Assumed-Duty Doctrine Applied

In Graves v. Riverwood International Corp., decided August 18, the Second Circuit applied the assumed-duty doctrine as enunciated on May 25 by the Supreme Court of Louisiana in Bujol v. Entergy Corp. Mr. Graves, a paper-mill employee, died of mesothelioma. His survivors sued Olin Corp., whose subsidiary owned the paper mill. They alleged that Mr. Graves was a third-party beneficiary under a contract between Olin and the subsidiary under which Olin allegedly agreed to provide industrial-hygiene services to the subsidiary. The Second Circuit affirmed summary judgment in Olin's favor under a contract theory, but reversed under the assumed-duty theory, holding that plaintiffs were entitled to introduce evidence that Olin voluntarily assumed a duty to Mr. Graves to protect him from asbestos exposure.

Merits Ruling Before Class Certification Okay

In Clark v. Shackleford Farms Partnership, decided August 18, the Second Circuit held that, in a putative class action, a trial court may decide defendant's motion for summary judgment before deciding class certification. "Whereas there is abundant jurisprudence standing for the proposition that it is improper for the trial court to consider the merits of a case in a class certification hearing, we find no jurisprudence that holds that it is improper for the trial court to consider the merits of the case prior to a class certification hearing. Therefore, although it would be erroneous for a trial court to look to the merits of the underlying action as one of the factors in making its determination about whether a class should be certified, it would not be improper to do so in the case sub judice, because there has not been a class certification hearing."

Third-Party Claimant Cannot Rely On Entire Policy Contract Statute

Under La. R.S. 22:628 (the "Entire Policy Contract Statute"), any change to an insurance policy must be in writing and either attached to the policy or explicitly incorporated into the policy by reference. In Watts v. Thurman, decided August 20, the Second Circuit holds that a third-party tort claimant who sues the tortfeasor's insurer cannot rely on the insurer's failure to comply with R.S. 22:628 to defeat the insurer's motion for summary judgment denying coverage.

Appeal Timely When Motion Timely, Even Though Order Signed Late

The appellant filed its motion for appeal timely, but forgot to attach to the motion a form of an order granting the appeal. By the time the omission was corrected and the order signed, the deadline for appeal had passed. Nonetheless, the Second Circuit refused to dismiss the appeal. "[W]hen a timely filed order of appeal is not signed during the delay period, this is not a fault or defect imputable to the appellant, and the appeal should not be dismissed when the motion for appeal is timely filed, but the order is not signed until after the delay has run.... [W]e ... hold that the inadvertent failure to attach an order to the motion for appeal herein will not defeat appellant’s right to appellate review." Lifecare Hospitals, Inc. v. B&W Quality Growers, Inc., No. 39,065-CA (La. App. 2 Cir. 7/8/04).

Home Schooling Not In Best Interest Of These Children

"May [the chidren's mother] utilize her authority as domiciliary parent for making the major decision for the children's education (which is presumed in the best interest of the children) to lessen or avoid her economic support obligation to the children and to increase the permanent spousal support in her favor? Under the particular facts of this case, we find that the evidence rebuts the presumption that [the mother's] decision for home schooling is in the best interest of the children and that the trial court's ruling to the contrary was an abuse of its discretion." Donna G.R. v. James B.R., No. 39,005-CA (La. App. 2 Cir. 7/2/04).

Unauthorized Practice of Law

In Louisiana Claims Adjustment Bureau, Inc. v. State Farm Insurance Company (decided June 23), the Second Circuit held that a so-called "third-party adjuster" engaged in the unauthorized practice of law when it negotiated settlements on behalf of persons injured in automobile accidents in exchange for a 25% contingency fee. Thus, State Farm's statements to that effect were true, and hence State Farm could not be held liable for defamation. Nor could State Farm be held liable for tortious interference with contract, because the contracts between LCAB and its "clients" were against public policy and therefore void.

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.)

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."

