2003 Louisiana Supreme Court Annual Report

The Louisiana Supreme Court's 2003 Annual Report is available on the Court's Annual Reports page.

LSC Grants Writ in Autozone Case

If you are interested in the developing law on state taxation of out-of-state intellectual-property holding companies (IPHCs), then you'll want to know that on June 18, the Louisiana Supreme Court granted writs in Bridges v. Autozone Properties, Inc. In Autozone, 2004 WL 26487, the Louisiana First Circuit affirmed a trial-court judgment sustaining an exception of no personal jurisdiction over an IPHC. This contrasts with the First Circuit's more recent decision in Secretary v. The Gap, noted here, where the First Circuit affirmed a trial court's assertion of personal jurisdiction over an IPHC. (Note: On rehearing, the First Circuit issued this short per curiam, but didn't change its holding.)

Motion for Summary Judgment Requires Credible Evidence, LSC Holds

If a party moving for summary judgment will, at trial, have the burden of persuasion on an issue, that party's motion must be supported with credible evidence that would warrant a directed verdict if not controverted at trial. If such a party supports his motion solely with his own self-serving testimony to overcome a presumption of negligence, and that testimony "contains significant discrepancies which would logically be considered by a fact-finder in determining his credibility and in weighing the evidence," then the party is not entitled to summary judgment. "Application of he general rule that a court, ruling on a motion for summary judgment, must accept an affiant’s testimony or affidavit as credible or true is not appropriate in this particular case, where the mover’s testimony absolving himself from liability contains substantive contradictions or discrepancies that would ordinarily tend to call his credibility into doubt if presented to a fact-finder." Wadsworth v. Garrett, No. 2004-C-0806 (La. 6/25/04).

First Daubert, Then Summary Judgment

"Because the trial court failed to completely decide the admissibility of defendants’ expert evidence under Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993), and State v. Foret, 628 So. 2d 1116 (La. 1993), the court was premature in reaching plaintiffs’ motion for partial summary judgment. See Independent Fire Ins. v. Sunbeam Corp., 99-2181 (La. 2/29/00), 755 So. 2d 226.

"Accordingly, the judgment of the court of appeal is vacated and set aside. The case is remanded to the trial court to decide the admissibility of defendants’ expert evidence under Daubert/Foret and to decide plaintiffs’ motion for partial summary judgment, following the standards set forth in Independent Fire."

Basco v. Liberty Mutual Ins. Co., No. 2004-CC-1316 (La. 6/25/04).

LADB Asks LASC to Disbar Yvonne Hughes

The Times-Picayune reports that the Louisiana Attorney Disciplinary Board has requested the Louisiana Supreme Court to immediately suspend the law license of former Orleans Parish Juvenile Court Judge Yvonne Hughes. In the article, Hughes indicates that out-of-town prospective employers have called to say they are no longer interested in interviewing her after someone sends them information about her disciplinary problems.

Kenner Council Fails to Hire Counsel

The Times-Picayune reports that members of the Kenner City Council are likely to appear in court today without an attorney to defend a lawsuit filed by Police Chief Congemi. The Council met last night with the intent to hire counsel, but could not agree to hire a firm after hearing from several of them.

Brennan's v. Dickie Brennan's: The Fifth Circuit Speaks

Yesterday the U.S. Fifth Circuit decided cross-appeals in Brennan's Inc. v. Dickie Brennan & Co., No. 03-30470. This Brennan-family squabble arose when Dickie Brennan named two of his restaurants after himself (Dickie Brennan's Palace Café and Dickie Brennan's Steakhouse). The branch of the family that operates Brennan's Restaurant was concerned about possible trademark infringement. The facts, trial-court doings, and issues on appeal are complex, requiring the Fifth Circuit to write a 43-page opinion to sort things out. Bottom line: the Fifth Circuit affirmed a jury verdict against Dickie Brennan's, awarding $250,000 in damages for breach of contract, and remanded the case to the Eastern District of Louisiana for trademark-related claims against the owners of Dickie Brennan's.

