Louisiana Supreme Court Report |
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  Keep up with the latest news from the Louisiana Supreme Court. We take the latest decisions, arrange them by category, summarize the decision, and post it here with a link to see the full decision. Decisions are usually posted the same day they are released by the Supreme Court. As an added convenience, you can also arrange to have us email you with the new decision summaries as they are posted here.
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January 31, 2003
Lawyer disbarred by consent for multiple offenses [disc]
Numerous complaints by clients that attorney did not take care of her cases, failure to turn over settlement proceeds to client, and fact that attorney ignored letters from the ODC led to disbarment by consent. Re: Rhea H. Woods Permalink
Expert testimony that defendant lacks predilection to molest not admissable [crim]
Defendant was charged with aggravated rape of a juvenile and seeks to admit psychological evidence at trial that he does not have the profile of a child sexual predator. Supreme Court grants mid-trial writs. A defendant can present character evidence in the nature that they do well with children, but not expert evidence that they have no predilection to molest children. State v. Hughes Permalink January 28, 2003
New lawyer suspended 3 months over solicitation complaint [disc]
New attorney, former clerk with firm, is given assignment by law firm to manage paralegals who do personal injury work. Law firm creates new firm in new attorney's name, apparently to avoid connection with solicitation of clients claims. New attorney becomes concerned that the paralegals under her supervision are practicing without a license. New attorney turns herself in, so to speak, and gets nine month suspension with six months of the suspension deferred. Re: Greer E. Goff Permalink
Jurisdiction as to intent and actual commission of crime [crim]
Argument over jurisdiction where it was unclear whether the intent to commit a crime and the various crimes themselves occurred in Lafourche or Calcasieu parishes. A motion to quash based on jurisdiction was denied by the trial court, overturned on appeal, and reinstated by the Supreme Court. State v. Hayes Permalink
State has burden to show ownership of property for enhanced sentencing [crim]
Defendant convicted of selling cocaine within 1,000 feet of a playground and gets enhanced sentence. The actual measured distance was 921 feet. Defendant gets 15 year sentence. The Supreme Court held that the prosecutor failed to prove that the property was in fact a playground owned by a political subdivison of the state. It could have been privately owned. Sentence reduced to distribution of cocaine and remanded for new sentence. State v. Bedford Permalink
Employee does not make de facto doctor choice in workers' comp cases [tort]
Worker's compensation: writs taken as to whether employee who submits to treatment by employer suggested doctor, makes a de facto choice of doctor under 23:1121(B). The circuits are split so writs are taken. Supreme Court agrees with Fourth Circuit that the statute does not apply. Smith v. Southern Holding Permalink
Judge suspended for 120 days [disc]
Judge of Oakdale City Court contacted witness' employer about her failure to appear which got her fired. He also: accepted guilty pleas and conducted arraignments without prosecutor present and dismissed traffic offenses after ex parte communications from offenders. Re: Judge Perrell Fuselier Permalink
Vicarious liability for abuse of children [fam]
At issue is whether the Dept. of Social Services (DSS) can be liable for child abuse by foster parents while in custody of DSS. Supreme Court, on cert., agrees that DSS can be vicariously liable for the abuse. Miller v. Martin and DSS Permalink
Damage for future medical and punitive damages reversed in asbestos case [tort]
Action by many plaintiffs over asbestos exposure. The trial court awarded damages that included increased future risk of disease and punitive damages. The awards are reversed and only the damages resulting from property damage are left standing. Bonnette v. Conoco Permalink
Suit over contractual atty fees not subject to no cause of action exception [cont]
Plaintiff seeks to recover fees retained by law firm. Attorneys claim that non-attorney cannot get attorney fees and attacks suit through no cause and right of action exceptions. The attorneys had contracted with plaintiff client to foreclose on client's behalf for fee of $2,000. In foreclosure, defendant attorneys retained $40,000 of settlement as fees. Plaintiff filed suit against attorneys for unjust enrichment and to recover the fees. At issue at exception hearing was whether non-attorney had any legal rights to money. Trial court granted the exception. Appeals court reverses and is upheld by Supreme Court. Plaintiff has right, among other things, to inquire into the reasonableness of attorneys fees. Three dissents. Industrial Companies, Inc. v. Durbin Permalink January 24, 2003
