is an accounting and severance of interests.

      .Rule 5.3(a) provides, "[a] partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer." Rule 5.3(b) provides, "[a] lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer."

      . Rule 8.4(a) provides that it is professional misconduct to violate the Rules of Professional Conduct, or do so through the acts of another.

      . Rule 8.4(c) provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

      . Standard 4.1 ‘‘Failure to Preserve the Client's Property” provides, in pertinent part:
      Absent aggravating or mitigating circumstances the following sanctions are generally appropriate in cases involving the failure to preserve client property:
      4.12 Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.

      . In rejecting the hearing committee's recommendation of a one-year fully-deferred suspension as too lenient, the board explained that respondent should face a potential reinstatement proceeding if he violates his probation.

      .The board recommended the following conditions:
      1) Attendance at the LSBA's Trust Accounting School;
      2) Reconciliation of any trust account maintained by Respondent by a CPA on a semiannual basis;
      3) Compliance with the Rules of Professional Conduct; and
      4) Payment of the costs and expenses of this proceeding.


text:
    STATE of Louisiana v. Sidney HOLMES.
    No. 2010-KK-0057.
    Supreme Court of Louisiana.
    Feb. 2, 2010.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 491-008; to the Court of Appeal, Fourth Circuit, No. 2010-K-0022.

Denied.


text:
    S.J. et al. v. LAFAYETTE PARISH SCHOOL BOARD.
    No. 2009-C-2195.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Lafayette Parish School Board et al.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. F, No. 2005-0182-F; to the Court of Appeal, Third Circuit, No. 08-900.

Granted.


text:
    STATE of Louisiana v. Thomas WELLS.
    No. 2008-K-2262.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re State of Louisiana; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. F, No. 469-722; to the Court of Appeal, Fourth Circuit, No. 2008-KA-0211.

Granted.


text:
    Ella HAWKINS, et al. v. Andrew John REDMON, et al.
    No. 2009-C-2418.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Safeway Insurance Co. of LA;— Defendant; Applying For Writ of Certio-rari and/or Review, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 2007-0841-B; to the Court of Appeal, Third Circuit, No. 09-215.

Granted.

KNOLL, J., recused.


text:
    Lois FLORY v. Francis J. WALKER, et al.
    No. 2009-CC-2676.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Allied Williams Company Inc.; Walker, Francis J. et al.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. A, No. 88794; to the Court of Appeal, Third Circuit, No. CW 09-01025.

Writ denied; stay denied.

VICTORY and CLARK, JJ„ would grant.


text:
    STATE ex rel. Harold Joe BLACK v. STATE of Louisiana.
    No. 2009-KH-0343.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Black, Harold Joe; — Plaintiff; Applying for Reconsideration of this Court’s Action dated November 20, 2009, Parish of Bossier, 26th Judicial District Court Div. F, No. 67,071; to the Court of Appeal, Second Circuit, No. 44236-KH.

Denied.


text:
    In re APPEAL OF DECISION OF the DISCIPLINARY BOARD NO. 09-PDB-042.
    No. 2009-OB-2272.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Patterson, Bradley D.; — Plaintiff; Applying For Appeal of Decision of the Disciplinary Board Office of the Disciplinary Board, No. 09-PDB-042.

Leave to appeal denied.


text:
    In re APPEAL OF DECISION OF DISCIPLINARY BD. NO. 09-PDB-019.
    No. 2009-OB-2271.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Coupel, Larry et al.; Coupel, Natalie; — Plaintiffs); Applying For Appeal of Decision of the Disciplinary Board. Office of the Disciplinary Board, No. 09-PDB-019.

Leave to appeal denied.


text:
    STATE of Louisiana v. Brice GEORGE. State of Louisiana v. Robert Stevenson. State of Louisiana v. Gregory Thomas. State of Louisiana v. Howard White. State of Louisiana v. Ivory Grace.
    No. 2009-CQ-1977.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Fourth Circuit Court of Appeal, State of Louisiana; — Other; Applying For Certified Question Criminal District Court Divs. A, J, I, Nos. 476-787, 476-116, 480-666, 481-174, 482-849; to the Court of Appeal, Fourth Circuit, Nos. 2008-KA-1198, 2008-KA-1338, 2009-KA-0561, 2009-KA-0630, 2009-KA-0867.

Certification denied. This Court in State v. Tyrone Jefferson, 08-KA-2204 (La.12/1/09), 26 So.3d 112, held there was no constitutional infirmity in La.Rev.Stat. 40:966(E)(2) or (3).


text:
    STATE ex rel. Alphonso LAWRENCE v. STATE of Louisiana.
    No. 2009-KH-0912.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Lawrence, Alphonso; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. K, No. 257,482; to the Court of Appeal, Second Circuit, No. 43,-679-KH.

Granted for the sole purposes of transferring the application to the district court for its consideration. The district court is directed to provide this Court with a copy of its ruling.


text:
    STATE ex rel. Phillip BROWN v. STATE of Louisiana.
    No. 2009-KH-2683.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Brown, Phillip; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. F, No. 225,722; to the Court of Appeal, Second Circuit, No. 42,-054-KA.

Granted for the sole purpose of transferring the application to the Court of Appeal, Second Circuit, for its consideration on the merits.


text:
    STATE of Louisiana v. Milton ISAAC.
    No. 2009-KP-0547.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Isaac, Milton; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 811-884; to the Court of Appeal, Fourth Circuit, No. 2008-K-0841.

Denied.


text:
    STATE of Louisiana v. Michael PAGAN.
    No. 2009-KP-0563.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Pagan, Michael; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 01-4124; to the Court of Appeal, Fifth Circuit, No. 09-KH-46.

Denied.


text:
    STATE of Louisiana v. Ontrell WASHINGTON.
    No. 2009-KP-0655.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 403-341; to the Court of Appeal, Fourth Circuit, No. 2008-K-0669.

Denied.

KNOLL, J., would grant.

CLARK, J., would grant.


text:
    STATE of Louisiana v. Jaron AUSBON.
    No. 2009-KP-0692.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Ausbon, Jaron; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 06-99-909; to the Court of Appeal, First Circuit, No. 2008 KW 2459.

Denied.


text:
    STATE of Louisiana v. Eric PERSLEY.
    No. 2009-KP-0716.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Persley, Eric; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. D, No. 208,524; to the Court of Appeal, Second Circuit, No. 44,-475-KW.

Denied.


text:
    STATE ex rel. Derrick TOMLINSON v. STATE of Louisiana.
    No. 2009-KH-0799.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Tomlinson, Derrick; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 03 — 4031; to the Court of Appeal, Fifth Circuit, No. 08-WR-1149.

