New Contributor

Naked Ownership is pleased to welcome Raymond P. Ward as a regular contributor to the site. Mr. Ward is an appellate lawyer with Adams and Reese LLP in New Orleans. His professional bio is here, and his for-fun blog, "Rain Man," is here. Be sure to check out his posts on discovery requests and captions for a sample of his offerings.

Advice from the Judiciary Regarding Summary Judgment Attachments

The following concurrence from Gaspard v. Graves, 03-0844 (La.App. 1 Cir. 2/23/04) was recently published in Around the Bar:

DOWNING, J. agrees and assigns additional reasons.

The question on the test was, who was Socrates? A little girl wrote, "Socrates was a wise man who went around giving other people good advice. They poisoned him."

My good advice to attorneys is to remember that exhibits attached to the memorandum, which goes to the judge, are not in evidence. The original motion for summary judgment, with attached exhibits should be filed into the record and a copy sent to the judge. The original opposing memorandum and a copy of the exhibits goes to the judge and a copy of the opposing memorandum and the original exhibits should be filed in the record.

Although, C.C.P. art. 966 refers to pleadings, depositions, etc. on file, it would help the trial court if you would both list the affidavits attached to the motion and also list in the motion the other evidence in the record upon which you rely and also attach the documents as exhibits. This would also eliminate a lot of guesswork on the part of the court of appeal because we are not always able to determine what the trial court considered in granting or denying the motion for summary judgment.

Because C.C.P. art. 966 uses the term "pleadings" many attorneys seem to think that since the petition is a pleading that they may rely upon the facts alleged in the petition to oppose the motion for summary judgment. The article technically should say, "admissible pleading." The first sentence of C.C.P. art. 967 clearly states that once a motion for summary judgment is made an adverse party may not rest upon the allegations in a pleading. The exception would be facts admitted in the petition or answer. These should be specifically pointed out and, to avoid any doubt, copied and attached to the motion or memorandum. This suggestion applies to other discovery.

"Personal knowledge," under C.C.P. art. 967 does not include hearsay. We are constantly reviewing affidavits from a supervisor who interviewed everyone and who thereafter states he has personal knowledge because of the interviews. That is hearsay and not personal knowledge. The exceptions would be the same exceptions that would apply to hearsay, for instance, if he interviewed the opposing party and the statement was an admission. You should file a motion to strike when the other party files an affidavit with hearsay.

If you have not had time for discovery, file a motion for a continuance. I would file it in the form of an affidavit. Most of the time the attorney simply states at the hearing on the motion for summary judgment that he has not had time for discovery. C.C.P. art. 967 actually states, (i)f it appears from the affidavits of a party ... the court may refuse the application... Why take a chance?

Finally, when is a partial judgment a final judgment? If it totally removes a party from the litigation, it is a final judgment. Also, if there is no just reason for delay, it is a final judgment, after an express determination by the court. What does that mean? The legislature didn't give any definitions or suggestions. The appellate courts have not given a list of just reasons or satisfactory "express determinations." I would suggest that the attorneys ask the trial court to make a finding that an appellate determination of this issue will eliminate this litigation, or is required for this litigation to proceed. But, don't just say those words, explain the why and how, otherwise you will have simply delayed the proceedings to have the court of appeal decide that the reasons were not good enough. And since there are no guidelines, the probability of that happening is fairly good.

In the instant case, all of us regret not being able to decide this case because the exhibits were not in the record. However, since the court of appeal cannot take evidence there was no easy way to resolve this matter.

La. Sup. Ct. Exonerates Parent Corp. in Assumed-Duty Case

Today the Louisiana Supreme Court reversed a jury verdict and a 1st Circuit decision against a parent corporation in a personal-injury suit by employees of a subsidiary, who sued the parent under the "assumed duty" doctrine defined by Restatement (2d) Torts § 324A. While the Court did not explicitly adopt § 324A, it described that Restatement provision as "not ... contrary to Louisiana law," and thus analyzed the case under § 324A terms. The Court explained that "[b]ecause of well-established legal rules" governing employers and corporations, "we will not 'lightly assume' that a parent corporation has agreed to accept the subdiary-employer's duty to provide a safe workplace absent proof of an affirmative undertaking of that duty by the parent corporation.... [N]either a parent's concern with safety conditions and its general communications with the subsidary regarding safety matters, nor its superior knowledge and expertise regarding safety issues, will create in the parent corporation a duty to guarantee a safe working environment for its subsidiary's employees under § 324A." Bujol v. Entergy Services, Inc., 03-C-0492 c/w 03-C-0502, slip op. (La. May 25, 2004).

New-trial motion necessary?

Question: Must a party file a motion for new trial to preserve an issue for appeal? If a party does file a motion for new trial, does omission of an issue from the motion constitute waiver of the issue on appeal?