Landrieu Discusses Juveniles with DAs

The Shreveport Times reports that Senator Mary Landrieu met with district attorneys from throughout north Louisiana to brainstorm on ways of improving Louisiana's juvenile justice system.

Food Bank to Receive Settlement Money

The Shreveport Times reports that Attorney General Charles Foti will be in Shreveport today to present the non-profit Northwest Louisiana Food Bank with a check for $10,000. The money is being distributed as part of a settlement with the Salton Corporation, which manufactures George Foreman grills.

Monroe City Court Undergoing Audit

The News-Star reports that state legislative auditors have completed an audit on travel expenses at Monroe City Court. The article notes that the fieldwork is done and that a draft report will be completed and presented to the court system for comment before it is released to the public.

Kenner Council to Hire Counsel

The Times-Picayune reports that members of the Kenner City Council will hold a special session to discuss hiring outside counsel to defend a lawsuit filed by the Kenner Police Chief after city attorneys said their involvement in the case would pose a potential conflict of interest. The council and the police chief are in a power struggle after the council cut the police budget. The chief then decided to close the city jail, which prompted a resolution from the council requiring the chief to keep the jail open. The chief has filed suit seeking a declaration that the council cannot control his spending, outside of allocating his budget.

Life in Prison

The Times-Picayune provides a report of what Bodenheimer's life will be like for the next four years.

LASC Hands Down Disciplinary Decisions

The Advocate reports that the Louisiana Supreme Court has permanently disbarred Roxanne D. Andrus (opinion) of Lafayette for reprehensible conduct and has also disbarred Joshua G. Frank, Jr. (opinon) of Opelousas for persistent and serious professional misconduct. Although not mentioned in the article, Henry B. Jones was also disbarred (opinion).

Past Hazing Incident Held Admissible at Trial

The St. Amant community will be closely watching the trial of St. Amant High School Football Coach David Swacker, which is set to begin on July 19. Coach Swacker was charged with failure to report abuse and neglect, a misdemeanor, in connection with the alleged hazing of then-sophomore Jake Savoy. Trial preparations are underway and The Times-Picayune reports that ad-hoc Judge A.J.Kling of the 23rd JDC has ruled that one of two prior hazing incidents can be admitted at trial.

The alleged hazing victim is the son of Ascension Parish councilman Jerry Savoy, who represents St. Amant as part of his constituency. Savoy's wife, Karen, has since formed a national organization--Mothers Against School Hazing (MASH)-- to combat hazing abuses. The Advocate has reported on her efforts here. The Savoy's have also filed a civil suit naming Coach Swacker and the Ascension Parish School Board as defendants.

Bodenheimer to Begin 46-Month Sentence Today

The Times-Picayune reports that ex-24th JDC Judge Ronald Bodenheimer is scheduled to begin serving a 46-month sentence today.

Bodenheimer's attorney, Eddie Castaing, said the former judge will report to the minimum-security camp at Eglin Air Force Base near Fort Walton Beach, Fla., for a 46-month sentence, a month longer than his tenure at the state 24th District Court in Gretna.

The article provides a brief history of Bodenheimer's career and the "Wrinkled Robe" FBI Operation that led to the sentence.

Legacy of "Lawsuit" Ineffective When Testator Survived by Children

Recent law-school grads take note: this is the kind of case that can show up on the bar exam.

Vera Rainey filed a personal-injury suit against Entergy. Bench trial on the merits was held in December 2000. In February 2001, Rainey made a last will and testament, naming Craig Brigalia as her executor and purporting to bequeath to him her "lawsuit" against Entergy. On March 14, 2001, the trial court rendered judgment in Rainey's favor against Entergy. On May 9, 2001, Entergy took a suspensive appeal. On May 25, 2001, Rainey died, survived by two adult children. Who is the proper appellee -- Brigalia or the surviving children?