Denied.


text:
    STATE ex rel. Chavis C. GRANT v. STATE of Louisiana.
    No. 2009-KH-0849.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Grant, Chavis C.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. H, No. 288,578; to the Court of Appeal, Second Circuit, No. 44,-469-KH.

Denied.


text:
    STATE ex rel. Johnny L. HOYT v. STATE of Louisiana.
    No. 2009-KH-0850.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Hoyt, Johnny; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of East Feliciana, 20th Judicial District Court Div. A, No. 03-CR-785; to the Court of Appeal, First Circuit, No. 2008 KW 2512.

Denied.


text:
    STATE ex rel. James HART v. STATE of Louisiana.
    No. 2009-KH-0851.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Hart, James; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 467-775; to the Court of Appeal, Fourth Circuit, No. 2009-K-0174.

Denied.


text:
    STATE ex rel. Brian K. CHISHOLM v. STATE of Louisiana.
    No. 2009-KH-0852.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Chisholm, Brian K.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 08-8889; to the Court of Appeal, Fifth Circuit, No. 08-WR-972.

Denied.


text:
    STATE ex rel. Ricky Andre BENNETT v. STATE of Louisiana.
    No. 2009-KH-0853.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Bennett, Ricky Andre; — Plaintiff; Applying For Supervisory and/or Remedíal Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 11-97-0128; to the Court of Appeal, First Circuit, No. 2008 KW 2581.

Denied.


text:
    STATE ex rel. Darrick MARTINEZ v. STATE of Louisiana.
    No. 2009-KH-0895.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Martinez, Darrick; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 385-955; to the Court of Appeal, Fourth Circuit, No. 2009-K-0191.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE ex rel. Kelly HOLMES v. STATE of Louisiana.
    No. 2009-KH-0896.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Holmes, Kelly; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 389-900; to the Court of Appeal, Fourth Circuit, No. 2009-K-0154.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE ex rel. Donetta BAKER v. STATE of Louisiana.
    No. 2009-KH-0903.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Baker, Donetta; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, Nos. 04-4008, 04-4267; to the Court of Appeal, Fifth Circuit, No. 09-KH-175.

Denied.


text:
    STATE ex rel. Raymond Donald WILLIAMS v. STATE of Louisiana.
    No. 2009-KH-0904.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Williams, Raymond Donald;— Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. C, No. 146,817; to the Court of Appeal, Second Circuit, No. 44,363-KH.

Denied.


text:
    STATE ex rel. Shannon LEWIS v. STATE of Louisiana.
    No. 2009-KH-0905.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Lewis, Shannon; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 99-7577; to the Court of Appeal, Fifth Circuit, No. 09-KH-9.

Denied.

GUIDRY, J., recused.


text:
    STATE ex rel. George WADE v. STATE of Louisiana.
    No. 2009-KH-0911.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Wade, George; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 80-313; to the Court of Appeal, Fifth Circuit, No. 08-WR-845.

Denied.


text:
    STATE ex rel. Kenneth LESLEY v. STATE of Louisiana.
    No. 2009-KH-0916.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Lesley, Kenneth; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 344567; to the Court of Appeal, First Circuit, No. 2008-KW-2492.

Denied.


text:
    STATE ex rel. John Henry TAYLOR v. STATE of Louisiana.
    No. 2009-KH-0917.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Taylor, John Henry; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 92-WCR-72.

Denied.


text:
    STATE ex rel. John A. DAVIS v. STATE of Louisiana.
    No. 2009-KH-0921.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Davis, John A.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Desoto, 42nd Judicial District Court Div. A, No. 03-CR-9263; to the Court of Appeal, Second Circuit, No. 44,533-KH.

Denied.


text:
    STATE ex rel. Joseph GLAVIANA v. STATE of Louisiana.
    No. 2009-KH-0924.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Glaviana, Joseph; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Assumption, 23rd Judicial District Court Div. A, Nos. 7470, 7472.

Denied. La.C.Cr.P. art. 930 B; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE ex rel. Jeffrey DIXON v. STATE of Louisiana.
    No. 2009-KH-0972.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Dixon, Jeffrey; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 03-5972; to the Court of Appeal, Fifth Circuit, No. 09-KH-188.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE of Louisiana v. Dennis D. THOMAS.
    No. 2009-K-1041.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Thomas, Dennis D.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. B, No. 248,138; to the Court of Appeal, Second Circuit, No. 44,-113-KA.

Denied.

JOHNSON and WEIMER, JJ„ would grant.


text:
    STATE of Louisiana v. Tyrone RAYMOND.
    No. 2009-KO-1205.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Raymond, Tyrone; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. John, 40th Judicial District Court Div. B, No. 04-196; to the Court of Appeal, Fifth Circuit, No. 08-KA-1204.

Denied.


text:
    STATE of Louisiana v. John SIMPKINS.
    No. 2009-KO-1229.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Simpkins, John; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Webster, 26th Judicial District Court Div. F, Nos. 74,450, 74,451; to the Court of Appeal, Second Circuit, Nos. 44,197-KA, 44,198-KA.

Denied.


text:
    STATE of Louisiana v. Douglas D. SMITH.
    No. 2009-KO-1293.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Smith, Douglas; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 424757-1; to the Court of Appeal, First Circuit, No. 2008 KA 2129.

Denied.


text:
    STATE of Louisiana v. Eugene CAFFREY.
    No. 2009-K-1305.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Caffrey, Eugene; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 06-2281; to the Court of Appeal, Fifth Circuit, No. 08-KA-717.

Denied.

GUIDRY, J., recused.


text:
    STATE of Louisiana v. Kerry C. SAVOIE.
    No. 2009-KO-1306.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Savoie, Kerry C.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. G, No. 08-1632; to the Court of Appeal, Fifth Circuit, No. 09-KA-103.

Denied.


text:
    STATE of Louisiana v. Stafford BOLDEN.
    No. 2009-K-1317.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Bolden, Stafford; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. M, No. 06-766; to the Court of Appeal, Fifth Circuit, No. 09-KA-3S.

Denied.


text:
    STATE of Louisiana v. James Clyde PRINE, Jr.
    No. 2009-K-1361.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Prine Jr., James Clyde; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. B, Nos. 153,146, 153,149; to the Court of Appeal, Second Circuit, Nos. 44,229-KA, 44,230-KA.