Second Circuit Court of Appeal Decisions

Compliments of the Louisiana Bar Today Opinion Service, the most recent opinions as of 3/10/03 from the Louisiana Appellate Courts are available here.

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 - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil, Labor/Employment/Civil Rights/ADA
Docket Number - 36,747-CA
Full Opinion [pdf]
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DR. DWIGHT VINES AND Plaintiffs-Appellants
DR. VAN MCGRAW versus NORTHEAST LOUISIANA UNIVERSITY Defendants-Appellees AND THE BOARD OF TRUSTEES, UNIVERSITY OF LOUISIANA SYSTEM, The plaintiffs, Dr. Dwight Vines and Dr. Van McGraw, appeal a trial
court judgment sustaining an exception of res judicata and collateral estoppel as to their claims of age discrimination. The exception was based upon the dismissal of a suit in federal court filed by the Equal Employment Opportunity Commission (EEOC). The defendants, Northeast Louisiana University and the Board of Trustees of the University of Louisiana System, have answered, seeking sanctions for a frivolous appeal. For the following reasons, we reverse the trial court judgment and deny the claim for frivolous appeal.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil, Family/Estate Planning/Wills and Trust
Docket Number - 36,852-CA
Full Opinion [pdf]
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ROGER RAY FLANAGAN Plaintiff-appellee versus
MICHELLE BEATRICE LINER FLANAGAN Defendant-appellant
After five years of primary custody of the children with the father, the mother moved to modify the custody agreement which had resulted from a previously stipulated consent judgment. The trial court ruled that a change in custody was not in the best interests of the children, and the mother appeals. Finding no material change in circumstances that would justify a change in custody, we affirm the trial court?s ruling.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 36,847-KA
Full Opinion [pdf]
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STATE OF LOUISIANA Appellee versus
GUEORGUI K. RAEV Appellant
The defendant, Gueorgui Raev, was charged by bill of information with attempted second degree murder, a violation of LSA-R.S. 14:30.1 and 14:27. The defendant entered a guilty plea to the reduced charge of attempted manslaughter, a violation of LSA-R.S. 14:31 and 14:27. The district court imposed a sentence of twelve years at hard labor. Defendant filed a motion for reconsideration of sentence, but he withdrew the motion prior to the court?s ruling. Defendant appeals his sentence as excessive. We affirm.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 36,834-KA
Full Opinion [pdf]
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STATE OF LOUISIANA Appellee versus
APRIL DAWN WRIGHT Appellant
April Dawn Wright (?Wright?) pled guilty as charged to one count of first degree robbery, La. R.S. 14:64.1. The trial court sentenced her to eighteen years at hard labor without benefit of parole, probation or suspension of sentence. Upon the denial of her motion to reconsider sentence, Wright lodged this appeal contending that the imposed sentence is excessive. We affirm.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 36,830-KA
Full Opinion [pdf]
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STATE OF LOUISIANA Appellee versus BOBBY COOPER Appellant
Following a jury trial, the defendant, Bobby Cooper, was convicted of second degree murder and sentenced to the mandatory term of life imprisonment without benefit of probation, parole or suspension of sentence. The defendant?s conviction and sentence are affirmed. The defendant argues that the trial court erred in denying his motion to suppress his statement to the police. In his second assignment of error, the defendant contends that the trial court erred in restricting his ability to present evidence about the totality of the circumstance surrounding the making of his inculpatory statement to the police. Specifically, he claims that he was not allowed to explore whether he was under arrest at the time or if he was misled as to his status and degree of risk.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil, Labor/Employment/Civil Rights/ADA
Docket Number - 36,829-WCA
Full Opinion [pdf]
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WANDA ELKINS Plaintiff-Appellee Versus LOUISIANA DEPARTMENT OF Defendant-Appellant AGRICULTURE & FORESTRY,
The Louisiana Department of Agriculture and Forestry (?LDAF?) appeals a default judgment entered on behalf of Wanda Elkins (?Elkins?) in this workers? compensation matter. Finding that the plaintiff failed to properly serve the defendant, we reverse.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 36,826-KA
Full Opinion [pdf]
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STATE OF LOUISIANA Appellee versus
CHARLES RAY SNOW Appellant
The defendant asserts that the trial court erred in failing to advise him of the mandatory minimum sentence prior to the entry of the guilty plea. This argument is without merit.