In a decision rendered yesterday, the First Circuit held that the children are the proper appellees, not Brigalia. While C.C.P. Art. 426 and Art. 685 appear to vest the right of action in a legatee or an executor, both provisions are qualified by the phrase "except as otherwise provided by law." And in this case, the First Circuit held that Civil Code Art. 2315.1 is one such exception. The bequest of the "lawsuit" in Brigalia's favor was ineffective, the court held, because "a person does not have the capacity to make or receive a donation mortis causa of a tort cause and right of action as long as a beneficiary listed in Article 2315.1 is alive." Rainey v. Entergy Gulf States, Inc., No. 2001-CA-2414, slip op. (La. App. 1 Cir. June 25, 2004).

Louisiana Can Tax Out-of-State IPHC, Says La. First Circuit

In recent years, many large retailers have set up intellectual-property holding companies (IPHCs). Typically, the IPHC will own the retailer's trademarks, trade names, and service marks. The IPHC will then license this intellectual property to the retailer, who pays a fee for the license and uses the license to sell merchandise nationwide.

A hot issue lately is whether the IPHC's income can be taxed by a state where the merchanise is sold, even when the IPHC itself does no business in the taxing state. In a decision handed down yesterday, the Louisiana First Circuit said that it can. Secretary v. Gap (Apparel), Inc., No. 2004-CW-0263, slip op. (La. App. 1 Cir. June 25, 2004).

This case involved The Gap, Inc., which owns and operates The Gap, Old Navy, and Banana Republic stores in Louisiana and nationwide. Gap created an IPHC, Gap (Apparel), Inc., whose state of incorporation and place of business is California. Gap transferred various trademarks, trade names, and service marks to Apparel, who in turn licensed that intangible property back to Gap.

The Louisiana Department of Revenue contended that Apparel had received $11.9 million in license fees attributable to sales in Louisiana, and assessed corporation income and franchise taxes against Apparel. When Apparel refused to pay, the Department sued. Apparel objected that the Louisiana court had no personal jurisdiction over it. The trial court held that Apparel was subject to personal jurisdiction in Louisiana. Apparel then applied to the First Circuit for supervisory writs, which that court denied. In its per curiam opinion, the court said, "While Apparel may not have a physical presence in Louisiana, its intangible property clearly has a connection with Louisiana." Slip op. at 4. The court concluded that because Apparel's "intangibles have acquired a business situs in Louisiana," those intangibles "are subject to taxation in this state." Id. at 5.

CGL Insurers Must Defend Cell-Phone Manufacturer in Class Actions

Cell-phone manufacturers have been named as defendants in several class actions nationwide. The class-action plaintiffs allege that repeated exposure to microwave signals emitted by the cell phones creates an increased risk of brain cancer. They seek to compel the manufacturers to provide headsets (or the cost of headsets), to minimize the risk of microwave exposure. In one case, Naquin v. Nokia, the class-action plaintiffs seek the cost of medical monitoring.

Are these claims covered by the manufacturers' CGL insurers? In a pair of decisions released yesterday, the Louisiana First Circuit answered that they could be. Thus, the insurers must defend the manufacturer.

The manufacturer, Motorola, sued its CGL insurers for declaratory judgment obligating the insurers to defend and indemnify Motorola. One insurer, Zurich, moved for summary judgment, and Motorola cross-moved for summary judgment. The trial court granted Zurich's motion and denied Motorola's. But the Louisiana First Circuit reversed. "We cannot say, as a matter of law, that the relief sought by the class action plaintiffs falls outside the broad scope of 'damages because of bodily injury.' Thus, we conclude that Zurich's policy imposes the duty to defend Motorola under the factual allegations of the Class Actions. The resolution of the issue of Zurich's duty to indemnify Motorola will necessarily depend on the disposition of the merits of the Class Actions." Motorola, Inc. v. Associated Indem. Corp., No. 2002-CA-0716, slip op. (La. App. 1 Cir. June 25, 2004). See also Motorola, Inc. v. Associated Indem. Corp., No. 2002-CA-1351, slip op. (La. App. 1 Cir. June 25, 2004) (companion appeal following summary judgment in favor of other insurers).