Denied.


text:
    STATE of Louisiana v. Howell EALY.
    No. 2009-KO-1393.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Ealy, Howell; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. H, No. 257,538; to the Court of Appeal, Second Circuit, No. 44,252-KA.

Denied.


text:
    STATE of Louisiana v. Daniel RONQUILLE.
    No. 2009-KO-1397.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Ronquille, Daniel; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. A, No. 07-164; to the Court of Appeal, Fifth Circuit, No. 09-KA-81.

Denied.


text:
    Lane B. DAVIS and Jeanne D. Davis v. Stephen K. CONROY and Conroy Law Firm, a Professional Law Corporation.
    No. 2009-C-2413.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Davis, Jeanne D.; Davis, Lane B. et al.; — Plaintiffs); Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. I, No. 589-714; to the Court of Appeal, Fifth Circuit, No. 09-CA-142.

Denied.

GUIDRY, J., recused.


text:
    Larry L. TAYLOR, Patricia A. Taylor, and T.S.C., Inc. v. DOWLING GOSSLEE & ASSOCIATES, INC., James S. Dowling and West Viking Drive, L.L.C.
    No. 2009-C-2420.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re T.S.C., Inc.; Taylor, Larry L.;— Plaintiffs); Applying For Writ of Certio-rari and/or Review, Parish of Bossier, 26th Judicial District Court Div. F, No. 111,223; to the Court of Appeal, Second Circuit, No. 44,654-CA.

Denied.


text:
    N.W. ST. TAMMANY CIVIC ASSOCIATION, et al. v. ST. TAMMANY PARISH, et al.
    No. 2009-CC-2469.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Friedrichs — Bauman, Catherine; Gorringe, Enid; Kelley, Tim; N.W. St. Tammany Civic Association et al.; Nalty, Paul; Singer, Geraldine F.; Tanet, Cecelia; Tanet, Lloyd Turner Joseph; Telsmar, LLC; Woodard, James F. M.D.; — Plaintiffs); Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 2008-14871; to the Court of Appeal, First Circuit, Nos. 2009 CA 0094, 2009 CW 0610.

Denied.


text:
    Marcus MARTIN v. FIRST AMERICAN INSURANCE AGENCY, LLC, et al.
    No. 2009-CC-2471.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Martin, Marcus; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. E, No. 107-683; to the Court of Appeal, Fourth Circuit, No. 2009-C-1283.

Denied.


text:
    Lola BROOKS, Bridgette Gosnay, and Jesse Brooks, Jr. v. The STATE of Louisiana through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2009-OC-2513.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Brooks Jr., Jesse; Brooks, Lola et al.; Gosnay, Bridgette; — Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. C, Nos. 63,022, 63,022; to the Court of Appeal, First Circuit, No. 2009 CA 1267.

Denied.


text:
    Stacy DUHE, Individually and On Behalf of Her Minor Child Jermaine Duhe v. STATE of Louisiana, City of Harahan, City of Kenner, Harry Lee, Sheriff of Jefferson Parish.
    No. 2009-C-2515.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Duhe, Stacy et al.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. J, No. 536-281; to the Court of Appeal, Fifth Circuit, No. 09-CA-290.

Denied.


text:
    Sara LABOULIERE individually, on behalf of her Minor Children Bryce Labouliere and Kayden Labouliere and as beneficiary of the action of Richard J. Labouliere, Jr. v. SYSCO FOOD SERVICES OF NEW ORLEANS, L.L.C., American Home Assurance and William A. Irving.
    No. 2009-C-2518.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re American Home Assurance; Irving, William A.; Sysco Food Services of New Orleans L.L.C., et al.; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 540-968; to the Court of Appeal, First Circuit, No. 2009 CA 0623.

Denied.


text:
    Desiree BROWN, Sherry Brown, Renay Brown and Swacey v. OAKS OF MID-CITY NURSING HOME (formerly Hillhaven Nursing Center-East), Joseph Delpit, Sr. and XYZ Insurance Company.
    No. 2009-C-2521.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Brown, Desiree et al.; Brown, Renay; Brown, Sherry; Brown, Swacey;— Plaintiff(s); Applying For Writ of Certio-rari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, Nos. C543.544, C543,544; to the Court of Appeal, First Circuit, No. 2009 CA 0287.

Denied.


text:
    Cindy LeBlanc PUCKETT v. ADVANCE SPORTS, INC., Progressive Paloverde Insurance Company, and Warren F. McDonald.
    No. 2009-C-2527.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Puckett, Cindy LeBlanc; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. A, No. 88207; to the Court of Appeal, First Circuit, No. 2009 CA 0507.

Denied.


text:
    STATE of Louisiana v. Darrell WILLIAMS.
    No. 2009-KK-2529.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Williams, Darrell; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 08-07-0247; to the Court of Appeal, First Circuit, No. 2009 KW 1950.

Denied.


text:
    STATE of Louisiana v. William KLAUS.
    No. 2009-KK-2543.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Klaus, William; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, Jefferson Parish First Court, No. F1634646; to the Court of Appeal, Fifth Circuit, No. 09-K-705.

Denied.


text:
    Karen PRICE v. Steven F. PRICE.
    No. 2009-C-2544.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Price, Steven F.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. H, No. 113,520; to the Court of Appeal, First Circuit, No. 2009 CA 0464.

Denied.


text:
    Lyle TOOMER v. A-1 FENCE & PATIO, INC. and Travelers Property Casualty Company of America.
    No. 2009-C-2564.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Toomer, Lyle; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 2008-11612; to the Court of Appeal, First Circuit, No. 2008 CA 2197.

Denied.


text:
    STATE of Louisiana v. Keith HALL.
    No. 2009-KK-2566.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Hall, Keith; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 475-183; to the Court of Appeal, Fourth Circuit, No. 2009-K-1181.

Denied.


text:
    J. CALDAREA & COMPANY, INC. v. J.A.H. ENTERPRISES, INC. d/b/a Henderson Auctions.
    No. 2009-CC-2576.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Henderson Auctions; J.A.H. Enterprises, Inc. d/b/a; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of St. John, 40th Judicial District Court Div. A, No. 56725; to the Court of Appeal, Fifth Circuit, No. 09-C-731.

Denied.


text:
    Constantino HERRERA v. UNITED FIRE & CASUALTY and Norma Montero.
    No. 2009-C-2578.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Herrera, Constantino; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 629-873; to the Court of Appeal, Fifth Circuit, No. 09-CA-256.

Denied.

