THIRD CIRCUIT JUDGES’ ASSOCIATION
CONTINUING LEGAL EDUCATION
PROGRAM
AUGUST 26, 2016
THIRD CIRCUIT JUDGES
Chief Judge Gene Thibodeaux
Judge Sylvia R. Cooks
Judge John D. Saunders
Judge Jimmie C. Peters
Judge Marc T. Amy
Judge Elizabeth A. Pickett
Judge Billy H. Ezell
Judge James T. Genovese
Judge Shannon J. Gremillion
Judge Phyllis M. Keaty
Judge John E. Conery
Judge D. Kent Savoie
AGENDA FOR THIRD CIRCUIT JUDGES’ ASSOCIATION
CLE PROGRAM
August 26, 2016
Lake Charles, Louisiana
Courtroom – Third Circuit
8:00 – 8:30
Registration
Continental Breakfast
8:30 -10:00
1.5 Credits
Criminal Appeals, Supervisory Writ Applications, and
Post-Conviction Relief Applications - The Basics
Presentation by Criminal Central Staff
10:00 – 10:15
Break
10:15-11:15
1 Credit
Recent Developments
Presentation by a Panel of Judges of the Court of Appeal,
Third Circuit
11:15 – 12:15
1 Credit
Precision in Legal Writing
Presentation by Civil Staff Attorney - Michele Caballero
12:15 – 1:15
Lunch
1:15 – 2:15
1 Credit
Ethics
Thompson/Reuters
2:15 – 3:15
1 Credit
Professionalism
Criminal Staff Attorney - Robin Anderson
CRIMINAL APPEALS AND
SUPERVISORY WRIT APPLICATIONS – THE BASICS
I. APPEALS
A. Jurisdictional examination - New criminal appeal records are
reviewed by a paralegal or staff attorney to determine if the case is
properly presented by appeal and if the appeal is timely. This
court’s checklist for jurisdictional examination is included at the
end of these materials. (Appendix 1) In addition to appealability
and timeliness, the following are reviewed: prematurity, contents
of the appellate record, whether the record is a confidential record
(La.R.S. 46:1844(W)), and whether the defendant is represented by
counsel.
1. Appealable?
a. Identify the ruling that is being reviewed. Only a final
judgment or ruling is appealable. The most common
criminal appeal is the review of a conviction and sentence in
a felony case. Of course, there are instances where the State
may appeal.
b. Appealable rulings are set out in La.Code Crim.P. art. 912
and 912.1. The list in article 912 is not exclusive.
Rulings which are appealable:
 Conviction and sentence (defendant)
 Imposition of illegal sentence (defendant) & (State; La.Code
Crim.P. arts. 881.2 (B) & 882 (1))
 A ruling upon a motion by the State declaring the present
insanity of the defendant (defendant)
 A juvenile adjudication and disposition (juvenile; La.Const.
art. V, § 10(B)(2); La.Ch.Code art. 330(B))
 Granting of a motion to quash the indictment or any count in
the indictment (State) - Caveat: If a motion to quash is granted
in a misdemeanor case, the State must seek review by writ
because the case was not triable by a jury.
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 Granting of a plea of time limitations (where case is dismissed
under La.Code Crim.P. arts. 571-583; not when a motion for
release is granted under La.Code Crim.P. art. 701) (State)
 Granting of plea of double jeopardy (State)
 Granting of motion in arrest of judgment (State)
 Granting of defendant’s motion to change venue or denial of
the State’s motion to change venue (State; La.Code Crim.P.
art. 627)
 Granting of a motion to recuse (State; but compare La.Code
Crim.P. arts. 912(6) & 684; La.Code Crim.P. art. 684 states “If
a judge or a district attorney is recused over the objection of
the State, or if an application by the State for recusation of a
judge is denied, the State may apply for a review of the ruling
by supervisory writs. The defendant may not appeal prior to
sentence from a ruling recusing or refusing to recuse the judge
or the district attorney.”)
 Granting of a motion for post verdict judgment of acquittal
(State; La.Code Crim.P. art. 821 (D))
Rulings which are NOT appealable:
 Verdict of acquittal (La.Code Crim.P. art. 912(B))
 Refusal to adjudicate child a delinquent (La.Ch.Code art.
331(B))
 Probation revocation
 Denial or granting of a motion to suppress (however, a denial
can be appealed once Defendant is sentenced)
 Denial or granting of application for post-conviction relief
(La.Code Crim.P. art. 930.6)
 Denial or granting of habeas (La.Code Crim.P. art. 369)
 Convicted but not yet sentenced
 Granting of a motion to quash habitual offender adjudication.
See State v. Cass, 44,411 (La.App. 2 Cir. 8/19/09), 17 So.3d
486 (the State has no right of appeal from a ruling quashing a
bill of information charging the defendant under the Habitual
Offender Law but nonetheless the court examined the merits
of the State’s argument under its supervisory jurisdiction as
there was no adequate remedy on appeal.)
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 Denial of motion for new trial, where no sentence imposed
 Denial of motion for change of venue (defendant, La.Code
Crim.P. art. 627)
2. Triable by jury?
a. Appellate courts have appellate jurisdiction only in cases
triable by a jury. La.Const. art. V, § 10 (A)(3). See La. Code
Crim.P. art. 912.1(B)(1).
b. To determine if the case was triable by jury, the courts of
appeal consider the penalty that is possible under the statute,
not the actual sentence imposed. Even if the defendant
waived the right to a jury trial, if he had the right, the case is
triable by jury for jurisdictional purposes.
c. For the most part, felony offenses are triable by jury. See
La.Code Crim.P. art. 782. “Felony” - an offense that may be
punished by death or by imprisonment at hard labor. See
La.Code Crim.P. art. 933(3). Most misdemeanor convictions
are not appealable. See La.Code Crim.P. art. 912.1; La.R.S.
13:1896. However, if a defendant is charged with a
misdemeanor in which the punishment may be a fine in
excess of $1,000 or imprisonment for more than 6 months,
the case shall be tried by a jury of six jurors. See La.Code
Crim.P. art. 779. When misdemeanor charges are charged by
separate bills of information and the aggregate penalty of the
offenses exceeds 6 months imprisonment or a fine of $1,000,
the defendant is entitled to a jury trial. Whenever two or
more misdemeanors are joined in the same bill of
information, the maximum aggregate penalty shall not
exceed imprisonment for more than 6 months, a fine of more
than $1,000, or both. See La.Code Crim.P. art. 493.1.
3. Timely?
a. Was the motion to appeal timely filed? The defendant has
30 days from the date he/she was sentenced in which to file a
motion to appeal. See La.Code Crim.P. art. 914(B)(1). (Start
counting on the day after sentencing. The deadline is the 30th
day. If the 30th day is on a weekend or trial court holiday, go
to the next day).
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b. A defendant in a felony case has 30 days after sentencing,
or within such longer period as the court may set at
sentencing, in which to file a motion to reconsider sentence.
If a motion to reconsider sentence is filed, the time delays for
appeal start with the ruling on that motion. (Start counting
on the day after the ruling). See La.Code Crim.P. art.
914(B)(2).
4. Rule to Show Cause –
a. If the appeal is taken from a non- appealable judgment, if the
appeal is premature, or if the defendant did not timely seek an
out-of-time appeal (La.Code Crim.P. art. 930.8), this court will
issue a rule to show cause why the appeal should not be
dismissed.
b. If the appeal is dismissed because the judgment was not
appealable, the opinion dismissing the appeal will normally
provide the defendant with a time period in which to file a writ
application. We do not convert appeals to writs.
5. Juvenile appeals
a. When a juvenile is adjudicated a delinquent under Title VIII
of the Children’s Code, review is by appeal, which is filed as
criminal. Even if the adjudication as a delinquent is based on a
misdemeanor offense, the courts of appeal have jurisdiction over
the appeal. See La. Const. art. V, § 10(A)(2). An appeal may be
taken only after a judgment of disposition. The State may not
appeal from a judgment refusing to adjudicate a child to be
delinquent or from a judgment of acquittal. La. Ch. Code art.
331(B). If the ruling is that the family is in need of services
(FINS), or that the child is in need of care, there is a right of
appeal, but the appeal is civil. See La. Ch. Code art. 330(B).
b. Juvenile appeals shall be taken within 15 days from the
mailing of the notice of judgment. If a timely application for
new trial is made, the delay for appeal commences to run from
the date of the mailing of notice of denial of the new trial
motion (the delay for filing a motion for new trial is 3 days,
exclusive of holidays, and shall commence to run from the
mailing of the notice of judgment). A motion for new trial shall
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be decided expeditiously and within 7 days from the date of
submission for decision. See La. Ch. Code art. 332(A) & (C).
c. Juvenile appeals shall be accorded preference and shall be
determined at the earliest practicable time. See La. Ch. Code
art. 337 & Uniform Rules of Louisiana Courts of Appeal-Rule
5-1.
B. An appeal is sent from the clerk’s office to criminal staff for errors
patent and merits review when the Appellant’s brief is filed.
C. Errors Patent – See separate Errors Patent outline.
D. Review of Merits (Sufficiency of the evidence and sentencing are
two typical issues raised on appeal.)
1.
Sufficiency of the evidence to uphold a conviction Standard of review - Viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
conclude the State proved the essential elements of the crime
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.
307, 319, 99 S.Ct. 2781, 2789 (1979).
When reviewing sufficiency, we must be mindful that the trier
of fact is free to accept or reject, in whole or in part, the
testimony of any witness. Where there is conflicting testimony
regarding factual matters, the resolution of which depends upon
the determination of the credibility of witnesses, the matter is
one of the weight of the evidence, not its sufficiency. On
appeal, the court “will overturn a jury’s credibility assessment
only when a witness’s own testimony demonstrates that the
witness’s ability to perceive events was impaired in some way.”
State v. Hypolite, 04-1658, p. 5 (La.App. 3 Cir. 6/1/05), 903
So.2d 1275, 1279, writ denied, 06-618 (La. 9/22/06), 937 So.2d
381.
When circumstantial evidence forms the basis of a conviction,
La.R.S. 15:438 requires that the elements of the offense be
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proven so that every reasonable hypothesis of innocence is
excluded. State v. Schnyder, 06–29 (La.App. 5th Cir. 6/28/06),
937 So.2d 396, 400. “[T]he pertinent question on review [is]
not whether the appellate court found that defendant’s
hypothesis of innocence offered a reasonable explanation for the
evidence at trial but whether jurors acted reasonably in rejecting
it as a basis for acquittal.” State v. Pigford, 05–477, p. 5 (La.
2/22/06), 922 So.2d 517, 520 (per curiam). All of the evidence,
both direct and circumstantial, must be sufficient to satisfy a
rational trier of fact that the defendant is guilty beyond a
reasonable doubt. Schnyder.
State v. Thacker, 14-418, p. 2 (La. 10/24/14), 150 So.3d 296,
297 – On appeal, this court noted a problem with sufficiency of
the evidence but did not address it because it was not raised.
Louisiana Supreme Court said, “When the state’s case is devoid
of evidence of an essential element of the charged offense, the
conviction and sentence must be set aside ‘regardless of how the
error is brought to the attention of the reviewing court.’”
1. Abuse of discretion
The trier of fact is presumed to have acted rationally until it
appears otherwise. State v. Mussall, 523 So.2d 1305 (La.1988).
Only irrational decisions to convict by the trier of fact will be
overturned. Id. at 1309.
2. Harmless error (La.Code Crim.P. art. 921)
Once an appellate court has determined that the trial court erred
(abused its discretion), the harmless error analysis is utilized in
certain situations. The proper analysis for determining harmless
error is not whether, in a trial that occurred without the error, a
guilty verdict surely would have been rendered but whether the
guilty verdict actually rendered in the trial was surely
unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275,
279, 113 S.Ct. 2078, 2081 (1993).
The United States Supreme Court distinguished between “trial
errors,” which may be reviewed for harmless error, and
“structural errors,” which defy analysis by harmless error
standards. Arizona v. Fulimante, 499 U.S. 279, 111 S.Ct. 1246
6
(1991). Trial error is error which occurred during presentation
of the case to the jury and may, therefore, be quantitatively
assessed in context of other evidence presented in order to
determine whether its admission was harmless beyond a
reasonable doubt. “Structural error” is one that affects the
framework within which trial court proceeds; structural defects
include complete denial of counsel, adjudication by biased
judge, exclusion of members of defendant’s race from grand
jury, right to self-representation at trial, right to public trial, and
right to jury verdict of guilt beyond a reasonable doubt. See
State v. Johnson, 664 So.2d 94 (La.1995).
3. Sentencing Review
a. La.Code Crim.P. art. 881.2 - The defendant may appeal or
seek review of a sentence based on any ground asserted in a
motion to reconsider sentence. The defendant also may seek
review of a sentence which exceeds the maximum sentence
authorized by the statute under which he was convicted and
any applicable statutory enhancement. The defendant cannot
appeal or seek review of a sentence imposed in conformity
with a plea agreement which was set forth in the record at the
time of the plea. This includes sentences imposed in
accordance with bargained-for caps. State v. Washington,
07-852 (La.App. 3 Cir. 1/30/08), 977 So.2d 1060.
b. La.Code Crim.P. art. 881.1(E) – Failure to make or file a
motion to reconsider sentence or to include a specific ground
upon which a motion to reconsider may be based, including a
claim of excessiveness, shall preclude the state or the
defendant from raising an objection to the sentence or from
urging any ground not raised in the motion on appeal or
review.
c. Despite art. 881.1(E), some panels of this court will
review the defendant’s sentence for bare excessiveness in the
interest of justice. In a bare excessiveness review, we look
at: applicable penalty range, where the sentence falls within
the range, the trial court’s reasons, nature of the offense,
circumstances of the offender, a comparison of the sentences
imposed for similar crimes, and benefit(s) received from plea
bargain.
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d. Reasons for sentencing insufficient – To avoid remand,
the sentencing records should reflect compliance with
La.Code Crim.P. art. 894.1 and should be susceptible to a
State v. Whatley, 03-1275 (La.App. 3 Cir. 3/3/04), 867 So.2d
955/State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726
So.2d 57, writ denied, 99-433 (La. 6/25/99), 745 So.2d 1183,
analysis.
e. La.Code Crim.P. art. 779 - Defendants are entitled to a
jury trial in misdemeanor cases where the aggregate penalty
exceeds six months. This also applies to cases wherein the
defendant is charged via multiple bills of information and the
charges have been either consolidated or treated as if
consolidated. State v. Hornung, 620 So.2d 816 (La.1993);
State v. Crooks, 16-472 (La.App. 3 Cir. 7/12/16)
(unpublished opinion); State v. Thomas, 98-231 (La.App. 3
Cir. 1/6/99), 735 So.2d 669; State v. Suggs, 432 So.2d 1016
(La.App. 1 Cir. 1983). In addition to the advisement of jury
trial rights at plea hearings, the mode of trial, and the
jurisdictional ramifications in city courts, this affects the
whether the convictions and sentences should be appealed.
Cases triable by jury are to be appealed. La.Code Crim.P.
art. 912.1.
E. Rehearings – Uniform Rules—Courts of Appeal, Rule 2-18.7 –
Rehearing can be sought when a writ was granted on the merits,
an appeal was dismissed, or a decision on the merits of an appeal
was rendered. We routinely receive rehearing applications on writ
applications that were denied; a rehearing is not permitted in such
situation except (pursuant to a conference decision) when the writ
was denied as untimely pursuant to Uniform Rules—Courts of
Appeal, Rule 4-3.
F. Finality of judgments – A decision/ruling by this court is final
when the delay for applying for a rehearing, which is 14 days, has
expired and no application therefor has been made. If a rehearing
application has been filed, the decision/ruling becomes final when
the application has been denied. If writs to the supreme court are
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sought, our decision/ruling becomes final when the supreme court
denies the writ. See La.Code Crim.P. art. 922.
II. SUPERVISORY WRIT APPLICATIONS
A. Deficiency review – See Appendix 2.
1. Procedural Bars
a.Timeliness of post-conviction relief application –
La.Code Crim.P. art. 930.8
i. Date of finality of conviction and sentence – 30
days after sentencing, if no appeal filed. Appeal filed
– date of opinion plus 14 days, if no rehearing filed.
Rehearing filed - date rehearing was denied, if no writ
to S.Ct. Writ to S.Ct. – date of denial/opinion plus 14
days. See La.Code Crim.P. art. 922(B).
ii. Date pcr is filed with trial court
iii. Exceptions alleged – See La.Code Crim.P.
art.930.8(A)(1)-(4).
b. Repetitive – was the issue(s) in the writ application
disposed of in a prior appeal or writ. See La.Code
Crim.P. art. 930.4(A).
c. Sentencing claims, including habitual offender
sentencing issues, are not reviewable on pcr - State ex
rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d
1172; State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d
1030.
d. Waiver – some guilty pleas forms include a waiver of
the right to file post-conviction relief.
e. Timeliness – Uniform Rules—Courts of Appeal, Rule
4-3 – This court applies the thirty day time limit of Rule
4-3 to all writ applications (pro se and attorney-filed),
EXCEPT pro se writs involving post-conviction relief.
Postmark date controls. See Uniform Rules—Courts of
Appeal, Rule 2-13. The untimeliness of a writ is always
brought to the attention of the panel, but of course, a
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panel may choose not to dispose of a writ on the basis of
untimeliness. Rule 4-2 requires notice of intention to file
writs be given to the trial judge whose ruling is at issue by
requesting a return date to be set within the time period
provided in Rule 4-3. In criminal cases, Rule 4-3 states
the return date shall not exceed 30 days from the date of
the ruling at issue, unless the trial judge orders the ruling
be reduced to writing. If judge has ordered the ruling be
reduced to writing, the return date shall not exceed 30
days from the date the ruling is signed. But see State v.
Goppelt, 08-576 (La. 10/31/98), 993 So.2d 1188
(misdemeanor conviction), and State v. Scott, 12-2458
(La. 8/30/13), 123 So.3d 160 (pcr) Extensions – trial court
or appellate court can extend the return date IF a motion
for extension is filed within the original or extended
return date.
2. Contents - See Appendix 3 for complete listing, but the
important things needed for review of the merits are: pleading
on which judgment is based; trial court’s ruling, including
reasons, if given; and minutes and/or transcript. See Uniform
Rules—Courts of Appeal, Rule 4-5.
3. Priority of handling writs
a. Bail
b. Pretrial
i. Next hearing date
ii. Trial date
iii. No date
iv. Stayed
c. Juvenile (according to any hearing or trial date or with
preferential treatment per Uniform Rules—Courts of
Appeal, Rule 5-1.)
d. Misdemeanor or Probation revocation
e. Any request for expedited consideration
f. Post-conviction relief
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B. Review of the merits
1. Nature of Pleading – It is the substance, not the caption, that
determines the nature of the pleading. State ex rel. Lindsey v.
State, 99-2755 (La. 10/1/99), 748 So.2d 456.
2. Typical issues
a.
Pre-trial - bail (setting and reduction – See La.Code
Crim.P. art. 311 et seq.); habeas corpus (See La.Code
Crim.P. art. 352 et seq. If a pleading alleges a true habeas
corpus claim, the pleading must be filed in the parish
where the petitioner is incarcerated. La.Code Crim.P. art.
352. The Louisiana Supreme Court has recognized that
criminal habeas corpus proceedings essentially deal with
pre-conviction complaints concerning custody. State ex
rel. Glover v. State, 93-2330, 94-2101, 94-2197 (La.
9/5/95), 660 So.2d 1189, abrogated in part on other
grounds by State ex rel. Olivieri v. State, 00-172 (La.
2/21/01), 779 So.2d 735, cert. denied, 533 U.S. 936, 121
S.Ct. 2566 (2001), and cert. denied, 534 U.S. 892, 122
S.Ct. 208 (2001). See also La.Code Crim.P. art. 351,
official revision comment (c); State ex rel. Lay v. Cain, 96
1247 (La.App. 1 Cir. 2/14/97), 691 So.2d 135. Pro se
litigants frequently label pleadings which pertain to art.
701 as habeas.); speedy trial (See La.Code Crim.P. art. 701
– time limits for filing bill, time limit for arraignment, and
time period for commencing trial after filing of motion for
speedy trial, see also State v. Varmall, 539 So.2d 45
(La.1989) - if bill is filed prior to hearing on 701 motion,
issue of pre-trial release is moot); motion to quash (time
limitations - See La.Code Crim.P. art. 571 et seq. and
double jeopardy - See La.Code Crim.P. art. 591 et seq.)
(State v. Green, 16-32 – Defendants filed a motion to
quash the charging instrument arguing they should be
sentenced under the 2015 changes made to the possession
of marijuana statute despite their offenses have been
committed prior to the 2015 changes. This court, with one
judge dissenting, stated, “Based upon the language ‘on
conviction’,’ the drastic reduction in the penalty for
possession of marijuana, and the Legislature’s intent to
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reduce costs associated with incarceration for the State as
it relates to persons who commit the offense of possession
of marijuana,” Defendants should be sentenced in
accordance with the new penalties.); motion to suppress (See La.Code Crim.P. art. 703); motion in limine/other
crimes/State v. Prieur, 277 So.2d 126 (La. 1973); right to
counsel (See State v. Peart, 621 So.2d 780 (La.1993); right
to self-representation; and recusal (See La.Code Crim.P.
art. 671 et seq.);
b.
Misdemeanor convictions – typical issue raised is
sufficiency of the evidence.
c. Probation revocation – See La.Code Crim.P. art. 900 et
seq.;
d.
Production of Documents - State v. ex rel.
Simmons v. State, 93-275, 94-2630, 94-2879 (La.
12/16/94) – indigent defendants are entitled to certain
documents free of charge (transcript of guilty plea, bill of
information or grand jury indictment, court minutes,
document committing them into custody, and transcript of
evidentiary hearings on pcr); otherwise, they must
demonstrate a particularized need for a document to
receive it free of charge; particularized need is
demonstrated by filing a timely pcr which sets out specific
claims of constitutional errors requiring the requested
documentation for support. State ex rel. Bernard v.
Criminal District Court, 94-2247 (La. 4/28/95), 653 So.2d
1174. If the time limit for filing pcr has lapsed and Relator
does not prove an exception, he/she is not entitled to
documents. State ex rel. Fleury v. State, 93-2898 (La.
10/13/95), 661 So.2d 488. The right to request documents
may have been waived as part of the guilty plea.
e.
Motion to Correct Illegal Sentence - An illegal
sentence may be corrected at any time. La.Code Crim.P.
art. 882. Inmates often title their pleadings “Motion to
Correct Illegal Sentence,” but usually the pleadings are in
the nature of an application for post-conviction relief.
Only those claims relating to the legality of the sentence
itself under the applicable sentencing statutes may be
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raised in a motion to correct illegal sentence. State v.
Gedric, 99-1213 (La.App. 1 Cir. 6/3/99), 741 So.2d 849
(per curiam), writ denied, 99-1830 (La. 11/5/99), 751
So.2d 239. See also La.Code Crim.P. art. 881.5. If the
filing does not point to a claimed illegal term in the
sentence, the claim is not cognizable in a motion to correct
illegal sentence and may be raised through an application
for post-conviction relief. State v. Parker, 98-256 (La.
5/8/98), 711 So.2d 694.
f.
Post-conviction relief (“pcr”) – will be addressed in
pcr section of session.
C. Oppositions – if the respondent wishes to file an opposition to
the writ, he/she/it must notify this court, and a deadline for filing
such will be given. Staff encourages parties to file oppositions.
D. Emergency/Expedited Writ Applications – trial or hearing
date upcoming. This court makes every effort to render a ruling
prior to the trial or hearing date and attempts to avoid staying a
trial. With permission, expedited or emergency writs can be faxed
filed or e-mailed (to [email protected]). Please do not create
your own emergency by waiting until the last minute to file the
writ. Be sure to include the status of the case, the reasons for
expedited consideration, and a specific time within which action is
sought (as a separate page).
The request for expedited
consideration must be on the cover page of the writ in bold. A
copy of the writ application must be sent to the trial court and all
parties at interest by means equal to means used to file with this
court, and such must be certified to this court. See Uniform
Rules—Courts of Appeal, Rule 4-4.
E. Process – staff attorney researches and prepares a memo (time
permitting), which is submitted to a panel of 3 judges. There are no
5 judge panels in criminal cases. See La.Const. art. 5, § 8. The
judges communicate their votes to criminal staff. When all votes
have been received, staff prepares the ruling, which is then
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processed and issued by the clerk’s office. In emergency writs, the
parties are notified via phone and the ruling is faxed.
III. MISCELLANEOUS
A. Trial judge should read the contents of all orders before signing.
B. Multiple pleadings filed, multiple forms of relief requested, etc.
- judgment should specify pleading that is being ruled upon and
should clearly distinguish which relief is being granted/denied.
C. Memorialize off-the-record/in chambers discussions and
agreements with the trial court for the record.
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APPENDIX 1
THIRD CIRCUIT=S CHECKLIST FOR
JURISDICTIONAL REVIEW OF NEW CRIMINAL APPEALS
1.
Determine whether the case falls within the purview of La.R.S. 46:1844 (W),
which requires that criminal cases involving a victim under the age of 18 or a
sex crime be handled in a confidential manner.
2.
Determine whether the case falls within the purview of Uniform
RulesBCourts of Appeal, Rule 5, which requires certain cases involving
minors be handled expeditiously and requires the confidentiality of the
minors be protected.
3.
Make sure the defendant=s name on the front of the record is spelled the same
as it is in the charging instrument.
4.
Check accuracy of the designation of appellant and appellee on the front of
the record.
5.
Check information on counsel of record on the front of the record for
accuracy.
6.
If the defendant is not represented by an attorney, check the record for a
ADangers and Disadvantages of Self-Representation@ (D&D) hearing. If no
D&D hearing was held (and the judgment is properly appealable), this court
will remand the case to the district court for a D&D hearing.
7.
Check all of the information provided by the district court on the
Jurisdictional Index Sheet for accuracy. Make any necessary corrections and
fill in any missing information.
8.
Determine whether the judgment at issue is an appealable judgment.
a
La.Code Crim.P. art. 912A - only a final judgment is appealable.
b.
La.Code Crim.P. art. 912B - lists judgments from which state can
appeal.
c.
La.Code Crim.P. art. 912C - defendant can appeal from judgment
which imposes sentence or declares defendant insane.
d.
La.Code Crim.P. art. 912.1 - appeal to this court in a case triable by
jury (See La.Code Crim.P. arts. 779, 782 and 933. See also State v.
15
Hornung, 620 So.2d 816 (La.1993) - aggregate penalty of multiple
misdemeanors charged in separate bills).
e.
Juvenile cases (ex. Delinquency) - La.Ch.Code art. 330 - an appeal
may be taken only after a judgment of disposition.
If judgment is not appealable, this court will issue to the appellant a rule to
show cause why the appeal should not be dismissed.
9.
Determine the timeliness of the appeal.
a.
b.
La.Code Crim.P. art. 914 - motion for appeal (can be oral or written)
must be made no later than:
(1) Thirty days after rendition of judgment from which the appeal is
taken.
(2) Thirty days from the ruling on a motion to reconsider sentence.
La.Code Crim.P. art. 881.1 requires, in felony cases, that motion
to reconsider sentence be filed within 30 days following
imposition of sentence or within such longer period as the trial
court may set at sentence.
(Use the original sentencing date NOT the habitual offender
sentencing date.)
Juvenile cases - La.Ch.Code art. 332 - Except as otherwise provided
within a particular Title of this Code, appeals shall be taken within
fifteen days from the mailing of notice of the judgment. However, if a
timely application for new trial is made pursuant to Paragraph C, the
delay for appealing commences to run from the date of the mailing of
notice of denial of the new trial motion.
If the motion for appeal is untimely under La.Code Crim.P. art. 914 AND the
motion for appeal was not filed within the delay for seeking an out-of-time
appeal set forth in La.Code Crim.P. art. 930.8, this court will issue to the
appellant a rule to show cause why the appeal should not be dismissed.
10.
If a motion to reconsider sentence was filed, check for disposition of the
motion. If no disposition reflected in the record, this court will check with
district court clerk=s office regarding disposition. If the motion was not
disposed of, this court will remand the case to the district court for
disposition of the motion.
11.
Check for imposition of sentence. If the sentence was not imposed, this court
will issue to the appellant a rule to show cause why the appeal should not be
dismissed as premature.
16
12.
Check for missing items such as minutes, verdict forms, transcripts, etc.
Request any necessary missing items from the district court.
13.
If more than one record on the same defendant is received from the district
court, check the record to see if the district court consolidated the cases.
17
APPENDIX 2
DEFICIENCY REVIEW PROCEDURE
1. INITIAL EVALUATION OF WRIT
A. Priority of the Writ Application
1. Bail
2. Pretrial
a. Next hearing date
b. Trial date
c. No date
d. Stayed
3. Misdemeanor or Probation revocation
4. Post-conviction relief
5. Any request for expedited consideration
B. Case Details
1. Name of Defendant
2. Attorney-filed or pro se
3. Docket number
4. Parish/Judicial District
5. Ruling Judge
6. Trial court/District court docket number
7. Judicial Recusals
2. CASE HISTORY
A. Charges
1. Type (Information or Indictment)
2. Offense date(s)
3. Filing date
4. Offenses/statutes/ordinances
5. Amendments
a. Date of Amendment
b. Alteration of charges
B. Convictions
1. Type of proceeding
a. Jury trial
b. Bench trial
c. Plea
1. Crosby reservations
2. No contest/Alford
2. Date of Proceeding
3. Convictions
C. Sentences
1. Bargained-for/PSI
18
D.
E.
F.
G.
2. Date of Proceeding
3. Sentences
Habitual Offender Proceedings
1. Charges
a. Date
b. Number of offenses
2. Adjudication
a. Date of proceeding
b. Adjudication
1. What degree
2. What convictions
3. Vacating of original sentence
4. Sentences
Appeal
1. Was there an appeal?
a. Third Circuit
b. District Court (Local Ordinances only)
2. Date
3. Details of the Ruling
4. Further action required?
5. Results of any remand order
Certiorari
1. Review sought?
a. Louisiana Supreme Court
b. Third Circuit (Local Ordinances only)
2. Ruling of Louisiana Supreme Court
3. Further action required?
4. Results from any remand order
Supreme Court of the United States
1. Review sought?
2. Review granted?
3. Further action required?
4. Results
3. WRIT HISTORY
A. Initial Filing in the Trial Court
1. Party filing
2. Name of motion
3. Date of filing
4. Issues presented
B. Response by the Opposition
1. Party filing
2. Name of the pleading
3. Date of filing
4. Replies presented
19
C. Follow-up Pleadings
1. Party filing
2. Name of the pleading
3. Date of filing
4. Issues/Replies presented
D. Hearing(s)
1. Date of Hearing(s)
2. Witnesses
3. Exhibits introduced
4. Additional arguments/issues presented
E. Ruling
1. Date
2. Format
a. Oral at the hearing?
b. In writing
c. Reasons for ruling
F. Notice/Return date/Extensions
1. Notice
a. Date filed
b. Party filing
c. Timeliness
d. Explanation for any untimeliness
2. Return Date Order
a. Date set
b. Date of order
3. Extensions Sought
a. Date(s) filed
i. filed within the original return date?
ii. explanation provided for failure to do so
4. Extensions Granted
a. Date(s) signed
b. Date(s) set
4. WRIT APPLICATION
A. Inclusion of Necessary Documentation/ Preparation of Deficiency Sheet (See
Uniform Rules—Courts of Appeal, Rule 4-5)
1. Certificate of Service
a. Ruling judge
b. Opposing counsel
c. Attorney of record if writ by a pro se defendant
2. Affidavit of Correctness
3. Original Signature (no stamps allowed)
4. Status of the Case
5. Index/Table of Contents of All Items in the Writ Application
6. Statement of the Jurisdictional Grounds for the Writ Application
20
7. Statement of the Case
a. Case History
b. Writ History
8. Assignments of Error/Issues Presented/Legal & Factual Support
a. Claims presented
b. Scope under Uniform Rules―Courts of Appeal, Rule 1-3
i. New issues/claims
ii. Argue interest of justice?
c. Repetitive Claims
i. Prior writ applications/appeal
ii. Law of the case
9. Rulings
a. The one complained of
i. In writing
aa. Order Format
ab. Transcript or Oral Ruling
ii. Reasons for Ruling
aa. Order Format
ab. Transcript or Oral Ruling
b. Related Rulings
aa. Order Format
ab. Transcript or Oral Ruling
ii. Reasons for Ruling
aa. Order Format
ab. Transcript or Oral Ruling
10. Filings with the trial court
a. That on Which the Complained of Ruling is Based
i. Motions
ii. Responses
iii. Supplements
iv. Related Pleadings
b. Related pleadings
i. Motions
ii. Responses
iii. Supplements
iv. Related Pleadings
11. A copy of charging instrument(s)
a. The instant case
b. Related cases
12. Minutes of Court
a. The instant case
i. Pertinent to the ruling & filings at issue
ii. Showing case history
b. Related cases
i. Pertinent to the ruling & filings at issue
21
ii. Showing case history
13. Notices of Intent
a. Date Stamped Copies of the Original Notice
b. Date Stamped Copies of all motions to extend
14. Return Date Orders
a. Signed Copy of Original Order
b. Signed Copies of All Extensions Granted or Denied
15. Transcripts
a. Transcripts of hearings on the claims presented
b. Transcripts of hearings resulting in complained of actions
c. Related Transcripts
i. On PCR - Boykin/Sentencing
ii. On probation revocation
- transcripts of all probation hearings.
d. Exhibits introduced at the hearing(s)
16. Additional Documentation Reviewed by the Trial Court
a. Any documents reviewed in reaching the ruling
b. On PCR
i. Plea forms,
ii. Plea agreements, etc.
c. On probation revocation i. Rule to Show cause
ii. Conditions of probation, etc.
B. Examination of Prior Files
1. Prior filings are examined to
a. Fill in case history details
b. Locate documents needed for review
C. Determination of Deficiency
1. Missing documents necessary for review?
2. Of the type we would request?
a. YES - Documents request
i. Attorney filed - from the attorney
ii. Pro se - from the trial court
b. NO - Prepare a Deficiency Memo to Panel
D. Timeliness
1. La.Code Crim.P. art. 930.8
a. Date of finality of conviction & sentence
b. Date filed with the trial court
c. Exceptions alleged for untimeliness
2. Uniform Rules―Courts of Appeal, Rule 4-3
a. Date of ruling
b. Return date
c. Date of post-mark or hand delivery
22
IV. PREPARATION TO PROCEED
A. Creation of a Cover Sheet (Attorney filed writs)
B. Case/Writ History Sheet
1. Create summary
a. Case history
b. Writ History
c. Issues Presented
d. Priority
2. Notes
a. Note any procedural bars
b. Note any deficiencies
c. Include any helpful cites or information
3. Recusals (Judges who worked on the case before 3rd Circuit)
C. Attach Cover Sheet, Deficiency Sheet, and Case/Writ History Sheet to File
D. Forward the File
1. Paralegal Cases
a. Alert Paralegal & Secretary of Assignment
b. Email case notes
c. Place the file in the Paralegal’s work box
2. Attorney Cases
a. Bail writs – given to Staff Director to assign
b. Specific Assignments
i. Alert the attorney & secretary
ii. Turn over the file
iii. Discuss any relevant procedure or case history
c. General Work - not assigned to a specific attorney
i. Place the file in the to-be-worked cabinet
ii. Pretrial writs
aa. Goes in front of drawer
ab. Priority order among other pretrial writs
ac. Email staff alert if it has a short date
iii. Misdemeanor writs
aa. Determine priority before placing in cabinet
-Usually, behind pretrials but before other writs
-Sometimes before stayed pretrial writs
ab. Priority order among other misdemeanors
-Serving or stayed?