Bounced check to Tulane Law School and neglect of clients gets suspension [disc]
Repeated neglect of clients' cases and failure to refund retainers results in 18 month suspension. Attorney also issued NSF check to Tulane Law School for a seminar and refused to make the check good. Re: Shawn Paul Welcome Permalink
Attorney's failure to tell judge he was suspended causes mistrial [disc]
Attorney is disbarred for additional violations after suspension. Attorney accepted fee in criminal case, but did not tell client or trial judge that he was under suspension. When the court discovered the suspension, a jury had been selected and the result was a mistrial. Attorney did not refund fee to client. Re: Adam Samuel Cohen Permalink
Attorney disbarred for multiple offenses and practicing under suspension [disc]
Nine counts of violations mostly involving accepting retainers and then not pursuing cases. When pressed by clients, attorney would not respond and would not return unearned fees. Attorney also, while suspended for failure to pay Bar fees, continued to practice law. Attorney failed to respond to any of the ODC charges. Attorney is disbarred. Re: Michael J. Bonnette Permalink
Supended attorney permanently disbarred [disc]
Multiple offenses, many of which were committed while under suspension, result in permanent disbarment of attorney. Re: David Allan Hilburn Permalink
Attorney permanently disbarred for theft of client funds [disc]
Attorney disbarred for multiple acts, including taking settlements and forging names to settlement checks in several cases. In one case, criminal charges were filed and the attorney convicted of theft. Afterwards, he made restitution. Attorney's disbarment is made permanent because of a "shocking disregard of his professional obligations." Re: Blair David Condoll Permalink
Advise to lie to grand jury results in attorney being permanently disbarred [disc]
Attorney advised clients involved in child pornography ring to hide pictures taken at their house of under age females being molested and even advised them to change their furniture so it could not be recognized in the photographs. Attorney also advised his client to lie to the grand jury. Attorney was charged by federal authorities with suborning perjury and obstructing justice and was convicted and sentenced to two years. Re: William B. Lynch Permalink
Attorney disbarred for criminal conviction and practicing under suspension [disc]
Several counts of failing to communicate with clients or return unearned portion of fees. Attorney also pleaded guilty to theft of $500 or more in a succession as well as forgery. Attorney was practicing for a portion of this time while under suspension. Re: Glynn W. Reynolds Permalink
Attorney permanently disbarred for practicing under suspension and other acts [disc]
Attorney settles several PI cases but does not deposit proceeds in trust account. Client's new attorney attempts to get files from former attorney, but is ignored and brings complaint to ODC. Attorney also is involved in representing several people in other cases during a period of suspension. Re: T. Kenneth Elbert Permalink
Attorney disbarred for practicing under suspension [disc]
Attorney fails to take care of clients' interests, fails to return fees when terminated as attorney, and continues to practice law while under suspension. Attorney claims that he was not representing client in a criminal matter while under suspension, but merely acting as a family friend. Attorney failed to disclose to ODC that he accepted a retainer in the case. Re: Walter J. Crittenden Permalink
Remanding case for opinion requires that appeals court give reasons [proc]
Fifth Circuit ruling on motion for summary judgment is vacated. Supreme Court orders briefs and opinion on the issue of summary judgment. Fifth Circuit reverses former ruling, but does not give detailed reasons. Supreme Court sends back again for detailed reasons for judgment. Jones v. Congemi Permalink
Lawyer disbarred for serious breaches including practicing under suspension [disc]
Forgery of client's name on settlement check and many other deeds lead to lawyer being disbarred. During part of this time, lawyer was practicing law while under suspension. Re: Charles White Permalink January 14, 2003
Use of trust account to pay offices expenses not allowed [disc]
Attorney has small practice which ordinarily has very little in trust account. The amount is so small, that bank charges are levied. Attorney keeps more money than trust account needs to avoid bank fees and pays office expenses from account. ODC is made aware of situation during investigation on an unrelated complaint. Attorney suspended for 6 months, suspension deferred pending probation. Re: Antoine Laurent Permalink
Attorney trust account inadequate to make disbursements [disc]
Attorney owes medical payments from PI settlement on behalf of client and delays paying bills. During that time, her trust account was below amount necessary for payment. Doctor complains to ODC and attorney suspended for 13 months, but suspension deferred pending a period of probation. Re: Joslynn Renee Alex Permalink
