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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February 28, 2003
Dissent in writ denial believes consolidation is a step in prosecution of a case [proc]
Dissenting opinion believes that consolidating for trial and then dismissing one of plaintiffs from suit because of a settlement should interrupt time period for dismissing entire suit for lack of prosecution. This action should be a step in the prosecution of all cases consolidated. Writs denied with one published dissent. Pichon V. Reynolds Permalink
Dissent would have allowed hearsay evidence [crim]
Hearsay evidence should be admissible where surrounding circumstances assure considerable assurance of the statement's reliability. This is part of a defendant's constitutional right to present witnesses in his own defense (Chambers v. Mississippi, 410 U.S. 284). Dissent in part by Johnson, J., to Court majority's granting in part and denying in part of writ applications. State v. Stokes Permalink February 26, 2003
Attorney makes himself legatee, appeals judgment voiding will [disc] [prob]
Attorney makes himself legatee of client's will, which is a violation of Ethics Rule 1.8(c) (lawyers cannot prepare instrument giving the lawyer or person related to lawyer any substantial gift). Attorney researched issue and even asked another attorney whether he could prepare a will in which he was the residuary legatee and concluded that he could. Attorney apparently had some doubts, because his wife was named alternate legatee should there be any ethical problems with the legacy (also a breach of 1.8(c)). Within a few days of the testator's death, the will is probated and the attorney's interest in the estate is shown to be $163,973. Nephews successfully contest the will and attorney appeals on the basis that a breach of disciplinary rules should not defeat his property interest in the succession. The appeal was denied and writs to the Supreme Court were also denied. Needless to say, the ODC becomes involved with charges of incompetence, conflict of interest and filing a non-meritorious claim, among other things, in addition to 1.8(c). Attorney's defense is that his transgressions were "technical" in nature. Court concludes that even if attorney was unaware of 1.8(c), once he became aware his appeals and refusal to recognize that 1.8(c) applied constituted a deliberate disregard for the ethical rules. Suspension of one year imposed. Re: Lee C. Grevemburg Permalink
Attorney who makes his wife legatee suspended for 3 months [disc] [prob]
Attorney is suspended for three months. Rule 1.8(c) provides that no lawyer shall prepare an instrument giving to the lawyer or person related to the lawyer any substantial gift from a client. The attorney here had prepared a will in which the attorney's wife was the beneficiary of a legacy. In a settlement of a will contest over the deceased's capacity, the attorney's wife renounced any rights under the will. The challenger of the will subsequently filed a complaint with the ODC against the attorney. There were also charges of conflict in the representation of the deceased and representation of the challenger to the will. Respondent answered claiming any violation of 1.8(c) was unintentional. Based on the cooperation by the attorney and remorse shown, a three month suspension is deemed appropriate. Re: Bernard Joseph Blair, II Permalink
Writs recalled when pleadings do not support claims of writ application [tort] [proc]
Writs of certiorari are recalled as improvidently granted. Writs were originally granted to settle a split between two circuits. The issue involved whether a request for medical review panel can be made during trial where joint tortfeasors are claimed to be solidarily liable. Finding that no express allegation had been made by plaintiffs as to solidary liability, the writ is recalled. Schulingkamp v. Ochsner Permalink
Worker's comp carrier failure to authorize treatment triggers penalties [tort]
Does failure by worker's compensation carrier to authorize pre-payment requested by doctor constitute failure to provide medical benefits? A split among the circuits prompts the Supreme Court to decide that the failure to provide a medical procedure to a covered employee constitutes a failure that triggers penalties against the carrier. In an ankle injury, the employee requested certain testing and treatment procedures suggested by his doctor. The carrier refused a pre-payment request by the doctor denying that any benefits were due and the employee filed for benefits, penalties, attorney's fees and litigations expenses. At trial, the employee was awarded $2,000 in damages and $7,000 in attorney's fees. The Fourth Circuit, relying on prior decisions of that circuit, reversed finding that refusal to authorize treatment does not equate to failure to provide payment. In short, it was decided there is no obligation to prepay medical expenses. This is reversed by the Supreme Court with two dissents. Authement v. Shappert Engineering and St. Paul Permalink February 25, 2003
Failure to promote not abitrary where requirements for promotion are known [oth]