-Sentence length
iv. Probation Revocation writs
aa. Usually placed after pretrials & misdemeanors
ab. Placed before PCR writs
v. General Writs
aa. Placed in cabinet by order of docket number
ab. Behind Pretrials, Misdemeanors, & Probation
23
24
ERRORS PATENT
An error patent is an error that is discovered by a mere inspection of the
pleadings and proceedings and without inspection of the evidence. La.Code
Crim.P. art. 920(2). When conducting an error patent review, the bill of indictment
or information is reviewed, as well as the minutes, the verdict, and the sentence.
Transcripts other than the sentencing transcript are consulted only to verify an error
patent discovered in the minutes. The following is a description of the errors
patent routinely searched for by this court.
PRESENCE OF THE DEFENDANT
Louisiana Code of Criminal Procedure Article 831 requires the defendant to
be present at certain proceedings in felony cases. The minutes should affirmatively
reflect the defendant’s presence at each stage. See State v. Pope, 39 So.2d 719
(La.1949). The court minutes are reviewed to determine if the defendant was
present at the mandatory proceedings. If the minutes do not reflect the defendant
was present, the transcript of the proceeding is reviewed for any indication of his
presence. If the transcript reveals the defendant was present, there is no error
patent. If the transcript does not clearly reveal the defendant was present, remand
for a contradictory hearing or reversal may be necessary.
In most cases, however, the defendant’s presence is waived by the lack of a
contemporaneous objection. See State v. Broaden, 99-2124 (La. 2/21/01), 780
So.2d 349, cert. denied, 534 U.S. 882, 122 S.Ct. 192 (2001). Furthermore, if the
defendant is initially present for the commencement of trial and counsel is present
(or the right to counsel has been waived), the defendant’s voluntary absence or
continued disruptive behavior will not prevent the further progress of the trial per
La.Code Crim.P. art. 832.
Louisiana Code of Criminal Procedure Article 835 requires a defendant to be
present when sentence is pronounced in felony cases. If a sentence is improperly
pronounced in the defendant’s absence, the defendant must be resentenced when his
presence is secured. See State v. Debarge, 14-798 (La.App. 3 Cir. 3/18/15), 159
So.3d 526. The Defendant’s presence cannot be waived at sentencing. See State v.
Granger, 08-1531 (La.App. 3 Cir. 6/3/09), 11 So.3d 695. Imposing restitution in
the defendant’s absence has been found to violate La.Code Crim.P. art. 835. State v.
Baronet, 13-986 (La.App. 3 Cir. 2/12/14), 153 So.3d 1112.
P1
INDICTMENT BY GRAND JURY FOR OFFENSE PUNISHABLE BY
DEATH OR LIFE IMPRISONMENT
Louisiana Code of Criminal Procedure Article 382 requires that the
prosecution for any offense punishable by death or life imprisonment be instituted
by grand jury indictment. The prosecution for all other offenses may be instituted
by grand jury indictment or by bill of information. The charging instrument alone
is examined to determine if prosecution was properly instituted.
INDICTMENT SIGNED BY GRAND JURY FOREMAN, OR
INFORMATION BY DISTRICT ATTORNEY
Louisiana Code of Criminal Procedure Article 383 requires an indictment be
signed by the grand jury foreman and indorsed as a true bill. This signature and
indorsement must be on the indictment. Louisiana Code of Criminal Procedure
Article 384 requires a bill of information to be signed by the district attorney or the
city prosecutor. A signature by an assistant district attorney is sufficient. See
State v. Refuge, 300 So.2d 489 (La.1974).
ERROR IN FORM OF INDICTMENT
The charging instrument is reviewed to determine if it complies with the
requirements of La.Code Crim.P. arts. 383 and 461, et seq. A grand jury
indictment must be returned in open court. A bill of information, on the other
hand, may be returned in open court or filed in the clerk’s office. Both charging
instruments are reviewed for the necessary contents - i.e., the court in which the
offense is charged, the date of the charge, the name or description of the accused,
the offense committed, the citation of the offense, and any other information
necessary for the offense charged. Louisiana Code of Criminal Procedure Article
464 provides that an error in the citation of the offense or its omission “shall not be
ground for dismissal of the indictment or for reversal of a conviction if the error or
omission did not mislead the defendant to his prejudice.” See also La.Code
Crim.P. art. 487.
Louisiana Code of Criminal Procedure Article 470 provides that “[v]alue,
price, or amount of damage need not be alleged in the indictment, unless such
allegation is essential to charge or determine the grade of the offense.” Value
P2
and/or grade of the offense is an essential element that must be charged for both
simple arson and theft of a motor vehicle. See State v. Toussaint, 11-1404 (La.App.
3 Cir. 5/2/12), 94 So.3d 62, writ denied, 12-1211 (La. 11/16/12), 102 So.3d 30.
The failure to file a motion to quash waives most bill errors. See State v.
Wilson, 07-365 (La.App. 3 Cir. 10/3/07), 968 So.2d 776; State v. Ruiz, 06-1755
(La. 4/11/07), 955 So.2d 81; State v. C.S.D., 08-877 (La.App. 3 Cir. 2/4/09), 4
So.3d 204; State v. Chandler, 09-1286 (La.App. 3 Cir. 5/5/10), 36 So.3d 1086;
State v. Allen, 09-1281 (La.App. 3 Cir. 5/5/10), 36 So.3d 1091; State v. Guidry,
11-695 (La.App. 3 Cir. 12/7/11), 79 So.3d 1242.
UNCONSTITUTIONALITY OF SUBSTANTIVE STATUTE
Louisiana Code of Criminal Procedure Article 872 states that the statute upon
which a sentence is based must be valid. Thus, if the substantive portion or penalty
provision upon which a sentence is based is found to be unconstitutional or
otherwise invalid, the defendant’s conviction and/or sentence must be set aside.
SANITY PROCEEDINGS
Louisiana Code of Criminal Procedure Article 642 states “[w]hen the
question of the defendant’s mental incapacity to proceed is raised, there shall be no
further steps in the criminal prosecution, except the institution of prosecution, until
the defendant is found to have the mental capacity to proceed.” The minutes, as
well as the table of contents in the appellate record are examined to determine if the
defendant requested the appointment of a sanity commission to determine his
capacity to proceed. If the record reveals the defendant requested a sanity
commission and the trial court granted the request, the minutes and pleadings are
examined to determine if any further steps, other than the institution of prosecution,
took place.
If the minutes or pleadings indicate further steps took place, the proceedings
are examined to determine if they were steps in “furtherance of prosecution” or if
the occurrence of the proceedings prejudiced the defendant. See State v. Francois,
05-1385 (La.App. 3 Cir. 4/5/06), 926 So.2d 744, writ denied, 06-1048 (La.
1/12/07), 948 So.2d 138; State v. Young, 576 So.2d 1048 (La.App. 1 Cir.), writ
denied, 584 So.2d 679 (La.1991). If the proceedings were steps in furtherance of
prosecution and cannot be considered harmless, reversal may be necessary.
P3
WAIVER OF RIGHT TO COUNSEL
Louisiana Code of Criminal Procedure Article 514 requires the minutes show
the defendant was either represented by counsel or waived his right to counsel after
being informed by the court of such right. All minutes are examined to determine
whether the requirements of Article 514 have been met. If the minutes show the
defendant was represented by counsel at each pertinent proceeding or entered a
valid waiver of the right to counsel, no further examination is necessary.
If the minutes do not show that the defendant was represented by counsel or
that the defendant waived his right to counsel, the transcript of the pertinent
proceeding is examined. If the transcript does not clearly indicate the defendant
was represented, or that he was unrepresented after an informed waiver, remand for
an evidentiary hearing or possible reversal is necessary.
Arraignment has been found to not be a critical stage in a situation where
counsel subsequently filed motions and participated in all phases of the trial and
sentencing. See State v. Tarver, 02-973 (La.App. 3 Cir. 3/12/03), 846 So.2d 851,
writ denied, 03-1157 (La. 11/14/03), 858 So.2d 416.
ATTORNEY CONFLICT OF INTEREST
When presiding over a trial wherein two or more defendants are represented
by the same counsel, La.Code Crim.P. art. 517 requires the trial court to inquire
about the joint representation and advise each defendant on the record of his right to
separate representation. Although a violation of the article is an error patent, if the
defendant does not allege a conflict of interest and a conflict is not obvious from the
record, it is unlikely the error will require action being taken.
DEFENDANT PLED GUILTY
Guilty plea colloquies are not reviewed for errors patent. See State v.
Guzman, 99-1753, 99-1528 (La. 5/16/00), 769 So.2d 1158. Additionally, pursuant
to the supreme court’s holding in State v. Jackson, 04-2863 (La. 11/29/05), 916
So.2d 1015, courts of appeal are no longer required to recognize, as error patent, a
defendant’s guilty plea to a non-responsive offense when the district attorney fails
to file a written amendment to the bill of information.
P4
LIMITED GUILTY PLEA IN CAPITAL CASES
Louisiana Code of Criminal Procedure Article 557 was amended in 1995 to
provide for a limited guilty plea in capital cases. The court shall not accept an
unqualified plea of guilty in capital cases. “However, with the consent of the court
and the state, the defendant may plead guilty with the stipulation either that the
court shall impose a sentence of life imprisonment without benefit of parole,
probation, or suspension of sentence without conducting a sentencing hearing, or
that the court shall impanel a jury for the purpose of conducting a hearing to
determine the issue of the penalty in accordance with the applicable provisions of
this Code.” La.Code Crim.P. art. 557(A). If a sentencing hearing is held, a
defendant could still receive the death penalty. Louisiana Code of Criminal
Procedure Article 905 requires that if a sentencing hearing is to be conducted, the
hearing shall not be held sooner than twelve hours after the verdict or plea of guilty,
except upon joint motion of the state and the defendant.
WAIVER OF TRIAL BY JURY
Louisiana Code of Criminal Procedure Article 779 provides for a jury trial for
all offenses punishable by imprisonment of more than six months or by a fine of
more than $1,000.00. Louisiana Code of Criminal Procedure Article 782(B)
provides for a knowing and intelligent waiver of a jury trial except in capital cases.
If a defendant challenges his waiver on appeal, his waiver will be examined closely.
For error patent purposes, however, the review is less stringent. If a defendant was
entitled to a jury trial and no jury trial was held, the record is reviewed to determine
whether there is a written waiver signed by defendant and his attorney (unless
counsel has been waived) as required by La.Code Crim.P. art. 780.
When a written waiver is not executed, if the defendant and his attorney are in
open court when the judge addresses the right to a jury trial and the waiver thereof,
this court has held that the failure to obtain a written waiver is harmless error. See
State v. Charles, 15-518 (La.App. 3 Cir. 11/25/15) 178 So.3d 1157; State v. Bell,
13-1443 (La.App. 3 Cir. 6/4/14), 140 So.3d 830.
In State v. Cooley, 15-40 (La.App. 3 Cir. 6/3/15), 165 So.3d 1237, this court
remanded for an evidentiary hearing where the jury trial waiver was signed by only
P5
the defendant’s attorney and there was no indication that there had been a discussion
of the waiver in open court.
PROPER SEQUESTRATION OF THE JURY
Louisiana Code of Criminal Procedure Article 791 requires a jury be
sequestered in capital cases after each juror is sworn (unless the state and the defense
jointly move that the jury not be sequestered) and in noncapital cases, after the
court’s charge or at any time upon order of the court. The minutes are first
examined to ascertain whether the jury was properly sequestered. If the minutes do
not so reflect, the transcript of trial is examined. If the minutes or transcript simply
states that the jury was sequestered at the proper times or that the jury retired for
deliberations, no error patent is recognized. Usually, no error patent is recognized
unless something in the minutes or transcript indicates the jury was not properly
sequestered, in which case remand for an evidentiary hearing or possible reversal is
necessary.
PROPER JURY SIZE AND VOTING FOR VERDICT
Louisiana Code of Criminal Procedure Article 782 provides for the proper
number of jurors and proper concurrence for the verdict. The minutes of jury
selection are examined to determine if the proper number of jurors was chosen. If
polling of the jurors is requested upon their rendition of the verdict, the polling is
examined to determine if the verdict was proper. If, however, no polling is
requested, no further review is conducted.
In State v. Jones, 05-226, p. 6 (La. 2/22/06), 922 So.2d 508, 513, the supreme
court held that a jury composed of a greater number of jurors (a unanimous jury of
twelve) than constitutionally required (a unanimous jury of six) is no longer a
“non-waivable jurisdictional defect subject to automatic reversal.” In State v.
Brown, 11-1044, p. 5 (La. 3/13/12), 85 So.3d 52, 55, the supreme court stated, “to
the extent that respondent failed altogether to employ the procedural vehicles
provided by law for preserving the error for review, he waived any entitlement to
reversal on appeal on grounds that he was tried by a jury panel which did not
conform to the requirements of La. Const. art. I, §17 and La.C.Cr.P. art. 782 because
it included a greater number of jurors than required by law, although the error is
patent on the face of the record.” In a footnote, the court stated that it was not
P6
considering the issue of whether a trial by fewer jurors than required by law would
retain its jurisdictional character as a structural defect.
In State v. Hypolite, 13-1365 (La.App. 3 Cir. 5/14/14), 139 So.3d 687, writ
denied, 14-1242 (La. 1/23/15), 159 So.3d 1056, the defendant claimed on appeal that
the trial court erred in allowing him to be convicted by a less than unanimous verdict
on a charge of aggravated rape. This court held that State v. Goodley, 398 So.2d
1068 (La. 1981) is no longer controlling since the legislature has enacted a hybrid
capital/non-capital aggravated rape statute. This court found a unanimous jury was
not required because there was nothing in the record to suggest that the state pursued
the death penalty and the death penalty was not an option pursuant to Kennedy v.
Louisiana, 554 U.S. 407, 128 S.Ct. 2641 (2008).
VERDICT RESPONSIVE TO CHARGE; VERDICT AS TO EACH COUNT;
VERDICT AS TO EACH DEFENDANT
Louisiana Code of Criminal Procedure Article 809 requires the trial judge to
give the jury a written list of the verdicts responsive to each offense charged, with
each separately stated. The jury is to take the list into the jury room for use during
its deliberation. Louisiana Code of Criminal Procedure Article 813 provides that if
the trial court finds the verdict is incorrect in form or is not responsive to the
indictment, it shall refuse to receive it, and remand the jury with the necessary
instructions. The trial court must read the verdict and record the reasons for refusal.
The verdict form and minutes are examined to determine whether the verdict
rendered is responsive to the crime charged. La.Code Crim.P. arts. 814 and 815.
In State v. Shupp, 15-695 (La.App. 3 Cir. 2/3/16), 185 So.3d 900, this court
held that unauthorized use of a motor vehicle cannot be considered a responsive
verdict to the charged offense of theft of a motor vehicle over $1500.00. Thus, the
jury’s verdict of guilty of unauthorized use was reversed and the sentence vacated.
An acquittal of the charged offense of theft of a motor vehicle valued over $1500.00
was entered.
Louisiana Code of Criminal Procedure Article 818 provides that if more than
one defendant is on trial, the verdict shall name each defendant and a finding as to
him. The minutes, verdict form, and/or transcript are examined to ensure a verdict
was rendered separately for each defendant that is before the court on appeal.
Likewise, La.Code Crim.P. art. 819 requires that if a defendant is being tried on
P7
more than one count, the jury must render a verdict on each count, unless it cannot
agree on a verdict for each count. The minutes, verdict form, and/or transcript are
reviewed to determine whether a separate verdict was rendered on each count and
whether all counts have been disposed of. See State v. Bartie, 12-673 (La.App. 3
Cir. 12/5/12), 104 So.3d 735, writ denied, 13-39 (La. 8/30/13), 120 So.3d 256;
State v. Fobb, 11-1434 (La.App. 3 Cir. 6/6/12), 91 So.3d 1235, where this court
remanded for the proper disposition of offenses charged in the bill that had not yet
been disposed of.
MOTION FOR NEW TRIAL, MOTION FOR POST-VERDICT JUDGMENT
OF ACQUITTAL, MOTION IN ARREST OF JUDGMENT RULED ON
BEFORE SENTENCE
Any motion for new trial, motion for post-verdict judgment of acquittal, and
motion in arrest of judgment filed prior to sentencing, must be disposed of before
sentence is imposed. La.Code Crim.P. arts. 853, 821, and 861. See State v.
Freeman, 15-251 (La.App. 3 Cir. 10/7/15), 175 So.3d 1104, where this court
vacated the defendant’s sentence and remanded for disposition of the defendant’s
motion for judgment of acquittal, noting that if the motion is denied, the defendant is
to be resentenced and his right to appeal his conviction and sentence is preserved.
PROPER DELAYS FOR SENTENCING
Louisiana Code of Criminal Procedure Article 873 requires that in felony
cases, there be a three (3) day delay between conviction and sentence. If the
defendant files a motion for new trial or a motion in arrest of judgment, sentence
must not be imposed until at least twenty-four hours after the motion is overruled.
Some cases have extended the delay to denials of motions for post-verdict judgment
of acquittal. See State v. Westmoreland, 10-1408 (La.App. 3 Cir. 5/4/11), 63 So.3d
373, writ denied, 11-1660 (La. 1/20/12), 78 So.3d 140; State v. Boyance, 05-1068
(La.App. 3 Cir. 3/1/06), 924 So.2d 437, writ denied, 06-1285 (La. 11/22/06), 942
So.2d 553; but see State v. Banks, 503 So.2d 529 (La.App. 3 Cir.), remanded on
other grounds, 503 So.2d 1007 (La.1987). Sentence may be imposed immediately if
the defendant expressly waives the delay or pleads guilty. See State v. Guillory,
10-1175 (La.App. 3 Cir. 4/6/11), 61 So.3d 801. An implied waiver may be found
under certain circumstances. See State v. Roy, 15-516 (La.App. 3 Cir. 11/4/15), 177
So.3d 1112; State v. Bergeron, 14-608 (La.App. 3 Cir. 11/5/14), 150 So.3d 523;
Westmoreland, 63 So.3d 373; but see State v. Perkins, 10-554 (La.App. 3 Cir.
P8
12/29/10), 54 So.3d 799, where a panel of this court vacated the defendant’s
sentence and remanded for resentencing where the defendant did not expressly
waive the delay in sentencing and challenged the sentence imposed.
The date of conviction and sentence are examined to determine whether three
days elapsed between the two. The minutes of sentencing are also examined to see
if the trial court denied any pending motion for new trial or motion in arrest of
judgment the same day the defendant was sentenced. If either delay was violated
and there was no waiver, an error patent exists. If the defendant challenges his
sentence on appeal, his sentence may be set aside and remanded for resentencing.
If, however, the defendant does not challenge his sentence on appeal and does not
claim prejudice due to the lack of the delay, the error is considered harmless. See
State v. Frank, 15-893 (La.App. 3 Cir. 5/25/16), 192 So.3d 888; State v. Cortes,
11-794 (La.App. 3 Cir. 2/1/12), 84 So.3d 733. This error is also considered
harmless if the defendant received a mandatory life sentence. See State v. J.F.,
05-1410 (La.App. 3 Cir. 4/5/06), 927 So.2d 614, writ denied, 06-1424 (La. 12/8/06),
943 So.2d 1060; State v. Ware, 07-968 (La.App. 3 Cir. 3/5/08), 980 So.2d 730, writ
denied, 08-847 (La. 10/31/08), 994 So.2d 534.
SENTENCE IN COURT MINUTES
Louisiana Code of Criminal Procedure Article 871(A) requires the sentence to
be recorded in the minutes of the court. Thus, the record is reviewed to determine if
the sentence was recorded in the minutes. If there is a conflict between the minutes
of sentencing and the transcript of the sentence imposed, the trial court is ordered to
correct the minutes. See State v. McCurley, 15-24 (La.App. 3 Cir. 6/3/15), 165
So.3d 1232; State v. Williams, 15-498 (La.App. 3 Cir. 12/9/15), 181 So.3d 857.
ILLEGAL SENTENCE
An illegal sentence is one not authorized by law. See State v. Moore, 93-1632
(La.App. 3 Cir. 5/4/94), 640 So.2d 561, writ denied, 94-1455 (La. 3/30/95), 651
So.2d 858. Courts are authorized to recognize illegally lenient sentences even if
the state fails to complain of the error. See State v. Williams, 00-1725 (La. 11/28/01),
800 So.2d 790. La.Code Crim.P. art. 882. The following is a non-exclusive list of
errors that commonly occur at sentencing.
P9
A. The penalty provision mandates that all or a portion of the
sentence be imposed without the benefit of probation, parole, or
suspension of sentence and the trial court fails to comply. If the
trial court fails to impose the sentence without benefits and the benefits
restriction is for a mandatory term, the sentence is deemed to contain
the benefits restriction. See La.R.S. 15:301.1. This applies to habitual
offender sentences as well. State v. King, 05–553 (La.App. 5 Cir.
1/31/06), 922 So.2d 1207, writ denied, 06–1084 (La.11/9/06), 941
So.2d 36.
If the trial court makes an affirmative misstatement as to the
benefits restriction, this court may choose to correct the sentence, or, if
discretion is involved, remand the case for resentencing. See State v.
Mayeux, 06-944 (La.App. 3 Cir. 1/10/07), 949 So.2d 520; State v. P.T.,
07-665 (La.App. 3 Cir. 12/5/07), 970 So.2d 1255, writ denied, 08-26
(La. 5/30/08), 983 So.2d 895; La.Code Crim.P. art. 882; State v.
Gregrich, 99-178 (La.App. 3 Cir. 10/13/99), 745 So.2d 694.
B. The trial court imposes restrictions on parole when it is not
authorized to do so. A trial court is authorized to restrict or deny
parole eligibility only if the penalty provision of the offense in
question authorizes such restriction. Limitation of parole under
La.R.S. 15:574.4 is within the discretion of the Department of Public
Safety and Corrections, not the trial court. See State v. Poirrier,
04-825 (La.App. 3 Cir. 12/1/04), 888 So.2d 1123. When a habitual
offender sentence is imposed (other than a life sentence on a third or
fourth habitual offender), the penalty provision of the reference statute
governs the restriction or denial of parole. See State v. Tate, 99-1483
(La. 11/24/99), 747 So.2d 519; State v. Dossman, 06-449 (La.App. 3
Cir. 9/27/06), 940 So.2d 876, writ denied, 06-2683 (La. 6/1/07), 957
So.2d 174.
When a trial court improperly limits or denies parole eligibility,
the sentence must be corrected. An appellate court should not rely on
the self-activating provisions of La.R.S. 15:301.1 when the trial court
imposes “limits beyond what the legislature has authorized in the
sentencing statute(s). . . .” State v. Sanders, 04-17 (La. 5/14/04), 876
So.2d 42. The sentence is amended to delete the improper denial of
P10
parole and the district court is ordered to make an entry in the minutes
reflecting the change. See State v. Washington, 11-490 (La.App. 3
Cir. 11/2/11), 76 So.3d 1264; State v. Hurst, 10-1204 (La.App. 3 Cir.
4/13/11), 62 So.3d 327, writ denied, 11-975 (La. 10/21/11), 73 So.3d
383.
C. The trial court imposes an indeterminate sentence. If the
defendant is convicted of more than one count, a separate sentence
must be imposed on each count. See La.Code Crim.P. art. 879; State
v. Carmouche, 14-215 (La.App. 3 Cir. 7/30/14), 145 So.3d 1101, writ
denied, 14-1819 (La. 4/2/15), 176 So.3d 1031
If a habitual offender sentence is imposed and the defendant has
been convicted of multiple counts, the trial court must specify the
sentence being enhanced. See State v. Pierre, 14-1333 (La.App. 3
Cir. 5/6/15), 165 So.3d 365, writ denied, 15-1149 (La. 4/13/16), 191
So.3d 1054; State v. Gottke, 14-769 (La.App. 3 Cir. 12/17/14), 154
So.3d 1250. Note: In State v. Shaw, 06-2467 (La. 11/27/07), 969
So.2d 1233, the supreme court held that multiple sentences arising out
of a single criminal act or episode may be enhanced under La.R.S.
15:529.1.
When multiple sentences are imposed and the defendant is
placed on probation, the trial court must specify on which count(s) the
probation applies. The trial court must also specify on which count or
counts the conditions of probation are being imposed. See State v.
Wallace, 13-862 (La.App. 3 Cir. 2/12/14), 153 So.3d 1040 (fn 1);
State v. Morris, 05-725 (La.App. 3 Cir. 12/30/05), 918 So.2d 1107.
If a sentence may be served with or without hard labor, the trial
court must specify how the sentence is to be served. See State v.
Mouton, 12-836 (La. App. 3 Cir. 2/27/13), 129 So.3d 49; State v.
Newton, 12-541 (La.App. 3 Cir. 2/13/13), 129 So.3d 25.
Whether restitution is imposed as a condition of probation or as
part of the principal sentence under La.Code Crim.P. art. 883.2, the
trial court must specify the amount of the restitution ordered. See
P11
State v. Baxley, 14-48 (La.App. 3 Cir. 5/7/14), 139 So.3d 556; State v.
Joseph, 05-186 (La.App. 3 Cir. 11/2/05), 916 So.2d 378.
D. The trial court fails to establish a sufficient payment plan for
amounts to be paid as a condition of probation. If restitution is
imposed as a condition of probation, La.Code Crim.P. art. 895.1
allows for the restitution payment to be made, “in [the] discretion of
the court, either in a lump sum or in monthly installments based on the
earning capacity and assets of the defendant.” When the trial court is
silent or imposes an inadequate payment plan (e.g., “over the duration
of the supervised probation”), this court may remand the case for
establishment of a payment plan by either the trial court or by the
Office of Probation and Parole and approved by the trial court. See
State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597.
This has been required for the payment of fines, court costs, and other
fees imposed as conditions of probation as well. See State v. Frank,
15-893 (La.App. 3 Cir. 5/25/16), 192 So.3d 888; State v. Tall, 12-280
(La.App. 3 Cir. 10/24/12), 100 So.3d 388.
If the trial court imposes restitution as part of the principal
sentence pursuant to La.Code Crim.P. art. 883.2 and the defendant is
found to be indigent, the trial court may impose a periodic payment
plan consistent with the defendant’s financial ability to pay.
The trial court must also impose a probation supervision fee
when it places a defendant on probation.
NOTICE OF TIME LIMITATION TO FILE AN APPLICATION FOR
POST-CONVICTION RELIEF
Louisiana Code of Criminal Procedure Article 930.8 requires that notice of
the time limitation for filing an application for post-conviction relief be given at
sentencing or on a guilty plea form. If the minutes reflect that Article 930.8 notice
was given and no transcript is available, no error patent is recognized. If the
transcript is available, however, it may be reviewed to ensure the correctness of the
minutes. If the defendant is not so advised, the district court is instructed to give
written notice to the defendant and to file written proof in the record that the
defendant received the notice. See State v. Williams, 15-498 (La.App. 3 Cir.
P12
12/9/15), 181 So.3d 857; State v. Charles, 15-518 (La.App. 3 Cir. 11/25/15), 178
So.3d 1157. However, if the defendant is to be resentenced, notice of the time
limitation is to be given at resentencing rather than by written notice. See State v.
Bentley, 15-598 (La.App. 3 Cir. 2/3/16), 185 So.3d 254; State v. Debarge, 14-798
(La.App. 3 Cir. 3/18/15), 159 So.3d 526.
A common error occurs when the trial court erroneously advises the
defendant that he has two years from the date of sentencing to file for
post-conviction relief. Louisiana Code of Criminal Procedure Article 930.8 states
that a defendant has two years from the finality of his conviction and sentence to
apply for post-conviction relief. When this error occurs, the trial court is ordered
to correctly notify the defendant of the provisions of article 930.8 by written
notification, or at resentencing if resentencing is required. See State v. Frank,
15-893 (La.App. 3 Cir. 5/25/16), 192 So.3d 888; State v. Shupp, 15-695 (La.App. 3
Cir. 2/3/16), 185 So.3d 900. This court has also required notification to the
defendant when the trial court advises the defendant that he has two years to apply
for post-conviction relief without stating that the two years begins to run from
finality of the conviction and sentence. See State v. Roy, 15-516 (La.App. 3 Cir.
11/4/15), 177 So.3d 1112; State v. Gilliam, 14-228 (La.App. 3 Cir. 10/1/14), 149
So.3d 354.
P13
ERROR PATENT CHECKLIST
CASE #____________
NAME________________________________________
An error patent is an error that is discoverable by a mere inspection of the
pleadings and proceedings and without inspection of the evidence. La.Code
Crim.P. art. 920(2). Look at court minutes and written pleadings, but not at
testimonial or documentary evidence admitted at trial.
1.
Presence of defendant (La.Code Crim.P. art. 831.)
arraignment
pleading
jury selection
at trial or plea
judgment rendered
sentencing (La.Code Crim.P. art. 835.)
________
2.
Indictment by grand jury for offense punishable by death or life
imprisonment (La.Code Crim.P. art. 382.)
________
3.
Indictment signed by grand jury foreman, or information by
district attorney (La.Code Crim.P. arts. 383 and 384.)
________
4.
Error in form of indictment (La.Code Crim.P. arts. 383 and 461
et seq.)
_______
5.
Unconstitutionality of substantive statute (La.Code Crim.P. art.
872.)
________
6.
Sanity proceedings (La.Code Crim.P. art. 642.)
________
7.
Waiver of Right to Counsel (La.Code Crim.P. art. 514.)
________
8.
Attorney Conflict of Interest, (La.Code Crim.P. art. 517; State v.
Browning, 483 So.2d 1008, 1009 (La.1986).)
________
________
________
________
________
P14
________
9.
Defendant pled guilty (La.Code Crim.P. arts. 553, 556, 556.1,
and 559.)
________
10.
Limited “guilty” plea in capital case (La.Code Crim.P. art. 557.)
________
11.
Waiver of trial by jury (La.Code Crim.P. art. 782 (B).)
________
12.
Proper sequestration of jury (La.Code Crim.P. art. 791.)
13.
Proper jury size and voting for verdict (La.Code Crim.P. art.
782 A.)
capital - 12 out of 12
hard labor - 10 out of 12
all others - 6 out of 6
________
14.
Verdict responsive to charge (La.Code Crim.P. arts. 809 and
810.)
________
15.
Verdict as to each count (La.Code Crim.P. art. 819.)
________
16.
Verdict as to each defendant (La.Code Crim.P. art. 818.)
________
17.
Motion for new trial, motion for post-verdict judgment of
acquittal, or motion in arrest of judgment ruled on before
sentence. (La.Code Crim.P. arts. 853, 821, and 861).
________
18.
Proper delays for sentencing (La.Code Crim.P. art. 873.) [3
days after felony conviction, 24 hours after denial of motion for
new trial or motion in arrest of judgment.]
________
19.
Sentence in court minutes (La.Code Crim.P. art. 871 A.)
________
20.
Illegal sentence (La.Code Crim.P. arts. 879 and 882.)
________
21.
Advised of time limitation (La.Code Crim.P. art. 930.8)
________
________
________
P15
THIRD CIRCUIT JUDGES’ ASSOCIATION
CONTINUING LEGAL EDUCATION
PROGRAM - 2016
POST-CONVICTION RELIEF
Presentation and Written Materials by:
Reba Powers Green, Senior Research Attorney, and
Dustin Madden, Research Attorney
Central Staff Director - Renee Simien
Central Criminal Staff:
Sandi Aucoin Broussard - Director
Jeff Slade and Reba Powers Green- Senior Research Attorneys
Melissa Sockrider, Shannon Haggard, Marymarc Armstrong, Bobbie
Kirkland, Robin Anderson, Beth Fontenot, and Dustin Madden - Research
Attorneys
POST-CONVICTION RELIEF
I.
General Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. Petitioner Must be in Custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
C. Effect of Appeal . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
D. Venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Form Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. La.Code Crim.P. art. 926 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Uniform Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
C. Supplementation of PCR Application . . . . . . . . . . . . . . . . . . . . . . . . 3
III. Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Answer . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. Dismissal Upon the Pleadings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
C. Summary Disposition . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
D. Evidentiary Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
E. Right to Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1. Discretionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2. Mandatory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
F. Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
IV. Grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. Grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
B. Exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
C. Conviction Obtained in Violation of the Constitution . . . . . . . . . . . .7
1. Ineffective Assistance of Counsel . . . . . . . . . . . . . . . . . . . . . . . 7
2. Guilty Pleas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3. Duty to Disclose Exculpatory Evidence . . . . . . . . . . . . . . . . . . . 12
4. Sixth Amendment Right to Confrontation . . . . . . . . . . . . . . . . . 13
5. Double Jeopardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6. Court Exceeded Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7. Probation Revocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
8. Reinstatement of the Right to Appeal . . . . . . . . . . . . . . . . . . . . 16
9. Intellectual Disability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10. Actual Innocence/Jackson Review . . . . . . . . . . . . . . . . . . . . . . 18
11. Jury Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
D. Issues Which May Not be Raised in a PCR Application . . . . . . . . . 19
1. Excessiveness or Other Sentencing Errors . . . . . . . . . . . . . . . . 19
2. Habitual Offender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3. Non-jurisdictional Defects . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
V.
Procedural Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
A. Pending Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
B. Raised on Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
C. Failed to Raise in Trial Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
D. Failed to Pursue on Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
E. Successive Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
F. La.Code Crim.P. art. 930.4(F) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
VI. Time Limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
A. La.Code Crim.P. art. 930.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
B. Finality of Judgment of Conviction and Sentence . . . . . . . . . . . . . . 23
C. Date of Filing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
D. Informing Defendant of Prescriptive Period . . . . . . . . . . . . . . . . . . 25
VII. Exceptions to the Time Limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
A. La.Code Crim.P. art. 930.8(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
B. Facts Not Known . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
C. New Ruling/Interpretation of Constitutional Law . . . . . . . . . . . . . . 27
D. Prejudice to the State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
VIII. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
A. Judgment on PCR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
B. A Pleading’s Nature Determined by Substance Not Caption . . . . . . 29
1. Motion to Correct Illegal Sentence . . . . . . . . . . . . . . . . . . . . . . 29
2. Motion to Withdraw Guilty Plea . . . . . . . . . . . . . . . . . . . . . . . . 30
C. DNA Testing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
D. Waiver of Post-Conviction Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 32
E. Post Conviction Procedure, 41 La. L. Rev. 625 . . . . . . . . . . . . . . . 34
* Denotes material added to the outline in 2016.
POST-CONVICTION RELIEF (PCR)
I. GENERAL CONSIDERATIONS
A. Definition - Application for Post-Conviction Relief
An application for post-conviction relief is ―a petition filed by a person in
custody after sentence following conviction for the commission of an offense
seeking to have the conviction and sentence set aside.‖ La.Code Crim.P. art. 924.
B. The Petitioner Must be in Custody
1. Definition of custody - detention or confinement, or probation or parole
supervision, after sentencing following conviction for the commission of an
offense. La.Code Crim.P. art. 924; State v. Smith, 96-1798 (La. 10/21/97), 700
So.2d 493; State v. Surus, 13-903 (La.App. 3 Cir. 4/2/14), 135 So.3d 1236, writ
denied, 14-882 (La. 2/6/15), 157 So.3d 1136.
2. ―Offense‖ includes both a felony and a misdemeanor. La.Code Crim.P.
art. 933(1).
3. Once a sentence is satisfied, post-conviction relief is barred. Use of the
conviction can be challenged only if it is later used to enhance a penalty (e.g. under
La.R.S. 15:529.1) or to serve as an element of a crime in a subsequent criminal
prosecution (e.g., La.R.S. 14:95.1). See State v. Smith, 96-1798 (La. 10/21/97),
700 So.2d 493.
a. Voluntary payment of a fine imposed as a misdemeanor sentence prior to
applying for appellate review and without recording an objection to the fine
renders any subsequent review of the conviction or sentence moot. State v.
Malone, 08-2253 (La. 12/1/09), 25 So.3d 113.
C. Effect of Appeal
If the petitioner may appeal the conviction and sentence or if an appeal is
pending, the petitioner is not entitled to file for post-conviction relief. La.Code
Crim.P. art. 924.1.