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Date - 3/5/02
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil, Labor/Employment/Civil Rights/ADA
Docket Number - 35,344-WCA
Full Opinion [pdf]
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CHARLES A. CULOTTA Plaintiff-Appellee
Versus A.L. & W. MOORE TRUCKING COMPANY Defendant-Appellant,On appeal, A.L. & W. Moore disputes several factual findings of the WCJ, including the finding that Mr. Culotta was entitled to SEB, the computation of Mr. Culotta?s average weekly wage under La.R.S. 23:1021 (10) (d), the award of penalties and attorney fees and the finding that Mr. Culotta needs back surgery.

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Date - 3/7/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil, Contracts and Obligations, Real Estate/Construction/Oil and Gas/Environmental
Docket Number - 36,785-CA
Full Opinion [pdf]
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H. L. RICHEY, ET AL. Plaintiffs-Appellees versus
JEFF A. MOORE, ET AL. Defendants-Appellants,
The defendants, Jeff A. Moore, Tammy Hancock Moore, Vernon Monk, Marcia Pierce Monk Free, T & M Oil Company, and T & M Production, appeal a trial court judgment granting $50,000.00 in attorney fees to the plaintiffs, H. L. Richey and his wife, Marilyn Richey, and K. F. Young and his wife, Gloria Young, in a dispute over obligations under the transfer of an oil and gas lease. For the following reasons, we reverse the trial court judgment.

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Date - 2/11/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 36,862-KA
Full Opinion [pdf]
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STATE OF LOUISIANA Appellee versus
JIMMY LAM Appellant
Defendant Jimmy Lam appeals from his conviction and sentence for the crime of illegal use of a weapon under La. R.S. 14:94. We affirm the conviction and sentence, but vacate the condition of probation relative to restitution.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 36,741-KA
Full Opinion [pdf]
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STATE OF LOUISIANA Appellee versus DALE WAYNE GREEN Appellant, After Dale Wayne Green (?Green?) was convicted of distribution of marijuana, La. R.S. 40:966(A)(1), he was adjudicated a third felony offender and sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. Green now appeals his conviction and sentence.1 We affirm.This court?s authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson, supra, and does not extend to credibility determinations made by the trier of fact. La. Const art. 5, § 10(B); State v. Williams, 448 So. 2d 753 (La. App. 2d Cir. 1984).