Police officer is denied promotion and claims discrimination. Officer was promoted to sergeant on a temporary basis, but failed to pass physical tests. Since he was informed prior to vacancy that passing a physical test was required, the passing over him for promotion was not arbitrary and capricious. Moore v. Ware Permalink
Action to nullify default judgment can be brought by summary process [proc]
Can action for nullity of default judgment be brought by summary proceedings? Sale of assets in bankruptcy proceedings free of prior claims terminated prior lease by confusion. Litigation was commenced in federal court, but remanded to state court by the US Supreme Court. While injunctions against proceeding were still pending, preliminary defaults were taken. On confirmation, it was alleged that no answers had been filed to the suit but completely failed to mention that answers were filed in the federal suit. At the hearing, the plaintiffs also failed to mention that the bankruptcy had extinguished the mortgages. The judgment by default was confirmed for well over $4 million. Motions to vacate the default judgments were filed alleging they were absolute nullities. Plaintiffs responded that motions were unauthorized use of summary process. Trial court agrees with motion to vacate, but appeals court reverses. Supreme Court reverses and reinstates the trial court's judgment nullifying the default judgments. Rivet v. Regions Bank Permalink
Solidary liability of husband and wife on promissory note [cont]
Doctor and wife sign promissory note to bank allowing up to $100,000 in draws. Note requires that both parties sign any draw request. Five requests are submitted to bank by fax totaling over $98,000 in about a two month period. A judgment by default is obtained against the wife only. At trial on collection against the doctor, doctor testifies that he did not sign any draw requests and did not authorize his wife to sign for him. Bank claims both are solidarily liable on the note. Trial court concluded that bank failed to exercise solid banking procedures which was the main cause of the problem. The trial court is affirmed in a 2-1 decision. Doctor raises issue of prescription for first time on appeal and claims that the bank's defense that the doctor failed to notify the bank of forged signatures prescribed by one year prescription. Bank claims the proper period is five years. Supreme Court agrees that five year prescription applies and further finds that the doctor, once he knew forgery occurred, should have notified bank. Reversed in part as to draw requests made after forgery was known. Parish Ntl. Bank v. Ott Permalink
Agency law applies to contractor for public body [cont]
At issue is whether an agency agreement with a government body made the agent free from the liability to pay sales tax in transactions made on behalf of the tax-free government body. Contractor responded to a bid by a port authority that expressly said not to include any sales taxes in the bid. School board argued that there was no agency because contractor could choose vendors and execute contracts in its own name. Court concludes that laws of mandate make it clear that agent can operate under its own name where agency is disclosed. Miller v. Calcasieu Parish School Board Permalink
Large awards to landowners for trespass and contractual obligations affirmed [cont] [tort]
Landowners sue Shell Oil for damages to land due to trespass and from saltwater disposed of on the property. A jury award includes $33 million for failing to return the land to pre-lease condition as well as awards for other specified damages. The Third Circuit affirmed the jury award and increased the attorneys' fees from $689,510 to $4 million. Shell argues that no lessee should be expected to spend more to return the property to a prior condition if the expense is more than the property itself is worth. The plaintiffs reply that the contract is the law between the parties and that is what the contract stipulates. The award of $33 million is affirmed and the award of $4 million in attorneys' fees is affirmed. Corbello v. Iowa Production, Shell Oil Permalink
Worker's comp claim for additional medical benefits prescribed in 3 years [tort]
Does employer payment of worker's compensation indemnity benefits interrupt worker's claim for medical benefits? Court concludes that LSA R.S. 23:1209 is clear and that prescription for additional medical claims runs three years from last time any benefits are paid. In this case, a hearing officer upheld the claim of prescription which was reversed by the First Circuit. This case was taken to settle a split among the circuits. The prescription claim is reinstated and the claim for benefits is dismissed. Bouquet v. Tetra Technologies Permalink
Will contest suit and subsequent damages suit subject to partial res judicata [prob]
