Louisiana Fifth Circuit Opinions

Here are the most recent opinions as of 3/13/03 from the Louisiana Fifth Circuit Court of Appeal compliments of the Louisiana State Bar Association.

These are unofficial versions of the Court's opinion. Official versions are available from the Court. The Louisiana State Bar Association makes no representations whatsoever, whether about the accuracy of the text or name or citation of the opinion or otherwise. Further the Louisiana State Bar Association makes no representation that this opinion has or has not been withdrawn, amended, reversed, or altered by judicial action.

Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 02-KA-230
Full Opinion [pdf]
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STATE OF LOUISIANA VERSUS
JOSEPH J. SANDOVAL
The defendant, Joseph Sandoval, was convicted of one count of distributing heroin and one count of possession with intent to distribute heroin, violations of LSA-R.S. 40:966(A), and he was sentenced to the statutorily mandated sentence of life imprisonment without benefit of probation or suspension of sentence on each count, to be served concurrently.1 The defendant now appeals.
The defendant contends that the State’s evidence presented at trial is legally insufficient to support his convictions for possession with intent to distribute heroin and distribution of heroin. The State responds that it proved beyond a reasonable doubt that the defendant committed these offenses.

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Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Civil, Torts and Personal Injury
Docket Number - 02-CA-1115
Full Opinion [pdf]
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DONALD ROVIRA and JULIE ROVIRA VERSUS
DR. GEORGE BYRAM, JR.
The plaintiffs appeal a summary judgment that dismissed their medical malpractice suit against the defendant. We affirm. At age 29 Donald Rovira suffered from avascular necrosis of both hips and underwent surgery for bilateral femoral bone grafts in April 1992. The surgery was performed by Dr. George Byram, Jr. The bone grafts failed; as a result, Mr. Rovira had to have total hip replacement surgery on the right side in August 1992 and on the left side in March 1993.

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Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Civil, Contracts and Obligations, Corporate/Tax/Intellectual Property
Docket Number - 02-CA-698
Full Opinion [pdf]
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CHARLES YUSPEH, JULIE Y. BENSON, JOEL Y. ASHNER AND WALLACE MURPHY VERSUS
HANSEN E. KOCH, DAVID E. KOCH, CERTIFIED SECURITY SYSTEMS, INC., CSS ACQUISITION, L.L.C., AND MICHAEL
DITCHARO
Defendants, Hansen and David Koch, appeal a jury verdict in favor of plaintiffs, Charles Yuspeh, Wallace Murphy, and other minority shareholders in Certified Security Systems, Inc. (CSS), a closely held corporation in the commercial and home alarm system business. The plaintiff minority shareholders sued the Koch brothers, the majority shareholders, for the value of plaintiffs’ stock in CSS, following a cash out or Afreeze out@ merger that was approved by the majority shareholders in December of 1997. The minority shareholders alleged that the merger was accomplished by breach of fiduciary duty and fraud.

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Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Civil, Labor/Employment/Civil Rights/ADA, Torts and Personal Injury
Docket Number - 02-CA-713
Full Opinion [pdf]
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ROBERT ANDREW BOURGEOIS, ET AL.
VERSUS A.P. GREEN INDUSTRIES, ET AL.
This suit is a class action by current and former employees of Avondale Industries, Inc., who allege they were exposed to asbestos while employed at Avondale. Plaintiffs have not manifested any physical illness or disease related to asbestos.1 They seek establishment of a judicially-administered medical monitoring fund and counseling program.

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Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Civil, Labor/Employment/Civil Rights/ADA
Docket Number - 02-CA-864
Full Opinion [pdf]
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JOHN LAPEYROUSE VERSUS
EAST BANK CONSOLIDATED FIRE DEPARTMENT
The Plaintiff, John Lapeyrouse, appeals from a workers’ compensation judgment dismissing his case against the Defendant, East Bank Consolidated Fire Department a/k/a Jefferson Parish Fire Department, for supplemental earnings benefits, penalties and attorney’s fees. We affirm.
The case went to trial on December 27, 2001. In a judgment issued on February 15, 2002, the workers’ compensation judge found that the Plaintiff retired in February of 1999, and thus he is not entitled to SEB’s. The workers’ compensation judge further concluded that the Defendant was not arbitrary and capricious in terminating the Plaintiff’s benefits.
On appeal, the Plaintiff argues that the workers’ compensation judge erred in finding that he is not entitled to SEBs. The Plaintiff argues that the issue at trial should not have been his retirement, but whether he could return to work as a firefighter.