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil, Torts and Personal Injury
Docket Number - 36,735-CA
Full Opinion [pdf]
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KEITH MASTERS AND RACHAEL DIANE MASTERS Plaintiffs-Appellants versus STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Defendant-Appellee, Keith Masters and Rachael Diane Masters, plaintiffs, appealed the
summary judgment dismissing their claim against their auto insurer, State Farm Automobile Insurance Company, for its proportionate share of attorney?s fees and costs arising from State Farm?s recovery of its medical payments to Mr. and Mrs. Masters from the insurer of the responsible third party?s insurer. Mr. and Mrs. Masters contended that the summary judgment in favor of State Farm, in essence, required their attorney to be an unpaid collection agent for State Farm. According to the insurer, Mr. and Mrs. Masters sought to force State Farm to pay for their attorney?s fees for services which State Farm neither needed nor requested, when the insurer received no timely notice of retention of the attorney or his subsequent activities. For the following reasons, the judgment is affirmed.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil, Labor/Employment/Civil Rights/ADA
Docket Number - 36,695-WCA
Full Opinion [pdf]
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ALBERTA D. GOSEY Plaintiff-Appellant
Versus GENERAL MOTORS CORPORATION Defendant-Appellee, In this workers? compensation case, the claimant, Alberta Gosey, appeals a judgment in favor of the employer, General Motors Corporation (?General Motors?). The workers? compensation judge denied the claim for compensation benefits, finding that claimant had failed to prove by a preponderance of the evidence that she sustained a work-related occupational disease or accident. For the following reasons, we affirm.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil, Torts and Personal Injury
Docket Number - 36,665-CA
Full Opinion [pdf]
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LINDA BOZEMAN, INDIVIDUALLY Plaintiffs-Appellees
AND ON BEHALF OF TOMMY BOZEMAN versus STATE OF LOUISIANA, AND THE Defendants-Appellants DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, This matter involves two related appeals which have been
consolidated.1 The first is an appeal by Linda Bozeman, the plaintiff, whose claim for medical expenses stemming from the death of her husband was
remanded for retrial in Bozeman v. State -DOTD, 34,430 (La. App. 2d Cir. 4/4/01), 787 So.2d 357, writ denied, 2001-1341 (La. 6/29/01), 794 So.2d
813. On remand, the trial court reduced the award of medical expenses by applying Terrell v. Nanda, 33,242 (La. App. 2d Cir. 5/10/00), 759 So.2d
1026, which holds that the amounts ?written-off? or ?contractually adjusted? pursuant to the requirements of the Medicaid program are not recoverable as damages. On appeal, the plaintiff challenges the application of the Terrell
holding and the amount of medical expenses awarded by the trial court.
The second appeal is by the Department of Health and Hospitals (?DHH?), which appeals the denial of its motion to withdraw funds from the registry of the court. DHH filed this motion to recover medical expenses paid by Medicaid on behalf of the plaintiff?s late husband, Tommy Bozeman.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 36,635-KA
Full Opinion [pdf]
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STATE OF LOUISIANA Appellee versus LEWIS WRIGHT Appellant, The defendant, Lewis Wright, was charged by bill of information with one count of unauthorized entry of an inhabited dwelling, a violation of LSAR.S. 14.62.3. Prior to trial, the state amended the bill of information to charge the defendant with one count of simple burglary, a violation of LSAR. S. 14:62. After a jury trial, the defendant was found guilty as charged. Thereafter, the trial court sentenced the defendant to serve nine years at hard labor, with credit for time served. The defendant appeals, challenging the sufficiency of the evidence to convict him of simple burglary and the propriety of the trial court?s jury instruction as to the applicable responsive verdicts ton simple burglary.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil
Docket Number - 36,620-CW
Full Opinion [pdf]
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ANTHONY LENTINI, ET AL Plaintiff-Respondent
Versus NORTHWEST LOUISIANA LEGAL Defendant-Applicant
SERVICES, INC., In September 1998, the plaintiffs, Anthony and Beverly Lentini and A & B Finance, Inc., filed a petition seeking damages for defamation against the defendants, NLLS, Vaughan and their class action clients, Vive Ann Cummings, Joan D. Smith, Denver Norris and Artis Cole. The plaintiffs? petition alleged that the federal pleadings contained defamatory and libelous statements which accused the Lentinis and their company of engaging in criminal conduct.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil, Contracts and Obligations, Real Estate/Construction/Oil and Gas/Environmental
Docket Number - 36,531-CA
Full Opinion [pdf]
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LARRY REED Plaintiff-Appellant versus PEOPLES STATE BANK OF MANY AND DALE HOPPER Defendants-Appellees, Financing for the construction of the home of Patricia Holmes led to this dispute. Holmes hired Larry Reed as building foreman. Reed sued Peoples State Bank of Many and Dale Hopper, a bank employee, for damages allegedly caused by the intentional acts of the bank and Hopper. The defendants filed a motion to dismiss Reed?s action as abandoned. From a February 15, 2002, judgment dismissing his action, Larry Reed, in proper person, appealed on April 15, 2002. For the following reasons, we amend the judgment and affirm.