GUIDRY, J., recused.


text:
    DELTA RETAIL 45, L.L.C., d/b/a The Lion’s Den v. Larry G. COX, et al.
    No. 2009-C-2580.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Delta Retail 45 L.L.C. d/b/a; Lion’s Den; — Plaintiffs); Applying For Writ of Certiorari and/or Review, Parish of Madison, 6th Judicial District Court Div. A, No. 09-09; to the Court of Appeal, Second Circuit, No. 44,873-CA.

Denied.


text:
    Phillip ST. ANGELO, Jr., et al. v. UNITED SCAFFOLDING, INC., et al.
    No. 2009-CC-2587.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Bordelon Sr., Michael et al.; Bor-delon, Dominique; St. Angelo Jr., Phillip et al.; — Plaintiffs); Applying For Supervisory and/or Remedial Writs, Parish of St. Bernard, 84th Judicial District Court Div. E, No. 105-485; to the Court of Appeal, Fourth Circuit, No. 2009-C-1162.

Denied.


text:
    Shannon HULTBERG and Jordan Hultberg v. GENERAL INSURANCE COMPANY OF AMERICA and Margaretta Spielman.
    No. 2009-C-2589.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Hultberg, Jordan; Hultberg, Shannon et al.; — Plaintiffs); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 511,456; to the Court of Appeal, First Circuit, No. 2008 CA 2147.

Denied.

JOHNSON, J., would grant.


text:
    Huey GONZALES, Ralph G. Gonzales, Kathy Gonzales and Thomas Gonzales v. James GONZALES and Progressive Insurance Company, Inc.
    No. 2009-C-2591.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Gonzales, Huey et al.; Gonzales, Kathy; Gonzales, Ralph G.; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. E, No. 93-820; to the Court of Appeal, Fourth Circuit, No. 2008-CA-0258.

Denied.


text:
    Johnny CUBLEY and Kathy Cubley v. WILLIS-KNIGHTON MEDICAL CENTER.
    No. 2009-C-2603.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Cubley, Johnny; Cubley, Kathy;— Plaintiff(s); Applying For Writ of Certio-rari and/or Review, Parish of Caddo, 1st Judicial District Court Div. J, No. 511,039; to the Court of Appeal, Second Circuit, No. 44,435-CA.

Denied.

KNOLL, J., to grant.


text:
    DOUSSAN PROPERTIES, LLC v. DOUSSAN GAS AND SUPPLY, LLC, et al.
    No. 2009-CC-2610.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Gas Holdings Inc.; James Sowell Co. L.P. d/b/a; Sowell & Sowell Co.; Union Industrial Gas & Supply Inc.; — Defendants); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. J, No. 2007-6447; to the Court of Appeal, Fourth Circuit, No. 2009-C-1210.

Denied.


text:
    LOUISIANA JOINT UNDERWRITERS OF AUDUBON INSURANCE COMPANY v. Scott JOHNSON, The Succession of Selma Israel Zachary and The Succession of Hamilton Israel c/w Scott Johnson vs. Audubon Insurance Company and Louisiana Citizens Fair Plan a/k/a Louisiana Citizens Property Insurance Corporation.
    No. 2009-C-2611.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Johnson, Scott; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. I, Nos. 2005-9582, 2008-2681; to the Court of Appeal, Fourth Circuit, Nos. 2009-CA-0336, 2009-CA-0337.

Denied.


text:
    Rebecca DJORGHI v. Cynthia A. GLASS, M.D., et al.
    No. 2009-C-2614.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re Djorghi, Rebecca; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. J, No. 20075194; to the Court of Appeal, Third Circuit, No. 09-461.

Denied.


text:
    Marcus BROUSSARD, Jr., et al. v. MARTIN OPERATING PARTNERSHIP, L.P., et al.
    No. 2010-CC-0046.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   In re M-I LLC d/b/a; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. C, No. 83,406; to the Court of Appeal, Third Circuit, No. CW 09-01079.

Denied.


author: PICKETT, Judge.

text:
    Anita JOHNSON, et al. v. STATE FARM INSURANCE CO.
    No. 09-667.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.

      Bonita K. Preuett-Armour, Rebecca Boyett, Armour Law Firm, Alexandria, LA, for Defendant-Appellant, State Farm Insurance Co.
    Cory Paul Roy, Beau R. Layfield, Law Offices of Cory B. Roy, Marksville, LA, for Plaintiffs-Appellees, Anita Johnson, Thomas Crawford.
    Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PICKETT, Judge.

_JjThe defendant-appellant, State Farm Mutual Automobile Insurance Company (State Farm), appeals a judgment finding State Farm’s UM policy issued to Anita Johnson provided coverage for an accident involving a phantom tortfeasor and awarding damages to the plaintiffs, Anita Johnson, Adrienne Johnson, and Thomas Crawford.

STATEMENT OF THE CASE

On the night of June 6, 2004, Thomas Crawford was driving a vehicle owned by Anita Johnson on the Pineville Expressway exit of 1-49 North in Alexandria. Anita Johnson and her minor daughter Adrienne Johnson were passengers in the vehicle. While traveling in the far left lane, they hit a guardrail and went down the embankment. The car was disabled, and all three suffered injuries for which they were transported by ambulance to the hospital.

Ms. Johnson, individually and on behalf of her daughter Adrienne, and Mr. Crawford sued her insurer State Farm pursuant to the uninsured motorist coverage included in her policy. They alleged that a grey vehicle moving at a high rate of speed suddenly moved from the right lane into the left lane of traffic on the exit ramp and caused them to have to take evasive action which resulted in their running off the road, into the guardrail, and down the embankment. They were unable to identify the vehicle or the driver. State Farm denied coverage, alleging that there was no independent and disinterested witness as required by the policy and La. R.S. 22:1295(l)(f) to recover for damage from a “phantom tortfeasor.”

|2The case was tried on February 22, 2008. At that trial, the plaintiffs were unable to produce Jordie Jefferson, whom they claimed witnessed the accident. The trial court kept the record open in order to allow the plaintiffs to find Mr. Jefferson. The trial resumed on October 17, 2008, at which time Mr. Jefferson testified that he was traveling on the exit ramp ahead of the plaintiffs, he saw a vehicle rapidly approach both cars from behind and then move into the left lane at which time the plaintiff’s headlights disappeared. The car then passed Mr. Jefferson’s vehicle at a high rate of speed.

The trial court found Mr. Jefferson’s testimony to be credible, found that the State Farm policy provided coverage, and awarded damages. In written reasons for judgment signed on January 23, 2009, Mr. Crawford was awarded $5,251.12 in medical damages and $8,500.00 in general damages, Ms. Johnson was awarded $2,528.40 in medical damages and $5,000.00 in general damages, and Adrienne was awarded $2,015.80 in medical damages and $5,000.00 in general damages. A judgment in conformity with the written reasons was signed on March 20, 2009. State Farm now appeals.