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Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Civil, Labor/Employment/Civil Rights/ADA
Docket Number - 02-CA-904
Full Opinion [pdf]
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GERRYLEIGH K. GALEANO VERSUS
TACO BELL CORPORATION
In this workers’ compensation suit, the employer appeals the judgment finding that the employee met her burden of proving a workrelated accident and that the employee had not made fraudulent statements in order to obtain benefits. The employee appeals the finding that she is not entitled to compensation benefits after July 29, 2000. For the following reasons, we affirm the workers’ compensation judge’s ruling in part and reverse in part.

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Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Civil, Contracts and Obligations
Docket Number - 02-CA-999
Full Opinion [pdf]
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INVESTORS BANK & TRUST COMPANY VERSUS
SEA PACK INTERNATIONAL, INC., ET AL
Appellant/third party plaintiff, James E. Shields, Sr. (Shields), filed an incidental action seeking indemnity and/or contribution from Joseph Caldarera (Caldarera), a co-defendant in the original action, following Shields’s payment of $30,000.00 to plaintiffs. In the original action, filed in 1989, original plaintiff, Investors Bank & Trust,1 sued Shields and Caldarera on an obligation for a promissory note guaranteed by Shields and Caldarera, among others.2 On the promissory note’s indebtedness, judgment was rendered against Shields on January 25, 1993, and against Caldarera on June 30, 1997. The 1997 judgment declared that Caldarera and Shields were liable in solido. Caldarera moved for a new trial, which was granted.

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Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Civil, Torts and Personal Injury
Docket Number - 02-CA-1029
Full Opinion [pdf]
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GLORIA MORRIS VERSUS
WESTSIDE TRANSIT LINE AND/OR AMERICAN TRANSIT CORP.
This is an appeal from a judgment of the trial court granting defendants’ exceptions of prescription. For the reasons stated herein, we affirm.
Facts and Procedural History
Plaintiff, Gloria Morris, injured her left leg on July 22, 1998 when she fell at a bus stop
on Lapalco Blvd. in Jefferson Parish. She filed the instant suit for damages on September 14,
1998 against Westside Transit Line and American Transit Corporation, alleging that the bus stop
was under the care, custody and control of defendants. On December 2, 1998, ATC/Vancom
Management Services Limited Partnership (“ATC/Vancom”) filed an answer to this petition,
stating that plaintiff had improperly named them as Westside Transit Line and American Transit
Corporation.

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Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Civil, Torts and Personal Injury
Docket Number - 02-CA-1049
Full Opinion [pdf]
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ELAINE DOUCET, ET AL VERSUS
HUFFINE ROOFING AND CONSTRUCTION, ET AL
This is an appeal from a grant of a defense motion for summary judgment. The issue on appeal is whether a policy of liability insurance issued by State Farm Insurance Company to its insured, Plateo & Silcio Architects (Plateo & Silcio), applies to the negligence of the insured in this case.
This matter began as a class action suit by certain plaintiffs who allege they sustained injuries due to exposure to toxic fumes at L.W. Higgins High School during the repair and replacement of the building roof.

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Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Civil, Torts and Personal Injury
Docket Number - 02-CA-1080
Full Opinion [pdf]
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SANDRA CHRISTIANA VERSUS
DR. STEPHEN SUDDERTH and EAST JEFFERSON GENERAL HOSPITAL FOUNDATION d/b/a EAST JEFFERSON GENERAL HOSPITAL
Plaintiff appeals the granting of a summary judgment that dismissed one of the defendants in this medical malpractice suit. We reverse and remand. On September 11, 1997 Sandra Christiana underwent surgery for removal of a twisted section of bowel. The surgery was performed by Dr. Stephen Sudderth at East Jefferson General Hospital (hereafter “EJGH”). Dr. Sudderth removed the damaged section of bowel and joined the remaining ends by creation of a side-toside anastomosis (essentially, a bypass in the bowel). During this procedure Dr. Sudderth used two surgical staplers, a GIA stapler and a TA 55 stapler.1

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Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Civil, Labor/Employment/Civil Rights/ADA, Torts and Personal Injury
Docket Number - 02-CA-1116
Full Opinion [pdf]
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ROGER NICKS VERSUS
AX REINFORCEMENT COMPANY and LOUISIANA WORKERS’ COMPENSATION CORPORATION
In this intentional tort suit, Plaintiff, Roger Nicks, appeals from a summary judgment granted in favor of Defendants, his employer, AX Reinforcement Company (AX), and its insurer, Louisiana Workers’ Compensation Corporation. For the reasons which follow, we affirm.