D. Venue
―Applications for post conviction relief shall be filed in the parish in which
the petitioner was convicted.‖ La.Code Crim.P. art. 925.
II. FORM REQUIREMENTS
A. La.Code Crim.P. art. 926 provides:
―A. An application for post conviction relief shall be by written petition
addressed to the district court for the parish in which the petitioner was convicted.
A copy of the judgment of conviction and sentence shall be annexed to the petition,
or the petition shall allege that a copy has been demanded and refused.
B. The petition shall allege:
(1) The name of the person in custody and the place of custody, if known, or
if not known, a statement to that effect;
(2) The name of the custodian, if known, or if not known, a designation or
description of him as far as possible;
(3) A statement of the grounds upon which relief is sought, specifying with
reasonable particularity the factual basis for such relief;
(4) A statement of all prior applications for writs of habeas corpus or for
post conviction relief filed by or on behalf of the person in custody in connection
with his present custody; and
(5) All errors known or discoverable by the exercise of due diligence.
C. The application shall be signed by the petitioner and be accompanied by
his affidavit that the allegations contained in the petition are true to the best of his
information and belief.
D. The petitioner shall use the uniform application for post conviction relief
approved by the Supreme Court of Louisiana. If the petitioner fails to use the
uniform application, the court may provide the petitioner with the uniform
application and require its use.
E. Inexcusable failure of the petitioner to comply with the provisions of this
Article may be a basis for dismissal of his application.‖
B. Uniform Application
1. A copy of the Uniform Application for Post-Conviction Relief is found in
Appendix A of the Uniform RulesCCourts of Appeal.
2
2. Petitioner must use the required form for application for post-conviction
relief. State ex rel. Lindsey v. State, 99-2755 (La. 10/1/99), 748 So.2d 456.
However, the trial court should look beyond the caption of pleadings in order to
ascertain their substance and pro se filings should be held to ―less stringent
standards than formal pleadings filed by lawyers . . . .‖ State ex rel. Egana v.
State, 00-2351 (La. 9/22/00), 771 So.2d 638.
C. Supplementation of a PCR Application
―The district court is ordered to exercise its discretion and determine
whether the interests of justice require that relator be allowed to amend and
supplement his timely filed application for post conviction relief. La.C.Cr.P. art.
930.8 does not take away from district judges the discretion to allow amendment
and supplementation of timely filed pleadings. See State ex rel. Edge v. Whitley,
599 So.2d 1090 (La.1992) (Calogero, C.J., concurring).‖ State ex rel. Duhon v.
Whitley, 92-1740 (La. 9/2/94), 642 So.2d 1273. See also State ex rel. Foy v.
Whitley, 92-1281 (La. 10/6/95), 661 So.2d 455. ―[T]he district court was acting
within its discretion when it in effect ordered supplementation of the timely-filed
application for post-conviction relief, even if the supplementation were not to
arrive until after the expiration of the prescriptive period.‖ State v. Sampson, 02909 (La. 2/14/03), 841 So.2d 747. See also State v. Thomas, 08-2912 (La.
10/16/09), 19 So.3d 466; State ex rel. Benn v. State, 11-2418 (La. 6/22/12), 90
So.3d 1045.
III. PROCEDURE
A. Answer
1. If an application alleges a claim which, if established, would entitle the
petitioner to relief, the court shall order the custodian, through the district attorney
in the parish in which the defendant was convicted, to file any procedural
objections he may have, or an answer on the merits if there are no procedural
objections, within a specified period not in excess of thirty days. If procedural
objections are timely filed, no answer on the merits of the claim may be ordered
until such objections have been considered and rulings thereon have become final.
La.Code Crim.P. art. 927(A).
2. If the court orders an answer filed, the court need not order production of
the petitioner except as provided in Article 930. La.Code Crim.P. art. 927(C).
3
B. Dismissal upon the Pleadings
The application may be dismissed without answer if it fails to allege a claim
which, if established, would entitle the petitioner to relief. La.Code Crim.P. art.
928.
C. Summary Disposition
If the court determines that the factual and legal issues can be resolved based
on the application, answer, and supporting documents submitted by either party or
available to the court, the court can grant or deny relief without further
proceedings. La.Code Crim.P. art. 929(A).
D. Evidentiary Hearing
1. An evidentiary hearing for the taking of testimony or other evidence shall
be ordered whenever there are questions of fact which cannot be resolved pursuant
to La.Code Crim.P. arts. 928 and 929. La.Code Crim.P. art. 930(A). See La.Code
Crim.P. art. 930.8(A)(1).
2. ―When there is a factual issue of significance to the outcome that is
sharply contested, the trial court will not be able to resolve the factual dispute
without a full evidentiary hearing. La.C.Cr.P. art. 929, Official Revision
Comment.‖ State ex rel. Tassin v. Whitley, 602 So.2d 721 (La.1992).
3. The petitioner is entitled to be present at said hearing unless the
appearance has been waived or the only evidence to be received is authenticated
records, transcripts, depositions, documents, or portions therefore or admissions of
fact, and the petitioner has been or will be provided with copies of such evidence
and an opportunity to respond thereto in writing. La.Code Crim.P. art. 930(A)(B).
4. No evidentiary hearing on the merits can be held until the procedural
objections have been ruled upon. La.Code Crim.P. art. 930(C).
5. A petitioner who is incarcerated may be present by teleconference, video
link, or other visual remote technology. La.Code Crim.P. art. 930.9.
6. A claim of ineffective assistance of counsel is more properly raised by an
application for post-conviction relief in the district court where a full evidentiary
hearing may be conducted. State v. Prudhomme, 02-511 (La.App. 3 Cir.
10/30/02), 829 So.2d 1166, writ denied, 02-3230 (La. 10/10/03), 855 So.2d 324.
7. State v. Lacaze, 09-2472 (La. 5/12/10), 41 So.3d 479 - Relator could call
the trial judge to testify at a PCR hearing seeking to recuse the trial judge from
further involvement in the proceedings.
4
8. La.Code Evid. art. 507(D) provides that a lawyer may be called as a
witness at a habitual offender proceeding for the purpose of identifying his client
or former client or in post-conviction proceedings when called on the issue of
ineffective assistance of counsel.
E. Right to Counsel
1. Discretionary appointment of counsel
a. ―If the petitioner is indigent and alleges a claim which, if established,
would entitle him to relief, the court may appoint counsel.‖ La.Code Crim.P. art.
930.7(A).
b. If the court orders an evidentiary hearing, authorizes the taking of
depositions, or authorizes requests for admissions of fact or genuineness of
documents, when such evidence is necessary for the disposition of procedural
objections, the court may appoint counsel for an indigent petitioner. La.Code
Crim.P. art. 930.7(B).
c. See Martinez v. Ryan, __ U.S. __, 132 S.Ct. 1309 (2012) - A procedural
default will not bar a federal habeas court from hearing a substantial claim of
ineffective assistance of counsel at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that proceeding was ineffective.
d. State v. Deloch, 13-1975 (La. 5/16/14), 140 So.3d 1167 - The supreme
court held that Martinez did not apply to relator‘s post-conviction claims made in
state court.
2. Mandatory appointment of counsel
a. When an evidentiary hearing on the merits is ordered or the court
authorizes the taking of depositions, requests for admissions of fact or genuineness
of documents, for use as evidence in ruling on the merits, the trial court shall
appoint counsel for the petitioner. La.Code Crim.P. art. 930.7(C).
b. State v. Robinson, 07-145 (La.App. 3 Cir. 4/5/07) (unpublished opinion) The trial court was ordered to appoint counsel for relator pursuant to La.Code
Crim.P. art. 930.7(C). In lengthy reasons for ruling, the trial court said that it could
not comply with this court‘s order regarding appointment of counsel because there
were no attorneys on either the panel of volunteer attorneys or non-volunteer
attorneys. The trial court requested that this court ―make its own appointment of
counsel.‖ In response, this court instructed the trial court to order the Indigent
Defender Board to comply with its duties under La.R.S. 15:145.
5
F. Burden of Proof
1. The petitioner bears the burden of proof in post-conviction relief
proceedings. La.Code Crim.P. art. 930.2. See also La.Code Crim.P. art.
930.8(A)(1).
2. State v. James, 05-2512 (La. 9/29/06), 938 So.2d 691 - The defendant
alleged counsel interfered with his right to testify at trial. The court held the postconviction claimant must ―allege specific facts, including an affidavit from
counsel‖ and point to record evidence to support his claim. The court further
found that ―mere conclusory allegations are insufficient‖ to rebut the presumption
arising from a defendant‘s silence at trial that he waived his right to testify.
3. State v. LeBlanc, 06-169 (La. 9/15/06), 937 So.2d 844 - The court
reinstated guilty plea conviction and sentence, finding that ―unsubstantiated
allegations of ineffective assistance of counsel, in the face of plea negotiations
which resulted in the reduction of the charge from second degree murder to
manslaughter and a 20-year recommended sentence, do not carry his burden of
showing that he pled guilty involuntarily.‖
IV. GROUNDS
A. Grounds upon which Post-Conviction Relief may be Granted are:
―(1) The conviction was obtained in violation of the constitution of the
United States or the state of Louisiana;
(2) The court exceeded its jurisdiction;
(3) The conviction or sentence subjected him to double jeopardy;
(4) The limitations on the institution of prosecution had expired;
(5) The statute creating the offense for which he was convicted and
sentenced is unconstitutional; or
(6) The conviction or sentence constitute the ex post facto application of law
in violation of the constitution of the United States or the state of Louisiana.
(7) The results of DNA testing performed pursuant to an application granted
under Article 926.1 proves by clear and convincing evidence that the petitioner is
factually innocent of the crime for which he was convicted.‖ La.Code Crim.P. art.
930.3.
B. Exclusive
The list in La.Code Crim.P. art. 930.3 is exclusive. State ex rel. Melinie v.
State, 93-1380 (La. 1/12/96), 665 So.2d 1172.
6
C. Conviction Obtained in Violation of the Constitution
1. Ineffective assistance of counsel
a. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984) Petitioner must show that counsel‘s performance was deficient (errors so serious
that counsel was not functioning as the counsel guaranteed by the Sixth
Amendment) and that the deficient performance prejudiced the defense, such that,
petitioner was deprived of a fair trial. ―Thus, a court deciding an actual ineffective
assistance claim must judge the reasonableness of counsel‘s challenged conduct on
the facts of the particular case, viewed as of the time of counsel‘s conduct.‖
Conduct which falls within the ambit of ―trial strategy‖ is not per se evidence of
ineffective counsel. State v. Schexnaider, 03-144 (La.App. 3 Cir. 6/4/03), 852
So.2d 450 (citing State v. Griffin, 02-1703 (La.App. 4 Cir. 1/15/03), 838 So.2d 34,
writ denied, 03-809 (La. 11/7/03), 857 So.2d 515).
b. It is unnecessary to address the issues of both counsel‘s performance and
prejudice to petitioner if petitioner makes an inadequate showing on one of the
components. State v. Serigny, 610 So.2d 857 (La.App. 1 Cir. 1992), writ denied,
614 So.2d 1263 (La.1993); State v. James, 95-962 (La.App. 3 Cir. 2/14/96), 670
So.2d 461.
c. United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039 (1984) Ineffective assistance of counsel can be presumed without a showing of prejudice
in three situations: 1) there was a complete denial of counsel; 2) counsel entirely
failed to subject the prosecution‘s case to meaningful adversarial testing; or 3) the
likelihood that any lawyer, even a fully competent one, could provide effective
assistance of counsel was so small that a presumption of prejudice was appropriate
without inquiry into the actual conduct of the trial.
d. State v. Mills, 13-1901 (La. 3/21/14), 137 So.3d 8 - Claim that defense
counsel was ineffective at a sentencing hearing because he encouraged the trial
court to interject an improper consideration into its sentencing determination was
reviewed by the supreme court, which noted that said claim would not be
cognizable on post-conviction relief.
e. Hinton v. Alabama, __ U.S. __, 134 S.Ct. 1081 (2014) - The Supreme
Court held that an attorney‘s ignorance on a point of law that is both fundamental
to the case and could be resolved with a cursory investigation into the relevant
state statutes represents inadequate assistance of counsel. Because Hinton‘s trial
attorney was not aware that Alabama law allowed him to request and receive more
funding for expert witnesses, his performance failed to reach the reasonableness
standard set forth in Strickland.
7
*f. State ex rel. Shannon v. State, 15-792 (La. 6/17/16), 2016 WL 3525814 ―The district court‘s ruling summarily dismissing relator‘s post-conviction
application is vacated and the district court is directed to conduct an evidentiary
hearing at which relator will be afforded the opportunity to present his claim of
ineffective assistance of counsel with supporting evidence. Although only relator‘s
pro se claims were raised in the district court (because relator filed his application
before pro bono post-conviction counsel enrolled), and ‗[t]he general rule is that
appellate courts will not consider issues raised for the first time,‘ Segura v. Frank,
93-1271 (La. 1/14/94), 630 So.2d 714, 725, the interests of judicial economy and
justice warrant the consideration of both relator‘s pro se and counselled allegations
at an evidentiary hearing. See, e.g., State v. Duncan, 08-2244 (La. 1/22/10), 26
So.3d 148 (granting writs to remand the petitioner's post-conviction claims,
including a claim not previously presented to the district court, for an evidentiary
hearing). Following the hearing, the district court is ordered to determine whether
trial counsel rendered ineffective assistance under the standard set out in Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).‖
*g. Maryland v. Kulbicki, __ U.S. __, 136 S.Ct. 2 (2016) - Defense counsel‘s
failure at trial to seriously probe a method of forensic analysis that was widely
accepted at the time, although later discredited, did not amount to ineffective
assistance of counsel. Quoting Strickland, the Court held that ―the reasonableness
of counsel‘s challenged conduct ... viewed as of the time of counsel‘s conduct.‖
2. Guilty Pleas
a. ―A valid guilty plea must be a free and voluntary choice by the defendant.
A guilty plea will not be considered free and voluntary unless, at the very least,
defendant was advised of his constitutional rights against self-incrimination, to a
trial by jury and to confront his accusers. Boykin v. Alabama, 395 U.S. 238, 89
S.Ct. 1709, 23 L.Ed.2d 274 (1969). An express and knowing waiver of those
rights must appear on the record, and an unequivocal showing of a free and
voluntary waiver cannot be presumed. Boykin, supra; State v. Keener, 41,246
(La.App. 2d Cir.8/23/06), 939 So.2d 510; State v. Morrison, 599 So.2d 455
(La.App. 2d Cir.1992).‖ State v. Kennedy, 42,850 (La.App. 2 Cir. 1/9/08), 974
So.2d 203.
1. State v. Holden, 09-1714 (La. 4/9/10), 32 So.3d 803 - Failure of the
defendant to conclude the colloquy by stating ―I plead guilty‖ does not render an
otherwise knowing, intelligent, and voluntary guilty plea invalid.
8
b. Inadequate Boykin and other problems
1. Although a personal colloquy between a trial judge and the defendant is
preferred, group guilty pleas are not automatically invalid. State v. Richard, 00659 (La. 9/29/00), 769 So.2d 1177. The defendant must be aware of the nature of
the charge and the elements of the crime; however, this constitutional requirement
is satisfied where these things are explained to the defendant by his own competent
counsel. Bradshaw v. Stumpf, 545 U.S. 175, 125 S.Ct. 2398 (2005).
2. ―The Defendants all nodded‖ - There is no way to review whether the
defendant actually understood the advice/waiver being referenced.
3. Counsel representing multiple defendants at plea entry proceeding
referring to ―my client‖ or ―your client‖ - The reviewing court has no way of
knowing which client is being referenced.
4. Discussions and agreements among attorneys and the court prior to
proceedings in open court - If relevant, memorialize the agreements for the record.
5.
Exact docket numbers and a description of charges being
dropped/reduced as part of any plea agreement must be clearly stated in open
court.
6. Review plea entry forms to insure they are signed by all parties and that
the terms and conditions on the form are exactly the same as those stated in open
court.
c. Advice of Rights - State v. Mendenhall, 06-1407 (La. 12/8/06), 944 So.2d
560 - A trial judge‘s advisement to defendant that the State would have to prove its
case beyond a reasonable doubt and that his attorney would have an opportunity to
cross-examine the State‘s witnesses was deemed insufficient advice as to the right
to confront one‘s accusers by the second circuit. The supreme court reversed,
finding that other factors, including an informed, educated defendant, rendered the
advice constitutional.
d. Advice with respect to a defendant‘s sentencing exposure is not a part of
the core Boykin requirements. State v. Anderson, 98-2977 (La. 3/19/99), 732 So.2d
517. This includes the fact that a guilty plea may be used as a basis for the filing
of a future multiple offender bill. State v. Lane, 40,816 (La.App. 2 Cir. 4/12/06),
927 So.2d 659, writ denied, 06-1453 (La. 12/15/06), 944 So.2d 1283, and writ
denied, 06-2502 (La. 5/4/07), 956 So.2d 599.
e. When a guilty plea is otherwise voluntary, there is no need to ascertain a
factual basis for the plea unless the accused protests his guilt or for some other
reason the trial court is put on notice that there is a need for such an inquiry. State
v. McCullough, 615 So.2d 26 (La.App. 3 Cir. 1993). But see North Carolina v.
9
Alford, 400 U.S. 25, 91 S.Ct. 160 (1970) - Guilty pleas coupled with claims of
innocence should not be accepted unless there is a factual basis for the plea.
f. ―A guilty plea is invalid, or constitutionally infirm, when a defendant is
induced to enter a plea of guilty by a plea bargain agreement, or what he
reasonably or justifiably believes was a plea bargain agreement, and the terms of
the bargain are not satisfied. State v. Jones, 546 So.2d 1343, 1346 (La.App. 3d
Cir.1989); State v. Taylor, 535 So.2d 1229, 1230 (La.App. 3d Cir.1988) quoting
State v. Dixon, 449 So.2d 463, 464 (La.1984). It is well settled that if a
defendant‘s misunderstanding is not induced by or attributed to representations
made by the district attorney or the trial court, there is no ground for invalidating
the guilty plea. State v. Malmay, 548 So.2d 71, 73 (La.App. 3d Cir.1989); State v.
Jones, supra.
It is also well settled that a misunderstanding between a defendant and
counsel for defendant does not have the same implication as a breached plea
bargain agreement, and this misunderstanding does not render the guilty plea
invalid. State v. Lockwood, 399 So.2d 190 (La.1981); State v. Johnson, 533 So.2d
1288, 1292 (La.App. 3d Cir.1988), writ denied, 563 So.2d 873 (La.1990). In the
absence of fraud, intimidation, or incompetence of counsel, a guilty plea is not
made less voluntary or less informed by the considered advice of counsel. See,
State v. Johnson, 461 So.2d 1259, 1261 (La.App. 1st Cir.1984).‖ State v. Sigue,
06-527 (La.App. 3 Cir. 9/27/06), 940 So.2d 812, writ denied, 06-2963 (La.
9/28/07), 964 So.2d 354 (citing State v. Readoux, 614 So.2d 175 (La.App. 3 Cir.
1993)). ―The determination whether the conduct of defense counsel constitutes
fraudulent misrepresentation sufficient to invalidate a guilty plea is based upon a
weighing of the credibility of the witnesses against the remaining evidence, and the
fact-finder‘s determinations will not be second-guessed.‖ State v. Moree, 99-402
(La.App. 3 Cir. 10/4/00), 772 So.2d 155 (citing State . Hidalgo, 96-403 (La.App. 3
Cir. 11/6/96), 684 So.2d 26).
1. State ex rel. Williams v. State, 08-1059 (La. 2/6/09), 999 So.2d 1136 Relator pled guilty to manslaughter and the parties agreed that he would receive a
suspended sentence and probation. The supreme court vacated the sentence
because the trial court lacked authority to impose such a sentence and remanded
the matter for resentencing, at which time relator would be given the opportunity to
withdraw his guilty plea.
2. La.Code Crim.P. art. 890.1, which became effective May 17, 2012,
allows the waiver of minimum mandatory sentences. Effective August 1, 2014,
this provision does not apply to sex offenses as defined in La.R.S. 15:541 or thirtyfour listed crimes of violence.
10
3. State v. Gobert, 02-771 (La.App. 3 Cir. 11/12/03), 865 So.2d 779, writ
denied, 03-3382 (La. 12/10/04), 888 So.2d 829 - Fundamental fairness dictated that
relator, who knowingly and intelligently entered a plea that raised double jeopardy
concerns to avoid the imposition of a mandatory life sentence, could not attack the
validity of that plea.
4. State ex rel. Morgan v. State, 08-1082 (La. 3/4/09), 3 So.3d 456 Erroneous advice of counsel regarding eligibility for diminution of sentence for
good behavior is grounds for withdrawal of a guilty plea.
5. State v. Jackson, 13-1409 (La. 11/15/13), 129 So.3d 520 - Defendant
maintained his innocence but entered an Alford plea. ―Given the unique facts of
this case relating to the veracity of the arresting officer which arose prior to
sentencing, we find the district court abused its discretion in refusing to allow the
defendant to withdraw his guilty plea.‖
6. State in Interest of E.C., 13-2483 (La. 6/13/14), 141 So.3d 785 - Juvenile
plead nolo contendere to delinquency charges. As part of the plea agreement, the
juvenile agreed to obtain a trade or skill through a trade/vocational program
offered and available at the facility upon his confinement or, alternatively, to make
good faith efforts to actively participate in such a program. Although the juvenile
contended that he had no realistic opportunity to participate in a program because
he did not meet general requirements for participation, the court had used its
authority to order the juvenile into the program, openings were available in the
program, and the juvenile did not join the program or place his name on the
waiting list for the program. The court found that allowing the juvenile to re-enter
society without participation in vocational training would frustrate the spirit of the
plea agreement. The juvenile was remanded to the facility to comply with the plea
agreement.
7. State v. Ducre, 14-1295 (La. 3/16/15), 161 So.3d 628 - Defendant was
advised that his sentence was deferred and he would receive the benefit of La.Code
Crim.P. art. 893. The case was remanded to the district court for a determination
of whether a mutual mistake regarding whether the defendant would receive the
benefit of art. 893 occurred, which should be corrected in accordance with La.Code
Crim.P. art. 881.1(A)(3). If no mutual mistake occurred, the district court was
ordered to give the defendant the opportunity to withdraw his guilty plea.
*8. State ex rel. O’Keefe v. State, 15-1101 (La. 6/17/16), 2016 WL 3532683
- Defendant alleged he pled guilty based on the representation that he would be
eligible for parole consideration after serving two years of his sentence. The
supreme court ordered the trial court to appoint counsel and conduct an evidentiary
11
hearing to determine whether relator pled guilty involuntarily as a result of his
misunderstanding of his eligibility for release on parole.
g. Agreement not to prosecute
1. State v. Cardon, 06-2305 (La. 1/12/07), 946 So.2d 171 - A defendant‘s
guilty plea to a crime committed prior to entering into an agreement not to
prosecute was not a basis for termination of the agreement, as the agreement only
prohibited the defendant from committing a ―new‖ offense.
h. Plea colloquy is not part of the record for error patent review - State v.
Robinson, 06-1406 (La. 12/08/06), 943 So.2d 371 - The failure of the trial court to
inform the defendant of the right to trial by jury was not reviewable as error patent.
i. Sentence recommendation - If the plea agreement is for the State to
recommend a specific sentence, the actual sentence imposed is still reviewable on
appeal. See State v. Thibeaux, 11-40 (La.App. 3 Cir. 8/3/11), 70 So.3d 1094. But
see State v. Holmes, 11-533 (La.App. 3 Cir. 5/30/12) (unpublished opinion), writ
denied, 12-1606 (La. 11/16/12), 102 So.3d 32 - There was a joint sentencing
recommendation. During the plea colloquy the trial court informed relator that it
was not bound by the sentencing recommendation and later stated relator could not
seek review of a sentence imposed in conformity with the plea agreement. Relator
was then ordered to serve the recommended sentence. Relator subsequently sought
an out-of-time appeal. The trial court denied relator‘s request for an out-of-time
appeal, stating relator waived his right to appeal the issue of guilt, and the sentence
received was imposed in conformity with a plea agreement. This court found no
error in the trial court‘s ruling.
j.
Crosby plea vs. Alford plea requirements - (Not to be used
interchangeably.) For Crosby, ONLY errors specifically reserved may be
appealed. For Alford, a DETAILED factual basis is mandatory.
3. Duty to disclose exculpatory evidence - Brady v. Maryland, 373 U.S.
83, 83 S.Ct. 1194 (1963).
a. Components of a Brady violation: ―The evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State, either willfully
or inadvertently; and prejudice must have ensued.‖ Strickler v. Greene, 527 U.S.
263, 119 S.Ct. 1936 (1999).
b. State v. Harper, 10-356 (La. 11/30/10), 53 So.3d 1263 - The trial court
abused its discretion in ordering production of allegedly exculpatory witnesses for
an in camera interview by the trial court, as the State had satisfied its obligation
under Brady, had not explicitly or otherwise directed the witnesses not to speak
with defense counsel, and defense counsel failed to present any exceptional
12
circumstances or peculiar reasons why fundamental fairness dictated production of
the witnesses or their contact information.
c. State v. Weathersby, 09-2407 (La. 3/12/10), 29 So.3d 499 - The State‘s
witness list and the taped statements of victims and witnesses, which did not
constitute Brady material, were not discoverable by the defense.
*d. Wearry v. Cain, __ U.S. __, 136 S.Ct. 1002 (2016) - Wearry argued
during state post-conviction proceedings that the prosecution failed to disclose
three pieces of exculpatory evidence: that two fellow inmates of the State‘s star
witness, Scott, had made statements that cast doubt on Scott‘s credibility; that,
contrary to the prosecution‘s assertions at trial, Brown, another witness, had twice
sought a deal to reduce his existing sentence in exchange for testifying against
Wearry; and that medical records of Randy Hutchinson, who allegedly participated
in the murder, showed that he likely could not have played the role in the attack
Scott alleged. The Supreme Court found the Louisiana court erred in denying
Wearry‘s post-conviction Brady claim, stating: ―Beyond doubt, the newly
revealed evidence suffices to undermine confidence in Wearry‘s conviction. The
State‘s trial evidence resembles a house of cards, built on the jury crediting Scott‘s
account rather than Wearry‘s alibi.‖ The majority further stated: ―[e]ven if the
jury—armed with all of this new evidence—could have voted to convict Wearry,
we have ‗no confidence that it would have done so.‖‘
4. Sixth Amendment - Right to Confrontation - In Crawford v.
Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004), the United State Supreme Court
held that even if an out-of-court statement fits within a firmly rooted exception to
the hearsay rule, that statement is inadmissible if it is testimonial in nature and has
not been subject to confrontation and cross-examination, unless the witness is
unavailable and the defense had a prior opportunity to cross-examine the witness,
regardless of whether the statement is deemed reliable by the court.
a. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527 (2009) Certificates of forensic analysis are testimonial, and the Sixth Amendment does not
permit the State to prove its case via ex parte out-of-court affidavits.
b. Bullcoming v. New Mexico, 564 U.S. 647, 131 S.Ct. 2705 (2011) - The
surrogate testimony of a second forensic analyst who did not observe or review the
original blood alcohol content results was inadmissible. The defendant had the
right to be confronted with the analyst who made the certification, unless that
analyst was unavailable at trial, and the accused had an opportunity, pretrial, to
cross-examine that particular scientist.
13
c. Williams v. Illinois, - __ U.S. __, 132 S.Ct. 2221 (2012) - The testimony
of an expert witness that was based on a test the expert did not personally perform
was admissible and did not violate the defendant‘s Sixth Amendment
Confrontation Clause rights. The Court held that, because the evidence of the thirdparty test was not produced to prove the truth of the matter asserted but merely to
provide a basis for the conclusions that the expert reached, the prosecution had not
infringed on the defendant‘s rights. See also State v. Bolden, 11-2435 (La.
10/26/12), 108 So.3d 1159.
d. State v. Simmons, 11-1280 (La. 1/20/12), 78 So.3d 743 - The defendant
waived his Sixth Amendment right to confrontation by failing to timely request a
subpoena for the analyst who performed the test on the rocks of cocaine. Under the
circumstances, the trial court properly admitted the analyst‘s certificate in lieu of
live testimony. The supreme court noted that Louisiana‘s notice-and-demand
statute, La.R.S. 15:501, was permissible under the Confrontation Clause.
e. State v. Tate, 14-136 (La.App. 3 Cir. 4/17/14), (unpublished opinion) The trial court erred in finding the admission of statements made by the deceased
during a recorded conversation with the defendant violated the confrontation
clause, as the deceased‘s statements were reasonably required to place the
defendant‘s statements into context.
f. State v. Hawley, 14-282 (La. 10/15/14), 149 So.3d 1211 - Admission of
the Machine Recertification Form and Maintenance Technician Qualification Form
did not violate the Confrontation Clause because they did not provide direct proof
of any element of DWI. Additionally, the state had no duty under the notice and
demand statute to produce the testimony of the person who prepared the forms.
g. State v. Koederitz, 14-1526 (La. 3/17/15), 166 So.3d 981 - The trial court
erred in excluding the hospital records documenting the victim‘s initial treatment
during which she identified her assailant and placed the incident in the context of
domestic violence and the follow-up visit during which she elaborated on her prior
statements and received counseling on ways to change her behavior. These
statements were non-hearsay as a matter of La.Code. Crim.P. art. 803(4) and were
admissible as substantive evidence because they were made for purposes of
medical diagnosis and treatment, essential components under current medical
practice in cases of domestic violence. The statements were also non-testimonial
for the purposes of the Confrontation Clause because there were not procured for
the primary purpose of creating an out-of-court substitute for trial testimony.
h. Ohio v. Clark, __ U.S. __, 135 S.Ct. 2173 (2015) - The Court held that
the three-year-old‘s statements to his teachers were non-testimonial because the
totality of the circumstances indicated that the primary purpose of the conversation
14
was not to create an out-of-court substitute for trial testimony. In this case, there
was an ongoing emergency because the child, who had visible injuries, could have
been released into the hands of his abuser, and therefore the primary purpose of the
teachers‘ questions was most likely to protect the child. Moreover, a very young
child who does not understand the details of the criminal justice system is unlikely
to be speaking for the purpose of creating evidence. Finally, the Court held that a
mandatory reporting statute does not convert a conversation between a concerned
teacher and a student into a law enforcement mission aimed primarily at gathering
evidence for a prosecution.
*i. State v. Mullins, 14-2260, 14-2310 (La. 1/27/16), 188 So.3d 164 Results of IQ test were testimonial in nature, and the admission of a letter
containing the results thereof violated the confrontation clause in the absence of
testimony by the technician who administered the test as to the results of the test or
whether required testing protocols were followed.
5. Double Jeopardy
a. Double jeopardy protects against a second prosecution for the same
offense after acquittal, a second prosecution for the same offense after conviction,
and multiple punishments for the same offense. State v. Crandell, 05-1060 (La.
3/10/06), 924 So.2d 122.
b. Additional fact test - Blockburger v. United States, 284 U.S. 299, 52 S.Ct.
180 (1932) - If conduct constitutes a violation of two or more distinct statutory
provisions, the provisions must be scrutinized to confirm that each demands proof
of an additional fact.
c. Same evidence test - This test depends upon the proof required to convict,
not the evidence actually introduced at trial. State v. Sandifer, 95-2226 (La.
9/5/96), 679 So.2d 1324.
d. State v. Thomas, 07-446 (La.App. 3 Cir. 5/30/07) (unpublished opinion),
writ denied, 07-1471 (La. 4/18/08), 978 So.2d 345 - Relator‘s double jeopardy
claim was precluded from review, as it was raised more than two years after his
convictions and sentences were final. See also State v. Griffin, 96-1562 (La.App. 3
Cir. 6/19/97) (unpublished opinion), writ denied, 97-2250 (La. 3/20/98), 715 So.2d
1201; State v. Hardy, 09-176 (La.App. 3 Cir. 6/3/09) (unpublished opinion), writ
denied, 09-1532 (La. 4/16/10), 31 So.3d 1061; State v. Davis, 14-478 (La.App. 3
Cir. 9/10/14), 159 So.3d 482, writ denied, 14-2113 (La. 5/1/15), 169 So.3d 371.
6. Court Exceeded Jurisdiction
a. State v. Ervin, 06-273 (La.App. 3 Cir. 4/11/06) (unpublished opinion) Relator, a juvenile at the time of his arrest, was charged with one count of
attempted first degree murder and two counts of false imprisonment. Subsequent to
15
his plea of guilty to the charges, relator filed a pleading asserting the trial court
lacked jurisdiction over the false imprisonment charges under La.Ch.Code art. 305,
as false imprisonment is not one of the enumerated felonies in art. 305. The trial
court interpreted relator‘s motion as an application for post-conviction relief, and
denied it as untimely. This court stated, ―[t]he trial court erred in denying Relator‘s
‗Motion to Correct Illegal Sentence‘ as the trial court lacked jurisdiction to convict
and sentence Relator on the two counts of false imprisonment. La.Ch.Code arts.
303 and 305.‖
7. Probation Revocation
a. State ex rel. Clavelle v. State, 02-1244 (La. 12/12/03), 861 So.2d 186 ―No appeal lies from an order revoking probation . . . and while supervisory
review provides a direct means for contesting the trial court‘s action, we have
recognized that post-conviction proceedings may also afford an avenue of relief.‖
Id. at 187 (citations omitted) (emphasis added). The court noted that, at the close
of the revocation hearing, the trial court advised the unrepresented relator that he
had ―two years from when the sentence becomes final to apply for post-conviction
relief.‖ Relator filed a post-conviction application within that time period and
sought review from the court of appeal within the return date set by the trial court
after the denial of his application. Thus, the supreme court concluded that relator
attempted to comply with what he reasonably believed were the procedural
requirements for preserving his claims for review.
b. Under Uniform Rules—Courts of Appeal, Rule 4-3, a defendant has
thirty days from the ruling revoking his probation, unless the trial court grants an
extension, to file a supervisory writ seeking review of his probation revocation.
c. DO NOT mention post-conviction relief or time limits at probation
revocation proceedings.
8. Reinstatement of Right to Appeal (Out-of-Time Appeal)
a. There is a constitutional right to an appeal in Louisiana. The right to an
appeal can only be waived by the defendant himself, and any waiver of the right
must be an informed one. State v. Simmons, 390 So.2d 504 (La.1980).
b. State v. Counterman, 475 So.2d 336 (La.1985):
1. If the delay for seeking an appeal has expired, the appropriate procedural
vehicle for seeking reinstatement of the right to appeal is an application for postconviction relief.
2. The defendant must establish that he was not advised of the right to
appeal or that his attorney was at fault in failing to timely file an appeal.
16
3. In deciding whether to grant an out-of-time appeal, the trial court may
consider factors such as the length of the delay in defendant‘s attempt to exercise
the right and the adverse effect upon the state caused by the delay.
4. The State must be given an opportunity to oppose the request.
c. State v. Counterman, 491 So.2d 86 (La.App. 1 Cir. 1986) - The first
circuit certified to the supreme court the following question, ―In the instant case,
since the trial court failed to follow the Supreme Court‘s directive in State v.