ASSIGNMENTS OF ERROR

State Farm asserts four assignments of error:

1.The trial court found it sufficient to find Jordie Jefferson to be a “credible” witness, not an “independent and disinterested” witness, as required by La. R.S. 22:1295(l)(f).
2. The trial court erred when finding that Jordie Jefferson could serve as a witness necessary for the plaintiffs to recover uninsured motorist benefits pursuant to La. R.S. 22:1295(1)©.
|s3. The trial court erred when finding that Jordie Jefferson could serve as an independent and disinterested witness necessary for the plaintiffs to recover uninsured motorist benefits pursuant to La. R.S. 22:1295(1)©.
4. The trial court erred in making general damage awards to Thomas Crawford in the amount of $8,500.00, Anita Johnson in the amount of $5,000.00, and Adrienne Johnson in the amount of $5,000.00 in light of their active treatment histories.

DISCUSSION

State Farm’s first three assignments of error allege that Mr. Jefferson was not an “independent and disinterested” witness as required by the policy language and La. R.S. 22:1295(1)©. The relevant policy language states:

Uninsured Motor Vehicle under coverages U and UEO means:
3. a land motor vehicle:
a. the driver of which remains unknown;
b. that causes bodily injury to the insured; and
c. that strikes neither the insured nor the vehicle the insured is occupying.
The insured must prove, by an independent and disinterested witness, that the actions of such unknown driver were the cause of the bodily injury.

Louisiana Revised Statutes 22:1295(1)© states:

Uninsured motorist coverage shall include coverage for bodily injury arising out of a motor vehicle accident caused by an automobile which has no physical contact with the injured party or with a vehicle which the injured party is occupying at the time of the accident, provided that the injured party bears the burden of proving, by an independent and disinterested witness, that the injury was the result of the actions of the driver of another vehicle whose identity is unknown or who is uninsured or un-derinsured.

State Farm’s first assignment of error alleges that the trial court failed to specifically find that Mr. Jefferson was an independent and disinterested witness, and therefore the judgment is in error. We disagree. In order for the trial court to find |4State Farm liable under the policy, it necessarily had to find that Jefferson was both independent and disinterested and not just credible. The issue of whether Mr. Jefferson was an independent and disinterested witness was squarely placed before the court by State Farm, and in fact was the main issue on the second day of the trial. The trial court had to find that Mr. Jefferson was an independent and disinterested witness to impose liability and award damages. The first assignment of error lacks merit.

In its second assignment of error, State Farm alleges that Mr. Jefferson did not actually see the phantom vehicle run Mr. Crawford off the road and could not serve as a witness.

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.

Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

Here, Mr. Jefferson testified that on the night of the accident, he met up with the plaintiffs earlier in the evening at the bowling alley, and that they were all going from the bowling alley to Ms. Johnson’s home. He was ahead of the plaintiffs’ vehicle, but he saw their headlights in his rearview mirror. While on the exit ramp, he saw another set of headlights in the right lane. When he looked up again, he saw the second set of headlights in the left lane and did not see the plaintiffs headlights. Immediately thereafter, the second vehicle passed him at a high rate of speed. He could only identify it as a small grey car.

| fiFrom this testimony, which corroborated the testimony of Ms. Johnson and Mr. Crawford, the trial court made the reasonable inference that the phantom vehicle ran the plaintiffs vehicle off the road. We find no manifest error in that conclusion.

In its third assignment of error, State Farm argues that the trial court erred in finding Mr. Jefferson independent and disinterested. This is a finding of fact subject to the manifest error standard of review. Rosell, 549 So.2d 840. State Farm argues that at the time of the accident, Mr. Jefferson had a sexual relationship with Ms. Johnson’s adult daughter, was a frequent guest in Ms. Johnson’s home, and at times spent the night. At the time of the trial, Mr. Jefferson was married to another woman and had not dated Ms. Johnson’s daughter for several years.

The terms independent and disinterested are not defined in the statute or in the policy. This court has addressed this issue once before and stated:

A person who is dependent, either wholly or partially, upon one who stands to recover cannot be an independent and disinterested witness. Nor can a person who lives with and has a close relationship with one who stands to recover be considered a disinterested witness within the meaning of La. R.S. 22:1406(D)(l)(f).

Stracener v. Millers Cas. Ins. Co. of Texas, 96-138, pp. 2-3 (La.App. 3 Cir. 11/6/96), 682 So.2d 940, 941 (emphasis in original). In Stracener, we found that the daughter of the plaintiff who was a passenger in the vehicle at the time of the accident and who lived with her mother was not an independent and disinterested witness.

The situation before us is distinguishable from the situation in Stracener. While Mr. Jefferson testified that he lived in Ms. Johnson’s home for a short time while he was dating her daughter, at the time of the trial he had no financial interest in the outcome of the trial. See O’Boyle v. Piglia, 95-990 (La.App. 5 Cir. 2/27/96), 670 So.2d 1339 (police officer who collided with the insured no longer had a financial interest in the action and could serve as an independent and disinterested witness to testify about a phantom vehicle where the officer settled her claims with the insured before the trial). Thus, the trial court did not commit manifest error in finding Mr. Jefferson to be an independent and disinterested witness. This assignment of error lacks merit.

In the final assignment of error, State Farm argues that the damage awards are too high. “In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” La.Civ.Code art. 2324.1. The trial court has “much discretion” in setting damage awards. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). “It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.” Id. at 1261.

Ms. Johnson, who was forty-six years old at the time of the accident, suffered a fractured rib, a broken finger, and a concussion in the accident. She suffered from several weeks of pain with the broken rib and may have developed arthritis in her finger as a result of the break. She was awarded medical damages of $2,528.40. We cannot find that an award of $5,000.00 in general damages to Ms. Johnson is an abuse of the trial court’s vast discretion.

Mr. Crawford, who was thirty years old at the time of the accident, suffered bruises and contusions to his back, head, and side as a result of the accident. His 17injuries persisted for at least a month, and he missed a month of work. At the time of trial, he still suffered from bad headaches. He was awarded medical damages of $5,251.12. We cannot find that an award of $8,500.00 in general damages is an abuse of the trial court’s vast discretion.

