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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May 30, 2003
California attorney suspension results in reciprocal action in Louisiana [disc]
Reciprocal discipline rule results in suspension for attorney licensed in Louisiana and California. The attorney deposited client funds into the account of a business owned by him and issued NSF checks on that account. By consent, he was suspended from practicing law in California for six months. Under Louisiana Supreme Court Rule XIX 21(A) a reciprocal discipline charge was made in Louisiana. Action: attorney suspended in Louisiana under same conditions as the California decree. In Re John Sellmann Hilbert Permalink
Attorney suspended for failing to represent clients or refund retainers [disc]
Attorney suspended for three years with order to make restitution to clients. In one of the complaints, the attorney accepted a $10,000 retainer in a criminal matter, failed to appear at hearings, and even failed to appear at his client's trial. He misrepresented the reasons for his failure to appear to the trial judge and was found in contempt and replaced by a public defender. In several other matters, he also failed to appear, to account to his clients for fees, or to refund fees. In Re Michael F. Melton Permalink May 22, 2003
Suspended attorney permanently disbarred for lying to court and other matters [disc]
Suspended attorney has six additional counts of misconduct considered. 1) In a criminal matter, the attorney represented to two judges that he had conferred with the DA and the there were no objections to his motion and that his client received an excessive sentence due to administrative errors. These turned out to not be true. 2) He made false statements as to his representation in a criminal matter and refused to refund an unearned retainer. 3) He represented a client on appeal but failed to timely act. 4) He agreed to arbitrate a disputed fee, but failed to return part of fee even after arbitrator found that he handled matter "incompetently." 5) While under suspension, he accepted retainer fee and when client found out about suspension, he refused to return fee. 6) He failed to pursue a criminal matter and then refused to return the retainer. Action: permanently disbarred. In Re Donald O. Pinkston Permalink
Disbarred attorney disbarred again for misconduct [disc]
Attorney had been suspended and then disbarred in prior disciplinary actions. Despite his suspension, he failed to withdraw from representing clients in existing matters and did not inform his clients of his suspension. Rather, he continued representing them. In another matter, the attorney collected funds from a succession client to pay inheritance taxes, but his own check to the Department of Revenue for $106 bounced. He never refunded the money or completed the succession. As the result of a prior failure to return client funds that resulted in criminal prosecution for theft, the attorney also had entered a guilty plea. Action: attorney disbarred again which will be considered if he ever applies for readmission. In Re Michael D. Callahan Permalink
Expert testimony must be tested by trial court as to reliability [crim] [proc]
At issue is the admissibility of expert testimony on Post Traumatic Stress Disorder (PTSD) of a sexually abused victim. The state introduced the testimony of an expert on PTSD that had the effect of establishing that the crime of indecent behavior of a juvenile had occurred. The appeals court, in a split decision, found that the evidence was improperly admitted and that the trial court should have determined whether the evidence was not only relevant, but reliable prior to the testimony. The defendant successfully argued that the trial court failed to test the reliability of the theory that PTSD can be used in the diagnosis of sexual abuse. The basic problem is that the PTSD evidence was supposedly being offered by the state to explain why the victim delayed reporting the crime when in fact it was used to prove the probability of the occurrence of the crime itself. Action: appeals court affirmed and case is remanded for new trial. One dissent. State v. Chauvin Permalink
Period to prosecute joined crimes interrupted by appeal as to one crime [crim] [proc]
Can a defendant use the time periods of LSA C.Cr.P. 578 to argue that appeal of ruling on post-conviction relief does not interrupt time period for prosecuting joined crimes? The appeals court agreed that other prosecutions should be quashed, but the Supreme Court rules that where a defendant was charged with rape and armed robbery, the time limit for prosecution of the rape charge was suspended while the defendant appealed the armed robbery charge. Action: order quashing rape indictment reversed. State v. Washington Permalink
Failure to properly raise issue results in writ dismissal [proc] [tort]
Does a height differential the thickness of a nickel between a tile landing and stair nosing pose an unreasonable risk of harm? The Supreme Court granted writs on this issue and hinted it would like to resolve this issue (perhaps differently than the lower courts), but the appeals brief of the state brought up a different issue that had not been heard at trial. Action: writ dismissed. Johnson v. State Permalink May 21, 2003
Conviction reinstated where greater weight should be given trial court's assessment of evidence [crim]
Manslaughter conviction is reversed by appeals court. State seeks writs which are granted. The defendant had been tried for murder, but was convicted of manslaughter and sentenced to twenty years. The conviction is reinstated by the Supreme Court with a finding that the appeals court should have considered the evidence in the light most favorable to the prosecution that a rational trier of facts would have found the essential elements of the crime had been proven beyond a reasonable doubt. Despite the inconsistencies of the times given by the witnesses, there was still ample evidence to convict. State v. Brown Permalink
Delinquent adjudication for manslaughter is reinstated [crim]