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Date - 2/11/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 36,825-KA
Full Opinion [pdf]
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STATE OF LOUISIANA Appellee Versus
KEVIN E. EPPINETTE Appellant,
Defendant, Kevin Eppinette, pled guilty to driving while intoxicated, third offense, a violation of La.R.S. 14:98, with an agreed upon sentence; however, he reserved his right to appeal the denial of his pretrial motion to suppress in accord with State v. Crosby, 338 So.2d 584 (La. 1976). For the reasons set forth below, defendant?s conviction is affirmed, but we are constrained to vacate the sentence and remand to the trial court for resentencing in accordance with the amendment to La.R.S. 14:98(D). See State v. Mayeux, 01-3195 (La. 06/21/02), 820 So.2d 526.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil, Torts and Personal Injury
Docket Number - 36,907-CA
Full Opinion [pdf]
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CONNIE L. MOSLEY INDIVIDUALLY, AND VICEL SMITH ON BEHALF OF HER MINOR CHILDREN TERON WHITE, CLEANDREW
BARDEN, AND KATRINA SMITH versus MISSOURI PACIFIC RAILROAD COMPANY, UNION PACIFIC RAILROAD COMPANY,
CHESTER T. GATES, WENDELL E. PUGH, PARISH OF MOREHOUSE, TOWN OF BONITA,
According to the petition, Markey L. Smith was fatally injured on May 12, 1995, in an accident between an automobile and a locomotive owned by Missouri Pacific Railroad Company (?MPRR?).The plaintiffs in this case participated in discovery with other defendants without actively prosecuting their claims against the police jury. The discovery actions were not filed in the suit record, and the police jury received no service or notice of the discovery. Following three years of the absence of pleadings in the suit record, the police jury moved for abandonment of the action. After a contradictory hearing, the trial court granted this motion and dismissed plaintiffs? suit as to the police jury. For the following reasons, we affirm the trial court?s ruling.