Counterman, 475 So.2d 336 (La.1985), to consider defendant‘s request for appeal
as an application for post conviction relief and to employ the proper procedures
therefor, is this appeal properly before this Court?‖
d. State v. Counterman, 501 So.2d 766 (La.1987) - The supreme court
stated, ―The appeal is properly before the Court of Appeal. It does not appear that
the state has complained of the district court‘s failure to follow C.Cr.P. art. 927 or
of the district court‘s granting of the out of time appeal.‖
e. State v. S.J.I., 06-2649 (La. 6/22/07), 959 So.2d 483 - The supreme court
remanded a case to this court stating the following, ―The judgment of the court of
appeal dismissing relator‘s appeal and remanding the case to the district court for
further proceedings pursuant to State v. Counterman, 475 So.2d 336 (La.1985), is
vacated and this case is remanded to the court of appeal to address relator‘s
assignments of error on the merits. Given the trial court‘s granting of relator‘s pro
se motion for appeal and its appointment of the Louisiana Appellate Project to
represent relator on appeal, and given the state‘s failure to complain about any
procedural irregularities in the ordering of the out-of-time appeal, dismissal of the
present appeal and a remand to the district court to cure any defects under this
Court‘s Counterman decision would only prolong the delay without serving any
useful purpose.‖
f. State ex rel. Thurman v. State, 08-994 (La. 2/13/09), 1 So.3d 459 Relator raised the issue of his entitlement to an out-of-time appeal within the
parameters established by La.Code Crim.P. art. 930.8, although he did not do so
in the trial court. The supreme court ordered the district court to hold a hearing to
determine if relator was entitled to an out-of-time appeal under Counterman
stating, ―neither the prescriptive period of art. 930.8(A) nor the discretionary
procedural bar of La.C.Cr.P. art. 930.4(E) should operate to deprive relator of his
constitutional right to appeal.‖
9. Intellectual Disability
a. State v. Reeves, 14-132 (La. 4/25/14), 137 So.3d 625 - The supreme
court found the pre-evidentiary hearing ordering the defendant to provide the State
with wide-ranging discovery and to submit to an examination conducted by an
17
expert of the State‘s choosing was premature, as the court was not at the stage of
the proceedings making the ultimate determination of whether the defendant was
mentally retarded and therefore subject to execution but determining only whether
reasonable grounds exited for making that inquiry.
b. Brumfield v. Cain, __ U.S. __, 135 S.Ct. 2269 (2015) - The trial court‘s
decision that Brumfield did not present sufficient evidence of mental impairment
was an unreasonable determination of the facts. Therefore, the federal district
court could review the state court‘s decision. The state court‘s decision rested on
its determination that Brumfield‘s IQ score was not low enough to prove that he
had subaverage intelligence and that Brumfield did not show that his adaptive
skills were impaired. However, an IQ test has a margin of error that, if applied to
the score in this case, would place Brumfield in the category of subaverage
intelligence; therefore, the state court could not definitively preclude the possibility
that Brumfield satisfied this criterion, and to hold otherwise was unreasonable.
Additionally, the factual record presented to the state court provided sufficient
evidence to question Brumfield‘s adaptive skills. Because Brumfield only needed
to raise reasonable doubt regarding his intellectual capacity to be entitled to an
evidentiary hearing, the state court‘s decision that Brumfield did not meet that low
threshold was unreasonable.
10. Actual Innocence/Jackson Review
a. State v. Pierre, 13-873 (La. 10/15/13), 125 So.3d 403 - The defendant
was not entitled to a new trial based on the victim‘s post-conviction allegation
made during the pendency of defendant‘s direct appeal that a male family member
had been sexually abusing her during the same time period as the defendant.
Assuming the defendant had a free-standing post-conviction claim of actual
innocence based on the victim‘s allegation, the allegation went to the victim‘s
credibility not to the defendant‘s actual innocence, and the defendant failed to
show that he was deprived of the opportunity to file a motion for new trial based
on newly discovered evidence due to the state‘s late disclosure of the victim‘s
allegation to the defendant.
b. State v. Edwards, 14-1737 (La. 4/10/15), 164 So.3d 823 - McQuiggin v.
Perkins, 569 U.S. __, 133 S.Ct. 1924 (2013), in which the Supreme Court found
that a credible showing of actual innocence allows a petitioner to pursue habeas
corpus relief on the merits regardless of any procedural bar, ―does not purport to
govern state post-conviction proceedings conducted under state law . . . .‖
18
11. Jury Conduct
a. State v. Tyler, 13-913 (La. 11/22/13), 129 So.3d 1230 - The matter was
remanded for an evidentiary hearing at which relator would have the burden of
proving that improper consultation with the Bible occurred during jury
deliberations and it had a substantial and injurious effect in determining the jury‘s
verdict. At the hearing, the testimony of jurors was admissible to show the nature
and the circumstances of any reading of the Bible which took place during
deliberations. However, under La.Code Evid. art. 606(B), no juror would be
allowed to testify to the actual impact consultation of the Bible had on his mind or
verdict or speculate as to the impact it had on the mind of another juror.
b. Warger v. Shauers, __ U.S. __, 135 S.Ct. 521 (2014) - Federal Rule of
Evidence 606(b), which provides that certain juror testimony about events in the
jury room is not admissible during an inquiry into the validity of a verdict, bars a
federal court from considering evidence of a juror‘s comments during deliberations
that indicated she lied during voir dire about her impartiality and ability to award
damages.
D. Examples of Issues which may NOT be Raised in a PCR Application
1. Claims of excessiveness or other sentencing errors. State ex rel. Melinie
v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172. See also State v. Humphrey, 13481 (La. 11/8/13), 126 So.3d 1280.
2. Habitual Offender
a. Generally, challenges to a multiple offender adjudication cannot be heard
on post-conviction relief. State v. Hebreard, 98-385 (La.App. 4 Cir. 3/25/98), 708
So.2d 1291. See also State v. Daniels, 00-3369 (La. 11/2/01), 800 So.2d 770; State
ex rel. Brown v. State, 03-2568 (La. 3/26/04), 870 So.2d 976; State v. Shepard, 051096 (La. 12/16/05), 917 So.2d 1086.
b. State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030 - A habitual
offender adjudication constitutes sentencing for purposes of State ex rel. Melinie v.
State, 93-1380 (La. 1/12/96), 665 So.2d 1172, and La.Code Crim.P. art. 930.3. A
fortiori, relator‘s claim that he received ineffective assistance of counsel at his
habitual offender adjudication was not cognizable on collateral review so long as
the sentence imposed fell within the range of the sentencing statutes.
c. State v. Quinn, 14-1831 (La. 4/10/15), 163 So.3d 799 - The supreme
court found the court of appeal erred to the extent it granted partial relief and
vacated relator‘s habitual offender adjudication and sentence. Consideration of
any habitual offender adjudication error is precluded.
19
d. A claim contesting the refusal to vacate a habitual offender ruling can be
reviewed as an illegal sentence claim. See State v. Singleton, 09-1269 (La.
4/23/10), 33 So.3d 889.
e. State v. Moore, 14-1282 (La. 3/27/15), 164 So.3d 186 - Relator filed a
PCR claiming he received ineffective assistance of counsel because counsel failed
to object to the multiple bill on the basis that the cleansing period had lapsed. The
fourth circuit refused to consider the sentencing error. The supreme court
remanded the matter for consideration of the claim because the fourth circuit‘s
opinion on appeal specifically stated the issue was preserved and could be raised
via PCR.
3. Non-jurisdictional defects
a. A guilty plea waives all non-jurisdictional defects in the proceedings
leading to the plea. State v. Starks, 01-1078 (La. 3/28/02), 812 So.2d 638. This
includes ineffective assistance of counsel that occurs prior to entry of the guilty
plea. State v. Holder, 99-1747 (La.App. 3 Cir. 10/11/00), 771 So.2d 780. See
State v. Crosby, 338 So.2d 584 (La.1976) for a list of jurisdictional defects.
However, under Crosby a defendant‘s guilty plea can be expressly conditioned
upon his right to obtain appellate review of pre-plea rulings urged as reversibly
erroneous.
b. State v. Jenkins, 419 So.2d 463 (La.1982) - The defendant alleged
defense counsel was ineffective for failing to call him as a witness at the motion to
quash hearing. The supreme court held the defendant pled guilty, thus, waiving
any non-jurisdictional defects such as the alleged ineffective assistance of counsel.
c. But see State v. West, 09-2810 (La. 12/10/10), 50 So.3d 148 - The
supreme court stated: ―The court of appeal erred to the extent that it implied that
relator‘s claim of ineffective assistance of counsel was waived as a ‗nonjurisdictional defect‘ by entering guilty pleas to the charged crimes. Established
jurisprudence of this Court provides that the Sixth and Fourteenth Amendments
and La. Const. art. I, ' 2 and ' 13 protect a defendant pleading guilty. ‗When a
defendant enters a counseled plea of guilty, this court will review the quality of
counsel‘s representation in deciding whether the plea should be set aside.‘‖
d. Missouri v. Frye, __ U.S. __, 132 S.Ct. 1399 (2012) - The Sixth
Amendment right to effective assistance of counsel in criminal cases includes the
right to notice from one‘s attorney of the terms of a plea offer from the
prosecution. Failure to convey such terms to the defendant violates that right. To
obtain relief, however, the defendant must still establish a reasonable probability
that, had he received effective assistance of counsel, (a) the defendant would have
accepted the plea offer, (b) the resulting plea agreement would have been entered
20
by the court, and (c) that agreement would have resulted in a plea to a lesser charge
or a lighter sentence than was actually imposed.
e. Lafler v. Cooper, __ U.S. __, 132 S.Ct. 1376 (2012) - A defendant who
(a) rejects a plea offer based on legal advice so deficient that it violates the Sixth
Amendment, and (b) is later convicted at trial and receives a harsher sentence can
seek reconsideration of his sentence if he can show a reasonable probability that,
but for the ineffective assistance of counsel, (1) the plea agreement would have
been presented to and accepted by the court, and (2) the subsequent conviction and
sentence (or both) under that plea agreement would have been less severe than the
judgment and sentence that were actually imposed.
f. State v. Birtha, 10-2526 (La. 2/10/12), 81 So.3d 649 - The district court
was ordered to appoint counsel to represent relator and to conduct an evidentiary
hearing on his claims that he was constructively denied the representation of
counsel when the trial court appointed counsel on the morning of trial and the day
after relator‘s retained counsel failed to appear, and appointed counsel rendered
ineffective assistance of counsel by pressing relator to plead guilty.
V. PROCEDURAL OBJECTIONS
A. Pending Appeal
If an appeal is pending, the person in custody may not file an application for
post-conviction relief. La.Code Crim.P. art. 924.1.
B. Raised on Appeal
If a claim was fully litigated on appeal or in a prior PCR application, the
claim shall be denied as repetitive. La.Code Crim.P. art. 930.4(A).
1. Although an appellate court may invoke the procedural bar in La.Code
Crim.P. art. 930.4(A), the legislature directed the discretionary procedural bars of
La.Code Crim.P. art. 930.4(B)-(E) to district court judges who, in appropriate
cases, may, but need not, invoke them to deny relief or dismiss an application.
Carlin v. Cain, 97-2390 (La. 3/13/98), 706 So.2d 968.
2. State v. Ford, 96-2919 (La. 5/30/97), 694 So.2d 917 (citations omitted) ―The trial court may not avoid the procedural bars of La.C.Cr.P. art. 930.4 and
La.C.Cr.P. art. 930.8 by ‗reconsidering‘ an application for post-conviction relief on
which it has earlier ruled, especially when, as here, this Court has considered and
rejected the claims.‖
21
C. Failed to Raise in Trial Court
If the petitioner had knowledge of a claim and inexcusably failed to raise it
in the proceedings leading to the conviction, the court shall deny relief. La.Code
Crim.P. art. 930.4(B).
D. Failed to Pursue on Appeal
―If the application alleges a claim which the petitioner raised in the trial
court and inexcusably failed to pursue on appeal, the court shall deny relief.@
La.Code Crim.P. art. 930.4(C).
E. Successive Application
1. A successive application shall be dismissed if it fails to raise a new or
different claim or raises a new or different claim that was inexcusably omitted
from a prior application. La.Code Crim.P. art. 930.4(D)(E).
*2. Beginning September 18, 2015, some Louisiana Supreme Court per
curiams include language stating the post-conviction procedure envisions the filing
of a second or successive application only under the narrow circumstances
provided in La.Code Crim.P. art. 930.4 and within the limitation period found in
La.Code Crim.P. art. 930.8. The court points out that in 2013 the legislature
amended art. 930.4 to make the procedural bar against successive applications
mandatory. The court further states: ―Relator‘s claims are now all fully litigated
in state collateral proceedings in accordance with La.C.Cr.P. art. 930.6, and the
denial of relief has become final. Hereafter, unless relator can show that one of the
narrow exceptions authorizing the filing of a successive application applies, relator
has exhausted his right to state collateral review.‖ State ex rel. Stevenson v. State,
15-1084 (La. 9/25/15), 175 So.3d 392. As of October 30, 2015, those supreme
court per curiam‘s order the district court to record a minute entry consistent with
the per curiam. See State v. Singleton, 15-765 (La. 10/30/15), 178 So.3d 556.
F. La.Code Crim.P. art. 930.4(F)
―If the court considers dismissing an application for failure of the petitioner
to raise the claim in the proceedings leading to conviction, failure to urge the claim
on appeal, or failure to include the claim in a prior application, the court shall order
the petitioner to state reasons for his failure. If the court finds that the failure was
excusable, it shall consider the merits of the claim.‖ La.Code Crim.P. art.
930.4(F).
22
1. In State ex rel. Rice v. State, 99-496 (La. 11/12/99), 749 So.2d 650, the
court stated, ―[t]he Uniform Application thus in most cases both provides an
inmate with an opportunity to explain his failure to raise a claim earlier and
provides the district judge with enough information to undertake the informed
exercise of his discretion and to determine whether default of an application under
La.C.Cr.P. art. 930.4(B), art. 930.4(C), or art. 930.4(E) is appropriate. Proper use
of the Uniform Application thus satisfies the requirements of La.C.Cr.P. art.
930.4(F) without the need for further filings, formal proceedings, or a hearing.‖
2. State v. Office, 15-171 (La.App. 3 Cir. 5/5/15) (unpublished opinion) Relator did not use the Uniform Application and the matter was remanded for
compliance with art. 930.4(F).
VI. TIME LIMITATION.
A. La.Code Crim.P art. 930.8 - An application for post-conviction relief,
including one seeking reinstatement of the right to appeal (i.e., an out-of-time
appeal), must be filed within two years of the finality of the judgment of conviction
and sentence, unless an exception applies.
1. State ex rel. Glover v. State, 93-2330, 94-2101, 94-2197 (La. 9/5/95), 660
So.2d 1189, abrogated in part on other grounds by State ex rel. Olivieri v. State,
00-172 (La. 2/21/01), 779 So.2d 735, cert. denied, 533 U.S. 936, 121 S.Ct. 2566
(2001), and cert. denied, 534 U.S. 892, 122 S.Ct. 208 (2001), held:
a. The time limit in art. 930.8 does not violate the federal or Louisiana due
process clauses, the federal or Louisiana habeas corpus clauses, the Louisiana
guarantee to the right of access to courts, or the federal or Louisiana ex post facto
clauses.
b. The untimeliness of an application for post-conviction relief can be
recognized by an appellate court even if the trial court considered the merits of the
application.
B. Finality of Judgment of Conviction and Sentence
1. No appeal filed - If no appeal is filed, the judgment of conviction and
sentence becomes final upon the expiration of the time limitation for seeking an
appeal (30 days after the rendition of the judgment or from the ruling on a timely
filed motion for reconsideration of sentence). La.Code Crim.P. arts. 914(B).
2. Appeal filed - A judgment of an appellate court becomes final when the
delay for applying for a rehearing (14 days from date of rendition of judgment) has
expired when no application is filed or the date the rehearing is denied when a
timely application for rehearing is filed. La.Code Crim.P. art. 922(A) - (C). ―If an
23
application for a writ of review is timely filed with the supreme court, the
judgment of the appellate court from which the writ of review is sought becomes
final when the supreme court denies the writ.‖ La.Code Crim.P. art. 922(D). A
writ of review to the supreme court must be filed within 30 days of the mailing of
notice of the original judgment of the court of appeal, if a timely filed application
for rehearing is not filed, or within 30 days of the mailing of notice of the judgment
on a timely filed application for rehearing. Supreme Court Rules, Rule 10, ' 5.
3. ―Resentencing alone does not restart the . . . time period for applying for
post-conviction relief.‖ State ex rel. Rushing v. Whitley, 93-2722 (La. 11/13/95),
662 So.2d 464.
4. Although resentencing alone does not restart the prescriptive period for
filing a post-conviction relief application, the prescriptive period does not initially
begin to run until the judgment of conviction and sentence have become final.
State ex rel. Frazier v. State, 03-242 (La. 2/6/04), 868 So.2d 9.
5. An out-of-time appeal restarts the time limit for applying for postconviction relief. State ex rel. Campbell v. Whitley, 93-677 (La. 10/27/95), 661
So.2d 1367.
6. Extension of Time Limits - State v. Celestine, 04-1130 (La.App. 3 Cir.
2/2/05), 894 So.2d 1197, writ denied, 05-1401 (La. 2/17/06), 924 So.2d 1001 This court dismissed an appeal when the application for post-conviction relief,
which sought an out-of-time appeal, was not timely filed under La.Code Crim.P.
art. 930.8. This court found the time bar in art. 930.8 is jurisdictional; therefore, a
trial court has no authority to extend the time limit provided therein.
7. State v. Shelton, 09-2071 (La. 1/29/10), 26 So.3d 745 - When the trial
court denied the motion to withdraw plea, it necessarily denied the
contemporaneously filed motion to reconsider sentence that had been imposed as
part of a plea bargain. Therefore, review of the motion to reconsider sentence by
the trial court eight years later was improper.
8. State v. Brumfield, 13-2390 (La. 11/14/14), 152 So.3d 870 - Relator pled
guilty on the same day in 1999 to six charges, including one count of armed
robbery that was the basis of his habitual offender sentence. In 2008, he raised a
conflict of interest claim attacking the guilty plea to armed robbery. The trial court
determined the claim was precluded by La.Code Crim.P. art. 930.8(A). In 2011,
on relator‘s motion, the district court imposed sentence for the first time on the five
other convictions. In 2012, the district court resented relator on the armed robbery,
re-imposing the same habitual offender sentence. Relator filed another PCR
challenging all six convictions on the basis of conflict of interest. The supreme
court found the PCR time limits did not begin to run anew when the district court
24
vacated the habitual offender sentence originally imposed in 1999 and resentenced
him to the same term in 2012. Additionally, the window for attacking the armed
robbery was not reopened when the district court imposed sentence on five counts
in 2011.
C. Date of Filing
State ex rel. Egana v. State, 00-2351 (La. 9/22/00), 771 So.2d 638 - The
court of appeal was directed to review the filing to determine if it was timely under
the ―mailbox rule‖ of Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379 (1988),
which held that pro se prisoners‘ notices of appeal are filed at the moment of
deliver to prison authorities for forwarding to the district court.
D. Informing Defendant of Prescriptive Period
1. At the time of sentencing, the trial court shall inform the defendant of the
prescriptive period for seeking post-conviction relief. La.Code Crim.P. art. 930.8.
2. While art. 930.8 requires the trial court to inform the defendant of the
prescriptive period for seeking post-conviction relief, it does not provide a remedy
for an individual defendant who is not so advised. State ex rel. Glover v. State, 932330, 94-2101, 94-2197 (La. 9/5/95), 660 So.2d 1189, abrogated in part on other
grounds by State ex rel. Olivieri v. State, 00-172 (La. 2/21/01), 779 So.2d 735,
cert. denied, 533 U.S. 936, 121 S.Ct. 2566 (2001), and cert. denied, 534 U.S. 892,
122 S.Ct. 208 (2001).
a. The trial court cannot grant an extension for seeking post-conviction
relief based on its failure to inform relator of the time limitations for filing same.
State v. Brumfield, 09-1084 (La. 9/2/09), 16 So.3d 1161.
VII. EXCEPTIONS TO THE TIME LIMITATION
A. La.Code Crim.P. art. 930.8(A) provides:
(1) The application alleges, and the petitioner proves or the state admits,
that the facts upon which the claim is predicated were not known to the petitioner
or his prior attorneys. Further, the petitioner shall prove that he exercised diligence
in attempting to discover any post-conviction claims that may exist. ―Diligence‖
for the purposes of this Article is a subjective inquiry that must take into account
the circumstances of the petitioner. Those circumstances shall include but are not
limited to the educational background of the petitioner, the petitioner‘s access to
formally trained inmate counsel, the financial resources of the petitioner, the age of
the petitioner, the mental abilities of the petitioner, or whether the interests of
justice will be served by the consideration of new evidence. New facts discovered
25
pursuant to this exception shall be submitted to the court within two years of
discovery.
(2) The claim asserted in the petition is based upon a final ruling of an
appellate court establishing a theretofore unknown interpretation of constitutional
law and petitioner establishes that this interpretation is retroactively applicable to
his case, and the petition is filed within one year of the finality of such ruling.
(3) The application would already be barred by the provisions of this Article,
but the application is filed on or before October 1, 2001, and the date on which the
application was filed is within three years after the judgment of conviction and
sentence has become final.
(4) The person asserting the claim has been sentenced to death.
B. Facts Not Known
1. Late realization that an error may have occurred at trial does not qualify
as the discovery of a new fact for purposes of the exception in La.Code Crim.P. art.
930.8(A). State v. Parker, 98-256 (La. 5/8/98), 711 So.2d 694.
2. Due Diligence
a. In State v. Obney, 99-592 (La.App. 3 Cir. 8/11/99), 746 So.2d 24, writ
denied, 99-2667 (La. 5/5/00), 760 So.2d 1190, relator filed an application for postconviction relief asserting that ―the testimony of a State forensic witness in his
case, which was given during a 1991 action for civil damages resulting from the
death of the child victim in Relator‘s case, was at variance with the witness‘s trial
testimony concerning the time of death.‖ Id. at 26. The relator claimed the
―documents detailing the 1991 civil trial testimony were ‗obtained‘ by Relator‘s
family members at an unspecified date and ‗delivered‘ to certain attorneys ‗in fall
of 1997.‘‖ Id. This court rejected relator‘s contention that there was no due
diligence requirement in the discovery of the material. In denying the writ in
Obney, the supreme court stated, ―[r]esult is correct.‖
b. ―The fact that relator discovered the new facts before the prescriptive
period had run but did not file until after it had run does not make his application
untimely. Instead, if delays caused by matters outside the control of the state have
prejudiced the state, it may invoke La.C.Cr.P. art. 930.8(B) and demand a hearing
on that issue.‖ State v. Lanieu, 03-2640 (La. 10/1/04), 885 So.2d 512 (additional
citations omitted). But see La.Code Crim.P. art. 930.8(A)(1)‘s requirement that the
PCR be filed within two years of discovery.
c. ―Because the state makes a substantial showing that relator received the
1988 crime lab report before he entered his guilty plea, this Court remands the case
to the district court to reconsider its conclusion that the state‘s withholding of
26
exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215 (1963), vitiated the voluntariness of relator‘s pleas entered
under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162
(1970).‖ State v. Kenner, 05-1052 (La. 12/16/05), 917 So.2d 1081.
d. ―Relator‘s discovery of arguably suppressed evidence allows his untimely
filing without regard to his diligence in seeking the suppressed material.
La.C.Cr.P. art. 930.8(A)(1); La.C.Cr.P. art. 930.8(B); Carlin v. Cain, 97-2390 (La.
3/13/98), 706 So.2d 968.‖ State ex rel. Walker v. State, 04-714 (La. 1/27/06), 920
So.2d 213 (additional citations omitted). But see the two year filing requirement in
La.Code Crim.P. art. 930.8.
1. Late discovery of Brady material warrants a hearing. State v. Williams,
09-1750 (La. 5/28/10), 35 So.3d 255. But see State v. Singer, 09-2167 (La.
10/1/10), 45 So.3d 171, in which the supreme court found that statements made by
a co-defendant after he completed his sentence did not constitute ―new, material,
noncumulative and conclusive evidence, which meets an extraordinarily high
standard, which undermine[s] the prosecution‘s entire case.‖
2. State v. Duncan, 08-2244 (La. 1/22/10), 26 So.3d 148 - An evidentiary
hearing was mandated for a claim involving untimely discovery of a police report
and alleged suppression of impeachment evidence. Also, judicial economy
warranted review of other claims not originally presented to the trial court in the
application for post-conviction relief.
3. An evidentiary hearing is not required for Brady claims where relator‘s
own statement is inculpatory and would not ―absolve Relator of the crime of which
he was convicted.‖ State v. Matthews, 09-493 (La. 12/18/09), 23 So.3d 898.
C. New Ruling/Interpretation of Constitutional Law
1. Relators who were under the age of 18 when they committed a homicide
have recently filed applications for post-conviction relief based on the alleged
retroactivity of the United States Supreme Court‘s recent opinion in Miller v.
Alabama, ___U.S. ___ , 132 S.Ct. 2455 (2012). In Miller, the Supreme Court held
that a defendant under the age of 18 at the time he committed a homicide cannot
automatically be sentenced to life imprisonment without parole. Instead, the
Supreme Court held the sentencing court must hold a hearing to consider
mitigating factors, such as the defendant‘s youth, before imposing the severe
penalty.
*2. State v. Montgomery, 13-1163 (La. 6/28/16), 2016 WL 3533068 Relator, who was convicted of murder and sentenced to life without parole for a
crime he committed as a juvenile, moved to correct an illegal sentence. The
27
Nineteenth Judicial District Court denied the motion, and the Louisiana Supreme
Court denied his application for supervisory writ. Relator sought review in the
United States Supreme Court, which found the holding in Miller v. Alabama, 567
U.S. __, 132 S.Ct. 2455 (2012), announced a substantive rule of constitutional law
that applied retroactively. Montgomery v. Louisiana, 577 U.S. __, 136 S.Ct. 718
(2016). On remand from the United States Supreme Court, the Louisiana Supreme
Court vacated Relator‘s sentence and remanded the matter to the district court for
resentencing pursuant to La.Code Crim.P. art. 878.1. The supreme court indicated
the district court, in determining whether relator would be granted or denied parole
eligibility, could deem as relevant the general sentencing guidelines set forth in
La.Code Crim.P. art. 894.1 as well as other states‘ legislative enumeration of
factors to be considered in sentencing a juvenile to life imprisonment. The
supreme court directed the district court to issue reasons setting forth the factors it
considered to aid in appellate review of the sentence imposed at resentencing.
D. Prejudice to the State
1. ―An application for post conviction relief which is timely filed, or which
is allowed under an exception to the time limitation as set forth in Paragraph A of
this Article, shall be dismissed upon a showing by the state of prejudice to its
ability to respond to, negate or rebut the allegations of the petition caused by
events not under the control of the state which have transpired since the date of the
original conviction, if the court finds, after a hearing limited to that issue, that the
state‘s ability to respond to, negate, or rebut such allegations has been materially
prejudiced thereby.‖ La.Code Crim.P. art. 930.8(B).
2. State ex rel. Medford v. Whitley, 95-1187 (La. 1/26/96), 666 So.2d 652 ―[T]he district court is ordered to determine if the relator‘s claim based on the facts
not known both ‗allege[s] a claim which, if established, would entitle[] [relator] to
relief‘ under La.Code Crim.Proc. art. 928 and also raises factual or legal issues
which cannot ‗be resolved based upon the application and answer and supporting
documents‘ under La.Code Crim.Proc. art. 929. If relator‘s claim based on facts
not known meets the threshold tests set out in Article 928 and Article 929, the
district court must hold a hearing pursuant to La.Code Crim.Proc. art. 930.8 A(1)
and B at which it will determine (1) whether relator has proved, or the state
concedes, that his Brady claim rests on facts not disclosed to him or his attorney;
and (2) if so, whether the state has been prejudiced in its ‗ability to respond to,
negate, or rebut the allegations of the petition . . . by events not under the control of
the state which have transpired since the date of [relator‘s] original conviction . . .
.‘ In this context, the withholding of exculpatory evidence under certain
28
circumstances may constitute an event ‗under the control of the state‘ for purposes
of La.Code Crim.Proc. art. 930.8 B.
If the state does not show prejudice from the delay, the court must proceed
to an adjudication on the merits of relator‘s Brady claim.‖
VIII. MISCELLANEOUS
A. Judgment on PCR
―A copy of the judgment granting or denying relief and written or
transcribed reasons for the judgment shall be furnished to the petitioner, the district
attorney, and the custodian.‖ La.Code Crim.P. art. 930.1. However, the trial court
is not required to assign reasons. State ex rel. Foy v. Criminal District Court, 96519 (La. 3/15/96), 669 So.2d 393. *It would be helpful if the reasons for the
denial or at least a citation to a code article were set forth in the ruling.
B. A pleading’s nature is determined by its substance and not its
caption. State ex rel. Lay v. Cain, 96-1247 (La.App. 1 Cir. 2/14/97), 691 So.2d
135.
1. Motion to Correct Illegal Sentence - An illegal sentence may be corrected
at any time. La.Code Crim.P. art. 882.
a. Inmates often title their pleadings ―Motion to Correct Illegal Sentence,‖
but usually the pleadings are in the nature of an application for post-conviction
relief. Only those claims relating to the legality of the sentence itself under the
applicable sentencing statutes may be raised in a motion to correct illegal sentence.
State v. Gedric, 99-1213 (La.App. 1 Cir. 6/3/99), 741 So.2d 849 (per curiam), writ
denied, 99-1830 (La. 11/5/99), 751 So.2d 239. See also La.Code Crim.P. art.
881.5. If the filing does not point to a claimed illegal term in the sentence, the
claim is not cognizable in a motion to correct illegal sentence and may be raised
through an application for post-conviction relief. State v. Parker, 98-256 (La.
5/8/98), 711 So.2d 694.
b. State v. Edwards, 13-2497 (La. 2/21/14), 133 So.3d 1261 - Petitioner
presented a post-conviction claim of ineffective assistance of counsel regarding the
imposition of an illegal sentence following his plea to indecent behavior with
juveniles. The claim was dismissed as time barred. The supreme court remanded
the matter to the trial court to be considered as a motion to correct illegal sentence,
which, if meritorious, was an exception to the time limitation for post-conviction
relief.
29
c. State v. LeBlanc, 14-163 (La. 1/9/15), 156 So.3d 1168 - Guilty pleas
entered on the same day in 1993 were counted as two convictions for the purposes
of La.R.S. 15:529.1 despite jurisprudence stating they should be counted as one.
Relator subsequently complained that he received punishment far in excess of what
the law prescribed at the time he committed the predicate offense. The supreme
court held: ―We recognize that in this unique convergence of grounds for postconviction relief as a matter of La.C.Cr.P. art. 930.3(6) and for collaterally
attacking a sentence as illegal under La.C.Cr.P. art. 882, relator has stated a claim
upon which relief may be granted even years after finality of his conviction and
sentence. He is entitled to the relief he seeks, which is no more than application to
his case of the settled rule in Louisiana that an offender‘s punishment is
determined according to the law in effect at the time he committed his crime.‖
*d. State ex rel. Foster v. State, 15-747 (La. 2/5/16), 183 So.3d 508 Language to use when ruling on a motion to correct illegal sentence that is actually
an application for post-conviction relief: ―Relator does not identify an illegal term
in his sentence, and therefore, his filing is properly construed as an application for
post-conviction relief. See State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694. As
such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator‘s
application was not timely filed in the district court, and he fails to carry his burden
to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v.
State, 93-2330 (La.9/5/95), 660 So.2d 1189.‖
2. Motion to Withdraw Guilty Plea - A motion filed after sentencing is in
the nature of an application for post-conviction relief and must be filed timely
under La.Code Crim.P. art. 930.8. State ex rel. Chauvin v. State, 99-2456 (La.App.
1 Cir. 1/28/00), 814 So.2d 1.
C. DNA Testing
1. Time Limitations
―(1) Prior to August 31, 2019, a person convicted of a felony may file an
application under the provisions of this Article for post-conviction relief requesting
DNA testing of an unknown sample secured in relation to the offense for which he
was convicted. On or after August 31, 2019, a petitioner may request DNA testing
under the rules for filing an application for post-conviction relief as provided in
Article 930.4 or 930.8 of this Code.
(2) Notwithstanding the provisions of Subparagraph (1) of this Paragraph, in
cases in which the defendant has been sentenced to death prior to August 15, 2001,
the application for DNA testing under the provisions of this Article may be filed at
any time.‖ La.Code Crim.P. art 926.1(A).
30
2. La.Code Crim.P. art. 926.1(B), which relates to applications for DNA
testing, provides, in pertinent part, that an application filed under this article shall
allege all of the following:
―(1) A factual explanation of why there is an articulable doubt, based on
competent evidence whether or not introduced at trial, as to the guilt of the
petitioner in that DNA testing will resolve the doubt and establish the
innocence of the petitioner.
(2) The factual circumstances establishing the timeliness of the application.
(3) The identification of the particular evidence for which DNA testing is
sought.
(4) That the applicant is factually innocent of the crime for which he was
convicted, in the form of an affidavit signed by the petitioner under penalty
of perjury.‖
3. La.Code Crim.P. art. 926.1(C) provides that relief should be granted
when there is an articulable doubt based on competent evidence, whether or not
introduced at trial, as to the guilt of the petitioner and there is a reasonable
likelihood that the requested DNA testing will resolve the doubt and establish the
innocence of the petitioner, the application has been timely filed, and the evidence
to be tested is available and in a condition that would permit DNA testing.
4. State v. ex rel. Williams v. Williams, 04-637 (La. 1/28/05), 894 So.2d 324
- Because of the remoteness of the conviction, the court cautioned the trial court to
pay particular attention to whether the evidence was available and in a condition
that would permit DNA testing.
5. State v. Williams, 10-137 (La.App. 3 Cir. 6/11/10) (unpublished opinion),
writ denied, 10-1630 (La. 2/25/11), 57 So.3d 1030 - There was no error in the trial
court‘s ruling granting DNA testing regarding a 1983 conviction, as an affidavit
from the DNA analyst stated it was highly likely that interpretable DNA profiles
could be obtained.
6. State ex rel. Jackson v. State, 11-394 (La. 5/25/12), 90 So.3d 384 - The
lower court erred when denying a post-conviction request for DNA testing based
on the alleged failure of the testing to establish relator‘s innocence when the rape
conviction rested largely on the victim‘s identification and relator presented a
defense of misidentification at trial. The supreme court directed the district court
to investigate the availability and integrity of the evidence and to order DNA
testing in the event the results could tend to make relator‘s guilt more or less
probable. See also State ex rel. Tran v. State, 12-1275 (La. 10/8/12), 99 So.3d
1005.
31
7. State v. Debrow, 13-1814 (La. 5/23/14), 138 So.3d 1229 - Relator‘s
conviction rested on identification testimony and he presented a defense of
misidentification. The supreme court directed the district court to investigate the
availability and integrity of the physical evidence and to order DNA testing in the
event that it determined the results could tend to make relator‘s guilt more or less
probable.
D. Waiver of Post-Conviction Rights
Waiver of the right to post-conviction relief must be clear and unambiguous,
including recitation of the waiver during the plea colloquy and inclusion of the
waiver on the plea form signed by the defendant. Subsequent advice regarding
post-conviction time limits may lead to a claim by the defendant that he did not
waive the right to PCR after all; thus, the court should make it clear that informing
a defendant of the time limits does not invalidate the waiver of PCR. When
waiving the right to a transcript of the plea colloquy, the court must determine
whether the defendant can read and write the English language.
