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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April 25, 2003
Law of the case doctrine does not apply to dicta [proc]
Lower court's granting of exception of improper venue is appealed. On appeal, the court maintained the exception and remanded for the lower court to determine whether the case should be dismissed or transferred. The lower court transferred and the action was appealed with the argument that the lower court had no authority to transfer the cases (the suit involved several cases by the same plaintiff against the same defendant). The majority of the appeals court held that their prior ruling vested authority with the trial court to make the determination and transfer and under the law of the case doctrine, refused to revisit the issue. Writs were taken to the Supreme Court. Action: law of the case doctrine does not apply since only venue was addressed and the rest of the opinion was merely dicta. The case is remanded to the appeals court for reconsideration. Garrison v. St. Charles General Hospital Permalink April 23, 2003
Time limits to pay employee under statute probably cannot be altered by contract [cont] [labor]
Penalty wages for failure to pay employee within statutory period of LSA R.S. 23:631 are at issue. The trial court found that penalty wages of $8,913.60 and attorney's fees of $4,247.48 were appropriate for the neglect of the employer in paying $41.15 in commissions to the employee. On appeal to the First Circuit, the issue became whether the contract between employee and employer specifying final payment of commissions 45 days after termination controlled rather than the 15 day statutory time limit. As a matter of public policy, the appeals court found that the contract could not abrogate the provisions of law. Action: the Supreme Court granted writs to review the issue of whether public policy considerations should have prevented the extension by the employer of the time limits in which to pay final wages, salary or commissions. However, the Court decided that it was not necessary to address the issue since a stipulation of facts entered into by the parties showed that the payment was not made either within the statutory 15 days nor the contractual 45 days. The awards of penalty wages and attorney's fees were affirmed. Becht v. Morgan Buildings & Spas Permalink April 21, 2003
Practicing while under suspension leads to permanent disbarment [disc]
Attorney had been under suspension by various orders since 1994. Despite being under suspension, the attorney accepted $1,800 to handle a succession. He advised some of the heirs of his suspension, but not the others. After assuring the heirs that the succession was nearly done, he asked for an additional fee of $3,000 which he placed in his personal bank account. After learning the succession had never been opened, the heirs demanded a refund and filed a complaint. The attorney also settled a personal injury claim and he accepted a fee to handle a succession which in two years he never opened and never refunded the fee after being discharged. In Re Eddie G. Crawford Permalink
Deficient TRO issued 30 minutes before graduation not enough for contempt convictions [proc] [crim]
Criminal contempt convictions for violating a TRO are at issue. The defendants in this well-publicized case are the principle of a high school and the superintendent of the school board who were served with temporary restraining orders 30 minutes before graduation. The TROs demanded that the defendants let the plaintiff graduate from high school along with his class. The TROs were delivered to the defendants 30 minutes before graduation by the attorney who obtained the TRO and had no seals, docket number, and the judge's signature was not legible. Under the circumstances, the defendants doubted whether the document was legitimate. The trial court held the defendants in contempt for violating the TRO which was upheld by the Third Circuit. On writs to the Supreme Court, the convictions are vacated and the fines paid by the defendants are ordered reimbursed. The TROs were legally deficient in many respects. Even without the deficiencies, the defendants were clearly not guilty of criminal intent to disobey a court order. One dissent. Daupine v. Carencro High School Permalink April 14, 2003
Admissions to practice law granted [disc]
The following admissions to the Bar were granted without condition: Edselle Keith Cunningham, Jr. and Aimee Doll Borromeo. The following admissions to the Bar were with conditions: Hector R. Lopez, Mark S. Wegener, Laurence McGinn, Carmell A. Wiggins-Parker, and Tamara V. Milton. Permalink April 10, 2003
Attorney under suspension acts as "paralegal" but actually practices law [disc]
Attorney, while petition for reinstatement after suspension is pending, works as a paralegal. While a "paralegal" the attorney attends two depositions sitting in for attorneys. At one deposition, he appears as an "attorney at law" and asks the witness questions. Action: attorney suspended for two years with all but one year and a day deferred. In Re Audwin L. Jackson Permalink
Knowledge of runner-solicitation scheme without reporting gets suspension [disc]
Attorney accepts $3,000 flat fee for criminal matter but is discharged prior to trial. Client's family requests file and refund of unearned fee which attorney refuses. After complaint is filed with the ODC, attorney still does not provide an accounting, but eventually deposits $2,500 in a concursus proceeding. Additionally, the attorney worked for a firm in which the senior attorney was disbarred for runner-based solicitation. In his statement as part of that investigation, the attorney denied knowing anything about the solicitations. At the hearing, a factual determination was made that the attorney did not participate in the runner-solicitation scheme, but that he was aware of the scheme and failed to report it. Action: on the failure to refund to a client --reprimand; on the failure to report the solicitation scheme --two-year suspension with all but six months deferred. In Re Peter Ralph Brigandi Permalink