Answer to both questions: No. "[T]here is no requirement in the law that a party must raise an issue pursuant to a motion for new trial or else waive the issue for purposes of appeal. A party may elect to seek relief from the trial court through a motion for new trial if the party concludes that the trial court may be willing to grant such relief for the reasons given in support of the motion. However, a party instead may elect to proceed directly to the appeal." Hicks v. Steve R. Reich, Inc., 38,424 p. 4 (La. App. 2 Cir. 5/12/04).

My take: Whether this is true depends on the grounds for the motion. If the thrust of your new-trial motion would be to ask the trial court to change its mind about something that it's already considered, then the proposition probably holds. But if the motion would ask the trial court to consider something that it hasn't considered before (e.g. newly discovered evidence, juror misbehavior), then you may need to raise the issue first in the trial court before taking it upstairs to the court of appeal. (Just my opinion -- please don't rely on it.)

Gator: The Other White Meat

This First Amendment decision by the U.S. Fifth Circuit has a distinct Louisiana flavor, but somehow escaped our attention when it was originally rendered on April 2. The plaintiff, Pelts & Skins LLC, Louisiana's and the world's largest alligator-farming operation, alleged that the La. Dept. of Wildlife & Fisheries collected various fees from Pelts & Skins to help pay for generic marketing of alligator products. Pelts & Skins disagreed with the message conveyed by generic marketing, because it considered its alligator products superior to those of its competitors, and sued to prevent DWF from imposing mandatory fees on Pelts & Skins to subsidize a message with which Pelts & Skins disagreed. The district court granted an injunction, and the Fifth Circuit affirmed, concluding that "the generic marketing at issue is not government speech, but government facilitation of the private speech of fur and alligator harvesters." Pelts & Skins, LLC v. Landreneau, No. 03-30523, slip op. (5th Cir. Apr. 2, 2004), 2004 WL 725275.

More reports on tobacco verdict in New Orleans

Bloomberg.
Canada.com
CNN
NPR (audio)

Big Verdict Against Big Tobacco

NOLA.Com reports: "NEW ORLEANS (AP) — The tobacco industry must pay more than $500 million for programs to help Louisiana smokers kick the habit, a jury ruled in a class-action lawsuit Friday." Read the rest of the story here.

Lawyer must report judicial misconduct

The Louisiana Supreme Court has amended Rule 8.3(b) of the Rules of Professional Conduct, effective May 29, 2004. Under the new rule, if a lawyer knows that a judge has committed a violation of a rule of judicial conduct, raising a question about the judge's honesty, trustworthiness, or fitness for office, then the lawyer must report the matter to the Judiciary Commission. Complaints about the conduct of federal judges must be reported to the appropriate fedeal authorities according to federal laws and rules governing federal judicial conduct and disability.

Afraid of SBE Liability?

The Baton Rouge Business Report warns its readers to be very afraid of "a risky and little-known experiment" being carried out by Louisiana courts--the corporate liability theory known as the single business enterprise doctrine. The doctrine allows courts to hold parent and sister companies liable for the debts of separately incorporated businesses, without any proof of wrongdoing. Characterized as a veil-piercing mutant, LSU Law vice chancellor Glenn Morris warns that the doctrine created by the Louisiana First Circuit Court of Appeal in the Green v. Champion case must be addressed quickly: "Once people have a vested interest in a doctrine, it becomes hard to repeal."

R.S. 9:5628 violates due process, La. 2 Cir. holds

Revised Statute 9:5628 sets a three-year peremptive period for medical-malpractice claims. In Walker v. Bossier Medical Center, 38,148 (La. App. 2 Cir. 5/12/04), the Louisiana Second Circuit holds the statute unconstitutional, on due-process grounds, as applied to a patient who received a blood transfusion and, 12 years later, contracted Hepatitis C. A doctor testified that 99% of patients contracting Hepatitis C will not experience any symptoms for about 10 years from the date of transfusion. The court reasoned, "To require a plaintiff to assert a claim before the alleged malpractice and resulting injury are discoverable imposes an impossible condition on her access to the courts and the pursuit of her tort remedy."

New home for La. Supreme Court and La. 4th Circuit

This announcement was in today's LSBA Online Newsletter:

Supreme Court Moves to Royal Street

On Monday, May 17, 2004 the Louisiana Supreme Court will be open for business at our new address - 400 Royal Street in the historic French Quarter of New Orleans. With this long-awaited relocation to the newly renovated Royal Street courthouse comes the excitement of the Supreme Court returning to its former home and the joining together of the Supreme Court, the Office of the Judicial Administrator, the Law Library of Louisiana and the Court of Appeal, Fourth Circuit for the first time all under one roof. This change also means new contact information for all of the above. For details on the Library closing and contact information go to: http://www.lsba.org/News_Advisories/whats_new_12.html