1. State v. Davenport, 11-221 (La.App. 3 Cir. 6/15/12) (unpublished
opinion) - Relator waived his right to seek post-conviction relief and all claims of
ineffective assistance of counsel. The plea form signed by relator contained the
following language: ―(3) By accepting this plea agreement, the defendant waives,
releases and relinquishes any and all rights to appeal the conviction and sentence
resulting from this plea agreement, whether on direct appeal or by application for
post-conviction relief, motion to modify sentence, motion to correct sentence,
application for habeas corpus relief, or otherwise. (4) By accepting this plea
agreement, defendant asserts that he/she is fully satisfied with the services and
assistance rendered by his/her counsel and has had sufficient time to confer with
counsel concerning his/her case and this plea agreement. By accepting this plea
agreement, defendant acknowledges that his/her counsel has performed adequately
and competently, securing a satisfactory plea agreement and resolution of
defendant‘s criminal case(s). By accepting this plea agreement, defendant waives,
releases and relinquishes any claim or right to appeal this matter, whether on direct
appeal or by application for post-conviction relief, motion to modify sentence,
motion to correct sentence, application for habeas corpus relief, or otherwise on a
claim of ineffective assistance of counsel.‖
Also included in the writ application was a form entitled ―Determination of
Understanding of Constitutional Rights, Nature of Charge and Consequences of
Guilty Plea,‖ which included the following language: ―In exchange for the
sentence received, I understand that his matter will be finalized and waive all rights
32
to appeal my conviction and sentence, along with Motions to Reconsider Sentence,
New Trial, amend Sentence and Post-Conviction Relief, including any claim for
ineffective assistance of counsel, or any other available motion. Further, that
because I was advised of the rights listed above, I waive my right to request a free
transcript of my guilty plea unless I state a particularized need . . . .‖ The form
further provided: ―I, as attorney for the defendant, certify that I have informed the
defendant of his/her rights, particularly the nature of the crime to which he/she is
pleading guilty, the maximum sentence the Court could impose under the law, and
the fact that the defendant, by entering this plea of guilty, is waiving his or her
right to trial by jury, his/her right to confront and cross-examine his/her accusers,
his/her right against self-incrimination and, his/her right appeal his/her conviction
and sentence along with Motions to Reconsider Sentence, New Trial, Amend
Sentence and Post-Conviction Relief, including any claim of ineffective assistance
of counsel, or any other available motion. I have explained the contents of this
form to the defendant.
I am satisfied the defendant understands these
constitutional rights, as set forth above, and that the guilty plea is freely,
voluntarily and intelligently made, with knowledge of the consequences of the
plea.‖ During the colloquy, the trial court further informed relator that he was
waiving his right to appeal, post-conviction relief, and to assert claims of
ineffective assistance of counsel.
2. State v. Oxley, 08-670 (La.App. 3 Cir. 1/9/09) (unpublished), writ denied,
09-1103 (La. 4/5/10), 31 So.3d 354 - Relator entered into an agreement with the
State wherein the State agreed not to seek the death penalty and relator agreed not
to seek post-conviction relief in state and federal court or review before the pardon
or parole boards. Relator subsequently filed an application for post-conviction
relief. The State objected to the filing and sought to have the application
dismissed. Relator asserted counsel informed him that his waiver of the right to
seek post-conviction relief was not a valid waiver. The trial court denied the
State‘s motion to enforce the agreement. This court reversed the judgment of the
trial court, finding that relator failed to present proof of his allegations and ordered
the trial court to enter a judgment dismissing relator‘s application for postconviction relief.
3. State v. Crittenden, 14-83 (La.App. 3 Cir. 6/4/14) (unpublished opinion)
2014 WL 2558202 - ―‗[P]ost-conviction relief is not required by the Due Process
Clause of the United States Constitution and is, therefore, not a constitutionally
protected right.‘ State v. Davenport, 33,961, p. 14 (La.App. 2 Cir. 11/1/00), 771
So.2d 837, 847, writ denied, 00–3294 (La.10/26/01), 799 So.2d 1150. Therefore,
the right to post-conviction relief may be waived.
33
In State v. Phillips, 04–1687 (La.App. 3 Cir. 1/28/05) (unpublished opinion),
this court held the right to post-conviction relief could be waived, and the written
plea of guilty form signed by the defendant and filed in open court at the time he
entered his guilty plea constituted a sufficient showing of the agreement on the
record and of the defendant‘s waiver of his right to seek post-conviction relief. See
also State v. Green, 06-1392 (La.App. 3 Cir. 4/5/07) (unpublished opinion); State
v. Oxley, 08-670 (La.App. 3 Cir. 1/9/09) (unpublished opinion), writ denied, 091103 (La.4/5/10), 31 So.3d 354; and State v. Love, 09-723 (La.App. 3 Cir. 10/7/09)
(unpublished opinion), writ denied, 10-1874 (La.9/16/11), 69 So.3d 1136.‖
4. State v. Wyatt, 13-458 (La.App. 3 Cir. 7/31/13) (unpublished opinion)
Relator filed a PCR alleging he was denied his constitutional right to a transcript of
his guilty plea. This court found no error in the trial court‘s denial of relator‘s
PCR, as he waived his right thereto. In State v. Wyatt, 13-2061 (La. 4/11/14), 138
So.3d 611, the supreme court held: ―If it has not already done so, the district court
is ordered to provide relator with a copy of his guilty plea colloquy. See State ex
rel. Simmons v. State, 93–0275 (La.12/16/94), 647 So.2d 1094. Because relator
sought the document upon which his post-conviction claim(s) may be based within
the delay established by La.C.Cr.P. art. 930.8, the district court is also ordered to
accept as timely any application filed within 60 days of relator‘s receipt of the
materials requested. In all other respects the application is denied.‖
E. Cheney C. Joseph, Jr., Postconviction Procedure, 41 La. L. Rev. 625,
632-64, provides a discussion of the basics of post-conviction relief.
34
2016 CRIMINAL LAW UPDATE
I. CASE LAW
A. Pre-Trial
1. State v. Riley, 15-983 (La.App. 3 Cir. 11/18/15) (unpublished opinion) The Louisiana Code of Criminal Procedure does not mandate the recording of
grand jury proceedings. See La.Code Crim.P. art. 3; La.Code Crim.P. art. 716(E).
B. Evidentiary/Trial Issues
1. State v. Rubin, 15-1753 (La. 11/6/15), 183 So.3d 490 - In a letter dated
October 3, 1989, the forensic medical specialist consulted in the investigation
stated he positively identified a suspect other than the defendant as having inflicted
bite wounds upon the victim. The investigating officer who met with the
specialist testified, at an evidentiary hearing on the admissibility of the letter, that
the specialist could not positively identify who inflicted the wounds. The supreme
court found the letter to be grossly attenuated from the matter and lacking any
indicia of reliability.
2. State v. Scott, 15-1762 (La. 11/30/15), 184 So.3d 2 - See for a discussion
of res gestae and the integral act doctrine.
3. State v. Wells , 14-1701 (La. 12/8/15), 2015 WL 8225228 - See for a
discussion on retreat, the legislative amendments to La.R.S. 14:20, and jury
instructions in a homicide case where multiple versions of the events were
presented.
4. State v. Waterhouse, 15-2301 (La. 1/15/16), 182 So.3d 964 - A
photograph of the defendant utilizing the middle finger of one hand in an offensive
gesture was relevant and its probative value was not substantially outweighed by
the danger of unfair prejudice, confusion of the issues, etc.
5. State v. Hamilton, 15-1810 (La. 1/18/16), 2016 WL 229776 - Other
crimes evidence of firearm possession when defendant was not in possession of a
firearm at the time of his arrest and was charged with possession of a firearm by a
felon and aggravated assault with a firearm was admissible.
6. State v. Robertson, 15-2095 (La. 2/5/16), 183 So.3d 1287 - The defendant
was charged with the first degree murder of his eight-year-old son. At issue was
abuse occurring in November 2008, August 2010, February 2012, and various
other times leading up to the child‟s death. The supreme court found other crimes
evidence in child abuse cases is admissible to prove a pattern of behavior and rebut
a defendant‟s defenses. The court noted the victim was only eight and that the acts
occurring in 2008 were not so remote as to negate their probative value.
7. State v. Morgan, 16-550 (La. 5/13/16), 2016 WL 3176944 - The supreme
court vacated the trial court‟s ruling allowing the State to use in-court
identifications from the defendant‟s first trial to establish the defendant‟s guilt at a
retrial at which the identifying witnesses would presumably not testify because
they had been charged with perjury.
8. Utah v. Strieff, __ U.S. __, 136 S.Ct. 2056 (2016) - A detective received
an anonymous tip about drug sales in a South Salt Lake residence, so he surveyed
the area over a short period of time and speculated there was drug activity taking
place. The detective saw Strieff leaving the residence and stopped him for
questioning. During the stop, the detective discovered Strieff had an outstanding
warrant and arrested him. During the search incident to arrest, methamphetamine
and a drug pipe were found on Strieff‟s person. The Supreme Court found the
evidence police seized incident to Strieff‟s arrest was admissible based on an
application of the attenuation factors from Brown v. Illinois, 422 U. S. 590, 95
S.Ct. 2254 (1975). In this case, there was no flagrant police misconduct. Therefore,
the detective‟s discovery of a valid, pre-existing, and untainted arrest warrant
attenuated the connection between the unconstitutional investigatory stop and the
evidence seized incident to a lawful arrest.
9. Birchfield v. North Dakota, __ U.S. __, 136 S.Ct. 2160 (2016) - The
Fourth Amendment permits warrantless breath tests incident to arrest for drunk
driving but not warrantless blood tests.
10. Musacchio v. United States, __ U.S. __, 136 S.Ct. 709 (2016) - The
sufficiency of the evidence must be judged against the charged crime and not an
erroneous jury instruction which incorrectly adds an element to the offense.
C. Sentencing
1. State v. Mosby, 14-2704 (La. 11/20/15), 180 So.3d 1274 - The supreme
court found an enhanced sentence of thirty years for a 72-year-old grandmother
convicted of cocaine distribution and adjudicated a multiple offender was
excessive. The court found a departure from the mandatory minimum was required
based on the defendant‟s present age, her non-violent felony offenses, her severe
infirmities, and her addiction to crack cocaine at age forty-eight.
2. State v. Green, 16-32 (La.App. 3 Cir. 5/13/16) (unpublished opinion) Defendants committed the offenses before the 2015 changes to penalties in the
marijuana statute, but they were sentenced after the legislative changes.
Defendants were arguing they should have been sentenced in accordance with the
new penalties. This court, with one judge dissenting, in part, found “[b]ased upon
the language „on conviction,‟ the drastic reduction in the penalty for possession of
2
marijuana, and the Legislature‟s intent to lessen the penalty to reduce costs
associated with incarceration for the State as it relates to persons who commit the
offense of possession of marijuana,” Defendants should have been sentenced in
accordance with the new penalties.
3. Betterman v. Montana, __ U.S. __, 136 S.Ct. 1609 (2016) - The Sixth
Amendment‟s speedy trial guarantee does not apply to the sentencing phase of
criminal prosecution.
D. Post-Conviction
1. Williams v. Pennsylvania, __ U.S. __, 136 S.Ct. 1899 (2016) - The
involvement of a Pennsylvania Supreme Court justice in a post-conviction
proceeding violated the Due Process Clause because the justice previously served
as the prosecutor who approved using the death penalty against the defendant.
II. STATUTORY LAW
A. Title 14, 15, and 40
-La.R.S. 14:37.2 Aggravated assault on a police officer with a firearm Amended to delete the element of the offense specifying that the aggravated
assault must be committed with a firearm. 14:2(B)(32) was amended to delete the
firearm provision as well.
-La.R.S. 14:63 Criminal Trespass - Entry upon property and remaining in or
on property includes operation of an unmanned aircraft system in the airspace over
immovable property owned by another with the intent to conduct surveillance of
the property or of any person lawfully on the property.
-La.R.S. 14:67.30 - Creates theft of animals.
-La.R.S. 14:95(E) - Excludes possession of fourteen grams or less of
marijuana from the offense of possession of a firearm while in possession of a
CDS.
-La.R.S. 14:107.2 Hate crimes - Certain offenses shall be a hate crime if the
victim is selected based upon their actual or perceived employment as a law
enforcement officer, fire fighter, or emergency medical services personnel.
-La.R.S. 14:108 Resisting an officer - Obstruction includes knowing
interference with a police cordon by a person or unmanned aircraft system.
-La.R.S. 14:110.1.2 - Creates the crime of providing false, nonexistent, or
incomplete declaration of residence for bail.
-La.R.S. 14:130.1 Obstruction of justice - Now includes inducing or
persuading or attempting to induce or persuade a person to testify falsely, withhold
testimony without right or privilege to do so, or absent himself from such
proceedings despite having received service of a subpoena.
3
-La.R.S. 14:222.3 - Creates the offense of unlawful use of a cellular tracking
device with a fine of not more than $3,000, imprisonment with or without hard
labor for not more than two years, or both. See also La.R.S. 15:1302.
-La.R.S. 14:238, 14:238.1 Video Voyeurism; 14:284 Peeping Tom - Added
unmanned aircraft system as a way of committing the offenses.
La.R.S. 14:337 Unlawful use of an Unmanned Aircraft System - Amended
to include the use of an unmanned aircraft system over the grounds of a state or
local jail, prison, or other correctional facility that incarcerates or detains juveniles
or adults accused, convicted, sentenced, or adjudicated delinquent without written
consent of the person in charge of the facility. School and school premises were
added to the targeted facility list.
-La.R.S. 15:574.4 - Amended to require a person convicted of a crime of
violence and not otherwise ineligible for parole to serve 75% of the sentence
imposed before being eligible for parole, rather than the previous 85%. This
applies prospectively to persons convicted on or after August 1, 2016.
-La.R.S. 40:1025 - Decreased penalties for possession of drug paraphernalia.
Also provides that a violation thereof cannot be used as a predicate conviction for
enhancement purposes if the offender has not been convicted of any violation of
CDS laws for two years from the date of completion of the sentence, probation,
parole, or suspension of sentence for that conviction, which applies only once.
B. Code of Criminal Procedure
-Bail - Act No. 613 of the 6016 Regular Session effective January 1, 2017 The introduction of the Act states: “To amend and reenact Title VIII of the Code
of Criminal Procedure, to be comprised of Articles 311 through 342, R.S. 15:85,
and the introductory paragraph of R.S. 4 22:1441(A) and (A)(1) through (5),
(C)(1), the introductory paragraph of (C)(2) and 5 (C)(2)(a) through (e), and (D), to
enact R.S. 22:1441(C)(3) through (5), and to repeal Code of Criminal Procedure
Articles 327.1, 330.1, 330.2, 330.3, 334.1, 334.2, 334.3, 334.4, 334.5, 334.6, 335.1,
335.2, 336.1, 336.2, 343, 344, 345, 346, 347, 348, 349, 349.1, 349.2, 349.3, 349.4,
349.5, 349.6, 349.7, 349.8, and 349.9.”
-La.Code Crim.P. art. 330.4 - Requires a contradictory bail hearing prior to
setting bail for a person in custody who is not a U.S. citizen or not lawfully
admitted for permanent residence and who is charged with an offense involving a
fatality. The hearing must occur within five days from the date of a determination
of probable cause.
-La.Code Crim.P. art. 573.2 - The time limitation established by La.Code
Crim.P. art. 572 does not commence to run for the crime of video voyeurism until
the crime is discovered by the victim.
4
-La.Code Crim.P. art. 890.3 - Enacted to provide for sentencing for crimes
of violence. When a defendant is sentenced for an offense or attempt thereof, upon
written recommendation of the State, the court may designate in the minutes
whether the offense is a crime of violence for the following purposes: 1) to
determine a defendant‟s eligibility for suspension or deferral of sentence pursuant
to La.Code Crim.P. art. 893; and 2) determination of eligibility for participation in
a drug division probation program pursuant to La.R.S. 13:5304. Provides a list of
crimes the trial court must designate as a crime of violence in the court minutes.
There were also amendments to La.Code Crim.P. art. 893 and La.R.S. 15:574.2
regarding crimes of violence.
-La.Code Crim.P. art. 900 - Defendants shall be given credit for time served
prior to the revocation hearing for time served in actual custody while being held
for a technical violation.
-La.Code Crim.P. art. 901(C) Revocation for commission of another offense
- The defendant shall be given credit for time served prior to the revocation hearing
for time served in actual custody while being held for a probation violation in a
local detention facility, state institution, or out-of-court institution pursuant to
La.Code Crim.P. art. 880. When the new conviction is a Louisiana conviction, the
court shall specify in the minutes whether the sentence shall run consecutively or
concurrently with the sentence for the new conviction.
C. Code of Evidence
-La.Code Evid. art. 412.4 - Governs evidence of similar crimes, wrongs, or
acts in domestic abuse and cruelty against juveniles cases.
D. Children‟s Code
-La.Ch.Code art. 412 - Access to records of a child in the custody of the
Office of Juvenile Justice and release of records was expanded.
-La.Ch.Code art. 898 - Amended to provide for the length of parole when
the order of commitment to the Department of Public Safety and Corrections is
modified.
-La.Ch.Code art. 905 - Availability of progress reports expanded.
-La.Ch.Code art. 906 - Juveniles committed to the Office of Juvenile Justice
must be physically transported and appear in person for a review hearing not more
than 6 months after commitment and at least every 6 months thereafter, unless an
in-person hearing is waived by counsel and the committing court. A juvenile is
deemed committed to OJJ if he/she is committed to the legal custody of OJJ,
regardless of where the child is physically held.
-Act 501 - Raise the Age Louisiana Act of 2016
5
E. Victims‟ Rights
-46:1844(G) - Provides for designated seating in courtrooms, when available
and requested, for the victims, victims‟ families, and witnesses separate from
defendants, defendants‟ families, or witnesses for defendants. Whenever possible,
the seating should not be in close proximity to the defendant etc. The law is no
longer limited to the families of homicide victims.
6
CONTINUING LEGAL EDUCATION
RECENT DEVELOPMENTS IN
PROCEDURE AND PRACTICE IN THE
LOUISIANA THIRD CIRCUIT COURT OF APPEAL
THIRD CIRCUIT JUDGES
Chief Judge Gene Thibodeaux
Judge Sylvia R. Cooks
Judge John D. Saunders
Judge Jimmie C. Peters
Judge Marc T. Amy
Judge Elizabeth A. Pickett
August
Judge Billy H. Ezell
Judge James T. Genovese
Judge Shannon J. Gremillion
Judge Phyllis M. Keaty
Judge John E. Conery
Judge D. Kent Savoie
Lake Charles Third Circuit Conference
2016
Table of Contents
ADMINISTRATIVE RULES OF COURT .................................................................................... 1
ATTORNEY FEES ......................................................................................................................... 1
COMPARATIVE FAULT .............................................................................................................. 2
COMMUNITY PROPERTY .......................................................................................................... 3
CORPORATIONS .......................................................................................................................... 6
CRIMINAL LAW ........................................................................................................................... 8
CUSTODY & PARENTAL RIGHTS .......................................................................................... 13
DAMAGES ................................................................................................................................... 15
FALSE ARREST .......................................................................................................................... 15
FALSE ARREST AND DEFAMATION ..................................................................................... 16
FAMILY LAW ............................................................................................................................. 17
FOREIGN JUDGMENTS ............................................................................................................ 18
FREE SPEECH; DEFAMATION; AND THE ANTI-SLAPP STATUTE .................................. 19
INSURANCE––UM/UIM COVERAGE...................................................................................... 20
JUDGMENT NOTWITHSTANDING THE VERDICT .............................................................. 21
JONES ACT.................................................................................................................................. 22
LEASE .......................................................................................................................................... 23
LIABILITY FOR ANIMALS ....................................................................................................... 25
LIABILITY––TEACHERS, SCHOOLS, AND SCHOOL DISTRICTS ..................................... 25
LIMITATIONS OF OWNERSHIP .............................................................................................. 26
MEDICAL MALPRACTICE ....................................................................................................... 27
MERCHANT LIABILITY .......................................................................................................... 29
August
Lake Charles Third Circuit Conference
2016
NEGLIGENT CREDENTIALING ............................................................................................... 30
PRESCRIPTION........................................................................................................................... 31
PROCEDURE ............................................................................................................................... 32
PRODUCT LIABILITY ............................................................................................................... 34
PROPERTY .................................................................................................................................. 37
PUBLIC WORKS ACT AND PROCEDURE ............................................................................. 39
REDHIBITION ............................................................................................................................. 40
SETTLEMENT ............................................................................................................................. 41
STATE AGENCIES AND POLITICAL SUBDIVISIONS ......................................................... 43
SUMMARY JUDGMENT ........................................................................................................... 44
TAX LIABILITY......................................................................................................................... 46
WILLS AND SUCCESSIONS ..................................................................................................... 47
WORKERS’ COMPENSATION ................................................................................................. 48
August
Lake Charles Third Circuit Conference
2016
THIRD CIRCUIT RECENT DEVELOPMENTS
RULES
ADMINISTRATIVE RULES OF COURT
Internal Rule 28 – Appellate Record Request by Email or CD
A party may request the appellate record by e-mail if the record contains two volumes or
less. This service is complimentary. A party may also request an appellate record sent in PDF
form on a CD. The fee for this service is $25.00. Exhibits separate from the appellate record
cannot be e-mailed or sent on CD.
CASES
ATTORNEY FEES
Terry Lee Johnson, Sr. v. Dr. Lynn E. Foret, 15-943 (La.App. 3 Cir. 3/2/16)(Amy, J.,
writing)(Panel: Amy, Keaty, and Conery, J.J.)
As a result of a previous appeal, judgment was entered against the defendant and he was
cast with costs. The defendant thereafter attempted to file a satisfaction of judgment. However,
the clerk of court demanded payment of court costs before entering the document into the record.
The defendant filed a motion to reduce court costs on the basis that they were excessive. After a
hearing, the trial court granted the motion and entered judgment reducing the costs. The clerk of
court appealed.
Reversed. Attorney Fees Awarded. The clerk contended that the fees in this matter were
statutorily authorized and there is no authority which would allow a trial court to reduce the fees
August 26, 2016
1
absent a finding that they were excessive. After reviewing the relevant provisions addressing
trial and appellate costs, the panel noted that La.Code Civ.P. art. 2126, which is the article
addressing appellate costs, provides a mechanism for seeking a reduction in the costs of appeal.
However, the panel concluded that that mechanism was inapplicable to this matter for several
reasons. The panel noted that La.R.S. 13:841, which enumerates the fees permissible in civil
matters, provides no provision for the reduction of the statutorily-authorized fees on any
grounds. Noting that neither the parties nor the panel had found any provision of law or
jurisprudence that would allow the trial court to reduce the fee, the panel determined that the trial
court erred in reducing the costs on the basis that it “is the fair thing to do.” The panel also
determined that La.R.S. 13:843 authorizes an award of attorney fees where the clerk of court has
to hire an attorney to defend a motion to reduce costs. Accordingly, the panel awarded the clerk
attorney fees.
COMPARATIVE FAULT
Prejean v. State Farm Mutual Automobile Ins. Co., 15-499 (La.App. 3 Cir. 1/16/16), __ So.3d
__ (Gremillion, Judge writing.)
On Mardi Gras day, the plaintiff and his passenger were riding a horse named Mississippi
in the middle of Dave Dugas Road in Calcasieu Parish accompanied by some friends.
Defendant’s insured ran into the horse with his Yukon, causing the horse’s death. The plaintiffs
suffered soft tissue injuries. On appeal we reversed the judgment of the trial court finding the
driver of the Yukon 100% at fault in causing the accident.
Reversed and rendered. Defendant argued on appeal that Prejean should have outfitted
Mississippi with lights as required by statute for vehicles in La.R.S. 32:53, 32:301 and 32:124
and that because he did not, Prejean should have been found 100% at fault. We found that
absurd consequences would result if the statute was applicable to horses (i.e. license plates,
registration and the like). We discussed the only case addressing the issue, Meredith v. Kidd,
147 So. 539 (La.App. 2 Cir. 1933), which held that a person riding a horse without an attached
vehicle is not required to have lights after dark in order to avoid being negligent. Nevertheless,
that finding did not preclude an allocation of fault assessment that considered Prejean’s
negligence. Simply, riding a horse in the middle of the road at dusk contributed in part to the
accident, thus warranting a fifty percent allocation of fault to Prejean. Numerous people had
called the police prior to the accident to report that people were riding horses in the middle of the
road, obviously indicating that reasonable people found this unwise.
August 26, 2016
2
Additionally, we did not impute any fault to the passenger on Prejean’s horse finding that
the “driver’s” negligence is not normally imputed to his passenger if the passenger had no
control over the driver. There was no evidence that the passenger had any control over
Mississippi or in any way contributed to the accident.
COMMUNITY PROPERTY
Carmichael v. Brooks, 16-93 (La.App. 3 Cir. 6/22/16), ---So.3d--- (Genovese, J.; Saunders, J.
and Ezell, J.)
Both Plaintiff, Heather Carmichael, and Defendant, Ray Brooks, appeal the trial court
judgment partitioning their community property.
Affirmed in part; reversed in part; vacated in part; rendered; and remanded.
Numerous issues were raised by the parties in the appeal of this matter. This appellate decision
is noteworthy for its consideration of the trial court’s application of LA.R.S. 9:2801.1 to grant
Heather a $22,000.00 credit against Ray’s social security benefits. Ray argued on appeal that the
trial court’s ruling is preempted by Supremacy Clause of the U.S. Constitution, art. VI, cl. 2.
The appellate court disagreed and reasoned that in community property partitions, the federal law
provisions must be considered in conjunction with state law. The appellate court reasoned that
“Federal law preempts the classification of social security benefits as community property, but it
does not prohibit an assignment of property equal in value to the amount of social security
benefits. 42 U.S.C.A. § 407.” Rather, state law, La.R.S. 9:2801.1, “simply allows a trial court,
depending upon the facts and circumstances of the community property regime, to provide a
spouse an offset in an amount equal to that of the social security benefits, when doing so would
be equitable and in furtherance of Louisiana’s community property laws.” The appellate court
found that it would be inequitable for Ray to receive much more than one-half of the social
security benefits, and that La.R.S. 9:2801.1’s provisions “allowing for an offset equal in value, is
in fact enacted for the purpose of achieving an equitable result.” Thus, the court concluded that
the state law did not classify community property in contravention of federal law, “it merely
provides for a discretionary equitable offset.” Therefore, that portion of the trial court’s
judgment was affirmed by the appellate court.
August 26, 2016
3
Square Mile Energy, LLC v. Pommier, et al., 15-807 (La.App. 3 Cir. 6/1/16), ___ So.3d ___
(Thibodeaux, Chief Judge, writing; Peters and Keaty, Judges).
Paul Roy Pommier and Roxanne Pommier were married from 1986 to 2007. In 2001,
Paul and his four siblings each inherited a tract of land and a one-fifth interest in a mineral
servitude burdening all five tracts of land. Also during their marriage, Paul and Roxanne bought
one of the other five tracts of land (“Tract 2”). Tract 2 had initially been inherited by Paul’s
brother Luby, and it, along with Luby’s interest in the mineral servitude, passed to Luby’s
daughters (Paul’s nieces) when Luby died. Luby’s daughters sold the surface rights to Paul and
Roxanne, but reserved all minerals and mineral rights.
In 2010, three years after Paul and Roxanne divorced, they executed an agreement
entitled “Partition of Community Property” (“Partition Agreement”) in order to “settle and
liquidate the community which formerly existed between them[.]” In Paragraph I of the Partition
Agreement, Paul conveyed to Roxanne “all of his rights, title and interest in and to” Tract 2.
Paragraph I also included the following clause (“N.B. Clause”): “N.B.: Included in this transfer
are any and all mineral rights, when available, to Rox G. Pommier and all surface rights.”
Roxanne maintained that Paragraph I conveyed a portion of the interest in the mineral servitude
that Paul had inherited, since that interest was not expressly exempted from the transfer. Paul
asserted that he never intended to transfer any portion of the mineral interest to Roxanne. Square
Mile Energy, LLC, who signed a lease to form a drilling unit on the property at issue in 2008,
filed a concursus petition to determine whether the Partition Agreement transferred a portion of
the mineral interest to Roxanne. Both Paul and Roxanne filed motions for summary judgment.
The trial court concluded that the phrase “when available” rendered the N.B. Clause ambiguous.
The court then looked to parol evidence, including an affidavit signed by Paul and deposition
testimony from Paul and Roxanne, and ruled neither party intended for the Partition Agreement
to transfer any portion of the mineral interest to Roxanne. Accordingly, the court granted Paul’s
motion for summary judgment and denied Roxanne’s motion. Roxanne filed a timely appeal of
the judgment.
Affirmed. Reviewing the trial court’s judgment de novo, we found that no portion of
Paul’s interest in the mineral servitude was transferred to Roxanne. While the plain language of
the Partition Agreement transferred the mineral rights underlying Tract 2 to Roxanne, whenever
they became available, Paul did not own those mineral rights and could not transfer them; they
were burdened by a mineral servitude which was co-owned by Paul and his siblings in
indivision. However, if that servitude ever expired (for example, after nonuse for a period of ten
years), then the mineral rights underlying Tract 2 would become available, and Roxanne would
own them. This outcome gives effect to the N.B. Clause, and makes sense in the context of a
community property agreement, as it does not result in a transfer of Paul’s separate property (the
interest in the mineral servitude). Moreover, since this was not an absurd consequence, no
further search for the parties’ intent was required under Louisiana law. Regardless, we noted
that this conclusion was further supported by both parties’ deposition testimony and by a sworn
August 26, 2016
4
affidavit submitted by Paul. We, therefore, found that the Partition Agreement did not transfer
any of Paul’s interest in the mineral servitude to Roxanne.
Stephanie Keenan v. Horace Keenan, III, 15-828 (La.App. 3 Cir. 2/3/16) (Amy, J. writing)
(Panel: Amy, Ezell, and Savoie, J.J.)
The parties to this matter were formerly married and sought a judicial partition of
community property. After a hearing, the trial court entered judgment partitioning the property.
Both parties appealed.
Affirmed in part and affirmed as amended; reversed in part; and remanded for further
proceedings. Both parties made claims with regard to immovable property. The former husband
contended that the trial court erred in finding that the sale of immovable property in Hawaii was
profitable and in failing to reimburse him for associated expenses associated. The panel found
that the trial court was manifestly erroneous in finding that the sale was profitable, and that there
was a mathematical error in the trial court’s reimbursement award for expenses. The former
husband also claimed entitlement to reimbursement for mortgage payments for that property.
The trial court denied that request and the panel found no manifest error in the denial, noting that
the record was sufficient for the trial court to determine that the former husband either failed to
establish that the payments were for a community obligation and made with separate funds or
that the parties’ agreement concerning spousal support and/or child support included the former
husband’s responsibility for paying the mortgage.
The former wife asserted that the trial court erred in its award of reimbursement to the
former husband for taxes for the former family home in Texas, and in its inclusion of penalties
and fees in the award. The panel determined that the trial court did not err in including the
penalties and fees, but determined that the record only supported a finding that the former
husband paid a portion of the amounts for which he sought reimbursement. The former wife also
sought reimbursement for GI Bill benefits, which had been transferred to pay for the parties’
son’s education. The panel found no error in denial of that request, noting that the burden of
proof was on the former wife to prove entitlement to reimbursement and that there was
insufficient evidence in the record to support her claim. The panel also found no error in the trial
court’s determinations with regard to movables, rental income, and savings bonds.
The trial court awarded title to the former family home in Texas to the former wife, but
conditioned the transfer of title upon payment of an equalizing payment to the former husband.
The panel determined that it was an abuse of discretion for the trial court to impose such a
condition. Accordingly, the panel amended the judgment and affirmed it as amended with regard
to the reimbursement claims of the parties. The panel also reversed the condition imposed upon
the transfer of the immovable property, and remanded for further proceedings.
August 26, 2016
5
Marilyn Williams Hedlesky v. Steven Hedlesky, 15-837 (La.App. 3 Cir. 2/3/16) (Amy, J.
writing) (Panel: Amy, Ezell, and Savoie, J.J.)
The property of the parties’ former marriage was partitioned by a December 2013
judgment. In January 2015, the former wife filed a petition to annul judgment for fraud and ill
practices, alleging that she had since discovered that her former husband made certain omissions
in the detailed descriptive list filed in the partition proceeding. The former husband filed
exceptions of no cause of action and prescription. The trial court sustained both exceptions,
dismissing the suit. The former wife appealed.
Reversed in part and rendered; Affirmed in part. Reviewing the petition(s), the panel
concluded that the trial court erred in sustaining the exception of no cause of action. The former
wife alleged that the former husband failed to include evidence regarding his separate debt as
would be necessary to accurately partition the property of the former community. Although the
broad allegation may not ultimately be demonstrated by sufficient evidence to prevail on a
nullity action, the petition set forth a cause of action for nullity as a preliminary matter.
However, the panel determined that the trial court’s determination that the matter was prescribed
was supported by the record. La.Civ.Code art. 2004(B) provides that an action for nullity due to
fraud or ill practices must be brought within one year of discovery. Jurisprudence further
indicates that the date of discovery is the date on which a plaintiff knew or should have known
through the exercise of reasonable diligence of facts sufficient to put him or her on notice of the
need for inquiry. The plaintiff testified that she knew during the proceedings at the time of
partition hearing and as well as at the time of the resulting judgment that something was wrong.
Notably, she testified that she felt that she would leave the partition hearing able to retain the
property in her possession, yet the resulting judgment cast her in judgment for in excess of
$263,000.00. Finding that suit was not filed within one year of that discovery, the panel affirmed
the sustaining of the exception of prescription.
CORPORATIONS
Simone B. Guillory v. Samuel S. Broussard, Jr., 15-953 (La.App. 3 Cir. 5/4/16), So.3d 486
(Peters, Judge writing; Thibodeaux, Chief Judge, and Conery, Judge; Conery, dissents and
assigns reasons)
This is a shareholders’ derivative action brought by the plaintiff against the defendant, the
corporation’s president and majority shareholder. The trial court granted the defendant’s motion
for involuntary dismissal, which dismissed all of the plaintiff’s claims. The plaintiff appealed.
August 26, 2016
6
The plaintiff and defendant are brother and sister, and, along with their two other sisters,
inherited the family business from their parents equally. After a stock redemption agreement, the
plaintiff and her two sisters were 10% shareholders and the defendant held the remaining 70% of
the stock.
The plaintiff’s suit alleged that the defendant: (1) received excessive compensation; (2)
refused to distribute profits of the corporation; and (3) committed unfair trade practices.
On the issue of excessive compensation, the trial court found that the plaintiff did not
present a prima facie case, because she did not present sufficient evidence that the compensation
received by the defendant was excessive. The trial court did not find the testimony of the
plaintiff’s expert witness to be credible.
The remaining issues are related. The plaintiff alleges that it was an unfair practice of the
defendant to refuse to distribute profits in an attempt to get the plaintiff to dismiss her suit. The
plaintiff did not present any evidence at trial that the failure to distribute profits was an unfair or
deceptive act committed in the conduct of any trade or commerce as required by the statutes.
The trial court held that the intentional withholding of profits was for a valid business reason
and, therefore, not a breach of the defendant’s fiduciary duty.
Affirmed. On appeal the plaintiff argued that the trial court improperly place the burden
of proving the compensation was excessive on her, when the burden actually lies with the
defendant to disprove that the compensation was excessive. We held that the trial court did not
improperly place the burden on the plaintiff, as there is nothing to support the plaintiff’s
allegation that merely pleading excessive compensation amounts to a prima facie case. Further,
the trial court did not credit the opinion of the plaintiff’s expert regarding the excessiveness of
the compensation, because there was not a valid basis for it. We found no manifest error in the
trial court’s holding.
Regarding the unfair compensation claims, we found that the trial court did not commit
manifest error when granting the motion for involuntary dismissal as the plaintiff presented no
evidence to support a finding of unfair trade practices under the statutes.
Guillory v. Broussard, 15-953 (La.App. 3 Cir. 5/4/16), 190 So.3d 486 (Judge Connery’s
dissent).
Two sisters brought a shareholders derivative action against their brother, Sam Broussard
Trucking Company’s majority shareholder and president, alleging self-dealing and that he paid
himself excessive compensation, that he refused to distribute profits, and that he participated in
unfair trade practices in violation of the Louisiana Unfair Trade Practices Act (LUPTA), La.R.S.
August 26, 2016
7
51:1401, et seq. The trial court dismissed the sisters’ claims by granting defendants’ involuntary
dismissal and the sisters appealed.
The majority found no error in the trial court’s finding that the evidence as well as the
sisters’ expert testimony on the issue of excessive compensation was insufficient to establish a
prima facie case. and hence the excessive compensation issue had not been proven. The
majority affirmed the trial court’s finding that the sisters presented insufficient evidence at trial
to establish that a failure to distribute profits is an unfair or deceptive act committed in the
conduct of any trade or commerce within the meaning of LUPTA.