Attorney allows case to prescribe and then denies responsibility[disc]
Texas resident forwards medical records to attorney after another attorney declined to represent client in medical malpractice case. The first attorney advises client that the case will prescribe on June 17, 1999 --about three months later. Second attorney agrees to "take a look at the case" and receives records in the middle of April. There are several telephone conversations between attorney and client in the following weeks, but it is disputed whether the approaching prescription date is discussed. Attorney calls client on prescription date but says he cannot file because he is out of town. The suit is filed after the prescription date even though the attorney knew it was prescribed because "the client insisted." The suit was dismissed based on prescription. Client complains to the ODC some two years later. Attorney is charged with violations of 1.3 (lack of diligence) and 1.4 (failure to communicate). The Board recommends a three-month suspension which the attorney and the ODC appeal. The Supreme Court is unhappy that the attorney made the argument that the client should have informed the attorney about the prescription date. The court found the argument "specious" and noted that a layman hires an attorney for the benefit of the attorney's skills. Further, the Court noted that the attorney had been admonished once before for similar conduct and had "failed to grasp his fundamental responsibilities as a lawyer." Action: suspended for six months, three months deferred. In Re Darryl Jackson Permalink
Suspended attorney acting as "paralegal" practiced law without license [disc]
Attorney, while under suspension, was employed as paralegal for law firm. He actively participated in taking sworn statements in a personal injury case, advised clients on how to answer questions, and held himself out to be an attorney. He further failed to appear for questioning by the ODC despite a subpoena. After considering mitigating circumstances, the Disciplinary Board recommends a one-year suspension. The Supreme Court notes that the practice of law by a suspended attorney is "very serious misconduct." Action: two year suspension with all but one year and a day deferred. In Re Charles Williams Permalink
Defendant should be allowed to question witness as to unrelated plea bargain [crim]
Trial court should have allowed defense counsel to question witness as to the terms of a plea bargain that resulted in an unrelated conviction. Two dissents. State v. Williams Permalink
Gun under seat was in the possession of defendant [crim]
At what point is a person "in possession" of a firearm for purposes of conviction of a felon in possession of a firearm or possession of a firearm while engaged in a felony? In this case, the firearm was under the seat of the defendant's girlfriend's car. The appeals court reversed the conviction finding there was no dominion or control over the firearm. The Supreme Court reverses finding that the appeals court was ignoring the jury finding of fact that the defendant was aware of the firearm. Action: reversed and conviction reinstated. State v. Dabney Permalink
Court easily determines that the lack of 1 hour of CLE is not ineffective counsel [crim]
Defendant appeals based on lawyer's ineligibility to practice law resulting from being one hour short in his annual CLE requirement. The lawyer claimed he had never received a letter notifying him of his ineligible status. The appeals court reversed the conviction finding that the ineligible status was per se ineffective counsel. Action: reversed and conviction reinstated. State v. Lentz Permalink
Temporal requirement for statutory employer settled [cont] [PI]
Certiorari granted to settle conflict between appeals circuits over "two contract" theory of statutory employer defense. In this case, a worker at the New Orleans Convention Center who is employed by a sub-contractor under contract to the Center is injured, receives workers' comp benefits, and sues alleging the Center is a third party tort feasor. The trial court grants a motion for summary judgment on behalf of the Convention Center because the Center claimed it was the plaintiff's statutory employer and workers' comp was the exclusive remedy. Court settles conflict as to whether it matters that a contract is entered into with a third party before a sub-contract is confected by finding no such statutory requirement. Action: the summary judgment in favor of the Convention Center is reinstated. One dissent. Allen v. N.O. Exhibition Hall Authority Permalink
Probable cause existed for arrest and conviction [crim]
Defendant is convicted on two counts of simple possession of heroin. At the appeals level, one count is reversed for lack of probable cause by police to search a vehicle. The Supreme Court finds that the throwing of something furtively into his car by the defendant was ample for probable cause and was an "automobile exception" to the warrant laws. Action: conviction and sentence reinstated. State v. Thompson Permalink
Vocational rehab counselors are not exempt from malpractice claims in Workers Comp case [PI] [labor]
Worker brings malpractice suit against vocational rehabilitation counselors for clearing him to return to work without proper assessment. The trial court granted a motion for summary judgment finding that the counselors were immune from tort suit under the Workers' Compensation Act the same as employers, which was affirmed on appeal. Action: reversed and remanded with a finding that the counselors were "third persons" against whom suit could be filed for tort damages. Brown v. Adair Permalink
Conviction for cocaine possession satified general intent requirements [crim]