LSC May Decide Extent of Mineral Lessee's Obligation to Restore

Today the Louisiana Supreme Court granted writs in Terrebonne Parish School Board v. Castex Energy, Inc. The Court's eventual decision will likely determine the existence and extent of a mineral lessee's obligation to restore land to its original condition at the end of the lease, when the lease contains no express provision requiring restoration.

Some history: In Corbello v. Iowa Production, the Louisiana Supreme Court held that when a mineral lease obligates the lessee to restore the property, the lessee must do just that, even if the cost of restoration greatly exceeds the value of the property. But Corbello did not address what happens when the lease does not contain an express provision requiring restoration.

The First Circuit's decision in Terrebonne Parish School Board v. Castex Energy, Inc. answered the question left unanswered in Corbello, holding that La. R.S. 31:122 creates an implied obligation to restore the property. But this implied obligation "is limited by a standard of reasonableness which balances the cost of perfect restoration against the value of the use to which the land is being put." Applying this reasonableness standard, the First Circuit affirmed the trial court's order requiring less-than-perfect restoration. At the same time, applying Corbello, the First Circuit held that reasonable restoration could substantially exceed the fair market value of the land. But the First Circuit vacated the trial court's order requiring the lessees to pay the cost of restoration. Instead, because the lessees were willing to actually perform the restoration, the trial court ordered the judgment to be amended to order specific performance of the obligation to restore.

I don't know who applied for writs or what issues were raised in the parties' writ applications. But my guess is that the Supreme Court's eventual decision in this case may answer the following questions:

(1) At the end of a mineral lease, must the mineral lessee restore the property to its pre-lease condition, even though the lease contains no clause explicitly requiring restoration?

(2) If so, is the obligation to restore limited by (a) the value of the land, or (b) the reasonableness standard adopted by the First Circuit?

(3) If the mineral lessee must restore, should the court render a money judgment for the cost of restoration, or should the court instead order specific performance of the obligation to restore?

LSU Law Professor has Torture Connections

The Advocate reports that the attorney responsible for the Justice Department's torture memo is Jay Bybee, a former LSU law professor. Since that time, Bybee has been appointed to the 9th U.S. Circuit Court of Appeals. Accordingly, LSU shouldn't have to worry about its students reacting in a manner similar to this.

U.S. Fifth Circuit Applies Judicial Estoppel

In a decision filed on June 18, the U.S. Fifth Circuit dismissed a personal-injury lawsuit, because in prior bankruptcy proceedings, the plaintiff-debtor had failed to disclose his potential lawsuit to his creditors.

Arthur Hudspeath claimed to have been injured while disembarking from a ship. A little over a year later, he and his wife filed for Chapter 13 bankruptcy. In the bankruptcy proceeding, they were required to report any pending litigation or potential lawsuits, but they filed a schedule that failed to disclose their potential claim against the ship. While their bankruptcy case was still pending, they filed a state-court suit against the ship owner, but withheld service for six months, during which time they failed to amend their bankruptcy filings to disclose their lawsuit. After being discharged in bankruptcy, Mr. Hudspeath intervened in the federal-court limitation action, pressing his personal-injury claim. The vessel owner moved the district court to dismiss Mr. Hudspeath's suit on grounds of judicial estoppel.

The district court denied the vessel owner's motion, but Fifth Circuit reversed. In an opinion by Judge Edith Jones, the Fifth Circuit criticized the district court for "allow[ing] these debtors to have their cake and eat it too, as they retain the enormous benefit of a bankruptcy discharge while standing in line to receive funds from the injury lawsuit after the creditors are paid. Because judicial estoppel is designed to prevent such guile, we reverse." In re: Superior Crewboats, Inc., No. 03-30692, slip op. (5th Cir. June 18, 2004).

Edwards Won't Get New Judge

The Advocate reports that US District Judge Ralph Tyson has issued a ruling refusing to recuse himself from ruling on whether Edwards conviction should be overturned because of claims that Judge Polozola was impaired by painkillers during Edwards trial. The motion filed by Edwards' attorneys claimed that "a reasonable observer undoubtedly would harbor doubts about whether Judge Polozola's colleagues could decide these types of questions in a fair and impartial manner."