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Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Civil, Family/Estate Planning/Wills and Trust
Docket Number - 02-CA-1104
Full Opinion [pdf]
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HENRIK A. LARSEN VERSUS
ANNA MERIA POLK
This is an appeal by Anna Meria Polk, the mother of a minor child, from a judgment 1) holding her in contempt for violating a previously issued judgment of child support and visitation, and 2) granting the petition of the Henrik Larson, the father, to grant him sole custody and relocate the child to Sugar Land, Texas, a suburb of Houston. For the following reasons, we affirm that judgment.

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Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Civil, Contracts and Obligations
Docket Number - 02-CA-1129
Full Opinion [pdf]
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BYRON T. DASPIT VERSUS
LARRY A. TALBERT D/B/A PROGIX OR PROGIX, INC.
On July 26, 2000, Byron T. Daspit (“Daspit”) executed a written lease for commercial property located at 2240 Piedmont St., Suite A, Kenner, Louisiana. The lease lists Daspit as lessor and PROGIX as lessee. The lease was signed by Daspit as lessor and Larry A. Talbert (“Talbert”) as lessee. The lease expired on July 25, 2001. After the expiration of the lease, the business remained in the premises and paid rent on a month to month basis until December 26, 2001. The business continued to occupy the premises but did not pay rent for December 2001 through May 2002. Daspit sent written notices to Talbert regarding the violations of the lease agreement.

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Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 02-KA-1127
Full Opinion [pdf]
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STATE OF LOUISIANA
VERSUS RUBIN BELL
The St. James Parish Grand Jury returned an indictment charging defendant, Rubin Bell, with first degree murder of Keith Williams which occurred on April 6, 2000, LSA-R.S. 14:30. The state subsequently amended the indictment to charge defendant with second degree murder, a violation of LSA-R.S. 14:30.1. This matter proceeded to trial before a twelve person jury which found defendant guilty as charged. The trial judge, after listening to victim impact statements and reviewing a pre-sentence report, sentenced defendant to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.
In his first assigned error, defendant argues that the trial court erred in denying his motion for mistrial when the state solicited testimony from a witness about defendant’s involvement in an unrelated crime. In his second assigned error, defendant contends that he was denied effective assistance of counsel.

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Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 02-KA-908
Full Opinion [pdf]
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STATE OF LOUISIANA VERSUS
TERRENCE J. JONES
Defendant, Terrence J. Jones, appeals his conviction by a jury of second degree murder in violation of LSA-R.S. 14:30.1. On appeal, he makes the following Assignments of Error:
1. It was reversible error to permit the State to introduce to the jury the multiple out-of-court statements by James Artberry, the sole eye-witness to the shooting.
2. The trial court improperly restricted appellant’s crossexamination of a key State witness.

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Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 02-KA-1008
Full Opinion [pdf]
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STATE OF LOUISIANA VERSUS
JOHN DAVIS
On June 7, 2000, the Jefferson Parish District Attorney filed a bill of information charging defendant, John Davis, with possession of cocaine, in violation of La. R.S. 40:967C. Defendant was arraigned on June 9, 2000, and pled not guilty. On December 15, 2000, the trial court heard and denied defendant’s motion to suppress evidence. That same day, trial commenced. Also that day, the six-person jury found the defendant guilty as charged.
On April 20, 2001, defendant filed a motion to quash the habitual offender bill of information, which the trial judge heard and denied on June 1, 2001. That same day, the trial court held the habitual offender hearing and found that defendant is a third felony offender. The trial judge then vacated defendant’s original sentence and imposed an enhanced sentence of 20 years at hard labor, Because the trial judge deviated from the life sentence, which is the minimum mandatory sentence, required by the Habitual Offender Law, the State objected to the sentence as illegally lenient.

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Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 02-KA-1009
Full Opinion [pdf]
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STATE OF LOUISIANA VERSUS
KAREN TERRASE
The Defendant, Karen Terrase, appeals from her conviction of theft of over $500 and sentence as a habitual offender to five years imprisonment at hard labor. We conditionally affirm the conviction and finding as a second felony offender, vacate the enhanced sentence, and remand for evidentiary hearing, re-sentencing, amendment of commitments and notice.
Based on the foregoing, we will remand for an evidentiary hearing on the question of whether the Defendant in this case validly waived her right to a jury trial. If she did not, the trial judge must set aside the conviction and sentence. If she did, then the trial judge should rule that she did and this Court affirms the conviction and enhanced sentence. In this last instance, we reserve the Defendant’s right to appeal the adverse ruling of the waiver issued.