Possession of crack pipe with trace elements of cocaine was sufficient to convict defendant of possession. The defendant relied on other cases in which there was no actual possession of the drug paraphernalia and state did not prove general intent to possess. In this case, the crack pipe was in the defendant's pocket together with a cigarette lighter and no cigarettes. Action: conviction affirmed. One dissent. State v. Sylvia Permalink
Non-renewal of probationary teacher's contract requires "valid reasons" for termination [cont] [lab]
Wrongful discharge action by teacher against BESE is based on lack of "valid reasons" to not renew a probationary teacher's contract. At issue was whether BESE could style the discharge as a "non-renewal" of her contract thereby avoiding the statutory obligation (R.S. 17:45) to provide valid reasons for the discharge. Action: trial court's decision in favor of teacher is reinstated and appeals court is reversed. One dissent. Palmer v. BESE Permalink
Medical Malpractice Act does not apply to non-insurer settlement [PI]
Medical Malpractice Act is held not to apply where hospital settles case with plaintiff. In this case, the plaintiff settled with the hospital, not an insurer, for $100,000 and then sought excess damages from the Louisiana Patient's Compensation Fund (LPCF). At issue was whether the provisions of 40:1299.44(C) applied. In the settlement, which was court approved, the hospital was released from further liability and the plaintiff reserved her rights against the LPCF. The LPCF intervened opposing the settlement. The trial court approved the settlement which was affirmed on appeal. The Supreme Court reverses finding that the clear language of the statute had not been followed. Guin v. Woman's Hospital Foundation, Inc. Permalink April 9, 2003
Supplemental benefits claim under Workers Comp did not prescribe [PI]
Writs granted over conflict between appeals circuits on Worker's Compensation prescription issue. Under Louisiana law, there are two statutes that could apply in situations where a claimant seeks supplemental earnings benefits (SEB): one has a two year prescriptive limit for applying and one has a three year limit. The First and Fifth Circuits disagreed as to which should apply. The plaintiff had applied between the two and three year periods. The First Circuit found that the applicant was too late. The Supreme Court reverses and settles the conflict in favor of the Fifth Circuit interpretation. One dissent. Dufrene v. Video Co-Op Permalink
17-month delay between multiple billing and hearing not unreasonable [crim]
Trial court quashed multiple offender bill because either the bill was not timely filed or seventeen months had elapsed between the multiple offense billing and the hearing on the matter. After being sentenced to 10 years for possession of cocaine with intent to distribute, the state sought to charge the defendant as a multiple offender. The trial court ruled that the state had used "dilatory tactics" and granted the motion to quash. The Supreme Court reversed finding that the motion was filed the same day as the sentencing. All the prior delays, many of which were continuances requested by the defendant or jointly by the state and defendant, were not relevant. The trial court is reversed and ordered to hear the motion on the multiple billing. State v. Toney Permalink April 4, 2003
"Bonafide commercial mailing service" is ambiguous for proving writ application filings [proc]
Concurring opinion finds that the amended rules for filing writ applications used at the appeals level involves vague language. The rules that formerly defined the US Postal Service as the only method to mail writ application were amended to include bonafide commercial mailing services such as Federal Express and UPS. In this case, the service was the Shipping Post which was found to be a "local mail depository" not a commercial mailing service. It is suggested in the opinion that the rules define exactly what services qualify since the current definition is "oblique." Hatley v. Gravel Permalink
Attorney reinstated after three-year suspension [disc]
David L. Shall was reinstated after a three-year suspension. The application for reinstatement was not opposed and the court considered the terms of suspension fully met. Reinstatement is without probation. In Re David L. Shall Permalink
Attorney reinstated after suspension [disc]
Hobart O. Pardue, Jr., who had been under suspension, successfully applied for readmission to practice law. The admission is subject to three years of probation. In Re Hobart O. Pardue, Jr. Permalink
Ruling by three-judge panel with dissent should have gone to five-judge panel [const] [proc]
Appeals court erred in not rearguing case with a five judge panel where there is one dissent in the three-judge panel as required by La Const. Article V, 8(B). Reargument is required when one judge dissents where the district court judgment is reversed or modified. Bailey v. Khoury Permalink
Determination of custody remains in state with pending proceedings [fam]
Mother files for custody in Louisiana more than six months after moving to Louisiana with child from Ohio. Mother did not receive permission from Ohio courts to move out of state. Mother claims that under Louisiana law, the child is domiciled here after six months of residency and Louisiana therefore has jurisdiction. Father claims that only Ohio has jurisdiction since the original custody case was heard there and the Ohio court retains jurisdiction over custody matters. Ruling: LSA R.S. 13:1705(A) clearly applies since Ohio has ongoing jurisdiction and has not stayed its proceedings in favor of the case being heard in Louisiana. The lower court is instructed to decline jurisdiction over the custody matter and to hear any motion by the father to enforce a foreign custody decree. Layton v. Newell Permalink
Edwards resignation accepted [disc]
The formal resignation of former Governor Edwin Edwards from the practice of law is accepted by the Supreme Court. The resignation is in lieu of formal disciplinary action. In Re Edwin W. Edwards Permalink |