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Date - 3/7/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil, Family/Estate Planning/Wills and Trust
Docket Number - 37,004-CA
Full Opinion [pdf]
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MONA ELIZABETH HARPER MIZELL Plaintiff-Appellee
versus JERRY ALLEN MIZELL Defendant-Appellant
Jerry Allen Mizell appeals from a trial court judgment in favor of his former wife, Mona Elizabeth Harper Mizell, which granted her more than $23,000 in past due child support and alimony and awarded her permanent alimony of $2,100 per month for 10 years. The judgment also found him in contempt and awarded her attorney fees of $5,000. We amend the judgment in part and, as amended, affirm.
The trial court found that there was an agreement as to reducing child support; however, it further found that there was no agreement to reduce the support payments by direct payments made by Jerry at his own discretion. After a careful review of the evidence, we find no manifest error in the trial court?s great discretion. The trial court was in the best position to judge the credibility of the witnesses and to accept or reject, in whole or in part, their testimony. Its finding that there was no agreement other than the one toreduce child support after Shaunté?s graduation is adequately supported by the
record.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 36,989-KA
Full Opinion [pdf]
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STATE OF LOUISIANA Appellee versus
CORNELL F. BOYKIN Appellant
After two remands for resentencing, Cornell Boykin was adjudicated a second felony offender and sentenced to 20 years at hard labor, to be served consecutively with another sentence for which he was already incarcerated. His claim of an excessive sentence is without merit. We therefore affirm.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil, Family/Estate Planning/Wills and Trust
Docket Number - 36,974-CA
Full Opinion [pdf]
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D. M. KENNEDY, JR. Plaintiff-appellant versus
ROSANNE KENNEDY Defendant-appellee
This community property partition dispute arises from the parties? compromise recited in open court during the trial. Before the later rendition of the consent judgment, appellant claimed an error in his understanding of the settlement?s disposition of one of the assets and contested the imposition of interest on his equalizing payment under the terms of the compromise. The trial court rejected appellant?s claims and upheld the compromise. A consent judgment expressing the settlement was rendered subject to appellant?s right to appeal. We affirm the trial court?s upholding of the compromise and the consent judgment, but amend to adjust the rate of interest owed on appellant?s equalizing payment to the contractual rate stipulated in the parties? agreement.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil, Contracts and Obligations, Real Estate/Construction/Oil and Gas/Environmental
Docket Number - 36,971-CA
Full Opinion [pdf]
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AVALLONE ARCHITECTURAL SPECIALTIES, L.L.C. versus DBCS CORPORATION, ET AL Defendants
This is a suit to enforce a labor and materialman's lien under the Public Works Act by a subcontractor for work performed on a public works project on property owned by the Caddo Parish School Board ("School Board"). Plaintiff, Avallone Architectural Specialties, L.L.C. (?Avallone?), initially filed suit against the general contractor and the School Board. Subsequently, Patterson Insurance Company (?Patterson?), the bid bond surety, was made a defendant in the suit by way of a third party demand filed by the School Board. Patterson filed a motion for summary judgment, which the trial court granted, thereby dismissing Patterson from the suit. The School Board appeals the trial court?s ruling on summary judgment. For the reasons stated herein, we affirm.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 36,938-KA
Full Opinion [pdf]
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STATE OF LOUISIANA Appellee versus
EAN LAMAR JOHNSON Appellant
Pursuant to a plea bargain which secured a reduction of charges, the defendant, Ean Johnson, pled guilty to a second offense possession of marijuana charge and a simple possession of cocaine charge. The trial court sentenced him to concurrent sentences of five years. The defendant argues that his sentences are excessive. We affirm.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil, Labor/Employment/Civil Rights/ADA
Docket Number - 36,934-CA
Full Opinion [pdf]
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TISHA C.L. LENSEY Plaintiff-Appellant versus
THE CITY OF SHREVEPORT Defendant-Appellee
MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD OF THE
CITY OF SHREVEPORT
Tisha C.L. Lensey (?Lensey?) appeals a judgment rendered with written opinion by the First Judicial District Court dated April 29, 2002, affirming an August 15, 2001, ruling of the Shreveport Municipal Fire and Police Civil Service Board (?Board?), which ruling determined that Lensey?s termination from the Shreveport Police Department was in good faith and for cause. Finding inadequate evidence for cause, we reverse the termination of Lensey, amend her punishment to a 90-day suspension without pay or benefits, reinstitute her pre-termination employment as a Shreveport Police Officer, with back pay and all associated employment benefits following the 90-day suspension period.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil, Labor/Employment/Civil Rights/ADA
Docket Number - 36,927-WCA
Full Opinion [pdf]
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BETTY ARMSTRONG Plaintiff-Appellant versus
HORSESHOE CASINO Defendant-Appellee
In this appeal from a denial of worker?s compensation benefits, the pro se claimant, Betty Armstrong, contends that the worker?s compensation judge (WCJ) erred in failing to award her benefits. We affirm.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil, Torts and Personal Injury
Docket Number - 36,853-CA
Full Opinion [pdf]
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SAFEWAY INSURANCE Plaintiff-Appellee
COMPANY OF LOUISIANA versus STATE FARM MUTUAL Defendant-Appellant AUTOMOBILE INSURANCE COMPANY
State Farm Mutual Automobile Insurance Company (?State Farm?) appeals a judgment by the Shreveport City Court against it in the amount of $1,394.99 and in favor of Safeway Insurance Company of Louisiana (?Safeway?). For the following reasons, we affirm.
At the heart of this litigation is the issue of which insurer, Safeway or State Farm, provided primary insurance coverage for Baines? fault in striking the Ladd child. Safeway looks to La. R.S. 22:1406(F) addressing temporary substitute vehicles1 and argues that pursuant to the statute, State Farm provided primary liability coverage. State Farm maintains that pursuant to its policy terms, it would be an excess insurer for temporary substitute vehicles, and that Safeway and the trial court erroneously interpret the statute.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil, Contracts and Obligations, Torts and Personal Injury