Judge Conery dissented, finding that the trial court improperly placed the burden of
proving excessive compensation on the sisters, and such an error of law interdicted the factfinding process and required a de novo review of the record. Once the brother’s admitted selfdealing had been established, the burden of proof shifted to him to prove that he was not being
paid excessive compensation and that his actions were in good faith, arm’s length transactions,
and were inherently fair to the corporation and minority shareholders. An involuntary dismissal
at this point was improper. Further, Judge Conery concluded that the actions of the brother
constituted unfair trade practices within the meaning of LUPTA. Judge Conery would reverse
the decision of the trial court to grant the motions for involuntary dismissal and would grant a
new trial to the sisters to be conducted in accordance with La.Code Civ.P. art. 1978.
CRIMINAL LAW
State v. Reado Nargo A/K/A Renaldo Nargo, 15-779 (La.App. 3 Cir. 6/1/16), ___ So.3d ___
(Thibodeaux, Chief Judge, Amy and Keaty, Judges).
Reado Nargo was charged by grand jury indictment with the second degree murders of
Johnny L. Brimzy and Stanley J. Brimzy in violation of La.R.S. 14:30.1. Nargo pled not guilty
to both counts, and was found guilty of the second degree murder of Johnny Brimzy and guilty
of the responsive verdict of manslaughter for the killing of Stanley Brimzy. Nargo was
sentenced to life imprisonment without the benefit of probation, parole, or suspension of
sentence for the murder of Johnny Brimzy and forty years at hard labor for the manslaughter of
Stanley Brimzy, to run consecutively.
Nargo appealed his convictions, arguing the trial court erred when it determined that the
recorded and non-recorded statements allegedly made by Nargo during questioning were freely
and voluntarily made, and thus admissible; that evidence was improperly published to the jury
August 26, 2016
8
prior to authentication, identification, or admission into evidence, therefore making it unavailable
for appellate review; that trial counsel rendered ineffective assistance of counsel by failing to
object to the publishing of this evidence; and that the trial court erred in failing to assure that
discussions and arguments made by counsel during sidebar proceedings were recorded and
preserved for appellate review.
Affirmed. On appeal, we affirmed Nargo’s convictions, finding that there was no
evidence of police coercion and that Nargo’s statements were freely and voluntarily made; that
the recorded statements were tacitly admitted into evidence as a result of defense counsel’s
failure to contemporaneously object, and thus were properly published to the jury, reviewed by
the trial court, and preserved for appellate review; that Nargo failed to prove ineffective
assistance of counsel as he demonstrated no prejudice as a result of defense counsel’s failure to
object; and that the trial court’s failure to record several bench conferences had no discernible
impact on his constitutional right to a full appeal.
State v. Bentley, 15-598 (La.App. 3 Cir. 2/3/16), ___ So.3d ___ (Panel: Thibodeaux, Chief
Judge writing; Genovese and Savoie, Judges; Savoie dissents and assigns reasons).
The jury convicted Defendant Asa N. Bentley of second degree kidnapping of a victim
who was strangled, went missing, and is presumed dead. The kidnapping statute, La.R.S.
14:44.1, carries a sentence of five to forty years, at least two of which must be served without
benefit of parole, probation, or suspension of sentence. Due to Defendant’s previous conviction
for forgery, the State filed a habitual offender bill of information pursuant to La.R.S.
15:529.1(A)(1), which requires enhancing the underlying sentence to a range between one-half
and double the maximum for the underlying offense. Thus, the State asserted that Defendant
should be sentenced within the range of twenty to eighty years. After a hearing, the trial court
sentenced Defendant to seventy years at hard labor, all of which were imposed without benefit of
parole, probation, or suspension of sentence. Defense counsel objected to the parole restriction
and filed a motion to reconsider. The trial court denied the motion.
Under the habitual offender statute, La.R.S. 15:529.1(G) states, “Any sentence imposed
under the provisions of this Section shall be at hard labor without benefit of probation or
suspension of sentence.” It does not place enhancements on the parole eligibility of the
underlying/reference statute, La.R.S. 14.44.1. Defendant thus argued that his parole eligibility
was two to forty years. The State reasoned that because the reference statute, La.R.S. 14:44.1,
permits the denial of parole eligibility for up to the entire term of forty years, the trial court was
within its authority to deny parole eligibility for up to the entire term of the habitual offender
sentence as it did.
Regarding the imposition of a sentence without benefit of parole,
the conditions imposed on the sentence are those called for in the
August 26, 2016
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sentencing provisions for the underlying felony offense. The
sentence conditions required by La. R.S. 15:529.1(G) are additions
to, rather than replacements of, those conditions required by the
sentencing provisions for the underlying offense.
State v. Shoupe, 46,395, pp. 19-20 (La.App. 2 Cir. 6/22/11), 71 So.3d 508, 519, writ denied, 111634 (La. 1/13/12), 77 So.3d 950. See also State v. Young, 02-1280 (La.App. 4 Cir. 1/22/03),
839 So.2d 186, writ denied, 03-599 (La. 10/17/03), 855 So.2d 756.
Sentence vacated and remanded for re-sentencing. Pursuant to the rule of lenity in
State v. Carouthers, 618 So.2d 880 (La.1993), and the reasoning in Shoupe and Young, we
vacated the sentence and remanded for re-sentencing.
State of Louisiana vs. Damien Marques McLendon, Jr., 15-668 (La.App. 3 Cir. 2/10/16), ___
So.3d ___ (Thibodeaux, Chief Judge writing; Gremillion and Keaty, Judges).
Law enforcement officers in Beauregard Parish were conducting a drug interdiction
operation on Highway 190 when an automobile driven by Defendant, Damien Marques
McLendon, Jr., was observed crossing into Louisiana from Texas. McLendon’s vehicle was
followed for approximately twelve miles before officers claimed it touched the fog line. Soon
thereafter, a traffic stop was initiated, and McLendon’s license and registration were verified.
Although no further infractions were discovered, McLendon and his passenger were ordered to
exit the vehicle. McLendon’s passenger immediately fled, and a bag of cocaine was exposed on
the passenger side of the vehicle.
McLendon was arrested and indicted for possession of cocaine with intent to distribute in
violation of La.R.S. 40:967, conspiracy to distribute cocaine, in violation of La.R.S 14:26 and
La.R.S. 40:967, and obstruction of justice, in violation of La.R.S. 14:130.1. McLendon filed a
motion to suppress, which was denied by the trial court. The trial court found that a traffic
violation occurred, merely touching the fog line constituted a traffic violation, and McLendon
violated his probation by leaving the state of Louisiana. He then later entered a Crosby plea as to
the first count, reserving the right to seek review of the denial of his motion to suppress. The
State dismissed counts two and three, and McLendon was sentenced to fifteen years at hard
labor.
Conviction and denial of motion affirmed. On appeal, we affirmed McLendon’s
conviction and the trial court’s denial of the motion to suppress. We determined that a traffic
violation occurred when McLendon touched the fog line, that touching the fog line was sufficient
to constitute a traffic violation, and that McLendon violated his probation by leaving the state of
Louisiana, and thus officers were further justified in initiating a traffic stop due to McLendon’s
status as a parolee.
August 26, 2016
10
State v. Shupp, 15-695 (La.App. 3 Cir. 2/3/16), ___ So.3d ___ (Ezell, J. writing; Amy and
Savoie, JJ.)
On the morning of April 12, 2012, Defendant entered the store Tiger Nation in Lake
Charles. He robbed the victim, Rebecca Stains, at gunpoint. He then tied her up and left her on
the bathroom floor. Shortly thereafter, he returned and demanded the keys to her car and the pin
number to her credit card. Defendant was charged with armed robbery, theft of a motor vehicle
over $1500.00, and false imprisonment with a dangerous weapon. Defendant was found guilty
by a jury on the charge of armed robbery and false imprisonment with a dangerous weapon.
However, the jury reduced the charge of theft of a motor vehicle over $1500.00 to unauthorized
use of a motor vehicle. Defendant filed an appeal claiming: 1) The trial court erred when it
denied Defendant's motion to preclude certain evidence from trial; 2) The evidence was
insufficient to sustain the jury's verdicts; 3) The convictions for armed robbery and false
imprisonment with a dangerous weapon in this case constituted double jeopardy; and 4) The
sentences were constitutionally excessive.
Convictions and Sentences for Armed Robbery and False Imprisonment Affirmed;
Conviction and Sentence for Unauthorized Use of a Motor Vehicle Reversed; Remanded with
Instructions. Because “unauthorized use of a motor vehicle” does not contain a lesser penalty
than “theft of a motor vehicle” and because “unauthorized use of a motor vehicle” is not valuegraded as is “theft of a motor vehicle,” “unauthorized use of a motor vehicle” is not a lesser and
included offense of “theft of a motor vehicle.” Thus, “unauthorized use of a motor vehicle”
cannot be considered a responsive verdict of “theft of a motor vehicle” under La.Code Crim.P.
art. 815. Consequently, the jury’s verdict in this case was non-responsive to the offense charged
and is an error patent. Therefore, we ordered an acquittal of the charged offense – theft of a
motor vehicle valued at $1500.00.
Defendant also argued that the evidence was insufficient to convict him because the only
evidence connecting him to the crimes was DNA found on the mask the robber wore, which
included evidence from a minor DNA contributor. Testimony revealed that the minor DNA
could have found its way into jacket when someone else, for whatever reason, put their hand in
the pocket of where the mask was found. Other evidence indicated that Defendant was in Lake
Charles during the time period. The victim’s car was found at Don’s Car Wash. A witness
testified that she was at a bank across the street from the car wash when a man approached her
and asked for a ride. She later identified him as the man on a news story about the robbery. The
mask and other items used in the robbery were found in a restaurant dumpster in the same
vicinity. Based on a totality of the evidence and the circumstances, we found the evidence
proved beyond a reasonable doubt that Defendant robbed the victim.
Defendant also complained that the State did not disclose exculpatory evidence
consisting of a report from the Southwest Louisiana Criminalistics Laboratory which indicated
that there was a second DNA contributor located on the mask the robber wore. The prosecutor
noticed his file did not contain the report and as soon as he got a copy of the report, he gave one
August 26, 2016
11
to defense the following day. Also, while the evidence was untimely, Defendant did receive the
information four days prior to trial was not a true Brady matter as late disclosure of favorable
evidence is not always reversible error. Defendant was also offered a continuance but declined.
We also found that the State proved that the two crimes of armed robbery and false
imprisonment with the use of a dangerous weapon were committed independently, so double
jeopardy did not apply. We further found that the imposed sentence of thirty-six years on
Defendant was not excessive.
State v. Asa Bentley, 15-597 (La.App. 3 Cir. 1/6/16), ____So.3d____ (Savoie, J. writing;
Thibodeaux and Saunders, JJ.; Thibodeaux, J. dissents).
A unanimous jury found Defendant guilty of second degree kidnapping, a violation of
La.R.S. 14:44.1. He was sentenced as a second felony offender pursuant to La.R.S. 15:529.1 to
seventy years at hard labor without the benefit of parole, probation, or suspension of sentence.
Defendant appealed the conviction.
Affirmed. On appeal, Defendant argues the State committed reversible error by making
comments which violated Defendant's constitutional rights to a fair trial and a presumption of
innocence. He further argued that the State's closing rebuttal argument violated Defendant's
rights by making arguments that exceeded the scope of Defendant's arguments. We found that
the Prosecutor's comments during closing argument—contrasting kidnapping defendant with codefendant who had reached plea deal with state and testified, and suggesting that co-defendant
had a conscience and that defendant did not—did not rise to the level of a structural error or
infringe on defendant's right to the presumption of innocence. The claim that comments were
improper were precluded from review due to defendant's failure to properly preserve the issue by
making a contemporaneous objection. We also concluded that the State’s comment regarding
Defendant's “dreadlocks and tatts” and the victim being “swallowed up in the night,” were
irrelevant and could not be said to have “contributed to the verdict.” See State v. Frost, 97-1771,
pp. 18-19 (La. 12/1/98), 727 So.2d 417, 432-33, cert. denied, 528 U.S. 831, 120 S.Ct. 87 (1999),
superceded by statute on other grounds as stated in State v. Gomez, 00-566 (La. 1/17/01), 778
So.2d 549.
August 26, 2016
12
CUSTODY & PARENTAL RIGHTS
Ardoin v. Grice, 15-972 (La.App. 3 Cir. 4/13/16), ___ So.3d ___(Judge Conery Writing).
When Ms. Grice was sixteen years old, she and Mr. Ardoin had a relationship, and Ms.
Grice became pregnant. Ms. Grice and Mr. Ardoin separated, and Ms. Grice married Mr.
Flowers before the child’s, I.A.’s, birth in 2007. Ms. Grice and Mr. Flowers had four additional
children, and all lived together in Lake Charles. While Ms. Grice did try to obtain child support
from Mr. Ardoin, she was unsuccessful and no formal custody order regarding I.A. was ever
issued by any trial court.
In January 2013, Ms. Grice had a surgical procedure requiring hospital care, and
entrusted I.A. to the care of her mother and I.A.’s maternal grandmother, Angela Grice. Angela
Grice became ill and placed I.A. in the care of her mother and I.A.’s maternal great-grandmother,
Brenda Allen. Ms. Allen brought I.A. to Mamou, Louisiana to visit Ms. Allen’s sister. Ms.
Allen allowed Mr. Ardoin, who was next door, to visit with and take I.A. to see his mother,
Juanita Jack, despite being instructed by Ms. Grice to not allow I.A. to see Mr. Ardoin. Mr.
Ardoin then refused to return I.A., and I.A. has been living with Mr. Ardoin and his mother, Ms.
Juanita Jack, ever since January 2013.
Mr. Ardoin was granted custody of I.A. by ex parte custody order as “a ward of the
court” in March 2013. Ms. Grice was then arrested while trying to regain custody of I.A. shortly
after the ex parte custody order was signed. Two bills of information were filed charging Ms.
Grice and her sister with one count of attempted simple kidnapping, in violation of La.R.S.
14:45. Ms. Grice’s then attorney warned her to not make further contact with or attempt to see
I.A. until her criminal charges were disposed of. Following the completion of her pre-trial
diversion program, Ms. Grice was finally able to file her petition for custody of I.A. on February
27, 2015.
Ms. Grice’s case was continued several times for failure to serve Mr. Ardoin, who was
finally located by a private process service in the Pine Prairie Correctional Center after he had
been jailed on a felony parole violation. Mr. Ardoin had left I.A. in the custody of his mother,
Juanita Jack, who had also obtained an ex parte custody order, continuing I.A.’s status as “a ward
of the court” and awarding sole custody to Ms. Jack. Ms. Grice was never served with notice of
any of the ex parte petitions for custody.
Finally, a hearing on Ms. Grice’s petition for custody was held. Continuing on the path
set forth by the illegal ex parte custody orders, the trial court erroneously shifted the burden of
proof to Ms. Grice and held that she had failed to prove that a “change in custody” was in the
child’s best interest. He awarded Ms. Jack the legal and physical custody of I.A. during Mr.
Ardoin’s incarceration. Ms. Grice appealed.
August 26, 2016
13
Reversed. After finding the trial court had erroneously issued ex parte custody orders, we
reviewed the record de novo and found both ex parte custody orders to be null and void for
among other things, the failure to ever properly notify or serve Ms. Grice of an appropriate
hearing by two different trial courts. We then found that the burden of proof at the eventual
custody trial was on Ms. Jack to show “substantial harm would result to the child” if I.A. was
returned to the custody of Ms. Grice and that the best interest of the child requires an award of
custody to the nonparent. See La.Civ.Code art. 133. We found that the mother at all times had
been an appropriate caregiver and Ms. Jack was unable to sustain her burden of proof.
The judgment of the trial court granting sole custody to Ms. Jack was reversed and the
trial court was ordered to facilitate the transfer of custody of I.A. to Ms. Grice.
George v. Dugas, 15-939 (La.App. 3 Cir. 3/16/16), ____ So.3d ____ (Ezell, Judge writing).
Biological parents sought to regain custody of their children, of whom custody had
previously been awarded to their foster parents as part of Child in Need of Care proceedings by
way of a consent decree. The trial judge found that in order to retain custody, the foster parents
bore the burden of proving that substantial harm would befall the children should they be
returned to the parents, rejecting the foster parents’ arguments that the parents, as proponents of
the change in custody, were required to show a material change in circumstances and that a
change in custody would be in the best interests of the children. Finding no evidence of
substantial harm, the trial court returned custody of the children to the biological parents.
Affirmed in part, reversed in part, rendered and remanded. A judgment placing the
child in the custody of a non-parent is a determination of the unfitness of the biological parent,
thereby vitiating the parent’s paramount right to custody, and shifting the burden of proof in any
following modification proceedings to the parent. The court disregarded its prior decision in
Cutts v. Cutts, 06-33 (La.App. 3 Cir. 5/24/06), 931 So.2d 467, followed its decision in Dalme v.
Dalme, 09-524 (La.App. 3 Cir. 10/14/09), 21 So.3d 477, writ denied, 09-2560 (La. 1/8/10), 24
So.3d 868, and found that in a case where a non-custodial biological parent seeks to modify
custody granted a non-parent under a consent decree, the burden of proof should be on the
moving parent to show a material change in circumstances of the custody with the non-parent
and that a change of custody would be in the best interests of the child.
August 26, 2016
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DAMAGES
Guidry v. Lafayette Health Ventures, Inc., 15-307 (La.App. 3 Cir. 7/20/16), ___ So.3d ___
(Judge Connery’s concurrence and dissent).
Kimberly Guidry alleged that she suffered injuries in an automobile collision as a result
of the fault of an employee of Lafayette Health Ventures, Inc. The jury found that Kimberly was
not entitled to damages and rendered a verdict in favor of defendant, though fault was not at
issue. Kimberly filed a motion for a new trial, which the trial court denied. Kimberly appealed.
After conducting a de novo review of the record, the majority on this five-judge panel
reversed the jury’s zero verdict on damages and awarded Kimberly $25,000.00 in general
damages, $26,244.22 for past medical expenses, and $9, 574.50 for lost wages.
Judge Conery concurred in part in the decision to reverse the jury’s zero verdict based on
objective evidence of the severity of the collision and some minimal injuries to Kimberly, but
dissented in part on the damages awarded. Judge Conery attempted to honor the jury’s obvious
credibility problems with Kimberly’s testimony and limited the past medical expenses to only
the ambulance charges, E.R. charges, the initial and follow-up visit with the doctor, and the
pharmacy bills for the first prescription. Further, Judge Conery would limit the lost wages and
general damages awards to the period ending on July 18, 2014 when Kimberly’s symptoms as
reported to her attorney-referred physician abruptly changed. Judge Conery would remand the
case to the trial court for the limited purpose of establishing the amount of the credit/offset owed
based on the defendant’s pre-trial offer of judgment in accordance with La.Code. Civ.P. art. 970,
and would assess all costs to Kimberly.
FALSE ARREST
Rabeaux v. Ronald J. Theriot, Sheriff, et al., 15-724 (La.App. 3 Cir. 12/9/15) (unpublished
opinion) (Keaty, J. writing; Saunders and Peters, JJ.)
Neal Rabeaux filed a Petition for Damages for Wrongful Arrest and False Imprisonment
against Ronald J. Theriot and Jerod Prunty, both individually, and in their respective official
capacities as Sheriff and Deputy of St. Martin Parish, after he was arrested and held in the jail for
several nights during a declared State of Emergency and voluntary evacuation of the Butte La
August 26, 2016
15
Rose area due to an imminent threat of flooding in May 2011. The trial court granted summary
judgment in favor of Sheriff Theriot and Deputy Prunty based on emergency-preparedness
immunity, and Rabeaux appealed.
Affirmed. After having performed a de novo review, we concluded that defendants
proved that no genuine issues of material fact remained and that they were entitled to judgment
as a matter of law. Rabeaux acknowledged that Deputy Prunty was patrolling the area where
Rabeaux lived to facilitate public safety as part of the emergency response effort to the threat of
flooding. According to his petition, Rabeaux admitted that he was wearing a pistol in a
waistband holster when he encountered Deputy Prunty. Further, although Rabeaux asserted that
he was not a convicted felon, he did not dispute that Deputy Prunty was advised otherwise when
he contacted the St. Martin Parish Sheriff’s Office Communications Dispatch Center, and that
Deputy Prunty arrested him based upon that incorrect information. Based upon those key facts,
we concluded, as a matter of law, that Deputy Prunty’s actions did not amount to willful
misconduct and that defendants met their burden of proving their entitlement to summary
judgment regardless of the remaining details of the encounter between Rabeaux and Deputy
Prunty.
FALSE ARREST AND DEFAMATION
Victoria Dauzat, et al. v. Dolgencorp, LLC, et al., 15-1096 (La.App. 3 Cir. 4/6/16), ___ So.3d
___ (Genovese, J.; Amy and Pickett, JJ.)
Two customers sued retail store and its employee for defamation and false imprisonment
after being accused of shoplifting. Plaintiffs alleged that the store manager’s report to the police
was a complete fabrication. Plaintiffs offered security camera video as evidence that the store
manager recklessly disregarded the truth. Plaintiffs testified they suffered great anguish from
gossip from within their community because other shoppers witnessed them being questioned by
police and because their names were broadcast over a police radio, which members of their
community overheard via in-home police scanners.
The trial court ruled in favor of Plaintiffs and awarded each $20,000.00. Dollar General
appealed.
Affirmed. Relative to the appellate review of the defamation and false imprisonment
claims, this court found that the evidence included a surveillance video recording which revealed
no evidence of the purported shoplifting by Plaintiffs. This court found no abuse of discretion in
August 26, 2016
16
the trial court’s credibility determinations. This court also found no error in the trial court’s
application of a spoliation of the evidence adverse presumption for a portion of the surveillance
video recording which was requested from but not produced by Dollar General. Finally, this
court rejected Dollar General’s claim that the damages were unwarranted and/or were excessive.
FAMILY LAW
Cloud v. Dean, 15-297 (La.App. 3 Cir. 12/16/15), __So.3d__. (Keaty, J. writing; Pickett and
Savoie, JJ.)
In this case the father, Christopher Cloud, filed a rule for decrease in child support. The
mother, Emily Dean, filed an opposition to the motion for new a trial and exceptions of no cause
of action, res judicata, unauthorized use of a summary proceeding, and prescription. She also
filed an in forma pauperis (IFP) affidavit and a motion to hold the father in contempt for
nonpayment of child support. The trial court denied all of the mother’s exceptions, set aside the
original child support order and ordered that the father owed no child support, set aside the prior
IFP order, and denied the motion for contempt. The mother appealed.
Affirmed in part; reversed in part, and remanded with instructions. The third circuit
held that: (1) the father adequately alleged a material change in circumstances since the entry of
the original child support order that justified modification of support; (2) the father’s rule for
decrease in child support was, in fact, a motion for a new trial, and thus, the rule was subject to
the law governing a motion for a new trial; (3) the order granting the father’s rule for decrease in
child support was an abuse of discretion; (4) the failure by the father’s attorney to disclose to the
trial court information related to the father’s annuity and Social Security benefit was not good
grounds for granting the father a new trial on same; (5) the father was entitled to a credit against
his child support obligation for the amount that the mother received from the father’s Social
Security benefits for the child; (6) the father’s rule for decrease in support was governed by the
seven-day prescriptive period; (7) the trial court lacked authority to grant the father’s rule to
traverse the mother’s pauper status; and (8) the trial court was required to conduct a hearing on
the mother’s motion for contempt.
After this court’s ruling, the mother sought supervisory writs from the trial court’s
judgment denying her exception of no cause of action in Cloud v. Dean, 15-1050 (La.App. 3 Cir.
1/13/16), __ So.3d __. We denied her application with Judge Amy dissenting and assigning
reasons therefore.
August 26, 2016
17
FOREIGN JUDGMENTS
Biosonix, LLC v. Olson, 15-659 (La.App. 3 Cir. 2/10/16), __ So.3d __(Keaty, J. writing;
Thibodeaux and Gremillion, JJ.)
This matter concerns several attempts by the plaintiff to make a Texas judgment
executory in Louisiana. After a hearing, the trial court granted the defendant’s motion to deny
full faith and credit to the Texas judgment and ordered that it be stricken from the public records
of Rapides Parish, Louisiana. The plaintiff appealed.
Affirmed. Given the issues raised in the defendant’s Petition to Annul, i.e., that the
Texas judgment was obtained by fraud and ill practices and in a court that had no personal
jurisdiction over her, which we found could be converted to a motion to deny full faith and credit
and heard summarily, we found no error in the trial court’s decision to entertain whether the
defendant was subject to in personam jurisdiction of the Texas court. Moreover, “any judgment
may be collaterally attacked if it is void for lack of jurisdiction. A defendant is always free to
ignore the judicial proceedings, risk a default judgment, and then challenge that judgment on
jurisdictional grounds in a collateral proceeding.” Jacuzzi v. Pimienta, 762 F.3d 419, (5th
Cir.2014) (citing Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 102
S.Ct. 2099 (1982)). After having read the transcript from and the exhibits filed in conjunction
with the August 14, 2014 hearing, we found no manifest error in the trial court’s factual finding
that the defendant maintained no contacts with the State of Texas so as to permit that court to
have general or specific jurisdiction over her, especially in light of the fact that the plaintiff
failed to present any evidence or testimony in opposition to that presented by the defendant.
Likewise, after having performed a de novo review of the record, we concluded that the
defendant’s contacts with Texas were insufficient to allow the Texas court to exercise personal
jurisdiction over her. Accordingly, we found no merit to the plaintiff’s claim that the defendant
failed to carry her burden of proving that she was not subject to in personam jurisdiction by the
Texas court.
August 26, 2016
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FREE SPEECH; DEFAMATION; AND THE ANTI-SLAPP STATUTE
Robert E. Ahearn v. City of Alexandria, et al., 15-1014 c/w 15-1189 (La.App. 3 Cir.
5/4/16)(Amy, J., writing)(Panel: Peters, Amy and Savoie, J.J.)
The plaintiff filed suit against the City and various individuals, alleging that he sustained
damages from his arrest and investigation into alleged theft from a job site. The defendant
business owner and the defendant business reconvened, alleging damages associated with the
plaintiff’s work and property loss. They further sought damages for allegedly defamatory
comments contained in the plaintiff’s pleadings. In response, the plaintiff filed a special motion
to strike the claim of defamation pursuant to La.Code Civ.P. art. 971. The trial court denied the
motion and assessed attorney fees and costs against the plaintiff’s counsel. The plaintiff sought
review of the denial of the motion by application for supervisory writs whereas the plaintiff’s
attorney appealed the order of attorney fees. The matters were consolidated for review.
Writ Granted. Reversed. Special Motion to Strike Granted and Rendered. Remanded
with Instructions. Award of Attorney Fees Reversed. The panel considered the matter de novo
as is required for special motions to strike and first determined that the plaintiff, as the moving
party on the motion to strike, satisfied his burden of initially proving that the subject cause of
action arises from an act in the exercise of his right of free speech regarding a public issue. In
particular, La.Code Civ.P. art. 971(F)(1) specifically includes writings before a judicial
proceeding within the definition of an act in furtherance of a person’s right of petition or free
speech in connection with a public issue and, in this case, the reconventional demand for
defamation solely addressed allegations made in the plaintiff’s petition and supplemental petition
for damages. Additionally, the demand sought damages also solely tied to the petitions. The
panel determined that, thereafter, the defendants failed to demonstrate the probability of success
on their reconventional demand in defamation as required under the second prong of the burden
of proof. Instead, the defendant business owner only addressed certain allegations regarding
representations of her employment with the City at the time of the reporting of the offenses,
whereas the allegations of the petition and amending petition were wide ranging, extending well
beyond the reporting of the offenses. No affidavits regarding those remaining were offered and
the parties’ cross-pleadings on the issues offered no insight into the elements of defamation.
Accordingly, the panel reversed the denial of the special motion to strike and granted that motion
in favor of the plaintiff. As La.Code Civ.P. art. 971(B) dictates that a prevailing party on a
special motion to strike be awarded attorney fees, the panel reversed the attorney fees assessed
against the plaintiff’s counsel and remanded the matter to the trial court for imposition of
attorney fees in favor of the plaintiff, as the prevailing party.
August 26, 2016
19
INSURANCE––UM/UIM COVERAGE
Castille v. Blum, 15-742 (La.App. 3 Cir. 3/16/16), 188 So.3d 362, writ denied, 16-706 (La.
6/17/16), ---So.3d--- (Savoie, J.; Thibodeaux, J. and Genovese, J. (dissenting and assigning
reasons)).
Plaintiffs, Danny and Dawn Castille, appeal the trial court’s summary judgment
dismissing their claims against Defendant, Certain Underwriters at Lloyd’s, London (“Certain
Underwriters”), on the grounds that no coverage existed under the Uninsured/Underinsured
(UM/UIM) provisions of a policy issued to Danny Castille.
Reversed. Mr. Castille was operating a tractor/trailer with the trailer attached to the
tractor at the time the accident occurred. The policy Certain Underwriters issued to Mr. Castille
was a “Bobtail Liability Insurance Policy.” “Bobtailing” is a term meaning that the tractor is
being operated without a trailer attached. Certain Underwriters argued that because liability
coverage was only available when the insured’s tractor was “bobtailing,” UM/UIM coverage was
also only available when the insured’s tractor was “bobtailing,” and it was undisputed that Mr.
Castille’s vehicle was not “bobtailing” when this accident occurred. The trial court agreed and
found that the policy did not provide UM/UIM coverage. The majority compared the provisions
of the policy to those of the UM/UIM endorsement and concluded “that the policy affords
otherwise available UM/UIM coverage to covered autos, even if they were not “bobtailing” at
the time of the accident” and reversed the trial court’s grant of summary judgment in favor of
Certain Underwriters. In his dissent, Judge Genovese disagreed finding that the majority opinion
creates UM/UIM coverage where none existed under the policy. Judge Genovese notes that the
liability portion of the policy provides coverage only to a covered automobile while the tractor is
not attached to the trailer. He found nothing in the UM/UIM endorsement which changed this
clear and unambiguous language in the general insuring agreement. Thus, according to Judge
Genovese, “the policy’s Insuring Agreements’ general provision relative to bobtailing remains as
written and governs the UM/UIM provisions of the policy. Because Mr. Castille was operating a
tractor with a trailer attached when the accident occurred, the claims of the Castilles do not come
within the ambit of the policy’s UM/UIM coverage, and Certain Underwriters is entitled to
judgment as a matter of law.”
August 26, 2016
20
JUDGMENT NOTWITHSTANDING THE VERDICT
Dubois v. Armstrong, 15-345 C/W 15-346 (La.App. 3 Cir. 2/10/16), ___ So.3d ___ (Panel:
Thibodeaux, Chief Judge writing; Gremillion and Keaty, Judges).
The plaintiff, Tammy Dubois, appealed the trial court’s judgment reducing one of her
jury awards pursuant to the granting of a motion for judgment notwithstanding the verdict
(JNOV) filed by the defendant, SMI Group, Inc. (SMI). She also appealed the judgment on the
basis that the trial court’s jury interrogatories and verdict form were defective for causing
another reduction due to fault allocation.
Affirmed. Finding no manifest error in the trial court’s granting of the defendant’s
JNOV, and finding no abuse of discretion in its formulation of the jury interrogatories and
verdict form, we affirmed the judgment of the trial court.
Dubois was employed by Cubic Applications, Inc. (Cubic) as a local civilian role-player
for the training of military personnel at Fort Polk. Cubic also hired SMI to provide Arabicspeaking role-players to assist in the military training exercises. Dubois was injured during an
exercise when an SMI actor was ordered to detain her, and she resisted. There was testimony
that she was not supposed to resist and that she had a pattern of being overzealous in her roleplaying. The jury found that Dubois was 50% at fault, and the SMI actor was 50% at fault, for
injuries to Dubois’s neck and shoulder. The jury found no fault on the part of Cubic for training
or supervising the SMI actor. The jury also found that a previous work accident, wherein a
bookcase fell on Dubois seven days earlier, not involving SMI in any way, was 50% responsible
for the injuries to Dubois’s neck and shoulder.
Dubois asserted that the trial court’s verdict form was defective for including the
previous accident. We disagreed, finding that each question on the verdict form regarding
fault/causation was authorized under La.Code Civ.P. art. 1812(C). Including the first accident
was also proper under Dauzat v. Canal Ins. Co., 96-1261 (La.App. 3 Cir. 4/9/97), 692 So.2d 739,
746, where multiple accidents are alleged to have caused the plaintiff’s injuries.
Dubois also appealed the JNOV granted to SMI when the trial court learned that the jury
had based its past medical award on an expense summary that the court had ruled to be
inadmissible. Somehow, the expense summary was left in front of one of the jury’s binders.
Where the expense summary and the award contained the same figure to the penny, and that
amount was nowhere mentioned to the jury or supported by the record, we affirmed the JNOV
pursuant to La.Code Civ.P. art. 1811, Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829,
832 (La.1991), and Davis v. Wal-Mart Stores, Inc., 00-445, p. 5 (La. 11/28/00), 774 So.2d 84.
August 26, 2016
21
We further affirmed the trial court on its award of judicial interest beginning on the date
SMI was added as a defendant to the tort suit, not, as Dubois requested, when the workers’
compensation claim was filed against Cubic, a non-party in the tort suit. And, we affirmed the
trial court’s equal assessment of costs between Dubois and SMI, where each was found 50% at
fault for the accident giving rise to the tort suit. Buller v. American National Property &
Casualty Companies, 02-820 (La.App. 3 Cir. 2/5/03), 838 So.2d 67; Bellard v. South Central
Bell Telephone Co., 96-1426, p. 24 (La.App. 3 Cir. 8/27/97), 702 So.2d 695, 708, writ denied,
97-2415 (La. 12/12/97), 704 So.2d 1202.
JONES ACT
Stermer v. Archer-Daniels-Midland Company, Et al., 15-811 (La.App. 3 Cir. 2/24/16), ___
So.3d ___ (Conery, J. writing, Thiobodeaux, C.J., and Peters, J.).
Plaintiff, Adrienne Stermer, sued her employer, ARTCO, its insurer, and ARTCO’s
parent company (collectively “ARTCO”) for damages under the Jones Act and general maritime
law including a claim for maintenance and cure, punitive damages, and attorney fees for arbitrary
failure and refusal to pay maintenance and cure. From the time of plaintiff’s alleged injury,
ARTCO refused to pay any maintenance and cure, claiming fraud. After two and a half years,
ARTCO agreed to pay maintenance and cure “under protest,” but reserved its right to assert its
no liability and fraud defense at trial. After trial on the merits on all issues, the trial court in its
extensive and well-articulated reasons awarded $600,000 in damages to Ms. Stermer on her
Jones Act claim, $300,000 in punitive damages and $150,000 in attorney fees for failure to
timely pay maintenance and cure. ARTCO appealed on all issues, and another panel of this court
affirmed the trial court’s judgment on the Jones Act claim as well as the $300,000 punitive
damage award, but reversed and remanded the $150,000 attorney fee award to the trial court for
it to set attorney fees based on an analysis of the traditional factors used in setting attorney fees
and for an explanation of the attorney fees award. Stermer v. Archer-Daniels-Midland Co., 14147 (La.App. 3 Cir. 6/4/14), 140 So.3d 879, writ denied, 14-1434 (La. 10/24/14), 151 So.3d 603.
On remand, the trial court awarded Ms. Stermer $309,174 in attorney fees plus all court costs.
ARTCO again appealed claiming Ms. Stermer was not entitled to any award of attorney
fees subsequent to the date ARTCO paid her maintenance and cure “under protest.” ARTCO
also appealed the amount and allocation of attorney fees, claiming that the trial judge erred in
calculating that ninety percent of the total attorney fees for work done on all issues was attributed
to her attorney’s work on the maintenance and cure issue. ARTCO further claimed that the
award was excessive.