Defendant is adjudicated a delinquent for the crime of manslaughter and appealed claiming insufficient evidence that the manslaughter was not justified. Appeals court agrees and sets aside adjudication. The defendant shot an intruder who was involved in a fight with him earlier that night. The state argues that the appeals court has substituted its own judgment for that of the trial court as to the sufficiency of the evidence. Action: judgment of the juvenile court reinstated. State in interest of D.P.B. Permalink
Alabama attorney subject to long-arm jurisdiction in malpractice case [tort] [proc]
At issue is personal jurisdiction over an Alabama attorney. Plaintiff was a resident of Alabama but was involved in an automobile accident in Louisiana. She hired the defendant to represent her interests. The plaintiff subsequently moved to Louisiana and during this time the defendant negotiated with the insurance company for the other driver. The defendant believed that the Alabama law allowing two years to file a tort claim applied since the plaintiff was an Alabama resident. The claim prescribed and plaintiff sued defendant for malpractice. The defendant/attorney was served long-arm and filed an exception of lack of jurisdiction. While in Baton Rouge waiting for the hearing on the exception, he was served with an additional copy of the petition. In a 3-2 decision, the appeals court finds inadequate contact with Louisiana to support long-arm service. Action: if there is even minimal contact, then a presumption of reasonableness arises and long-arm jurisdiction is valid. By agreeing to represent a client in an automobile accident that occurred in Louisiana between Louisiana residents and involving Louisiana insurers, the defendant subjected himself to the jurisdiction of the Louisiana courts. Case remanded. Alonso v. Line Permalink
Comparative fault regime is inconsistent with deliberate tortfeasor argument [tort]
Certiorari granted to decide whether aggressor doctrine is valid defense to an intentional tort under comparative fault regime. The plaintiff is awarded over $740,000 in damages at trial as the result of being punched and then hitting his head on a concrete parking lot. The trial court made no apportionment of fault, finding that a recent amendment to CC 2323 made it clear that damages resulting partly from the negligence of plaintiff and partly from an intentional tortfeasor should not result in any reduction in plaintiff's damages. The First Circuit reversed finding the fault should have been apportioned since fault on both sides was significant and deliberate, not accidental. Action: aggressor doctrine does not apply and is inconsistent with Louisiana's comparative fault regime. Trial court is reversed. One dissent. Landry v. Bellanger Permalink
Cocaine conviction reinstated where jury had sufficient evidence [crim]
Writs by state appealing reversal of conviction by appeals court are granted and conviction is reinstated. At trial, a jury found the defendant guilty of attempted possession of cocaine with intent to distribute. The defendant appealed on the basis that there was no proof introduced by the state to show that the substance in a paper bag was actually a controlled dangerous substance. Because there was no chemical testing, the appeals court reversed the conviction. The state argues that although it inadvertently failed to introduce the crime lab report, there was still ample evidence to support the jury's verdict. Action: conviction and sentence reinstated. State v. Harris Permalink
Restaurant failed to give adequate warning of risks of eating raw oysters [tort]
At issue is the apportionment of fault in wrongful death case resulting from eating raw oysters at defendant's restaurant (Pascal's Manale). The trial court found the restaurant to be 25% at fault and the Department of Health and Hospitals (DHH) to be 75% at fault. In 1991, DHH published a rule requiring restaurants to post warning to customers about the risks of eating raw oysters, especially for persons with liver or other chronic illness. The restaurant posted the warning in its oyster bar, but not in the dining room where the oysters were consumed by Mr. Gregor who died about nine days later. It was stipulated that the oysters caused the death due to vibrio vulnificus sepsis. The trial court found Gregor free from fault and apportioned the $450,000 verdict 25% to the restaurant and 75% to DHH. DHH appeals arguing that it enjoyed discretionary immunity since the display over the oyster bar could be deemed sufficient by the sanitation inspector. The Supreme Court believes that the sale in the dining room was the point of contact between the customer and the restaurant and there was no display of any sort warning about the possible dangers of eating raw oysters. Action: the restaurant failed in its obligation to warn and the apportionment of fault is therefore amended to 50% to the restaurant and 50% to DHH. Two dissents and one partial dissent. Gregor v. DHH Permalink May 20, 2003
Amended judgment not allowed and a nullity where first judgment was final [proc]
Trial court's amended judgment was a nullity since the court had no authority to amend its final judgment. This was a personal injury suit in which the attorneys were to file post-trial memoranda. The court signed a judgment entitled "Defendants' Proposed Final Judgment" that dismissed plaintiff's claims. About two months later a second judgment was signed awarding plaintiffs over $34,000 in damages. In written reasons filed after the second judgment, the court stated that the first judgment was signed by mistake. Action: amended judgment set aside and original signed judgment is reinstated. One dissent. Bourgeois v. Kost and Allstate Permalink
"Colllateral Source Rule" used in pollution clean-up suit [tort] [proc]
Lower court ruling that the Louisiana Department of Transportation and Development is limited in its recovery of clean-up costs to 10% of the total cost is overruled. Ruling by court relies partially on rule that a tortfeasor may not benefit and an injured plaintiff's recovery cannot be reduced because of monies received from sources independent of the tortfeasor's procuration or contribution: the collateral source rule. Action: reversed and remanded to determine collateral source rule application in case against KCS for cost of clean-up of highway construction site. La. Dept. of Transportation and Development v. Kansas City Southern RR Permalink