Adrienne Johnson, who was ten years old at the time of the accident, suffered bruises and contusions as a result of the accident, and her symptoms persisted for about two weeks. She was awarded $2,015.80 in medical damages. We find that the trial court’s award of $5,000.00 in general damages for this injury is an abuse of discretion. We find that the highest amount he could have awarded, based on these facts, is $2,000.00.

CONCLUSION

We amend the general damage award granted to Adrienne Johnson from $5,000.00 to $2,000.00. The judgment of the trial court is affirmed in all other respects. Costs of this appeal are assessed as follows: 85% to State Farm and 15% to Anita Johnson.

AFFIRMED AS AMENDED.


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Oterrel Joseph BOUTTE.
    No. KA 09-583.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 2009.

      Michael Harson, District Attorney, Lafayette, LA,- for Plaintiff/Appellee, State of Louisiana.
    William Jarred Franklin, Louisiana Appellate Project, Bossier City, LA, for Defendant/Appellant, Oterrel J. Boutte.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

LThe Defendant, Oterrel Joseph Boutte, was convicted of monetary instrument abuse, in violation of La. R.S. 14:72.2 and was ordered to serve ten years at hard labor. Defendant is now before this court asserting three assignments of error. Defendant contends there is insufficient evidence to prove the offense of monetary instrument abuse beyond a reasonable doubt, the trial court erred in denying his motion for mistrial, and the sentence imposed is excessive for this offender and this offense. We affirm.

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, Defendant contends there was insufficient evidence to prove his guilt for the offense of monetary instrument abuse beyond a reasonable doubt.

In reviewing the sufficiency of the evidence to support a conviction ..., an appellate court in Louisiana is controlled by the standard of review adjudged by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979),
“[T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984).

State v. Desoto, 07-1804, p. 7 (La.3/17/09), 6 So.3d 141, 146.

Louisiana Revised Statute 14:72.2(B) provides, in pertinent part:

Whoever makes, issues, possesses, sells, or otherwise transfers an implement designed for or particularly suited for making a counterfeit or forged monetary instrument with the intent to deceive a person shall be fined not more than one million dollars but not less than five thousand dollars, or imprisoned, with or without hard labor, for not more than ten years but not less than six months, or both.

Captain Ted Vincent testified that he received a tip from Crime Stoppers on 12March 25, 2003. The tip consisted of information regarding someone at a local motel making counterfeit checks. It included the motel room number and information that the person was wanted by the sheriffs office.

Captain Vincent went to the Super 8 Motel in Lafayette, Louisiana. He knocked on the door of room 311. There was no response, but Captain Vincent heard someone inside the room. Captain Vincent entered the adjacent room and “could see someone from 311 had jumped out the window.” Captain Vincent did not see the person. He then entered the room.

Once inside the room, Captain Vincent found a Louisiana identification card belonging to Defendant and clothes with a dry cleaning ticket in the name of Defendant. It appeared that more than one person had been occupying the room, and it was registered to someone other than Defendant.

Sergeant Keith Gremillion testified that when he entered room 311, he observed a computer with the image of a check on the screen. The evidence taken from the scene also includes check-writing software entitled “VersaCheck.” There were several printers in the room and “check stocks” from a business named P.B.W.

Sergeant Gremillion also found a Social Security Administration identification card issued to Edith M. Johnson, an envelope addressed to Joe Lewis, and a flyer from Bank One addressed to Edith Johnson. Sergeant Gremillion testified that Edith Johnson is Defendant’s mother and Joe Lewis is his step-father. Sergeant Gremil-lion further confirmed that dry cleaning tags and receipts and a Louisiana identification card, all bearing Defendant’s name, were found inside the motel room.

Sergeant Gremillion interviewed Defendant in April 2003. During that interview, Defendant denied he was the person who jumped out the window of room|a311. Defendant stated the stolen computer in the room “was for” a guy named Jazzy. Jazzy’s computer was in the room because he pawned it to Defendant for crack. Defendant told Sergeant Gremillion that faked checks were being made on the computer, and that he had even seen Jazzy make them.

Defendant denied that he created any of the checks found in the room and stated that Jazzy created them. When asked how the check made out to Joe Lewis got into the room, Defendant responded as follows:

Uh, like I told you, the other dude Jazzy would give me the money he made while I stayed to get an account. Maybe we should have taken him yesterday, but, you know, he gave me money to give him the account. I got him an account. You know, he did his thing and I was supposed to bring a check back. I just never had a chance to. And basically that’s what it was about.

Defendant further stated that Jazzy wanted a copy of the check to put in the computer. Defendant indicated that was the only check he gave to Jazzy.

Sergeant Gremillion testified that he never found Jazzy. Sergeant Gremillion further testified that persons other than Defendant negotiated checks. However, he agreed that “most roads lead to” Defendant. He stated there was no way to tell who had been using the computer and creating the checks.

Police also arrested Tyrus Breaux, whose name the motel room was in, because checks were being made out to him. Breaux told Sergeant Gremillion that he left the motel room at 6:30 a.m. on the date in question and Defendant and two other people were still there. Sergeant Gremillion admitted that he never asked Defendant the last day he stayed at the motel.

John Lowrance, the owner of Wetco formerly known as P.B.W., testified that Joe Lewis worked for him in March of 2003. Lowrance testified that State’s Exhibit 4 was a payroll check he made out to Lewis. The check to Lewis was reissued because |4Lewis told Lowrance he had never received the check.

Lowrance did not recognize a company check made out to Celest Meche, as he had never employed anyone by that name. Lowrance testified the check was not produced by him and he had never produced checks like the Celest Meche check. Low-rance further testified that Defendant did not have permission to write checks for the company.

Defendant contends the only evidence of a connection between himself and the computer was his statement that Jazzy pawned it to him in exchange for drugs. Further, he argues the State failed to prove he possessed the computer and printers or that the used them for counterfeiting purposes.

Defendant further contends the State failed to prove the implement was designed for, or particularly suited for, making a counterfeit or a forged monetary instrument. Defendant asserts the alleged implement was a computer and the legislature never intended to prohibit the possession of computers as a counterfeiting tool. Defendant further argues that the State failed to prove the computer and printers were designed or particularly suited for counterfeiting activities. Defendant asserts the State attempted to proceed on the theory that “the manner in which it was used” rendered its possession illegal. However, the legislature did not include the “manner used” language in the statute. Lastly, Defendant asserts the State failed to show he possessed the implements with intent to deceive. The State never showed Defendant possessed the computer for any other reason than he had taken the computer from Jazzy as payment for drugs.