Sentencing is within trial court's broad discretion [crim]
Disparity of sentencing for co-defendants leads to reversal of trial court's sentence. Supreme Court reinstates sentence. Trial court had wide discretion and the sentence received for armed robbery was within the sentencing guidelines. State v. Smith Permalink
District courts should not give "advisory" constitutional opinions [const]
District court finds LSA R.S. 32:389 unconstitutional. The statute allows fines "on the spot" for weight violations. Judgment vacated and remanded since court does not want district courts making constitutional decisions as to legislation unless absolutely necessary and, in this case, prematurely since the statute in question was revised and the opinion became more "advisory." Ring v. DOT Permalink
Death sentence reversed on new evidence [crim]
Conviction and death sentence overturned. A co-defendant admitted after trial that he was the one who, in fact, committed the murder. The state claimed this admission was part of a heated exchange and should be given no weight. Supreme Court notes that the statement was made a second time to police and fit in with the original confession of the defendant. State v. Watts Permalink
Evidence of other crimes admissable as a "story of guiltiness" [crim]
In murder case, can evidence of crimes that occurred in other states after the prosecuted crime be admitted? Yes, as part of a "narrative completeness" incorporated into the res gestae doctrine. In this case, Taylor and others stole a car from a dealer, murdered the salesman, robbed a bank in Iowa and went on a crime spree that ended when they were arrested at the US border. The prosecutor can "tell a story of guiltiness." Other issues involved the sentencing phase that resulted in a death sentence and victim impact evidence. State v. Taylor Permalink
Claim against nursing home must go to medical review panel [tort]
Is complaint filed under NHRBR (Nursing Home Residents' Bill of Rights) a malpractice claim that would come under the MMA (Louisiana Medical Malpractice Act)? (La.R.S. 40:1299.41) The nursing home filed exception of prematurity saying the claim was for malpractice and therefore had to go before the medical review panel as required by the MMA before suit could be filed. Trial court granted exception. Plaintiff claimed she had a right primarily under NHRBR to be free of abuse and neglect and that under NHRBR her rights were in addition to any other rights, such as MMA. Supreme Court decides that nursing homes definitely come under MMA as "qualified health care providers" Court further makes clear that not all negligent acts of a nursing home would apply, only those based on medical care. Richard v. La Extended Care Permalink
Specific intent to kill can be established by totality of evidence [crim]
Conviction for attempted second degree murder is reinstated. At issue is whether there was sufficient evidence at trial of specific intent. The victim was severely beaten and testimony indicated that while the injuries themselves may not have been life threatening, the total situation and delay in getting medical help could have caused death. After a jury conviction, the defendant was sentenced to 50 years. State v. Bishop Permalink
Jogger injured by golf ball sues City Park [tort]
Jogger loses testicle as result of golf ball that hits him in the groin. Jury finds New Orleans City Park Improvement Assoc. 40% liable and plaintiff 60% liable. Trial court and appeals courts are overruled by Supreme Court which finds that the golf course did not represent an unreasonable risk of harm after applying a duty-risk analysis. Since the jogger grew up in the area, he was familiar with the possible risk of jogging next to the park. McGuire v. N.O. City Park Permalink January 10, 2003
Attorney suspended for two years under deemed admitted ruling [disc]
Attorney settles PI case and delays paying client settlement proceeds claiming it will take a long time since check is coming from another state. Client calls insurance company after about six weeks and is told attorney cashed the settlement check the prior month. Client complains to the ODC. Attorney did not respond and "deemed admitted" rule came into play since there was evidence that the attorney also forged the client's signature on the check. Once deemed admitted, the ODC bears no further burden to prove the factual allegations. Re: Susan L. Donnan Permalink
Evidence of prior crimes admissable in cruelty to juvenile case [crim]
Evidence of prior crimes admissible. Trial court ruling is reinstated in a cruelty to child case with shaken baby syndrome. Evidence of prior broken leg of child was admissible as to issues of intent and absence of mistake or accident. State must notify defendant of intent to introduce such evidence, which was done in this case. State v. Galliano Permalink |