Fifth Circuit Halts Gas Mandate

The Advocate reports that the US Fifth Circuit has granted a stay in the five-parish Greater Baton Rouge area regarding EPA's mandate that drivers must use specially reformulated gasoline. A hearing will be set next week to consider the local government's suit that claims the requirements will not make the air cleaner and are an undue burden.

No Comment From the Urban League

The Times-Picayune reports that the National Urban League issued a statement distancing itself from the ongoing federal investigation of former Mayor Marc Morial.

Legality of Truth Serum Bill Headed to Foti

The Times-Picayune reports that the the Louisiana legislature has passed a bill that requests Attorney General Foti to determine whether death row prisoners can legally be given "truth serum" in an attempt to determine if they committed other unsolved crimes.

A Rainmaker?

Yes, here at Adams and Reese, we're chuckling over today's editorial cartoon in the Times Picayune.

American Press Moves to Subscription Model

The American Press has apparently moved to an e-subscription model. Who knew the demand for Lake Charles news was so high on the Internet?

Lafayette Police and Firefighter Dispute Heading to Trial

The Advertiser reports that Lafayette police and firefighters have rejected a settlement offer from the Consolidated Government of more than $10 million. The dispute concerns Lafayette's practice of reducing police and firefighter pay after the employees begin receiving state supplemental pay.

Tobacco Case Flap

The Times-Picayune reports that tobacco company lawyers were unsuccessful in excluding CDC Judge Ethel Sims Julien from presiding over hearings to determine whether defense jury consultants improperly questioned jurors who handed down a $599 million verdict. Interestingly, the recusal hearing was closed after defense attorneys successfully argued that attorney-client privilege would be violated by an open hearing.

Legislators Say the Darnedest Things

Every year, columnist John Maginnis compiles a "compendium of the wit and wisdom of the Louisiana Legislature." Here is this year's installment. (My favorite is by Rep. Ernie Alexander, although Rep. Warren Triche's is pretty good too.)

Governor Says No to Oystermen

The Times-Picayune reports that Governor Blanco will not accept the settlement offer made by oyster man last week. "I want to make clear that I have not and will not consider using hundreds of millions in taxpayer dollars to settle these lawsuits, especially when these oyster lawsuits threaten to derail the state's coastal restoration efforts," Blanco said. The case is currently pending before the Louisiana Supreme Court.

Football Network Sued

KATC reports that the Baton Rouge-based Football Network has been sued by a foamer contractor for labor expenses, travel time and rental car costs. The Network, which was subsidized by the state to the tune of over a million dollars only broadcasted for a few weeks and has since shut its doors while it is looking for additional funding.

Judge Protects DNA Samples from Lee Sweep

The Times-Picayune reports Judge Frank Polozola has extended an order protecting more than 1,200 DNA samples collected during the frantic search for Derrick Todd Lee until the alleged serial killer has been tried.

Shell Lists Stations Given Bad Fuel

The Times-Picayune reports that Shell has released a list of stations that possibly received bad fuel. The list, however, does not appear to be available online or at Motiva's web site.

Louisiana Attorney General Charles Foti's office refused requests to release information it had concerning locations that might have sold the bad gasoline. Initially, a spokeswoman said the attorney general would not release the list because of "attorney client privilege." Later, in denying a request filed under the Louisiana Public Records Act for a list of stations "where . . . problem gasoline was sold," Isabel Wingerter, chief of Foti's consumer protection section, wrote, "We have no conclusive list that identifies those stations."

Trial Set for Ouachita Parish Workers

The News Star reports that trial dates for two former Ouachita Parish Police Jury Public Works Department employees have been reset until August 30. These two workers are the first of 8 that will be tried on charges of filing false public records, felony theft of road materials, malfeasance in office and public bribery. The article outlines the indictments against all eight involved.

NOLA DA Audit

The Times-Picayune reports that New Orleans District Attorney notified the state legislative auditor after finding evidence that funds were misspent during the Connick Years. The auditor released a report [pdf] of the investigation last week.