Death sentence confirmed [crim]
Appeal from death sentence is affirmed. At trial, three aggravating circumstances are found: 1) murder during a crime; 2) risk to more than one person; and 3) crime committed in especially heinous manner. Defendant appeals claiming that only testimony of accomplices placed blame on him as shooter. Finding: there was ample physical evidence to back up testimony. The defendant also challenged the voire dire exclusions made by the state for cause and the defendant's challenge for cause of a juror that stated "he would not want himself for a juror" if he were on trial. Also alleged as error were: special jury instructions on accomplice testimony; proof of aggravating circumstances; passion, prejudice and arbitrary factors were elements at trial; and a Dunn argument that the defendant was mentally retarded. Action: conviction and death sentence confirmed. State v. Tate Permalink May 16, 2003
Plea date controls whether new statute is applicable to sentencing [crim]
Guilty plea to fourth offense DWI where the plea is made after effective date of 2001 La. Acts 1163 should have afforded defendant ameliorative effects of statute. Action: sentence vacated and remanded to trial court for new sentencing. State v. Decrevel Permalink
Conditional guilty plea presumes review right even without specific reservation of grounds [crim]
Defendant did not specify which pre-trial rulings he might appeal as part of a guilty plea. In granting writs, the Supreme Court stated that not being specific as to reserving the right to appeal should not preclude an appeal altogether. Absent a specified detailing of which adverse pre-trial rulings the defendant would appeal, the appeals court should assume that the trial court permitted a reservation broad enough to effectuate the intent of conditional guilty pleas. State v. Joseph Permalink May 9, 2003
Attorney disbarred for lying during disciplinary process [disc]
Attorney receives checks from client which he does not place in his trust account. Instead, after complaint is filed, the attorney claims that he purchased money orders when each check was received, placed the money orders in the client's file, and then returned the money orders to the client. The attorney files photocopies of the money orders with the ODC. The ODC easily discovered that the all the money orders were purchased after the complaints were filed. In fact, several were purchased the day before the formal hearing. The attorney next introduced an affidavit he had notarized and a confession in which his "secretary" supposedly admitted stealing the money orders and replacing them with money orders of a later date. The "secretary" died three days after executing the documents and the original of the documents cannot be produced. In what started as a hearing on the client complaint which led to a suspension, the case is remanded to the ODC to file formal charges on the irregularities in the attorney's testimony and memorandum. Expert testimony reveals that the signatures on the affidavit and confession are forgeries. Other testimony reveals that the woman was not his secretary and that she was close to death in the hospital on the date she allegedly signed the documents. For knowingly making false statements to a tribunal and for fabricating evidence, the attorney is permanently disbarred. In Re Charles Ray Harris Permalink
Basis for claim of mental retardation which precludes execution at issue [crim] [proc]
Writs are granted for a second time in this case in which the defendant claims mental retardation. At the trial, there is expert testimony that the defendant is not mentally retarded. The case is remanded for another hearing on the issue. State v. Dunn Permalink
Res judicata did not bar appeal [proc]
Writs are granted and the appeals court is ordered to reconsider a case in which it is claimed that res judicata applies. The proper inquiry should have been whether respondent acquiesced in the trial court's judgment. Shadoin v. Shadoin Permalink
DNA request is timely filed [crim]
Writs are granted to allow the defendant DNA testing. In this case, the defendant properly alleged his innocence in an affidavit in which he claimed an alibi and he specifically identified the evidence to be subjected to DNA testing (bed sheet and victim's slip). The trial court is ordered to have a hearing to establish whether the evidence that would be subject to testing exists. State ex rel James Randolph v. State Permalink May 2, 2003
Judge receives public censure [disc]
First Circuit judge publicy censured as the result of the judge's conduct concerning the prosecution of his niece. The judge contacted the district attorney, trial judge, and father of the victim (that he knew personally) on behalf of his niece. The Supreme Court finds that although the judge did not intentionally violate judicial ethics and was acting on behalf of a family member, still "... it is clear that his interventions on behalf of his niece were absolutely improper." In Re Judge Randolph H. Parro Permalink
Attorney neglects cases and fails to keep clients informed [disc]
Attorney put on probation for 18 months under consent decree. Complaints by two clients before the ODC were that he let an appeal prescribe and did not inform his client of the problem and that he let other matters prescribe and also did not keep his client informed. Attorney is suspended with suspension deferred subject to conditions of supervised probation. In Re Harry E. Cantrell, Jr. Permalink
Attorney on disciplinary probation is suspended for two years [disc]
Attorney's 1999 six-month suspension is deferred under consent judgment that requires 18 months of probation and 5 additional hours of CLE in law office management. Attorney refuses to talk or correspond with his probation monitor and fails to take the required CLE. The attorney had been subject to disciplinary proceedings on several occasions stemming from his failure to comply with mandatory CLE requirements and his failure to pay bar dues. In addition, the attorney practiced law during periods he was under suspension. In Re Bernard J. Hardy Permalink |