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Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 02-KA-1016
Full Opinion [pdf]
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STATE OF LOUISIANA VERSUS
DAIMON WILLIAMS
In this case, defense counsel argued that defendant was on suicide watch, was taking Thorazine, had disciplinary problems, and had been “locked down.” He failed, however, to introduce evidence in support of these allegations. He did not subpoena or call witnesses to testify regarding defendant’s alleged incompetency and he failed to introduce medical records to support his contentions. Based on the foregoing, we find, as in Washington, that the trial court did not err in denying defendant’s motion to appoint a sanity commission. Accordingly, this assignment of error lacks merit.
In this case, the prosecutor's remarks during rebuttal closing argument were not a reference to another crime by defendant. It is important to remember that defense counsel’s main argument against convicting defendant of cocaine possession was that Michael Williams, defendant’s nephew, testified at trial that the drugs belonged to him. During rebuttal, the prosecutor was arguing that Michael Williams admitted the drugs belonged to him in order to protect his uncle.

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Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 02-KA-1047
Full Opinion [pdf]
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STATE OF LOUISIANA VERSUS MATT W. SCHIEFFLER
At issue in defendant’s second appeal is whether defendant’s sentence was excessive and whether the trial court erred in denying his motion to reconsider the sentence. He contends that the trial court did not adequately consider the factors set forth in La. Code Cr. P. art. 894.1, when imposing the maximum sentence.

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Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 02-KA-1048
Full Opinion [pdf]
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STATE OF LOUISIANA VERSUS BRAD HARRIS
In brief to this Court, defendant asserts the trial court erred in denying his Motion to Reconsider Sentence and in imposing the maximum sentence of fifty
years. The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive punishment.

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Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 02-KA-1051
Full Opinion [pdf]
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STATE OF LOUISIANA VERSUS RAYMOND BROOKS, JR. (SENThis is defendant’s second appeal in this Court. On January 29, 2002, this Court affirmed defendant’s conviction for possession of cocaine, but vacated his enhanced life sentence as a third felony offender and remanded for a rehearing of the multiple offender proceeding. State v. Brooks, 01-864 (La. App. 5 Cir. 1/29/02), 807 So.2d 1090.TENCED AS “RAYMOND J. BROOKS”)

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Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 02-KA-1063
Full Opinion [pdf]
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STATE OF LOUISIANA VERSUS TROY TAYLOR
On April 16, 2001, a St. John Parish grand jury indicted the defendant, Troy Taylor, for the second degree kidnapping and attempted second degree murder of Secondra Johnson, in violation of LSA-R.S. 14:44.1 and 14:27:30.1. The defendant was arraigned on May 2, 2001 and entered a plea of not guilty. On May 21, 2001, the defendant filed a motion for mental examination and appointment of sanity commission, which was granted. After being evaluated by the courtappointed doctors, the defendant was found competent to stand trial on June 27, 2001.
Based on the foregoing, we find that the defendant was not prejudiced by defense counsel’s failure to file a motion to suppress, because even if the defendant’s statement had been suppressed, it is doubtful that it would have changed the outcome of the trial.

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Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 02-KA-1067
http://www.lsba.org/opinions/5thCourt_Files/02ka1067.pdf
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STATE OF LOUISIANA
VERSUS MARIO A. MARSHALL
Defendant, Mario A. Marshall, appeals his conviction of possession of cocaine with intent to distribute. On appeal, he assigns four errors:
1. The State did not prove beyond a reasonable doubt that appellant possessed the cocaine that was found at 3401 Edenborn Ave., Apt. 304, Metairie, Louisiana.
2. The State further did not prove beyond a reasonable doubt that the Appellant intended to distribute the cocaine found at said apartment.
3. The trial court committed reversible error by admitting evidence of other crimes pursuant to L.S.A.C.E. 404.
4. The trial court gave appellant an excessive sentence.

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Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 02-KA-1068
Full Opinion [pdf]
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STATE OF LOUISIANA
VERSUS SILAS ANTOINE
Here, the trial judge specifically found the prosecutor was in good faith when she referred to Stephen Roy’s testimony in her opening statement. The trial court’s determination regarding the good faith of the prosecutor is entitled to great weight. On appeal, we will not disturb that finding absent abuse of discretion.

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Date - 2/25/03
Court Docket - 5th Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 02-KA-1087
Full Opinion [pdf]
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STATE OF LOUISIANA
VERSUS PAUL C. LOKEY
The Defendant, Paul C. Lokey, appeals from the sentence after conviction of one count of driving while intoxicated (DWI), fourth offense. We conditionally affirm the conviction, vacate the sentence and remand for evidentiary hearing and resentencing, if appropriate. On appeal, the Defendant does not challenge his conviction, but only claims that his ten-year sentence is illegal based on the 2001 amendment to La.R.S. 14:98E(1)(a) and State v. Mayeux, 01-3195 (La.6/21/02), 820 So.2d 526. He is correct. The State also agrees that the sentence is illegal.

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Posted by AJR at March 18, 2003 09:52 PM