Apparently, between January 2001 and March 2003, a division of the DA's office spent about $24,000 on holiday parties, birthday cakes, gifts for retirees and other items. In a written response to the state auditor, Harry Connick said the division employees deserved holiday parties because they work long hours and are on the "low end of the pay scale in the New Orleans legal world."

D'Souza Announces Candidacy

The Times-Picayune reports that Bernadette D'Souza, a lawyer and a longtime advocate for domestic violence victims, has also announced her candidacy for a judgeship vacancy on the Orleans Civil District Court. D'Souza is running for the seat left open by Hunter King's removal from the bench.

Court Reduces NOLA Debt and Firefighter Back Pay

The Times-Picayune reports that a dispute concerning New Orleans firefighter pay that originated in 1981is "plodding to an eventual close." In a district court-decision by Judge Roland Belsome last year, the city's liability was estimated at $360 million, but that has been reduced to around $130 million. Both sides are preparing writs to the Louisiana Supreme Court in an effort to finally resolve the suit that originally concerned accrued leave, but now focuses primarily on a state law that mandates annual 2 percent pay increases for firefighters.

C-Murder Retrial Postponed until September

WGNO reports that C-Murder's retrial has been postponed until September 13. The retrial was granted after evidence surfaced indicating that prosecutors withheld criminal histories of witnesses in the murder case against the rapper.

A Case of Bad Gasoline?

The Times-Picayune reports that police are investigating whether the bad gas (i.e., high elemental sulfur content) that recently plagued the New Orleans area was a factor in a Memorial Day accident that left 35-year-old Gregory Alix dead after his stalled car was rear-ended on the High Rise and knocked into the Industrial Canal 100 feet below.

"That was a consideration the day of the accident, even before the vehicle was recovered," said New Orleans Police Lt. Henry Dean, who is heading the investigation. "It was mentioned by a couple of the investigators at the accident scene."

Raise your Voice

The Louisiana State Senate recently began a pilot program that allows citizens to communicate their positions on issues facing the state using an online system called Share Your Opinions, launched on May 31. Senator Michael J. "Mike" Michot's website is the testbed for this project, which currently allows users to vote for or against a small group of bills currently awaiting action. Links are also provided for the bills' respective legislative history and status (on the main paged). [via beSpacific].

"Legal Incidents" Clause Stirs Debate

The News Star reports on the proposed constitutional amendment that seeks to ban same-sex marriages. In addition to banning such marriages, the amendment also has a clause that prevents "the legal incidents" of marriage from flowing to same-sex unions. The language of the amendment, which has passed both the house and senate, raises an issue as to whether some legal arrangements entered into by same-sex couples will be valid.

AMA Withdraws Resolution

The Town Talk reports that a proposal submitted by a physician to the the American Medical Association to endorse a physician's right to refuse care to attorneys (and their spouses) involved in medical malpractice cases drew an angry response at their annual meeting. The resolution left the AMA "a really big mess to clean up," said one neurosurgeon. The article also notes this story about a plastic surgeon in Mississippi who refused to treat a young lady's burn scars because her father, a state legislator, had voted against limiting damages in medical malpractice suits.

Attorneys and Advertising

The Advertiser carries a national AP story that profiles Baton Rouge attorney E. Eric Guirard and his advertising practices. The article notes that Guirard, a former stand-up comic, spends seven figures annually to promote his firm.

"E" doesn't stand for anything--that’s my nickname. But if you want to be successful, you have to have that letter out in front of your name,” Guirard said. “With me, you don’t have to remember a name, you don’t have to remember a slogan--just remember a letter: E.”

Decision on I-49 Suit Expected by end of Summer

The Advertiser reports that Judge Tucker Melancon is expected to hand down a decision by the end of summer that will impact a proposed Interstate 49 extension that is slated to run through Lafayette. "The lawsuit alleges that the highway administration violated federal law by planning the roadway too close to a historic district and park, and that alternative routes were not considered." Meanwhile, the state and federal government are both moving forward with the project.