August 26, 2016
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Ms. Stermer argued that since ARTCO had continued to deny that any of her injuries were the
result of the claimed accident on the vessel through trial and original appeal, she was entitled to
all attorney fees awarded in the prosecution of the maintenance and cure issue. Her attorney also
cited case law in support of the calculation and amount of attorney fees awarded on remand. At
the remand hearing, the trial court found that Ms. Stermer was entitled to all attorney fees
through the trial on the merits, plus all court costs.
Affirmed. This court affirmed on all issues holding that in light of the extensive factual
findings stated on the record by the trial court on remand, and the lack of contrary jurisprudence,
the trial court correctly interpreted the law broadly in favor of the injured seaman and did not err
in awarding attorney fees for arbitrary and capricious failure to pay maintenance and cure for all
work done in this case through the trial on the merits. This court agreed and found no basis for
restricting the award to work done prior to the conditional tender of maintenance and cure by
ARTCO. Based on the manifest error standard, there was considerable evidence in the record to
support the trial judge’s findings as to the allocation and amount of attorney fees as well. We
further awarded $10,000 in attorney fees for work done on appeal of this issue, plus all cots of
appeal. One judge dissented in part and would have denied attorney fees for all work done after
ARTCO’s conditional “tender.”
LEASE
KP Auto Sales, Inc. v. ADG, LLC, 15-795 (La.App. 3 Cir. 2/10/16), 185 So.3d 308. (Pickett,
J., writing.) Panel: Judges Saunders, Pickett, Conery.
The lessee of commercial property brought action against property owner for amounts
allegedly due under oral agreement regarding payment of taxes on the property. Property owner
answered the suit and reconvened against lessee and its owner, who personally guaranteed the
lessee’s lease obligations, to collect damages the leased premises sustained in Hurricane Rita.
The property owner had assigned the lease, and the assignee joined the action and sought to
collect the same damages the owner sought to collect. The lessee filed an exception of no cause
of action, motion for partial summary judgment/motion in limine to exclude the testimony of the
assignee’s expert. The assignee also filed a motion for summary judgment. The trial court
granted summary judgment in favor of the lessee, dismissing the claims asserted by the assignee
and the owner, but denied summary judgment in favor the assignee. The owner and assignee
appealed.
August 26, 2016
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Reversed in part; affirmed in part; and remanded for further proceedings. The trial
court erred in excluding extrajudicial statements made by the lessee, its representatives, and
witnesses in its litigation against its insurer because the extrajudicial statements do not constitute
a declaration against interest and they are relevant to the issues presented by the owner and
assignee claims. These statements are not prohibited by the collateral source rule because a tort
is not at issue and the purchase of insurance to repair damage to the leased property was required
by the Lease. Information contained in the settlement agreement between the lessee and its
insurer, however, was properly excluded because use of that information would infer that the
lessee’s claims against its insurer were valid. The lessee did not name the property owner as a
defendant and did not mention the owner in its motion for summary judgment; therefore, the trial
court improperly granted against the owner. The trial court also erred in granting summary
judgment against the assignee because extrajudicial statements excluded by the trial court show
genuine issues of material fact exist regarding the condition of the leased premises when they
were damaged by Hurricane Rita. Because the lessee’s motion in limine to exclude the
testimony of the owner/lessor’s expert regarding the damage sustained by the leased premises
was not decided by the trial court and the record does not contain evidence for this court to
consider the motion, the trial court did not err in denying summary judgment in favor of the
assignee/lessor.
Van Mol v. Beasley, 15-869 (La.App. 3 Cir. 2/3/16), __ So.3d __ (Savoie, J. writing; Amy
and Ezell, J.J.)
Former lessee appealed a ruling in favor of the lessor requiring him to pay the remainder
of rent owed through the end of the two-year lease term. The property was leased for purposes
of housing the lessee’s employee, and when employee moved out prior to the term, the lessee
stopped paying rent.
Affirmed. The sixty-day notice of move out provision relied upon by the lessee was
unambiguously a condition required for the return of the security deposit, and did not affect the
two year lease term provided for in the lease. In addition, the fact that the lessor did not re-lease
the property after the employee moved out did not require a reduction in damages. The lease
allowed the lessor to, upon lessee’s failure to pay rent, either declare the remaining installments
immediately due (which she chose to do) or terminate the lease.
August 26, 2016
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LIABILITY FOR ANIMALS
Coburn v. Dixon, 15-1095 (La.App. 3 Cir. 4/27/16), ___ So.3d ___. (Pickett, J.)
If a tenant’s dog attacks a person, the strict liability imposed on the owner of a dog
pursuant to La.Civ.Code art. 2321 cannot be imputed to the landlord. Further, a tenant’s dog is
not a “vice or defect” of the leased premises as contemplated by La.Civ.Code art. 2322 so as to
make the owner of the premises liable for injuries caused by the tenant’s dogs.
LIABILITY––TEACHERS, SCHOOLS, AND SCHOOL DISTRICTS
Castille v. St. Martin Parish School Board, 15-997 (La.App. 3 Cir. 4/27/16), __ So.3d __ (JCP
writes):
The school board reassigned all bus routes in an effort to save money on fuel costs.
Despite state law and the school board’s own rules, which required new or vacant routes to first
be offered to tenured drivers with the most seniority, the school board chose to assign the bus
routes based on the location of the driver’s home. As a result of his home being in the next
parish, plaintiff, a tenured driver with seniority, was given a less desirable route despite the fact
that he had always parked his bus in St. Martinville and drove his own vehicle to the bus each
day. A non-tenured driver was given a more desirable route based on the location of her home.
All of the drivers were assured that their routes were not written in stone and could be adjusted if
necessary. When plaintiff expressed displeasure over his route, he was threatened with being
written up for insubordination. Plaintiff, who suffered from anxiety and depression disorders, of
which the school board was aware, experienced a worsening of his condition and was forced to
take several medical leaves from his job. Three years later, plaintiff was awarded a different
route based on his seniority.
Plaintiff filed suit against the school board, seeking damages based on contract and tort
law as a result of the school board’s failure to comply with the state tenure laws. He later added
a claim for pecuniary and non-pecuniary damages, detrimental reliance, and the school board’s
failure to perform its contractual duties in good faith. Although the trial court held that the
school board violated the school bus tenure laws, it dismissed plaintiff’s breach of contract and
detrimental reliance claims. The plaintiff was awarded the repayment of any time or salary he
lost as a result of the school board’s actions, but denied his claim for non-pecuniary damages.
Plaintiff appealed from this judgment.
August 26, 2016
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Affirmed In Part; Reversed In Part; And Rendered. On appeal, finding inconsistencies
between the contractual nature of plaintiff’s employment and the trial court’s rejection of his
breach of contract claim, the court reviewed the matter de novo. The court held that the school
board breached plaintiff’s employment contract by ignoring state tenure laws and its own rules,
and that plaintiff detrimentally relied on the school board’s promise that his route could be
revisited after a trial period. The court further held that although the school board acted in bad
faith in breaching his employment contract, plaintiff was not entitled to non-pecuniary damages.
However, the court held that based on its actions in ignoring plaintiff’s tenure and seniority
rights, the school board’s actions “constituted a nonfulfillment of an obligation for sinister or
morally-questionable motives. To reach any other conclusion would render the school bus
driver’s tenure and seniority rights of no moment.” Accordingly, the court held that the school
board was liable for all damages, foreseeable or not, that were a direct consequence of its failure
to perform its obligations under the employment contract, and awarded plaintiff $75,000.00 in
damages.
LIMITATIONS OF OWNERSHIP
Charles Henry Davis, et ux. v. Sabine Parish Police Jury, et al., 15-517 (La.App. 3 Cir.
2/24/16), 178 So.3d 1148 (Savoie, J. writing; Thibodeaux and Saunders, JJ.).
The Sabine Parish Police Jury (“SPPJ”) appealed the judgment of the trial court finding
them liable for damages sustained to Plaintiffs’ property as a result of extensive flooding due to
lack of maintenance to a dam that is part of the Bayou Dupont Watershed Project. The SPPJ
filed an exception of prescription in the appellate court arguing that Plaintiffs’ claims are barred
by La.R.S. art. 9:5624.
Affirmed; exception of prescription denied. We denied the exception of prescription
declining to apply La.R.S. art. 9:5624 and finding the SPPJ’s failure to inspect and unclog debris
was not a “necessary consequence” of its public purpose. See Avenal v. State, 03-3521, p. 33
(La. 10/19/04), 886 So.2d 1085, 1108, cert. denied, 544 U.S. 1049, 125 S.Ct. 2305 (2005). We
affirmed the judgment of the trial court. We determined that the SPPJ was not immune from
liability under La.R.S. 9:2800(C) because the Plaintiffs also asserted a claim under La.Civ.Code
art. 667. See Branch v. City of Lafayette, 95-298 (La.App. 3 Cir. 10/4/95), 663 So.2d 216. We
also found that the SPPJ was a “proprietor” under La.Civ.Code art. 667 and was, therefore, liable
under that statute. The trial court was not manifestly erroneous in finding the SPPJ assumed the
duty to maintain the dam, that damages were owed to Plaintiffs, and there was no comparative
fault.
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MEDICAL MALPRACTICE
Benson v. Rapides Healthcare System, L.L.C.., 15-1083 (La.App. 3 Cir. 4/16/16), __ So.3d __.
(Pickett, J., writing.) Panel: Judges Amy, Pickett, Genovese.
Patient brought medical malpractice action against hospital and emergency room
physician arising out of their treatment of him after he experienced a myocardial infarction. He
specifically asserted that the failure to transfer him in a timely manner to a facility that could
immediately perform a catheterization procedure increased the damages he suffered as a result of
his heart attack. The jury awarded judgment against both defendants. The plaintiff appealed,
asserting the jury erred in assessing fault to the emergency room physician and in not awarding
him greater damages. The hospital appealed, asserting the jury erred in assessing fault against it.
Affirmed. The plaintiff argued the hospital did not establish the standard of care
applicable to the emergency room physician, and the hospital argued the plaintiff did not
establish the standard of care applicable to it. The testimony of the interventional cardiologists
who testified at trial established the standard of care applicable to the emergency room physician
and that his treatment fell below that standard of care. Forms authorizing treatment of the patient
prepared by the hospital established the standard of care applicable to the hospital; therefore, the
plaintiff was not required to present expert testimony to establish the standard of care. The
remaining issues were issues for the jury to decide, and its findings were not shown to be
manifestly erroneous.
Wedgeworth v. Mixon, 15-686 (La.App. 3 Cir. 2/3/16), __ So.3d __. (Keaty, J. writing; Chief
Judge Thibodeaux and Gremillion, JJ.)
This medical malpractice suit arises from complications occurring after Mrs.
Wedgeworth underwent a revision functional endoscopic sinus surgery (FESS procedure)
performed by Dr. Mixon. After surgery, it was realized that the infected tissue removed
contained brain tissue. A few days later, Mrs. Wedgeworth was diagnosed with cerebritis, a
brain infection. As a result, Mrs. Wedgeworth filed a medical malpractice claim for review
pursuant to La.R.S. 40:1299.41-.49. The medical review panel ruled in favor of Dr. Mixon.
Plaintiffs then filed a Petition for Damages against Dr. Mixon, alleging that he breached the
standard of care by failing to properly perform the revision sinus surgery and by failing to
properly monitor and treat her post-surgery. Following trial, the jury ruled in favor of Dr.
Mixon, and the trial court dismissed all claims against him with prejudice. Plaintiffs filed a
Motion For Judgment Notwithstanding Verdict Or Alternatively New Trial which was denied by
the trial court. Plaintiffs appealed.
August 26, 2016
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Affirmed. We held that no reversible error existed with respect to the allegedly erroneous
jury instruction, and found that the trial court did not manifestly err in this regard. We further
held that the trial court did not manifestly err in denying Plaintiffs’ Motion For Judgment
Notwithstanding Verdict Or Alternatively New Trial.
Snavely v. Ace Pain Management, LLC, 15-684, 15-903 (La.App. 3 Cir. 2/3/16), __ So.3d __.
(Keaty, J. writing; Saunders and Peters, JJ.)
This medical malpractice, wrongful death, and survival action arose in 2010 when Brian
Snavely was involved in a motorcycle accident. Prior to this, he was treating with Dr. Margaret
Rice (Dr. Rice) and the Rice entities for chronic pain following a previous industrial accident.
He continued treating with them for pain associated with this 2010 motorcycle incident. Brian
filed a Petition for Damages on January 21, 2011 in docket number 2011-0381, against the
parties involved in his 2010 accident. During the pendency of this matter, Brian died of a drug
overdose on August 18, 2012. Brian’s mother and Plaintiff herein, Linda Snavely, filed a
Request to Convene a Medical Review Panel against Dr. Rice and the Rice entities on June 24,
2014, pursuant to the provisions of the Louisiana Medical Malpractice Act (LMMA), La.R.S.
40:1299.41-.49. On June 30, 2014, the Patient’s Compensation Fund (PCF) advised Plaintiff that
only Dr. Rice, and not the Rice entities, was a qualified health-care provider pursuant to the
LMMA and entitled to a medical review panel. Dr. Rice filed an Exception of Prescription in the
medical malpractice review proceeding which was granted. The trial court also dismissed
Plaintiff’s medical malpractice review panel proceeding as prescribed. Plaintiff filed the instant
Petition for Damages against the Rice entities in Docket Number 2014-5373. Therein, Plaintiff
asserted medical malpractice claims against the Rice entities for its treatment rendered to Brian,
which allegedly caused or contributed to his death. The Rice entities filed an Exception of
Prescription which was granted by the trial court. Plaintiff appealed this judgment.
Affirmed. We held that the trial court did not manifestly err in finding that Plaintiff’s
medical malpractice suit had prescribed. With respect to the wrongful death issue, we found that
the trial court did not manifestly err in finding that Plaintiff’s wrongful death suit had prescribed.
August 26, 2016
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MERCHANT LIABILITY
Sayre v. PNK (Lake Charles), LLC D/B/A L’Auberge Du Lac, 15-859 (La.App. 3 Cir. 3/23/16)
188 So.3d 428, writ denied, 16-696 (La. 6/28/16), 192 So.3d 780 (Thibodeaux, Chief Judge,
writing; Cooks and Ezell, Judges).
Terri Sayre, a 59-year-old nurse, was a guest at the L’Auberge hotel when she tripped
and fell while walking down the corridor in front of Le Café restaurant on the premises of the
hotel. Video surveillance shows her walking normally on the waxed surface and then suddenly
pitching forward, falling hard and face first on the floor. She was immediately attended by a
patron who was an EMT, several hotel employees and security personnel; and several other
patrons also stopped to help. Ms. Sayre sustained three fractured ribs, and injuries to her left
knee, left hand, and neck. Subsequently she underwent surgery for a near full thickness rotator
cuff tear in her shoulder that her doctor confirmed as arising from the fall.
At the time of the accident, Ms. Sayre reported a clear sticky substance on the floor and
signed a statement to that effect for the hotels’ accident report. The video surveillance shows
various employees and passers-by pointing to a spot on the floor. Ultimately, Ms. Sayre asked
for damages and L’Auberge denied liability. Ms. Sayre filed suit but was unable to obtain any
witness statements, even though L’Auberge had extensive written policies in place for its
employees to obtain and give written statements and do inspections and clean-ups following such
accidents at the hotel.
L’Auberge has a very sophisticated video system containing over 1400 cameras
throughout the casino and hotel. Ms. Sayre was also unable to obtain more than four minutes of
video, even though the hotel’s written policy requires its employees to capture and view thirty
minutes before and after every accident, which video capture should include the hotel’s
inspection of the surface where the accident occurred. The hotel’s written policies have very
specific and detailed procedures requiring its employees to control an accident scene and the
evidence surrounding it.
At trial, Ms. Sayre asked the trial judge to give the jury an instruction regarding the
adverse presumption that arises when a litigant fails to produce evidence that is available to him
and gives no reasonable explanation for the failure. The trial court declined to give the jury
charge. The jury rendered a verdict in favor of the hotel. Ms. Sayre appealed.
Reversed and rendered. On appeal, we found that “Louisiana recognizes the adverse
presumption against litigants who had access to evidence and did not make it available.”
Reynolds v. Bordelon, 14-2362, p. 13 (La. 6/30/15), 172 So.3d 589, 600. Where the issue of the
missing evidence was thoroughly explored at trial, the requested jury charge stated the substance
of the law, and no other jury charge addressed the issue, we found that the jury was not
adequately charged on the law applicable to the case under Adams v. Rhodia, Inc., 07-2110 (La.
August 26, 2016
29
5/21/08), 983 So.2d 798. We reversed the judgment, pursuant to Nicholas v. Allstate Insurance
Company, 99-2522 (La. 8/31/00), 765 So.2d 1017; performed a de novo review, pursuant to
Gonzales v. Xerox Corp., 254 La. 182, 320 So.2d 163 (1975), and adjudicated the controversy
pursuant to Suhor v. Gusse, 388 So.2d 755. After applying La.R.S. 9:2800.6 to a thorough
review of the record and evidence, judgment was rendered in favor of Ms. Sayre for damages in
the total amount of $216,026.54.
NEGLIGENT CREDENTIALING
Billeaudeau v. Opelousas General Hospital Authority, et al., 15-1034 (La.App. 3 Cir. 4/6/16),
___ So.3d ___. (Pickett, J.; Gremillion dissents.)
The Billeaudeaus brought their disabled daughter to Opelousas General after she
collapsed. Mrs. Billeaudeau believed her daughter was having a stroke, and asked the ER
doctor, Dr. Skirlis-Zavala, to administer tPA. The doctor refused, and the Billeaudeaus asked to
be transferred to another hospital, where she was administered tPA. The Billeaudeaus filed suit
for malpractice and negligent credentialing. They filed a motion for summary judgment asking
the court to declare that the claims for negligent credentialing are not subject to the Medical
Malpractice Act. The trial court granted summary judgment, and the court of appeal denied
writs. The trial court then certified the judgment as final, and this appeal was filed.
Affirmed. Applying the factors enunciated by the supreme court in Coleman v. Deno,
01-1517, 01-1519, 01-1521 (La. 1/25/02), 813 So.2d 303, negligent credentialing is not a claim
of malpractice. The court also noted that on at least four occasions, bills to include negligent
credentialing as malpractice have been introduced in the legislature, and they have failed to
become law. Finding no palpable error in the denial of supervisory writs, the judgment of the
trial court was affirmed.
August 26, 2016
30
PRESCRIPTION
McCann, et al. v. Christus St. Frances Cabrini Hospital, et al., 16-21 (La.App. 3 Cir. 5/11/16),
___ So.3d ___ (Thibodeaux, Chief Judge, writing; Ezell and Conery, Judges).
Brian and Rhonda McCann’s infant son, Mason, died while in the care of Dr. Perla
Castor at Christus St. Frances Cabrini Hospital in January 2010. A year later, the McCanns filed
a timely request for a medical review panel to review their claims of medical malpractice against
Dr. Castor, pursuant to the Louisiana Medical Malpractice Act. While proceedings before the
medical review panel were pending, Dr. Castor died. Maria Monica Villagarcia Hora was named
the succession representative for Dr. Castor’s estate.
The medical review panel eventually rendered its decision, after which the McCanns filed
a timely Petition for Medical Malpractice (“original petition”) naming “Perla C. Castor, MD”
and “the Estate of Perla C. Castor, represented by Maria Monica Villagarcia Hova [sic]” as
defendants. Service on Dr. Castor was attempted but unsuccessful, and Ms. Hora was not
initially served with the petition. Nonetheless, Ms. Hora filed exceptions of lack of personal
jurisdiction and insufficiency of service of process, and a dilatory exception of lack of procedural
capacity. The McCanns then filed an Opposition to Exceptions and a Second Amending and
Supplemental Petition (“amended petition”) seeking to change the paragraph naming defendants
in their original petition to read: “Maria Monica Villagarcia Hova [sic], the duly appointed
succession representative of the ESTATE OF PERLA C. CASTOR[.]” Ms. Hora was served
with the original and amended petitions, and filed a peremptory exception of prescription. She
alleged that she was not properly named as a party defendant until the amended petition was
filed, and that petition was facially prescribed. The trial court, without considering the effect of
the McCanns’ original petition, found that the amended petition was prescribed and granted Ms.
Hora’s exception. The McCanns appealed, arguing that the original petition named Ms. Hora as
a defendant and was sufficient to interrupt prescription of the claims against her. In the interim,
Ms. Hora was replaced as succession representative by Juliet Castro Vondrak, who became the
appellee before the court.
Reversed and remanded. On appeal, we first addressed Ms. Vondrak’s argument that the
McCanns had judicially confessed that Ms. Hora was not named in the original petition, and
were, therefore, precluded from arguing that she was named. Ms. Vondrak pointed to several
excerpts from the McCanns’ response to the first three exceptions Ms. Hora filed. We found that
the McCanns’ statements did not constitute a judicial confession that Ms. Hora was not named in
the original petition, as the statements did not expressly acknowledge an adverse fact. The
McCanns acknowledged that there were stylistic deficiencies in their original petition, but never
admitted that Ms. Hora was not at all named as a defendant in that petition. Having found that
the McCanns were not precluded from arguing that Ms. Hora was named in their original
petition, we next ruled that the original petition was sufficient to interrupt prescription of claims
August 26, 2016
31
against Ms. Hora. A prescriptive period is interrupted when the defendant is sufficiently notified
of the demand against her, such as when a lawsuit is filed in a court of competent jurisdiction
and venue. Here, the McCanns timely filed their original petition in the proper court. Ms. Hora
did apparently have notice of the original petition even before being served with it, since she
filed exceptions in the suit. Furthermore, Ms. Hora was eventually served with the original
petition; the timing of that service was irrelevant to the question of whether Ms. Hora had
sufficient notice of the claims against her. Accordingly, we found that the trial court was clearly
wrong in granting the exception of prescription.
PROCEDURE
Broussard v. Lafayette Physical Rehab. Hosp., Inc., 15-1185 (La.App. 3 Cir. 5/4/16), ---So.3d-- (Genovese, J.; Saunders, J. and Gremillion, J.)
Plaintiffs, Jude and Rachel Broussard, appeal the trial court’s judgment granting an
exception of prematurity in favor of Defendant, Lafayette Physical Rehabilitation Hospital, LLC
(Lafayette Rehab), and denying the Broussards’ motion for rehearing and new trial.
Reversed and remanded. Rachel Broussard underwent a knee replacement surgery and
was being transferred from the hospital to Lafayette Rehab for follow-up care. Lafayette Rehab
sent one of its employees, driving a van that it owned, to transport the patient. The driver of the
van loaded Mrs. Broussard, who was wheelchair bound, into the van. On the way to Lafayette
Rehab, the driver braked to avoid a collision with another vehicle, resulting in injury to Mrs.
Broussard. The Broussards sued Lafayette Rehab, and Lafayette Rehab filed an exception of
prematurity due to the failure of the Broussards to institute a medical review panel prior to the
institution of suit. The Broussards’ attorney did not file any opposition to the exception prior to
it being heard in the trial court. The attorney was also late on the day of the hearing due to car
trouble. In his absence, the trial court took the matter up, granted the exception of prematurity,
and signed a judgment. The Broussards filed a motion for rehearing or new trial. At the hearing
on the motion, the trial court stated that even if the court were to grant a rehearing, it would not
allow argument in opposition to the exception of prematurity due to the attorney’s failure to file a
memorandum in accordance with the rules of court. On appeal, the court recognized the
undisputed failure of the Broussards’ attorney to comply with the district court rules and noted
that the consequence was the forfeiture of oral argument. However, the appellate court found
that the trial court’s ruling ran afoul of La.Code Civ.P. art. 930 which provides for the
introduction of evidence in opposition to an exception of prematurity. The court concluded that
while the trial court had the authority to preclude participation in oral argument, the Broussards
August 26, 2016
32
had a statutory right to introduce evidence in opposition to the motion. Due to the erroneous
preclusion of evidence by the trial court, the appellate court reversed the trial court judgment and
remanded for further proceedings.
Darby v. Duplechain, 16-2 (La.App. 3 Cir. 5/4/16), ___ So.3d ___. (Pickett, J.)
The person against whom a protective order is sought is entitled to a reasonable
opportunity to be heard. The trial court held a conference in chambers, but did not allow the
subject to introduce any evidence on the record. When there is no evidence of that hearing in the
record, the appeal court cannot review a judgment granting the issuance of a protective order.
The judgment of the trial court was reversed.
Buster’s Frozen Custard, LLC v. Lancaster Manufacturing, Inc., 15-947 (La.App. 3 Cir.
4/27/16), ___ So.3d ___ (JCP writes):
This suit originated as a breach of contract and/or redhibition claim filed by Buster’s
Frozen Custard against the out of state defendants. Buster’s Frozen Custard obtained a default
judgment in the matter. After the default judgment was entered, counsel for the defendants filed
a petition to annul the judgment. It was at this point that the matter essentially became a suit
between the attorneys and not the clients.
Affirmed As Amended. The defendants are located in Michigan and after being served,
they contacted a local Louisiana attorney about representing them. The attorney indicated that
she was about to take a medical leave of absence from work and would not be able to prepare an
answer in time, but that she would contact the other attorney and see if settlement was an option.
After speaking with the attorney for Buster’s Frozen Custard and explaining her current medical
situation, the defendants’ attorney felt that she would be able to negotiate the settlement
agreement during her recovery.
Defense counsel felt that the plaintiff’s counsel had offered her an unlimited extension of
time to file an answer while settlement negotiations were taking place. However, plaintiff’s
counsel felt that he had offered no such extension of time and while he was participating in
settlement negotiations, he secured a default judgment without informing opposing counsel,
because he felt that negotiations were moving too slowly and he doubted whether defense
counsel actually represented the defendants as she had never enrolled as counsel of record.
When defense counsel learned of the default judgment from the defendants she contacted
plaintiff’s counsel and indicated that needed to annul the default judgment as he had violated the
rules by obtaining it without her knowledge while they were in active settlement negotiations.
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Plaintiff’s counsel refused to annul the judgment and denied that he needed to inform her of the
default judgment because he was not sure she even represented the defendants.
Defense counsel filed a petition for annulment under the same docket number that the
default judgment was entered under. Defense counsel demanded that plaintiff’s counsel annul
the default judgment at his own cost, pay their attorney fees that were incurred because they had
to file the annulment, and that he report himself to the bar because he violated ethical rules by
getting the default judgment. The trial court ultimately rendered judgment annulling the default
judgment for ill practices and awarding attorney fees. After a hearing on the issue of the amount
of attorney fees, the trial court rendered judgment granting defense counsel attorney fees under
La.Code Civ.P. art. 863 against plaintiff’s counsel only.
On appeal, this court affirmed the award of attorney fees, but reduced them due to a
mathematical error of the trial court in calculating the fees. This court denied defense counsel’s
request for additional attorney fees and attorney fees on appeal.
PRODUCT LIABILITY
Warren v. Shelter Mutual Ins. Co., 15-354 c/w 15-838 c/w 15-1113 (La.App. 3 Cir. 6/29/16),
___ So.3d ___ (Panel: Thibodeaux, Chief Judge writing; Peters and Conery, Judges;
Conery, concurs in part, dissents in part and assigns reasons).
Plaintiff-appellee Ron Warren, individually and on behalf of the Estate of Derrek Hebert,
filed a petition for damages seeking to recover for the wrongful death of his son, Derek Hebert,
in a recreational boating accident under general maritime law and products liability. The
defendant manufacturer of the boat’s hydraulic steering system, Teleflex, Inc. (Teleflex), was
found liable for failure to warn of the inherent, unknown dangers in its product. Teleflex
appealed various judgments casting it for compensatory damages of $125,000, punitive damages
of $23,000,000, and legal interest. Mr. Warren also appealed a judgment on judicial interest.
There were two trials in this matter, resulting in three consolidated appeals.
Affirmed. We affirmed the trial court’s judgments on all issues in all three appeals.
Appeal No. 15-354
The trial court granted directed verdicts in favor of Glen Vamvoras and Daniel
Vamvoras, dismissing them from the suit in the first jury trial. The trial court determined that
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there was no evidence to suggest that either of them knew or should have known of the
unreasonable risk of harm associated with a de minimis loss of fluid in the hydraulic system,
therefore creating no ease of association between their conduct and Derek Herbert’s death.
Teleflex appealed, stating that the trial court erred in granting directed verdicts in favor of the
Vamvorases in the first trial.
On appeal, we affirmed the judgment of the trial court as to the directed verdicts. In
accordance with La.Civ.Code art. 2317, LeBleu v. Homelite Div. of Textron, Inc., 509 So.2d 563
(La.App. 3 Cir. 1987), and Todd v. State Through Dep’t of Soc. Servs., Office of Cmty. Servs.,
96-3090, p. 7 (La. 9/9/97), 699 So.2d 35, 39, we found no evidence to suggest that Glen or
Daniel knew or should have known of the unreasonable risk of harm associated with a de
minimis loss of fluid in the hydraulic system.
Appeal No. 15-1113
Following the first trial, which resulted in a jury verdict in favor of Teleflex, Mr. Warren
was granted a new trial on the basis that the wrong steering system manual was provided to the
jury during deliberations. Teleflex appealed, stating that the manual was irrelevant because the
boat was purchased used, and the operator of the boat never received a manual on the steering
system. We affirmed the trial court’s granting of a new trial under La.Code Civ.P. arts. 1972(1)
and 1973, finding that the jury clearly relied upon the wrong evidence because it was given a
manual, revised after suit was filed, which contained so many warnings that Teleflex appeared to
have met its duty to warn.
We also affirmed the trial court’s refusal to give Teleflex’s suggested jury instruction on
component parts because the suggested instruction was misleading and did not accurately reflect
the law on component parts. We found that the jury instructions given by the trial court
accurately and adequately reflected the correct law under the Restatement Third of Torts, the
Louisiana Products Liability Act, and under Nicholas v. Allstate Ins. Co., 99-2522 (La. 8/31/00),
765 So.2d 1017.
Further, we affirmed the trial court’s refusal to bifurcate the second trial as to punitive
and compensatory damages. We found no error in trying all damages together pursuant to
La.Code Civ.P. arts. 1562, 1631 and 1971. See also Myers v. Nat’l Union Fire Ins. Co. of La.,
11-751 (La.App. 4 Cir. 4/4/12), 90 So.3d 522, writ denied, 12-1017 (La. 6/22/12), 91 So.3d 975.
We affirmed the second jury’s verdict against Teleflex, finding that Teleflex knew,
because of its testing in 1989, that hydraulic fluid loss of a few teaspoons would cause complete
loss of steering, and under normal use could send the boat into a deadly spin. This fact was
unknown to users and even experts in the industry. Thus, we found that Teleflex failed in its
duty to warn of this unknown danger where it failed to place specific warnings on the product
itself. See Asbestos Plaintiffs v. Bordelon, Inc., 96-525 (La.App. 4 Cir. 10/21/98), 726 So.2d
926.
August 26, 2016
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We also affirmed the jury’s having awarded punitive damages, finding that Teleflex’s
behavior constituted wanton and reckless conduct and amounted to a conscious disregard for the
safety and rights of others. See Poe v. PPG Indus., 00-1141 (La.App. 3 Cir. 3/28/01), 782 So.2d
1168. Finally, we found that the jury’s award for punitive damages was not excessive under a
constitutional analysis or a maritime analysis.
Appeal No. 15-838
The jury verdict in favor of Mr. Warren did not include prejudgment interest on damages,
and following the verdict Mr. Warren filed a motion for JNOV to seek prejudgment interest on
both the $125,000 compensatory damages award and the $23,000,000 punitive damages award.
The trial court partially granted the JNOV and awarded Mr. Warren prejudgment interest on
compensatory damages, but denied the portion of the JNOV seeking prejudgment interest on
punitive damages. Mr. Warren appealed the jury verdict and the trial court’s judgment on the
JNOV. On appeal, Teleflex argued that prejudgment interest should not have been granted on
either damages award.
We affirmed the trial court judgments in all respects. As to prejudgment interest on
compensatory damages, Teleflex alleged that the trial court had made a procedural error by not
submitting the question of prejudgment interest to the jury. We found, however, that Louisiana
Code of Civil Procedure Article 1812(A) gave the trial court discretion to award prejudgment
interest since the court did not submit the question of interest to the jury and the parties failed to
demand its submission.
With regard to prejudgment interest on punitive damages, we observed that while no
court has directly ruled on whether general maritime law permits an award of prejudgment
interest on punitive damages, several cases cast doubt on Mr. Warren’s claim that he could so
recover. See e.g. McPhillamy v. Brown & Root, Inc., 810 F.2d 529 (5th Cir. 1987). Those cases
found that the purposes of punitive damages—retribution and deterrence—were at odds with the
compensatory purpose of prejudgment interest. We found that rationale compelling here and
affirmed the trial court’s judgment denying prejudgment interest on punitive damages.
Warren v. Shelter Mut. Ins. Co., 15-354 (La.App. 3 Cir. 6/29/16), ___ So.3d ___ (Judge
Connery’s dissent).
Plaintiff’s son was killed in a recreational boating accident when the hydraulic steering
system on the boat failed, ejected him, and ran over him causing his death. Along with others
allegedly at fault, Teleflex, the manufacturer of the steering system, was sued for wrongful death,
survival damages, and punitive damages. Evidence showed that a non-Teleflex hose connection
had been changed on the steering system, and hence, the case proceeded to trial on a “failure to
warn” theory against Teleflex instead of defective product theory. All remaining defendants
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were dismissed prior to the submission of the case to the jury. The first jury reached a verdict in
favor of Teleflex, but the trial judge granted a new trial based on an allegedly “erroneous”
answer to a jury question during deliberations, to which no objection had been lodged. The
second jury returned a verdict against Teleflex for wrongful death and survival damages, plus a
$23 million dollar punitive damage award.
The majority affirmed. Judge Conery dissented and would have reversed the trial court’s
ruling to grant a new trial from the first jury verdict in favor of Teleflex. Judge Conery found
that the trial court and majority did not apply the contemporaneous objection rule as to the
answer to the jury’s question, and did not make a fact-based determination that the jury verdict
was not supportable by “any fair interpretation of the evidence” pursuant to the mandates of the
law and jurisprudence. Judge Conery would have reversed the judgment to grant a new trial and
would have reinstated the first jury’s zero verdict in favor of Teleflex. Judge Conery expressed
no opinion on the remaining issues, as all would be rendered moot if the first jury’s verdict were
to be reinstated.
PROPERTY
Estate of Goss v. Estate of Goss, 15-960 (La.App. 3 Cir. 3/9/16), __ So.3d __ (Keaty, J.
writing; Amy and Conery, JJ.)
Pursuant to a Judgment of Possession dated May 2, 1978, wife acquired her father’s
undivided one-half interest in property, subject to the usufruct of her mother who owned the
remaining one-half interest. In a May 8, 1978 Cash Sale, wife purchased her mother’s interest in
the property for $17,000. The sale document provided that wife was purchasing her mother’s
one-half interest in the property as her separate property. Wife and husband signed a Declaration
of Paraphernality of Previously Acquired Realty (Declaration of Paraphernality) on June 21,
1978, which stated they had “inadvertently” omitted from the act of sale a declaration that the
property was acquired as wife’s separate property with separate funds that she inherited from her
father, and that the property was to remain her separate property. Husband died in 2011 and wife
died in 2014. Husband’s estate brought an action against his wife’s estate in 2015 seeking a
declaration that property was a community asset, alleging that wife had not inherited money
from her father, but instead had purchased the property with community funds, as evidenced by a
mortgage she and husband took out on June 28, 1978, that was secured by the property.
Husband’s estate sought a judgment declaring the property a community asset. Alternatively, if
the court were to determine that the property was the wife’s separate property, husband’s estate
sought an accounting to determine the amount of money spent on improving the property and
August 26, 2016
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any increase in value the property gained during the community so as it could be properly
reimbursed those amounts. Wife’s estate filed a rule to show cause why the suit filed by
husband’s estate should not be dismissed as prescribed, citing La.Code Civ.P. art.
