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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March 28, 2003
Attorney suspended for bankruptcy practice irregularities [disc]
Bankruptcy attorney mishandles insurance proceeds in bankruptcy proceeding. Attorney files bankruptcy for clients disclosing about $10,000 in assets and about $70,000 in debt, mostly recent medical expenses resulting from a premature birth. Initially, it was not disclosed to the attorney that the clients had medical insurance. During the course of the bankruptcy, the medical insurance provider sends the clients checks for about $70,000 because the hospital had not perfected an assignment. When the hospital inquired about the payments, the clients had already spent some of the money and turned the rest over to the attorney. In a creditor's meeting held the following week, no mention was made by the attorney's associate of the insurance proceeds. Soon afterwards, the attorney offered to settle with the hospital and other medical providers for substantially all of the remaining funds. In a subsequent bankruptcy hearing, the associate discloses the existence of the insurance funds, but no mention is made in the Chapter 13 plan that is proposed and confirmed two months later. In another five months, the bankruptcy is dismissed on motion of the attorney and the attorney disburses the insurance funds. Most of the funds ($55,000) are sent to the clients. The clients spend the money and the hospital learns of these events too late to recover. A bankruptcy fraud prosecution is commenced against the attorney which he wins in a jury trial. At about the same time, the bankruptcy judge filed a formal complaint against the attorney with the Office of Disciplinary Counsel. After a finding that the attorney had violated his duty not only to his clients but to the legal system, he is suspended for six months. In Re M. Daniel LaGrone, Jr. Permalink
Attorney consents to permanent disbarment for practicing law while disbarred [disc]
Attorney, while disbarred, engages in the practice of law. The orginal disbarment was for conversion of client funds and other matters. The attorney continued to practice law despite the disbarment by writing letters to clients asking for retainers and appeared in open court on behalf of clients. In one case, the assistant district attorney informed the judge that the attorney was disbarred and the attorney was arrested in court for the unauthorized practice of law. The attorney was also arrested in another case for appearing on behalf of a client after receiving a $2,500 retainer. In that case, he was not only charged with practicing law without a license, he was charged with felony theft. In Re J. Gregory Caver Permalink
Right to jury trial prior to waiver does not have to be explained to defendant in open court [crim]
Defendant does not have to be advised of right to jury trial in open court prior to waiver. In this case, the defendant waived jury trial through her attorney. Also, the waiver was mentioned in open court in front of the defendant on the second day of the trial where it was made clear that she knowingly waived her right to a jury trial. The Supreme Court notes that an open court waiver would be the preferred method but that there is no statutory requirement to that effect. The appeals court is reversed and the defendant's conviction and sentence is reinstated. State v. Pierre Permalink
Issue of constitutionality of statute not properly decided in injunctive relief case [const]
Granting of injunction based on unconstitutionality of statute was improper where the merits of granting restraining order and or injunction were not heard. In this case, a towing company owner sought to enjoin the State from enforcing certain provisions of the Louisiana Towing and Storage Act (R.S. 32:1711 et.seq.). The plaintiffs also sought a declaratory judgment as to the constitutionality of the statutes. In granting the injunction based on issues of constitutionality, the trial court never ruled on whether the injunction should have been granted on its merits. That is, whether there was irreparable injury, loss or damage to the plaintiffs. The trial court's ruling as to the constitutionality of the statutes is vacated and the case is sent back to the appeals court to determine the merits of the granting of the preliminary injunction. Capitol City Towing, et al. v. State Permalink March 21, 2003
Constitutionality of trying juvenile as adult at issue [crim] [const]
Writ granted and case is remanded to determine if the transfer of a juvenile case to the district court was proper. Although the constitutionality of the laws allowing juveniles to be tried as adults is not specifically raised, the court chose to construe the writ application as a constitutional challenge to Children's Code Article 305(B)(2)(j). The trial court is ordered to afford the defendant the opportunity to plead the unconstitutionality of the Children's Code article and thereafter the constitutionality of LA Const. Article V, Sect.19 which was, apparently, solely raised by the defendant at trial. Jacobs v. Burl Cain Permalink
Mental retardation claim remanded to trial court for consideration [crim] [proc]
Court grants writs in novel case of mental retardation and capital punishment. In light of the U.S. Supreme Court case of Adkins v. Virginia, the issue of whether the defendant is mentally retarded is extremely relevant in a capital case. Since the defendant did not raise the issue at the trial court level, the case is remanded to allow the trial court the opportunity to review the pleadings of the defense and state to see if an evidentiary hearing is warranted to develop evidence as to the existence of mental retardation. If the court finds that evidence exists of mental retardation at a hearing, then the defendant could not be executed. The LA Supreme Court declined to consider any evidence at this point since that is a function of the trial court. If the trial court finds that the defendant is not mentally retarded, then the defendant would have an opportunity to have the issue fully heard on post-conviction relief appeals. State v. Edwards Permalink March 18, 2003
Termination of parental rights not appropriate without knowledge of abuse [fam]
Father had parental rights taken away for failure to notice that the child's mother had abused his infant child. The Juvenile Court of Orleans Parish ordered the termination of his parental rights under Children's Code Article 1015 and writs were granted after the Fourth Circuit reversed the Juvenile Court. The father worked two jobs to support the two children and was home two or three nights per week. It was discovered that the child had a skull fracture and hip dislocation as well as prior injuries and that the injuries were the result of the mother's abuse. The Office of Community Services petitioned to have the father's parental rights terminated alleging that he should have noticed the mistreatment. On appeal, the Juvenile Court was reversed based on a lack of clear and convincing evidence in the record of any wrongdoing on the father's part. Although the Supreme Court noted that there can certainly be such a thing as "passive neglect or abuse" that the evidence in this case was that the mother was actively hiding the abuse from the father and the the OCS failed in their burden to show his fault. As a matter of law, therefore, the trial court was in error. 1 dissent. State In the Interest of K.G. and T.G. Permalink March 14, 2003
Writ applications
No opinions were released today. Writ applications were granted or partially granted in seven cases and denied in more than 80 other cases. Writs granted were: Davis v. Witt, State Ex Rel Fisher v. State, State Ex Rel Gallegos v. State, State v. Jules, State v. Ervin, State Ex Rel Gentry v. State, and State v. Maten. Writs Permalink March 7, 2003
Writ applications denied
No opinions were released today, but writs were denied in WILLIE TURNER, WALTER KYLE AND WINNIE JONES v. BILLY JAMES AND CAROLYN CALDWELL, CLERK OF COURT FOR MADISON PARISH and in ENRIQUE ORTIZ v. DELTA PEGGY THOMPSON with one dissent that would have granted the writ. METRO RIVERBOAT ASSOCIATES, INC. v. BALLY'S LOUISIANA, INC. AND PARK PLACE ENTERTAINMENT CORPORATION was dismissed by joint motion. Permalink |