Oystermen Make Settlement Offer

The Times-Picayune reports that the oystermen who won a $1.3 billion judgment against the state for the destruction of their harvesting area have made a settlement offer of $243 million--about 81% less than the award handed down by the Plaquemines Parish jury that first heard the case. The case was recently argued before the Louisiana Supreme Court and the oysterman's offer stands until the court issues a decision or until July 10, whichever comes first.

Plantation Chef Files Suit Against Smokey Robinson

The Advocate reports that Nottoway Plantation chef Johnny "Jambalaya" Percle has filed a suit against Motown singer Smokey Robinson for trade-name infringement. Percle, "who has served his fare to the likes of Pope John Paul II, Shaquille O'Neal, the rock band Kiss and two U.S. Supreme Court justices," alleges that Robinson's new food label slogan "The Soul is in the Bowl" violates his catch phrase--"Soul in Yo Bowl"--which he uses in his own food line.

Judicial Election

The Times-Picayune reports that Sidney Cates, IV has announced his candidacy to fill the vacancy created in the New Orleans Civil District Court when Judge Roland Belsome was elected to the Fourth Circuit Court of Appeal. The election will be held on September 18.

A Tort Reformer's Dream

The Newsstar reports on a lawsuit filed against a Captain D's restaurant in Monroe that claims a cup of scalding coffee spilled into Ben Alex Norwood's lap and not only caused severe burns to his lower body, but also contributed to his death less than two months later. Attorney Vince Dunn, Jr. was fully aware that the suit would foster comparisons to a poster child of tort reform, the McDonald's case. "I know the McDonald's case is seen as the laughingstock. I don't want this to be seen as a joke," Dunn said. "This man truly suffered, as did his family."

A current poll on the Newstar web site indicates that over 90% of 274 respondents think that the suit is "one more sign that frivolous lawsuits need to be stopped."

Is Writ Denial Preclusive?

In re K.P.W., a May 26, 2004 decision by the Louisiana Fifth Circuit, seems inconsistent with the Louisiana Supreme Court's 2003 decision in Davis v. Jazz Casino Co., 849 So.2d 497. In K.P.W., the Fifth Circuit held that its prior writ denial established law of the case on an issue, thus precluding later consideration of the same issue on appeal, because the court in its writ denial "considered the substantive issues presented by the application ...." But in Davis, decided one year before K.P.W., the Supreme Court held that when an appellate court denies writs, it has no jurisdiction to affirm, reverse, or modify the trial court's judgment. "Thus, any language in the court of appeal's earlier writ denial purporting to find no error in the trial court's ... ruling is without effect."

"Illegitimate Child" an Illegitimate Term

Act 26 of the 2004 Regular Session changes the terminology in various provisions of the Civil Code, Code of Civil Procedure, Children's Code, Code of Evidence, and Revised Statutes that referred to legitimate or illegitimate children. Under the new terminology, a child formerly referred to as illegitimate is now referred to as a child born outside of marriage, while a child formerly referred to as legitimate is now referred to as a child born of marriage.

I normally disdain euphemisms (see e.g. here and here), but I must make an exception for this one. The old terminology hung an ugly label on children who did nothing to deserve it.

Suicide Note Ruled Admissible as a Dying Declaration

The Advocate reports that 19th JDC Judge Duke Welch will allow the admission of a suicide note allegedly written by a young woman before she committed suicide because it is "highly relevant" to the case. The decedent's parents have filed suit against a fraternity and one of its former members alleging that their daughter was given alcohol and/or drugs and raped at a fraternity party on February 6, 2001. The young woman was found hanged, along with a suicide note, on April 9, 2001.

Greg Rozas, the parents' lawyer, said it is evident that the suicide note was written immediately before her death because in one line she says, "I didn't know it would hurt this much,"--referring to the noose around her neck. The note gives the name of the man she says raped her and details how she tried in vain to get help before she says goodbye to her parents. A trial has not yet been scheduled, and Judge Welch urged the defense to appeal his ruling because he and attorneys in the case could find no other case in the state's history in which a suicide note was allowed as evidence in a civil trial.