Samuel Barker v. Chief Disciplinary Counsel Charles B. Plattsmier, The Louisiana Attorney Disciplinary Board (A State Agency), Karen H. Green - Deputy Disciplinary Counsel, Michael P. Wilson - Screening Counsel, Panel - A Counsels Anderson O. Dotson III, Linda G Bizzaro a ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2019 CA 1073
VERSUS
CHIEF DISCIPLINARY COUNSEL CHARLES B. PLATTSMIER, THE
LOUISIANA ATTORNEY DISCIPLINARY BOARD A STATE AGENCY),
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KAREN H. GREEN -DEPUTY DISCIPLINARY COUNSEL, MICHAEL P.
WILSON -SCREENING COUNSEL, PANEL -A COUNSELS ANDERSON O.
DOTSON III, LINDA G. BIZZARO, CHARLES H. WILLIAMSON, JR., AND
AUTUMN HARREL H2LAW, LLC
Judgment Rendered: MAY 112020
Appealed from the 19" Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Case No. C675406
The Honorable R. Michael Caldwell, Judge Presiding
Samuel Barker Appellant/ Plaintiff
Angola, LA In Proper Person
Jeff Landry Counsel for Appellee/ Defendant
Attorney General Louisiana Attorney Disciplinary Board
David G. Sanders
James " Gary" Evans
Andre Charles Castaing
Baton Rouge, LA
Glenn B. Adams Counsel for Appellee/ Defendant
Corey D. Moll Autumn Harrell
New Orleans, LA
BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ.
LANIER, J.
The appellant, Samuel Barker, an inmate incarcerated with the Louisiana
Department of Public Safety and Corrections ( LDPSC) at the Louisiana State
Penitentiary in Angola, Louisiana, filed a state civil rights violation petition for
damages on October 25, 2018, stemming from alleged civil rights violations
committed against him by his court-appointed trial counsel, Autumn Harrell.
Specifically, Mr. Barker alleged that: Ms. Harrell acted unethically in violation of
the Louisiana Rules of Professional Conduct for failing to visit him to discuss his
case prior to the beginning of his criminal trial; for representing him despite having
a conflict of interest; and for allegedly suggesting to the jury during closing
arguments that Mr. Barker was guilty on at least one count, despite his desire to
maintain his innocence on all counts.'
Mr. Barker initially filed a complaint against Ms. Harrell with the Louisiana
Attorney Disciplinary Board ( LADB), which the LADB dismissed for its failure to
meet the burden of clear and convincing evidence that Ms. Harrell had engaged in
unethical conduct in violation of the Louisiana Rules of Professional Conduct. Mr.
Barker' s subsequent appeal of the LADB' s decision was also dismissed. Mr.
Barker then appealed that ruling to the Louisiana Supreme Court, and that appeal
was denied. With his remedies exhausted, Mr. Barker filed the present petition for
damages with the Nineteenth Judicial District Court, naming Ms. Harrell and the
LADB as defendants and seeking monetary damages from Ms. Harrell and a
reversal of the LADB' s dismissal of his complaint.
In response to the petition, the LADB filed exceptions raising the objections
of improper service and no cause of action. Ms. Harrell also filed exceptions
Mr. Barker was charged in Orleans Parish on nine counts, seven of which were felonies. After
a trial by jury, he was found guilty as charged on six of the seven felony counts, and found guilty
of a responsive misdemeanor on the seventh count. After a bench trial on the remaining two
misdemeanor counts, Mr. Barker was found guilty on one count and not guilty on the other.
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raising various objections, two of which were lack of subject matter jurisdiction
and improper venue. Following a hearing on February 11, 2019, the district court
ruled that the LADB' s exception raising the objection of improper service was
withdrawn, and the exception raising the objection of no cause of action was
granted. With respect to Ms. Harrell, the court ruled that her exceptions raising the
objections of lack of subject matter jurisdiction and improper venue were granted.
In a judgment signed on March 6, 2019, the district court dismissed Mr. Barker' s
petition against the LADB and Ms. Harrell with prejudice.
Mr. Barker applied for supervisory writs with this court on March 7, 2019 in
response to the district court' s judgment. We denied the application, finding that
the district court' s judgment of March 6, 2019 was final and appealable, and that
Mr. Barker could file a motion for appeal with the district court pursuant to La.
C. C. P. art. 2087. See Barker v. Louisiana Attorney Disciplinary Board, et al.,
2019- 0267 ( La. App. 1 Cir. 4/ 17/ 19), ( unpublished).
Notice of the March 6, 2019 judgment was mailed to Mr. Barker on March
11, 2019. Mr. Barker filed a motion for appeal on June 21, 2019, which was
granted by the district court on June 27, 2019. No motion for new trial had been
previously filed by Mr. Barker. This court issued an ex proprio motu order on
August 21, 2019 to show cause as to why the instant appeal should not be
dismissed for untimeliness. While this court' s writ panel maintained the appeal, it
reserved the final determination of whether the appeal should be maintained or
dismissed to the merits panel.
Louisiana Code of Civil Procedure article 2087( A)( 1) requires an appeal to
be taken within 60 days of either the expiration of the delay for applying for a new
trial or judgment notwithstanding the verdict, if no application has been timely
filed. The delay for applying for a new trial is seven days, exclusive of legal
holidays, after the mailing of the notice of judgment. La. C. C. P. art. 1974. In the
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instant case, the notice of judgment was mailed on March 11, 2019. The delay for
Mr. Barker to file a motion for new trial ended on March 20, 2019. The delay to
file the instant appeal ended on May 20, 2019, and Mr. Barker did not file the
appeal until June 21, 2019. The instant appeal is therefore untimely on its face.
We recognize that Mr. Barker applied for supervisory writs on March 7,
2019 concerning the same issue as the instant appeal. Although we denied that
writ application on April 17, 2019, its filing did not suspend the running of the
delay for an appeal. See Everett v. Baton Rouge Student Housing, L.L.C., 2010-
0856 ( La. App. 1 Cir. 5/ 6/ 11), 64 So. 3d 883, 885- 86, writ denied, 2011- 1169 ( La.
9/ 16/ 11), 69 So. 3d 1149; Guillory v. Hartford Ins. Co., 383 So. 2d 144, 145 ( La.
App. 3 Cir. 1980). The instant appeal therefore must be dismissed as untimely.
This memorandum opinion is issued in compliance with Uniform Rules -Courts of
Appeal Rule 2- 16. 1. B. All costs are assessed to the plaintiff/appellant, Samuel
Barker.
APPEAL DISMISSED.
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