Docket Number - 36,911-CA
Full Opinion [pdf]
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GARY D. HALE ERICA D. HUDSON and TAVA M. HUDSON
versus MICHAEL CORLEY AND FINANCIAL INDEMNITY COMPANY
GENE CORLEY
Gary D. Hale, Erica Hudson, and Tava Hudson (collectively, the ?appellants?) appeal a judgment of the First Judicial District Court in favor of Financial Indemnity Company (?Financial?), determining that a policy of insurance previously issued by Financial had been properly canceled. For the following reasons, we affirm.
These cases stem from a motor vehicle accident which occurred on January 31, 1997 involving vehicles driven by Casey Corley (?Casey?), Gary Hale (?Hale?), and Erica Hudson. Tava Hudson was a passenger in Erica Hudson?s vehicle. As claimed in the consolidated lawsuits of Hale and the Hudsons, the accident was caused by Casey?s negligent operation of a 1992 Ford F-150 pickup truck allegedly covered by a policy of insurance (the ?policy?) issued by Financial in favor of Casey?s father, Michael Corley (?Michael?). Financial answered the lawsuit and denied coverage, stating that the policy had been canceled as a result of nonpayment of premium at a date previous to the accident.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 36,855-KA
Full Opinion [pdf]
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STATE OF LOUISIANA Appellee versus
GARY WAYNE BROOKS Appellant
Defendant, Gary Wayne Brooks, was charged with second degree murder in violation of La. R.S. 14:30.1. Defendant was tried by a jury and convicted as charged. He was subsequently sentenced to serve life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. Defendant now appeals his conviction, arguing that the evidence presented at trial was insufficient to convict him of second degree murder. For the reasons stated herein, we affirm.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil, Torts and Personal Injury
Docket Number - 36,894-CA
Full Opinion [pdf]
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KERRY MCCOY AND THERESA MCCOY Plaintiffs-Appellees
versus RONNIE LUCIUS AND MILDRED LUCIUS Defendants-Appellants
The defendants, Ronnie and Mildred Lucius, appeal from a judgment awarding damages to the plaintiffs, Kerry and Theresa McCoy, as a result of injuries sustained by the McCoys? dog. For the following reasons, we reverse.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil, Contracts and Obligations
Docket Number - 36,893-CA
Full Opinion [pdf]
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FORD MOTOR CREDIT COMPANY Plaintiff-Appellee
Versus HENRIETTA H. GEORGE D/B/A IMPACT APOSTOLIC MINISTRIES and HENRIETTA H. GEORGE, INDIVIDUALLY
This is an appeal from a summary judgment in favor of plaintiff, Ford Motor Credit Company, in an action on a retail installment contract. Appellant, Henrietta George, asserts on appeal that she has been denied due process because of ?the lack of knowledge and financial resource required to obtain ... legal representation,? and that Ford Motor Credit Company has participated in what she describes as ?predatory business activities.? For the following reasons, we affirm.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil, Torts and Personal Injury
Docket Number - 36,883-CA
Full Opinion [pdf]
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MARY RUTH HAMDAN, AS NATURAL Plaintiff-Appellant
TUTRIX OF THE MINOR, RAMSEY HAMDAN versus STATE FARM MUTUAL AUTOMOBILE Defendants-Appellees INSURANCE COMPANY and CARL E. GRESHAM
Defendants have shown that there is an absence of factual support for the essential element of Plaintiff?s claim that Gresham committed any negligence or had any fault in the accident. The burden, therefore, shifted to Plaintiff to show support sufficient to establish that she could satisfy her evidentiary burden of proof at trial. Plaintiff failed to come forward with evidence showing that Gresham was even partly negligent or partly at fault. For the foregoing reasons, we conclude that, since the evidence presented on summary judgment showed the absence of fault on the part of Gresham, there is no genuine issue of material fact in dispute in this case; and, therefore, summary judgment is appropriate. Plaintiff?s assignment of error is without merit.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil
Docket Number - 36,878-CA
Full Opinion [pdf]
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LESLIE DUNN and GLORIA DUNN Plaintiffs-Appellants
Versus JANET MORTENSON, TEMPORARY Defendants-Appellees
RECEIVER OF AUSTIN FOREX INTERNATIONAL, INC.; INTERNATIONAL FOREIGN EXCHANGE CORP.; and
AUSFOREX INTERNATIONAL, L.L.C.
As a result of the securities and pyramid/Ponzi scheme operated by Erxleben and AFI, its investors lost more than $36 million in principal. The instant case arose out of funds that Erxleben paid out to the Dunns before AFI ceased doing business.
Louisiana courts in the past have also addressed similar personal jurisdiction issues. Significantly, none of these courts have held that the law in Louisiana requires a Louisiana court to give full faith and credit to a judgment from a foreign court when the foreign court made no specific finding that it had personal jurisdiction over the out-of-state defendant.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Criminal
Docket Number - 36,868-KA
Full Opinion [pdf]
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STATE OF LOUISIANA Appellee versus
CALVIN RAY FEASTER Appellant
Following a serious traffic accident, the defendant in this criminal case pled guilty to one count of DWI, third offense, and two counts of first degree vehicular negligent injuring. He was sentenced to five years imprisonment at hard labor for each count, to run consecutively. On appeal, the defendant argues that the sentence for the DWI is illegal and that the others are excessive and in violation of La. C.Cr.P. art. 883. For the foregoing reasons, we affirm in part, reverse in part, and remand for re-sentencing on the DWI, third offense, conviction.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil, Contracts and Obligations, Real Estate/Construction/Oil and Gas/Environmental
Docket Number - 36,865-CA
Full Opinion [pdf]
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KEN LAWLER BUILDERS, INC. Plaintiff-Appellee Versus
CYNTHIA M. DELANEY, ET AL Defendants-Appellants
Plaintiff, Ken Lawler Builders, Inc., filed a petition against defendants, Cynthia M. Delaney and Sandra Richardson Kittler, for damages suffered by reason of the repudiation of a lease, including all rent due under the remaining term of the 10-year lease, legal interest, attorney fees afforded under the lease and all costs of the proceeding.