Defendant asserts the State relied on the use of the computer as an implement designed for, or particularly suited for. making a counterfeit or forged monetary | .¡¡instrument. The State asserted, in its closing argument:

Without a check, a template, could this have happened? Well, I don’t believe so, at least as it involves PBW because without the real check and the account, how is he going to make the other checks? How is he going to make a check made out to Celeste Meche without Joe Lewis’ check?
The evidence is there. It’s right in front of you. The defendant admitted everything himself. He is the person that made this possible. It was his computer by his own admission that is making checks. Jazzy is making checks. He admitted, “My computer was making checks.” And on top of that, he was helping make checks because he was giving him the check that was being used to make checks.

No Louisiana case has addressed the meaning of the term “implement,” but federal jurisprudence has addressed the issue. In U.S. v. Holloman, 981 F.2d 690 (3d Cir.1992), cert. denied, 509 U.S. 907, 113 S.Ct. 3002, 125 L.Ed.2d 695 (1993), the defendant argued that cancelled checks in his possession were not implements falling within the statutory language of 18 U.S.C. § 513(b), which states:

Whoever makes, receives, possesses, sells or otherwise transfers an implement designed for or particularly suited for making a counterfeit or forged security with the intent that it be so used shall be punished by a fine under this title or by imprisonment for not more than ten years, or both.

The court noted there was nothing to suggest that a cancelled check bearing particularly useful information may not be an implement of counterfeiting or forgery. The court noted the statute included language covering an implement designed for and an implement particularly suited for making a counterfeit or forgery. The court went on to find that the cancelled check was particularly suited for making a counterfeit or forgery in the hands of someone like the defendant. In U.S. v. Wade, 266 F.3d 574 (6th Cir.2001), cert. denied, 535 U.S. 964, 122 S.Ct. 1381, 152 L.Ed.2d 372 (2002), the court found that checks without signatures were implements under 18 U.S.C. § 513(b). Clearly then, the State proved Defendant committed monetary instrument abuse by providing Jazzy | ¿with, or possessing checks to use as, a template to create counterfeit checks.

Defendant challenges the notion that a computer may also be considered an implement under the language of the statute. After all, as Defendant notes in brief, “to prohibit the possession of computers ... would criminalize the behavior of most citizens in today’s technological world.” Defendant misses the point by discussing a computers in general as opposed to discussing this one in particular. The computer at issue had with it software that was designed for, and particularly suited for, producing checks. Furthermore, Defendant, himself, admitted that counterfeit checks had been produced from that computer. He had seen it himself. So, was this computer, with accompanying printers and software, “particularly suited” to produce the counterfeit instruments found with it? Certainly. Otherwise, “Jazzy” would have been unable to produce them while Defendant looked on. For theses reasons, this assignment of error lacks merit.

MISTRIAL

In his second assignment of error, Defendant contends the trial court erred in denying his motion for mistrial.

Defendant asserts that Captain Vincent testified that the anonymous tip from Crime Stoppers indicated that a person wanted by the Lafayette police was in room 811. Defendant asserts the testimony regarding the warrant placed the jury on notice that someone had allegedly committed other crimes. Defendant moved for a mistrial, but the trial court ruled it was not necessary since Sergeant Vincent had not identified Defendant as the person who had an outstanding warrant, making the request premature.

Defendant contends that Sergeant Gremillion later identified Defendant as the 17person with the bench warrant. Defendant asserts that this testimony removed all doubt as to the identity of the wanted person and the only inference to be drawn was that he had committed “prior other crimes.”

While a mistrial is mandatory when a judge, district attorney, or court official refers to inadmissible other crimes evidence in the presence of the jury, our jurisprudence has held that a police officer is not a “court official.” See State v. Carter, 412 So.2d 540 (La.1982); State v. Gene, 587 So.2d 18 (La.App. 2d Cir.1991), writ denied, 604 So.2d 993 (La.1992).
When a police officer makes such a reference, factors which may be considered in determining whether a mistrial is warranted are whether the statement was deliberately elicited by the district attorney, whether it was responsive to the question, and whether the witness purposely uttered it to prejudice the defendant. State v. Parker, 27,417 (La.App. 2d Cir.9/27/95), 661 So.2d 603, writ denied, 95-2576 (La.2/16/96), 667 So.2d 1049; State v. Williams, 26,655 (La.App. 2d Cir.3/1/95), 651 So.2d 331, writ denied, 95-0777 (La.9/15/95), 660 So.2d 448. Generally, ambiguous or obscure references to other crimes made without explanation or elaboration do not prejudice the defendant. State v. Williams, supra; State v. Gene, supra.

State v. Brooks, 40,186, p. 7 (La.App. 2 Cir. 10/26/05), 914 So.2d 110, 114.

During Captain Vincent’s testimony, he stated: “That tip was consistent with information in regards to someone making counterfeit checks at a local motel. They gave the specific room number as well as information that he was presently wanted by the Sheriffs office.” At that time, defense counsel moved for a mistrial, asserting Captain Vincent’s response indicated there was an outstanding warrant for Defendant. The trial court denied the motion, finding Captain Vincent had not given the name of the person with the outstanding warrant. The trial court instructed defense counsel that it was giving him the opportunity to later seek an admonishment if he chose to do so. Defense counsel then indicated he did not wish for the trial court to do so.

In State v. Bridgewater, 00-1529 (La.1/15/02), 823 So.2d 877, cert. denied, 587 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003), the supreme court found that a 911 caller’s |8statement that “two [unidentified] blacks had committed some robberies in the area,” did not refer to any specific crime committed by the defendant but merely referenced the caller’s personal knowledge of recent robberies committed in her neighborhood by two unidentified African-American males. Further, this ambiguous reference did not render it impossible for the defendant to obtain a fair trial.

As in Bridgewater, the trial court properly denied the motion for mistrial, as Captain Vincent did not testify that the outstanding warrant was for Defendant and his testimony would be considered an ambiguous reference, which did not deprive Defendant of a fair trial.

During the taking of Defendant’s statement, Sergeant Gremillion asked the following question:

Oterrel, what I’m going to do is I’m going to talk about an incident that happened on March 26, 2003. It occurred at Super 8 Motel in Room 311. Myself and several officers went in reference to a complaint we had about some counterfeit checks being produced from that room and also that you were staying there at the time. It was determined that there were some bench warrants issued for your arrest. The officers knocked on the door and someone jumped out of the window. Was that you that jumped out of the window?