Suit for damages resulting from annulment of olographic will based on incapacity of testator and/or fraud and undue influence. Trial court agreed, annulled the testament on capacity issue only, and disqualified executrix. Children of the deceased then file separate suit against former executrix and her husband as trustees and curator for breach of fiduciary duty to them as beneficiaries and heirs. The defendants filed exception of res judicata claiming that the issues had been resolved in the succession suit. The exception was denied by the trial court, but overruled by the 4th circuit which made a finding that the issues in the second suit had arisen in the first suit and should have been brought at that time. At issue before the Supreme Court is whether res judicata statute (LSA R.S. 13:4231) mandates cumulation of pre-death claim of breach of fiduciary duty with an action to annul a testament. Plaintiffs claim that the issues of trustee fraud were not relevant to a will contest. Court notes that a substantial change was made to the law in 1990 and after a very good analysis of res judicata through the years, concludes that the parties must appear in the same capacity in both suits. Therefore, the appeals court is affirmed as far as finding res judicata exists for the issues involving the defendant as executrix, but reversed as far as any issues that are not related to her as executrix. Burguieres v. Pollingue Permalink February 21, 2003
Writ applications, 2 granted 54 denied
Today's Supreme Court actions were the granting or denial of writs. There are no reported cases. Two writs were granted: Ross v. Ross and Gibson v. Garden Park Nursing & Rehabilitation. 54 writs were denied. Permalink February 14, 2003
Attorney suspension vacated, new hearing ordered [disc]
Attorney did not respond to charges by the ODC that he had failed to withdraw from representing client in PI case and failed to pay a medical bill. Without response, the charges were deemed admitted and hearing committee recommended suspension for one year. No objections were filed, but Supreme Court ordered additional briefing. Attorney replied with evidence of clinical depression and other matters. Supreme Court orders new hearing. Re: Patrick N. Dooley Permalink
Motion for post-conviction relief is timely [crim]
Fifth Circuit is overruled and motion is found to be filed timely. Trial court was within discretion in ordering the state to supplement application for post-conviction relief even if supplementation would not have arrived until after the prescriptive period. State v. Sampson Permalink
Speedy trial motion to quash [crim]
The First Circuit upheld a motion to quash based on lack of speedy trial and reversed the trial court. The Supreme Court reverses the First Circuit, reinstates the conviction, and remands to the trial court to execute sentence. The defendant had been charged with second degree murder but was convicted of manslaughter. State v. Brooks Permalink February 10, 2003
Judge Hughes disqualified pending further action [disc]
Judge Hughes is disqualified immediately from serving as a judge of the Orleans Parish Juvenile Court pending further action of the Court. Re: Judge Yvonne L. Hughes Permalink February 7, 2003
Constitutionality of grandparent visitation tested [fam]
Trial court found Civil Code Article 136(B) unconstitutional. "The record is replete with highly inflammatory allegations of outrageous conduct by both sides in pleadings..." There was no trial on the merits of the case because the trial judge found that trying to gain visitation of their grandchild from their own child unconstitutional under Troxel v. Granville. The Supreme Court reversed and remanded finding that the trial court was required to have notified the Attorney General of the constitutional issues to allow the State of Louisiana to protect its interests. Huber v. Midkiff Permalink
Disbarred attorney conditionally readmitted [disc]
Lawyer had been disbarred for improperly using client funds. The former client, who originally objected to readmission, was paid the $125,000 and withdrew his objection. Lawyer readmitted with monitoring and other conditions for five years. Re: Gregory Wampler Permalink
Lawyer suspended for 3 years for lying to court [disc]
In an immigration case, the respondent assured the trial court that her client had a valid visa and that INS had no objections. In fact, INS expressed objections to respondent by telephone. The petititon for discipline was actually brought by the INS for violating federal law and the respondent was suspended from practicing in front of Immigration Review for five years. Supreme Court suspends respondent from practicing before Louisiana courts for three years. Re: Kathleen M. Bilbe Permalink
Jurisdiction established by common error argument [crim]
Motion to quash for lack of jurisdiction where parish borders are unclear. Trial court accepted contested surveys to establish whether Grant or Union Parish was the proper jurisdiction. The two parishes have contested the areas for years and the trial court considered secondary evidence as to where the crime was committed. Motion to quash for lack of jurisdiction was denied by trial court, overruled by 3rd cir, reversed by Supreme Ct. State v. Ward Permalink
Service on wrong agent not "good cause" to avoid dismissal [proc]
Plaintiff served defendant through C.T. Corp. Systems which was the wrong agent for service. The correct agent was served more than 90 days after filing and motion to dismiss without prejudice was filed but denied by trial court. Supreme Court reverses saying that agent was easily discernable and thus there was no good cause for the delay. Barnett v. LSU Med Sc Permalink |