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Date - 2/27/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil, Labor/Employment/Civil Rights/ADA
Docket Number - 37,405-CA
Full Opinion [pdf]
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WILLIE TURNER, WALTER KYLE and WINNIE JONES Plaintiffs
Versus
BILLY JAMES and CAROLYN CALDWELL, CLERK OF COURT
for MADISON PARISH Defendants
This is an appeal from a judgment disqualifying defendant, Billy James, as a candidate for the Tallulah City Council. The district court found that the provisions of Article I, Section 10(B) of the Louisiana Constitution do not permit James, who pled guilty to a felony in 1989, to qualify for public office. For the reasons that follow, we affirm the trial court?s judgment.

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Date - 3/5/03
Court Docket - 2nd Circuit Court of Appeal
Law Category - All Civil, Labor/Employment/Civil Rights/ADA
Docket Number - 36,922-WCA
Full Opinion [pdf]
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LILLIE BALL Plaintiff-Appellee versus WENDY?S INTERNATIONAL, INC. MCDONALD?S HAMBURGERS Defendant-Appellant
Both employers, McDonald?s Hamburgers (?McDonald?s?) and Wendy?s International (?Wendy?s?), appeal a judgment finding that the claimant, Lillie Ball, sustained occupational diseases and a work-related accident. The judgment awarded her indemnity benefits (temporary total disability and supplemental earnings benefits), casting McDonald?s and Wendy?s as joint obligors each liable for 50% of all such benefits accruing after September 30, 2000. It also ordered Wendy?s to authorize medical treatment for a ganglion cyst.

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2nd Circuit Court of Appeal Judge Kostelka Retires

The News-Star reports that Judge Robert Kostelka, a name familiar in Ouachita Parish legal circles since the 1960's, has retired from the Second Circuit Court of Appeal. Kostelka who turned 70 in February, however, is filling in for himself by special order of the State Supreme Court until the November election to fill his seat. He will likely retire into private practice after he leaves office, and looks forward to more temporary judicial appointments if he is needed.