At the time this testimony was given, defense counsel did not object. A defendant cannot avail himself of an alleged error unless he made a contemporaneous objection at the time of the error. Thus, Defendant may not now complain about this testimony. La.Code Crim.P. art. 841(A); State v. Willis, 05-218 (La.App. 3 Cir. 11/2/05), 915 So.2d 365, writ denied, 06-186 (La.6/23/06), 930 So.2d 973, cert. denied, 549 U.S. 1052, 127 S.Ct. 668, 166 L.Ed.2d 514 (2006).

For these reasons, this assignment of error lacks merit.

EXCESSIVE SENTENCE

In his third assignment of error, Defendant contends the sentence imposed is |9excessive for this offender and this offense. In this assignment of error, Defendant attacks the excessiveness of the habitual offender sentence imposed for the underlying conviction of monetary instrument abuse. This assignment is mooted by our ruling in appellate docket number 09-404, wherein we vacated the sentence and remanded the matter to the trial court for a new habitual offender adjudication.

DECREE

Defendant’s conviction is affirmed.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    Ruben M. O’NEAL, III and Mastermatch, Inc., Plaintiffs-Appellants, v. TOTAL CAR FRANCHISING CORPORATION, Defendant-Appellee.
    No. 44,793-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 16, 2009.

      Cook, Yancey, King & Galloway by Bernard Slattery Johnson, Shreveport, for Appellants.
    Blanchard, Walker, O’Quinn & Roberts by M. Thomas Arceneaux, Shreveport, for Appellee.
    Before BROWN, GASKINS, DREW, MOORE, and LOLLEY, JJ.
   BROWN, Chief Judge.

| plaintiff, Ruben O’Neal, entered into a Limited Rights Franchise Agreement with defendant, Total Car Franchising Corporation (“Total Car” which is “Colors on Parade”), a mobile automobile painting business whose home office is in Myrtle Beach, South Carolina. The agreement, which was prepared by Total Car, required plaintiff to pay $500 up front plus 40% of the franchise’s gross income. Furthermore, plaintiff had to buy a van and send it to South Carolina to be outfitted. In exchange, plaintiffs franchise obtained the exclusive territorial rights to car dealerships in Shreveport/Bossier City, Louisiana. An Area Developer (“AD”), who according to Total Car is an independent contractor, handled the invoicing and the collection and distribution of money on behalf of defendant. Serious disputes arose between plaintiff and the AD.

On October 8, 2007, Total Car filed for arbitration in South Carolina against O’Neal seeking $68,756 in damages and enforcement of a noncompetition agreement. On October 19, 2007, plaintiff filed this action in the 26th Judicial District Court against Total Car to terminate the franchise agreement and for damages for breach of contract. Total Car subsequently dropped the arbitration filing in South Carolina and filed a Dilatory Exception of Prematurity in the 26th Judicial District Court, which the trial court granted. O’Neal raises one assignment of error on appeal, arguing that the trial court erred in holding that the arbitration clause in the | ¿franchise agreement applied to this particular dispute. We reverse and remand.

Discussion

The defense to a petition that a plaintiff is not entitled to judicial relief because of a valid agreement to submit claims to arbitration may be raised by the dilatory exception pleading prematurity pursuant to La. C.C.P. art. 926(A)(1). Cook v. AAA Worldwide Travel Agency, 360 So.2d 839 (La.1978); Long v. Jeb Breithaupt Design Build Inc., 44,002 (La.App.2d Cir.02/25/09), 4 So.3d 930; Town of Homer v. General Design, Inc., 42,027 (La.App.2d Cir.05/30/07), 960 So.2d 310, writ denied, 07-1820 (La.11/09/07), 967 So.2d 510. When the issue of failure to arbitrate is raised by the exception pleading prematurity, the defendant pleading the exception has the burden of showing the existence of a valid contract to arbitrate, by reason of which the judicial action is premature. Cook, swpra; Long, supra.

An arbitration agreement is a contract subject to the general rules of contract interpretation. Doctor’s Associates Inc. v. Casarotto, 517 U.S. 681, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996). Even in light of the strong public policy in favor of arbitration, we will not authorize arbitration where a contract does not evidence a mutual consent between the parties to arbitrate. In the instant case, O’Neal submits that the language of the arbitration clause does not subject disputes between him and Total Car to arbitration. Thus, we are called to determine whether there is a valid agreement to arbitrate between the stated parties.

laThe franchise agreement contains a dispute resolution provision for “disagreements within the Colors on Parade community.” The franchise agreement provides, in Section 12: “Colors on Parade has implemented a dispute resolution procedure involving three basic steps. You agree to abide by this procedure.” (Emphasis added). The language does not specifically state that “we” agree to abide by the procedure. In the second step of the process, mediation is also addressed. The agreement states that “in cases of disputes among members of the community, we will provide a list of three suggested mediators to deal with the situation.” The part of the provision relating to the third step, binding arbitration, provides: “One or each disputant submits a demand for arbitration to us. We will assist in the selection of arbitrators and serve as case administrator.” (Emphasis added). These passages cast Total Car/Colors on Parade as a neutral administrator, not a disputant, in the “disputes” contemplated by this agreement.

Colors on Parade argues that it is a member of the “Colors on Parade community,” and thus obligated to follow the resolution procedure. However, this is inferential and does not address the specific language of Section 12. Despite the heavy weight of the presumption in favor of arbitration, we are not convinced that the “issue involved in this suit or proceedings is referable to arbitration under” the franchise agreement. La. R.S. 9:4202. Under these circumstances, the agreement “is not susceptible of an interpretation that could cover the dispute at issue.” Aguillard v. Auction Management Corp., 04-2804 (La.06/29/05), 908 So.2d 1, 18.

|4We note that both the president and the attorney for Total Car testified that the language in Section 12 of the agreement has since been changed. Again, this language does not make it clear that Total Car itself is covered. The contract appears to provide for the arbitration of disputes between the AD and franchisee, but it does not evidence a mutual consent between plaintiff and Total Car to arbitrate the claims involved in this case.

Further, there are also competing public policies involved: 1) those favoring arbitration, and 2) those setting forth the proposition that noncompete agreements are not favored and must strictly follow Louisiana statutory law. To apply Georgia law to a noncompete agreement limiting the ability of a Louisiana citizen to work is contrary to our strong public policy.

REVERSED AND REMANDED.

LOLLEY, J., dissents.

      . O’Neal had started doing business as Mast-ermatch, Inc. Mastermatch, Inc., was also named as a plaintiff. An exception of no right of action was granted and Mastermatch, Inc., was dismissed from this action.

      . The arbitration agreement called for the application of Georgia law to resolve all arbitrated disputes.