2342 and La.Civ.Code art. 3499. Following a hearing, the trial court sustained the exception
of prescription and dismissed husband’s estates’ petition. Husband’s estate appealed.
Affirmed. Assuming husband had right to challenge declaration, which he signed, that
parcel of real property purchased by wife during their marriage was separate property, such right
was personal action that, under the ten-year prescriptive period for personal actions found in
La.Civ.Code art. 3499, prescribed before he died, and, thus, any right that his heirs may have had
to challenge nature of such property could not be revived once prescribed.
Eugene J. Sonnier, II v. The Catholic Foundation of the Diocese of Lafayette, et al., 15-1051
(La.App. 3 Cir. 3/2/16)(Amy, J., writing)(Panel: Amy, Keaty, and Conery, J.J.)
The plaintiff filed suit alleging that the defendants interfered with his right to direct the
disposition of his son’s remains as designated by his son and as reflected by Department of
Defense Form 93. He alleged that, by virtue of the designation, the cemetery plot in which his
son was buried, as well as the two adjacent plots, should be titled solely in his name. Following
the amendment of the petition, the trial court sustained the defendants’ exceptions of no cause of
action and dismissed the plaintiff’s claim. The plaintiff appealed.
Affirmed. The panel recognized that the plaintiff’s claim stemmed from his contention
that Form 93 not only authorized him to direct disposition of the remains of the decedent, but
authorized him to exercise complete control of surrounding matters. However, the petition
named the Diocese of Lafayette as a defendant, but did not allege facts indicating that it had
control over the cemetery where the subject plots were located. With regard to the defendant
cemetery, the petition lacked indication that ownership of the subject plots is subject to the Form
93, which pertains only to the disposition of the remains of the deceased. Neither statutory nor
jurisprudential authority was found to support the defendant’s contention. To the extent that the
plaintiff sought reissuance of the cemetery plots in his name due to the cemetery’s purported
violation of its rules and regulations, the plaintiff’s petition was merely conclusory and did not
set forth sufficient facts so as to determine that particular conduct violated a particular rule.
Finally, the panel found that the plaintiff had not alleged sufficient facts to demonstrate a cause
of action for his alternative request to allow him to move his son’s body to another location. In
addition to the fact that the military form related strictly to disposition of the decedent’s body,
the statutory provision related to disinterment does not reference Form 93. Additionally,
jurisprudence distinguishes the authority to direct the initial burial from a subsequent request for
disinterment.
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PUBLIC WORKS ACT AND PROCEDURE
Patriot Construction & Equipment, LLC v. Rage Logistics, LLC, 15-1136 (La.App. 3 Cir.
4/6/16), __ So.3d __ (JCP writes):
Plaintiff filed suit against a sub-subcontractor on open account and breach of contract in
relation to a contract for a public works project. Plaintiff later amended its petition to add as
defendants the owner, the general contractor, and the subcontractor who contracted with the subsubcontractor on the project. Plaintiff alleged breach of contract, detrimental reliance, quantum
meruit, and unjust enrichment against the subcontractor, because when the sub-subcontractor
stopped delivering the dirt and sand that it purchased from plaintiff for the project, the
subcontractor started picking up the material itself from plaintiff’s location and delivering it to
the work site and it promised that plaintiff would be recompensed from the material. Plaintiff
alleged quantum meruit and unjust enrichment against the owner and the general contractor. The
subcontractor, owner, and general contractor all filed exceptions of no cause of action and no
right of action, which the trial court granted. Plaintiff appealed from that judgment.
Affirmed In Part; Reversed In Part; And Remanded. On appeal, and accepting the
well-pleaded facts in plaintiff’s petitions as true, the court reversed the trial court’s grant of the
exception of no right of action as to all three defendants, finding that plaintiff clearly was the
party with the right to institute this suit. With regard to the subcontractor, the court reversed the
trial court’s grant of the exception of no cause of action, finding that plaintiff stated causes of
action against it for breach of contract, detrimental reliance, quantum meruit, and unjust
enrichment based on the facts alleged in its petitions. However, the court affirmed the trial
court’s grant of the exception of no cause of action as to the owner and the general contractor
based on its finding that plaintiff qualified as a claimant under La.R.S. 38:2242(A) of the Public
Works Act, and its failure to comply with the notice requirements found in La.R.S. 38:2242(F)
of the Public Works Act, resulted in the loss of its right to file a privilege or a lien on the public
works project.
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REDHIBITION
Penny C. Duplechien v. Edward George Ackal, et al., 15-825 (La.App. 3 Cir. 2/3/16) (Amy, J.
writing) (Panel: Amy, Ezell, and Savoie, J.J.)
The plaintiff filed suit in redhibition against the defendants related to alleged foundation
defects in her home. Noting that the plaintiff purchased her home in 2005 and filed suit in 2013,
the defendants filed an exception of peremption under the New Home Warranty Act. However,
the trial court denied the exception, finding that the defendants were not builders for purposes of
the NHWA and also finding that they were not manufacturers or contractors. The judgment
further reflected a finding that the defendants were sellers instead. Thereafter, the defendants
filed a motion for summary judgment asserting that the matter was prescribed pursuant to
La.Civ.Code art. 2534(A)(2). The plaintiff opposed the motion, asserting that the defendants
were “manufacturers” of the home and were therefore presumed to have knowledge of the
purported defects. The trial court granted summary judgment in favor of the defendants,
maintaining its original determination that the defendants were merely sellers and further finding
that the evidence presented did not indicate that the defendants had knowledge of the alleged
defect. The plaintiff appealed.
Affirmed. Although the plaintiff challenged the trial court’s initial factual determinations
that the defendants were not manufacturers or contractors, the panel noted that the plaintiff’s
appeal was taken from the summary judgment and that judgment denying the defendant’s
exception of peremption was not included in its motion for appeal. In that regard, the panel found
no error in the trial court’s entry of summary judgment. The defendants presented testimony
indicating that suit was filed well beyond the one year period applicable to defects involving
residential or commercial property when the seller did not know of the alleged defect. Further,
the evidence submitted on the motion for summary judgment regarding knowledge/manufacturer
status reflected lack of knowledge of the defect and strictly financial or investment participation
by the defendants. A contractor had been hired to build the home. Therefore, the panel left the
trial court’s entry of summary judgment due to prescription undisturbed.
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SETTLEMENT
Margaret F. Spears, et vir. v. Safeway Ins. Co. of La., et al., 16-81 (La.App. 3 Cir. 6/1/16), ___
So.3d ___ (Genovese, J.; Saunders and Ezell, JJ.)
Margaret Spears was injured in an automobile accident. She and her husband, Willie,
filed suit against the tortfeasor and his liability insurer, Safeway. Safeway answered the lawsuit
alleging that Margaret and Willie had settled their claims prior to filing the lawsuit.
Safeway alleged that Margaret and Willie agreed to a settlement, as evidenced by their
negotiation of two checks which stated “Full and final settlement FOR ALL CLAIMS for
accident.” Margaret and Willie both denied that they had agreed to a settlement of all claims.
Willie testified that after he received the two checks, he called Safeway and was told that
negotiating the checks would settle Margaret’s emergency room and rental car bills only—it did
not mean that future claims could not be filed.
The trial court ruled that settlement had not occurred and awarded Margaret $25,000.00
in general damages and $5,206.00 in special damages. Willie was awarded $1,250.00 for loss of
consortium. Safeway appealed.
Affirmed. This court held that the trial court’s determination that Margaret and Willie
had not settled all of their claims with Safeway was not manifestly erroneous. The two
permissive views of the evidence rule was employed, i.e., the trial court is in the best position to
judge credibility of witnesses when there is conflicting testimony.
George Raymond Williams, M.D., Orthopaedic Surgery, APMLLC v. Bestcomp, Inc., et al.,
15-761 c/w 15-715 (La.App. 3 Cir. 2/3/16), ___ So.3d ___ (Panel: Thibodeaux, Chief Judge
writing; Gremillion and Keaty, Judges).
Defendants Chartis Specialty Insurance, Co., Darwin Select Insurance Company,
Landmark American Insurance Company, Illinois Union Insurance Company, and Westchester
Surplus Lines Insurance Company (collectively “Appellants”) were the insurers of Defendant
Stratacare, Inc., who was sued in a class-action lawsuit over claims of improperly discounted
medical bills in workers’ compensation cases. Certain defendants and third-party defendants in
the suit, not including Stratacare, Inc., or Appellants, eventually entered into a settlement
agreement with the plaintiff class. In that settlement agreement, the settling parties agreed “to a
full and general release of each Settling Defendant and Settling Third Party Defendant[.]”
Paragraph 7(C) of the settlement agreement provided: “Plaintiffs and the Settlement Class
specifically reserve, do not settle, and do not release, any claims against Stratacare, Inc.,
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41
Stratacare Inc.’s insurers, or Bestcomp, Inc., in connection with bills or transactions which did
not or do not involve [CCMSI] Holdings, [Inc.,] Cannon Cochran [Management Services, Inc.],
Cigna [Health Management, Inc.], or Rehab Review [Inc.]” (emphasis added). The settlement
agreement was approved by a Final Order and Judgment on February 3, 2014 (“February 2014
Judgment”).
In March 2015, Appellants claimed that the settlement agreement and February 2014
Judgment released some 45,000 claims involving Rehab Review. The settling parties all agreed
that the inclusion of Rehab Review in Paragraph 7(C) was inadvertent and none of them intended
to release claims involving Rehab Review. They filed a Joint Motion to Approve Correction to
Class Settlement Agreement and asked the trial court to remove the reference to Rehab Review
in Paragraph 7(C). In response, Appellants filed an exception of lack of subject matter
jurisdiction, arguing that the trial court lacked jurisdiction to substantively amend the settlement
agreement under La.Code Civ.P. art. 1951. Alternatively, Appellants claimed that a substantive
amendment to a settlement agreement could only take place within the delay for appeal, which
by this point had long lapsed. Appellants also filed exceptions of res judicata and no right of
action.
The trial court denied Appellants’ exceptions and approved the settling parties’ Joint
Motion in a June 23, 2015, judgment (“June 2015 judgment”). The trial court first ruled that the
inclusion of Rehab Review in the settlement agreement was a clerical error which the trial court
had jurisdiction to correct at any time. The trial court also found that Appellants had no standing
to object to the amendment of the settlement agreement on the basis of res judicata, since
Appellants were not party to the agreement and there was no manifestly clear intention in the
agreement to benefit them as third parties. Appellants filed a timely appeal of the trial court’s
ruling, as well as an application for supervisory writ. Appellees argued on appeal that the trial
court’s judgment was interlocutory, and accordingly this Court lacked subject matter jurisdiction.
Alternatively, Appellees asked this Court to affirm the ruling of the trial court.
Writ denied; Judgment affirmed. We first found that we had subject matter jurisdiction
over the appeal of the June 2015 Judgment because a judgment that amends a final judgment is
also a final judgment. Since the June 2015 Judgment amended the February 2014 judgment—a
final judgment that dismissed several parties from the suit—the June 2015 Judgment was also
final and appealable. This ruling rendered Appellants’ writ application moot; the writ denial was
consolidated with the appeal. We then affirmed the trial court’s judgment denying Appellants’
exceptions. Regardless of whether the amendment to the settlement agreement was substantive,
the trial court had subject matter jurisdiction to make the amendment because the parties
consented to it. Moreover, none of the jurisprudence which recognizes the ability of the parties
to amend a settlement agreement by consent requires the parties to do so within the delay for
appeal. Accordingly, it was within the jurisdiction of the trial court to amend the settlement
agreement. Once the trial court amended the settlement agreement with the June 2015 Judgment,
the portions of the settlement agreement and the February 2014 Judgment at issue were
superseded and vacated. Those portions could no longer serve as the basis for an exception of
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res judicata or an exception of no right of action. Accordingly, the trial court properly denied all
of Appellants’ exceptions.
STATE AGENCIES AND POLITICAL SUBDIVISIONS
Miller v. Thibeaux, 13-541, 13-1029 (La.App. 3 Cir. 1/27/16), __ So.3d __ (Savoie, J. writing;
Ezell and Gremillion, J.J.)
In this tragic bus accident case resulting in the death of a six-year-old, the school board,
school board’s insurer, and the bus driver appealed a judgment in favor of the putative father.
The appellate court initially reversed, finding that the putative father had not timely filed an
avowal action and therefore had no right of action. The supreme court reversed the appellate
court, finding that the wrongful death petition constituted a timely avowal action, and it
remanded the matter for consideration of the remaining issues on appeal, including whether the
father sufficiently proved paternity and whether damages should have been limited by the
statutory cap of $500,000 pursuant to La.R.S. 13:5106.
Affirmed in Part, Reversed in Part, and Remanded: Damages limited to statutory cap.
As to paternity, the trial court erred in rendering a judgment on the merits of the avowal action in
connection with a pre-trial “Motion for Judgment of Paternity” wherein no evidence was
formally offered or accepted into evidence. However, this deficiency was cured by the testimony
of both the father and mother at trial. In addition, damages should have been capped to $500,000
because there was no direct action against the bus driver under La.R.S. 17:439(D) for amounts
over the statutory cap, since there was no insurance covering the bus driver for any such sums.
The school board’s policy provided coverage only to the extent of the school board’s vicarious
liability for the driver’s actions, and the school board’s vicarious liability is limited by the
statutory cap. The case was remanded for consideration of the amount of remaining cap after
considering payments in connection with settlement with the mother.
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SUMMARY JUDGMENT
Thomas Nearhood v. Anytime Fitness, et al., 15-1142 (La.App. 3 Cir. 5/4/16)(Amy, J.,
writing)(Panel: Peters, Amy and Savoie, J.J.)
The plaintiff was injured when the weighted bar of a Smith machine fell on him.
Thereafter, the plaintiff filed suit against the manufacturer of the equipment, the operator of the
gym at which the injury occurred, and the franchisor of the gym. The plaintiff asserted several
claims, including that the machine was defective, that the gym operator was negligent in failing
to instruct him in proper usage of the machine, and that the franchisor was liable because it
allowed the operator to possess a dangerous instrumentality. The franchisor filed a motion for
summary judgment, which was granted by the trial court. The plaintiff appealed.
Affirmed. The panel found no abuse of discretion in the trial court’s determination that
adequate discovery had been conducted. With regard to the plaintiff’s substantive claims, the
panel noted that a claimant must establish that the defendant had custody of the defective
premises in order to succeed on a premises liability claim. After reviewing the evidence
submitted in support of the motion for summary judgment, the panel concluded that the
franchisor established that it did not have day-to-day control over the operator’s management
procedures nor did it require the operator to purchase the specific equipment at issue in this
matter. Thus, the panel found that the burden of proof shifted to the plaintiff, but that the
plaintiff did not submit any evidence sufficient to show that the franchisor had any control over
the day-to-day procedures of its franchise. Accordingly, the panel concluded that the grant of
summary judgment in favor of the franchisor was appropriate.
Landry v. Pediatric Services of America, Inc., 15-899 (La.App. 3 Cir. 4/6/16), 189 So.3d 540,
writs denied, 16-785, 16-845 (La. 6/17/16), ---So.3d--- (Genovese, J.; Cooks, J. (concurring
with reasons) and Peters, J.)
Plaintiffs, Camille Landry, individually and on behalf of her minor child, Tai Landry, and
Ryan Landry, individually and on behalf of his minor child, Tai Landry (collectively Landry),
appeal the trial court’s judgment on cross-motions for summary judgment denying the Landry’s
motion and granting the motion of Defendant, Pediatric Services of America, Inc. (PSA).
Affirmed in part and reversed in part. Underlying the present action in nullity, was a
medical malpractice claim brought against several physicians following the treatment of Tai
Landry at Women’s and Children’s Hospital (Women’s and Children’s). During the admit, she
was administered supportive care with medical equipment provided by PSA. Following a jury
trial, a verdict was returned attributing 100% fault to a nonparty physician. Subsequently, this
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instant matter was instituted, seeking to annul the prior judgment based upon allegations of ex
parte communication occurring during the course of the jury trial between the trial judge and a
juror which was not disclosed to the parties. Considering the cross motions for summary
judgment, the trial court denied the Landry’s motion and granted PSA’s motion.
On appeal, the court had to decide whether the ex parte communication between the trial
judge and the juror constituted “ill practice” in accordance with La.Code Civ.P. art. 2004(A) so
as to nullify the judgment. The appellate court noted that not all such ex parte communications
are impermissible. The affidavit of the juror was scrutinized by the court. The parties were
aware that this juror was employed at Women and Children’s during the relevant time.
However, her affidavit disclosed “that she relayed to the trial judge (1) that she was having
physical and financial issues due to the trial; (2) that she was uncomfortable with her continued
service as a juror because of her relationships with friends and co-workers; (3) that during the
course of trial, she saw her name in the medical records and realized that she had been involved
in the treatment of the minor child; and, (4) that she did not feel that her serving as a juror was
appropriate.” Based upon the affidavit, the appellate court found that the ex parte
communication was not simply administrative in nature and that it gave rise to legal issues which
should have been disclosed to the parties and a determination made whether the juror could
continue to serve as a fair and impartial juror. “This occurrence constituted a procedural defect
that occurred during the course of this trial.” However, the court recognized that because the
present action was one in nullity, “the critical inquiry is whether the procedural defect which
occurred during the trial rises to the level of an ill practice and, thus, constitutes a nullity under
the pertinent statute and the jurisprudence.” Considering the critical evidence of the juror’s
affidavit, the appellate court concluded that a genuine issue of material fact remained as to
whether the defect rose to the requisite level of an “ill practice.” The appellate court concluded
that based upon the evidence neither party was entitled to summary; therefore, it affirmed the
trial court’s denial of Landry’s motion, and it reversed the grant of summary judgment in favor
of PSA.
Meyer & Associates, Inc. v. The Coushatta Tribe of Louisiana, 14-1109 c/w 14-1114 (La.App.
3 Cir. 1/27/16), __ So.3d __ (JCP writes):
Engineering firm entered into contract with the defendant for the design and construction
of an electrical power facility. The initial contract was modified by three subsequent work
authorizations, the last two of which increased both the engineering firm’s compensation and the
termination fee it would be paid should the defendant terminate prior to the completion of Phase
2. Three years into the project, a change in the defendant’s leadership occurred, which ultimately
led to the engineering firm’s suit against the defendant and the defendant’s counter suit.
Numerous motions were filed by the parties pursuant to claims of fraud and misrepresentation;
unpaid expenses; joint venture, agency, mandatary, and fiduciary duties; and breach of contract.
The parties also filed exceptions of no cause of action, no right of action, and prescription.
August 26, 2016
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Following a hearing on September 13, the trial court issued oral rulings on some issues and took
the remaining issues under advisement. Ultimately, the trial court held that the defendant
breached the contract with the engineering firm and dismissed all of the defendant’s affirmative
defenses and reconventional claims. The matter then proceeded to a trial on the merits on the
issue of damages. After finding in favor of the engineering firm, the trial court rendered
judgment awarding it $10,603,205.00 in damages and $395,000.00 in reimbursable expenses.
After judgment was rendered, the defendant appealed the trial court’s judgment dismissal of its
claims and affirmative defenses.
Judgments reversed; vacated; and remanded. On appeal, the court held that the trial
court erred in granting summary judgment in favor of the engineering firm, based on a finding
that the defendant breached the fiduciary duties it owed as a result of the joint venture. The court
held that the trial court erred in granting the judgment because the engineering firm never prayed
for this relief. The court further held that the trial court erred in granting summary judgment in
favor of the engineering firm on the issues of fraud and misrepresentation, because based on the
engineering firm’s admissible evidence, it failed to point out an absence of factual support for
one or more elements of the defendant’s claim. Thus, the burden never shifted to the defendant
to prove that it could satisfy its evidentiary burden of proof at trial. The court further held that
the trial court erred in granting summary judgment in favor of the engineering firm based on the
defendant’s breach of contract, finding that genuine issues of material fact were raised by the
affidavit of the defendant’s expert concerning the appropriateness of the newly-elected council to
the status of the project. Based on these findings, the court reversed the judgments of the trial
court, vacated its judgment on the issue of damages, and remanded the matter to the trial court.
TAX LIABILITY
Sasol North America, Inc. v. Louisiana Department of Revenue, 15-569 (La.App. 3 Cir.
2/10/16) ___ So.3d ___ (Gremillion, Judge writing, with Thibodeaux, Chief Judge, and
Keaty, Judge).
Sasol North America entered into a venture with Pittsburgh Paint and Glass (PPG) to
operate PHH Monomers, LLC, for the purpose of producing polyvinyl Chloride monomers,
which Sasol and PPG would then take for use in their manufacturing endeavors rather than sell to
third parties. This venture started in 1996, and Sasol divested itself of its interest in 1999.
Between those years, Sasol reported losses from the venture, in the form of depreciation, as
partnership losses on Forms K-1 to the Internal Revenue Service. However, on its 2000 state
income tax return, Sasol reported the proceeds of the sale as though it were of its own assets
August 26, 2016
46
rather than partnership assets, resulting in an overstatement of Sasol’s capital gains by almost
$7.75 million. This mistake was caught when Sasol was audited by the Department of Revenue.
The Department and Sasol entered into agreements to suspend prescription on taxes or refunds
owed. On December 12, 2008, the Department sued Sasol for additional taxes from 2000. The
last agreement suspending prescription expired on December 31, 2008. The Department’s suit
was dismissed by the trial court in April 2012 and Sasol filed an amended return and demanded a
refund of $742,350.00 in May 2012.
The matter came before the Board of Tax Appeals, which rejected Sasol’s demand for a
refund. The Department argued, successfully, that Sasol was barred from claiming this amended
gain because it could not file an amended federal income tax return because the three-year time
limit on amended returns had passed. Pursuant to La.R.S. 47:287.63, allowable deductions for
state purposes are the same as those allowed by the federal government for the same tax year.
This appeal ensued.
Reversed and rendered. Held: The Department’s reliance on La.R.S. 47:287.63 was
misplaced. The “basis” for a capital gain is not a “deduction” for income tax purposes. The
basis “is the amount subtracted from a sale price to determine whether there has been a ‘gain’
realized on the sale.”
WILLS AND SUCCESSIONS
Succession of Russell Leavines, 15-923 (La.App. 3 Cir. 3/2/16), ___ So.3d ___ (Thibodeaux,
Chief Judge, writing; Cooks and Ezell, Judges).
Russell Leavines (decedent) died testate on October 22, 2011, and was survived by his
great-granddaughter, Mayme Holt Brown, and his second wife, Betty Leavines. At the time of
his death, the decedent possessed two pieces of immovable property, known as Tract I and Tract
II. The decedent’s will bequeathed his “family home and residence (currently 9768 Highway 28
West, Boyce, Louisiana, 71409)” to Brown, subject to a usufruct in favor of Betty Leavines. It
also bequeathed his “remaining property” to Betty Leavines.
After the decedent’s death, Brown and Betty Leavines filed a Petition for Probate. Betty
Leavines then filed a Petition for Partial Possession, where she noted that she and Brown
disputed ownership of Tract II. The trial court ordered the parties to submit memoranda of law
on the ownership of Tract II, as well as on whether the court ought to hear oral testimony.
Brown argued that the decedent had made Tract II part of his homestead under La.R.S. 20:1,
August 26, 2016
47
which demonstrated that Tract II was part of the residence bequeathed to Brown. Betty Leavines
asserted that a “homestead” under La.R.S. 20:1 was not synonymous with “home” or
“residence.” Furthermore, according to Betty Leavines, the property descriptions of Tract I and
Tract II showed that Tract II was separate from Tract I, and not part of the residence located on
Tract I. Based on the decedent’s testament, the Detailed Descriptive List of the decedent’s
property, and the parties’ memoranda, the trial court concluded that the decedent’s testament
clearly and unambiguously bequeathed Tract II to Betty Leavines as part of the decedent’s
“remaining property” rather than to Brown as part of the “family home and residence.”
Affirmed. On appeal, we found that the trial court had not committed legal error in ruling
that Tract II was clearly and unambiguously bequeathed to Betty Leavines. The property
description for Tract I, unlike that for Tract II, included “all buildings and improvements
thereon,” indicating that the decedent’s home and residence was located on Tract I. There was
nothing to indicate that Tract II, which had a separate property description, was part of that
residence. Therefore, Tract II was part of the decedent’s “remaining property” and bequeathed
to Betty Leavines. We also noted that since there was no evidence that Tract II was part of the
decedent’s homestead under La.R.S. 20:1, nor even that the decedent had ever filed for a
homestead exemption, this Court could not consider that aspect of Brown’s argument.
WORKERS’ COMPENSATION
Ebarb v. Boise Cascade Company, 16-94 (La.App. 3 Cir. 7/13/16), __ So.3d __ (Judge Peters
writes; Judge Gremillion concurs in part, dissents in part, and assigns written reasons):
Plaintiff suffered a work-related lower back. Defendant’s doctor referred her to an
orthopedic surgeon, who diagnosed her as suffering from an aggravation of a preexisting
condition. This doctor became her treating doctor. Defendant repeatedly refused approval for
tests and treatment before eventually approving them. Prior to plaintiff obtaining counsel,
defendant obtained a SMO, who said plaintiff’s lingering problems were caused by her
preexisting conditions and not the minor back injury caused by her work accident. During the
SMO, plaintiff complained of neck pain since the accident. Defendant then obtained a IME.
The IME agreed with the SMO that plaintiff’s lower back injury had resolved and she could
return to work without restrictions. He found plaintiff’s cervical problems more serious. Based
on the IME, defendant terminated plaintiff’s workers’ compensation and medical benefits and
amended its answer to assert a fraud defense based on false statements made by plaintiff relative
to her preexisting neck and back problems. After a trial, the WCJ denied the fraud defense and
awarded plaintiff TTD, medical treatment, reimbursement of mileage, and penalties and attorney
fees. Defendant appealed.
August 26, 2016
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Affirmed and rendered. On appeal, the court affirmed the denial of the fraud defense
and the award of penalties and attorney fees. It held that it was not manifestly erroneous for the
WCJ to find that plaintiff’s statements, denying her prior lower back and neck problems, were
false. The court affirmed the finding that the statements were inconsequential or inadvertent
with regard to her previous neck problems because they were made at an examination (SMO)
defendant was not entitled, she never sought treatment for her neck, and she later abandoned this
claim. The court further affirmed the finding that the statements were inconsequential or
inadvertent with regard to her previous back problems because her previous complaints occurred
six months previously subsequent to her giving birth and a year previously when she sought
chiropractic treatment for an out-of-align pelvis. It also held that her failure to relate two indirect
complaints of lower back pain made to a doctor performing an EMG/nerve conduction study and
to a hand surgeon were inconsequential to her current claim. Furthermore, all of the examining
doctors admitted that plaintiff suffered at least a minor back injury as a result of her work
accident.
The court affirmed the award of penalties and attorney fees based on defendant’s failure
to authorize medical treatment and to reimburse medical mileage. Defendant was bound by its
choice of orthopedic surgeon, even if it disagreed with the doctor’s recommendation. Thus, it
was not entitled to the SMO and could not rely on that opinion to create a dispute as to plaintiff’s
condition. Accordingly, the first valid information defendant had to contest plaintiff’s claim was
after the IME, since plaintiff failed to object to this examination. Thus, defendant’s eventual
approval of the treatment and tests recommended by its doctor occurred well past the sixty-day
period and well before it received the IME report. The court also held that plaintiff presented
sufficient evidence to substantiate her mileage claim, and defendant knew about the claim, but
had nothing to controvert the claim until it received the IME report. The court awarded plaintiff
additional attorney fees based on work performed by her counsel in defending defendant’s
appeal.
Gaines v. Pinecrest Supports & Services Center, 16-105 (La.App. 3 Cir. 7/6/16), __ So.3d __
(Judge Peters writes; Judge Gremillion concurs in part, but dissents in part, finding that
defendant reasonably controverted plaintiff’s claims, and thus, should not have been
assessed penalties and attorney fees):
Plaintiff alleged that she suffered injuries as a result of work-related accidents. She filed
a claim based on defendant’s failure to pay indemnity benefits. Defendant disputed her right to
benefits and later amended its answer to assert a fraud defense, alleging that plaintiff asked a coworker to lie about an accident. Following a trial on the merits, the WCJ dismissed the fraud
defense, held that plaintiff proved that she suffered a work-related injury to her shoulder, and
awarded her TTD, medical treatment, and penalties and attorney fees. Defendant appealed the
WCJ’s denial of its fraud defense.
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Affirmed. On appeal, the court affirmed the judgment of the WCJ, finding that the WCJ
clearly found plaintiff to be credible, while discounting the testimony of defendant’s witnesses.
The court held that the WCJ’s credibility determination was all the more important since the
medical records introduced into the record did not include those from the day after plaintiff’s
alleged accident. Thus, proof of the accident was based solely on plaintiff’s testimony and a
reference to the injury made in the medical records a couple of weeks later. Also, plaintiff’s
employment records, which plaintiff claimed would substantiate her injury, were not introduced
into the record. Based on the conflicting testimony contained in the record and the WCJ’s
credibility determination, it was not manifestly erroneous for the WCJ to find that defendant
failed to carry its burden of proof on the fraud issue.
Timothy Schouest, Jr. v. Acadian Construction Services, 15-921 (La.App. 3 Cir. 6/8/16), ___
So.3d ___ (Thibodeaux, Chief Judge writing; Cooks, Peters, Ezell and Savoie, Judges;
Ezell, dissents in part and concurs in part and assigns written reasons).
Timothy Schouest was employed by Acadian Construction Services while he was injured
on the job, requiring surgery to be performed on his right thumb. Schouest was first treated at a
nearby hospital. Schouest was diagnosed with a flexor tendon laceration to his right thumb and
was sutured and splinted. He was thereafter ordered to report to an orthopedic surgeon the
following day for further treatment. Two days later surgery was performed to stabilize the
thumb.
Approximately one month later an adjuster handling Schouest’s workers’ compensation
claim sent a letter informing him that a drug test taken at the hospital on the day of his accident
was positive for marijuana, and therefore all future medical benefit payments and wage
compensation benefits were discontinued.
Schouest filed a disputed claim for compensation. Acadian Construction Services
asserted the affirmative defense of intoxication. It later amended its answer to include a
reconventional demand seeking to recover medical benefits and indemnity benefits paid to
Schouest, citing to La.R.S. 23:1081(13). The workers’ compensation judge held that Acadian
Construction Services established Schouest’s intoxication at the time of the accident, entitling
them to the presumption of intoxication, that Schouest failed to meet his burden of proof in
establishing the accident was not caused by his intoxication, and that the employer’s
responsibility for medical care ceased after Schouest was discharged from the first hospital,
entitling the employer to repayment for any additional medical expenses and compensation
benefits.
Affirmed in part; reversed in part. On appeal, we affirmed the judgment of the Office of
Workers’ Compensation as to Schouest’s intoxication as the cause-in-fact of his injury and the
denial of benefits and the employer’s request for attorney fees. We reversed as to Schouest’s
repayment of medical expenses to Acadian Construction Services.
August 26, 2016
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Corey Lamartiniere v. Boise Cascade, 16-120 (La.App. 3 Cir. 6/1/16)(Amy, J., writing;
Thibodeaux, C.J., specially concurring)(Panel: Thibodeaux, C.J., Amy and Keaty, J.J.)
The claimant sustained a work-related injury, and filed a disputed claim form after the
employer terminated temporary total disability benefits (TTD benefits). A prior panel of the
court determined that, although entitled to TTD benefits through the date of trial, the claimant
failed to prove entitlement to TTD benefits or SEBs thereafter. The claimant subsequently filed
a new claim, seeking reinstatement of indemnity benefits. The employer filed an exception of
res judicata in light of the prior appellate decision denying prospective indemnity benefits. The
workers’ compensation judge sustained the exception of res judicata, but denied the employer’s
request for the imposition of sanctions pursuant to La.Code Civ.P. art. 863. The claimant
appealed, asserting that he should be able to maintain an action for modification of the earlier
award of indemnity benefits. The employer also answered the appealed and again urged the
request for sanctions.
Judgment Affirmed. Answer to Appeal Denied.
Louisiana Revised Statutes
23:1310.8(B) permits a modification of a prior compensation “award” by “ending, diminishing,
or increasing” such an award. The panel observed, however, that the prior appeal resulted in the
denial of an award of SEB benefits after the date of trial. After that judgment became final, there
was no continuing “award” that could have been ended, diminished, or increased under La.R.S.
23:1310.8(B). Further, La.R.S. 23:1310.8(E) specifically provides that a judgment that denies
benefits is “res judicata after the claimant has exhausted his rights of appeal.” Thus, the panel
determined that the trial court did not err in sustaining the exception of res judicata. Neither did
the panel find manifest error in the denial of sanctions pursuant to La.Code Civ.P. art. 863.
Although the employer asserted that the claimant’s petition was frivolous in light of the clarity of
La.R.S. 23:1310.8(E), the panel found that the record supported a conclusion that the claimant’s
argument regarding the applicability of the provision to the underlying judgment was not
baseless. Rather, the judgment included at least an award of initial benefits and jurisprudence
has not yet developed on the applicability to such a judgment.
Donald Lee Francis v. Home Furniture Co., 16-124 (La.App. 3 Cir. 6/1/16)(Amy, J.,
writing.)(Panel: Thibodeaux, C.J., Amy and Keaty, J.J.)
The claimant sought workers’ compensation benefits for various alleged injuries that he
contended arose out of the course and scope of his employment. The employer filed an
exception of prescription. After a hearing, the workers’ compensation judge found that the
claimant’s action had prescribed and dismissed the case. The claimant appealed.
Affirmed. The record indicated that after the claimant filed his disputed claim for
compensation, the employer contended that all of the claimant’s claims arose, at the latest, by the
claimant’s last day of employment and that his claim was not filed until more than one year later.
August 26, 2016
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Noting that the claimant himself asserted that his claims arose more than one year before he filed
his claim, the panel concluded that the claims had prescribed on the face of the petition and that
the burden of proof shifted to the claimant to establish that his claims were timely filed. The
panel further noted that the claimant presented no evidence that would tend to establish that the
prescriptive period for his claims had not passed. Accordingly, the panel found no error in the
workers’ compensation judge’s grant of the exception of prescription.
Christopher Michael Blanks v. Entergy Gulf State Louisiana, LLC, 15-1094 (La.App. 3 Cir.
4/6/16)(Amy, J., writing)(Panel: Amy, Pickett, and Genovese, J.J.)
The plaintiff sought damages for work-related injuries sustained in a fall at an Entergy
facility. Since the plaintiff was an employee of a company contracted by Entergy, Entergy
claimed the statutory employer defense of La.R.S. 23:1032 and La.R.S. 23:1061 and filed a
motion for summary judgment in that regard. The plaintiff filed a cross motion for summary
judgment, asserting that a prior determination that the contract between Entergy and the
employer violated La.R.S. 9:2780.1 prevented application of the statutory employer defense.
The trial court granted Entergy’s motion for summary judgment, finding that the statutory
provisions at issue were separate and distinct. The trial court further denied the plaintiff’s cross
motion and dismissed the case. The plaintiff appealed.
Affirmed. The panel rejected the plaintiff’s contention that the legislature’s enactment of
La.R.S. 9:2780.1 indicated that indemnitees seeking to avail themselves of the statutory
employer’s defense must additionally pay for that prospective indemnification as part of the
contract price per La.R.S. 9:2780.1(I). Rather, the panel recognized that the language of La.R.S.
9:2780.1 pertains to construction contracts and advances requirements for general, contractual
indemnification. The legislature did not include language in that statute obviating the separate,
statutory employer defense from tort liability provided by La.R.S. 23:1032. To the extent
La.R.S. 9:2780.1 acknowledges workers’ compensation recovery, it does so by positively
reinforcing a worker’s ability to recover those benefits. Additionally, the General Services
Agreement that addressed the employer/Entergy relationship contained separate provisions
regarding general indemnification and the statutory employer relationship. Accordingly, the
panel found no error in the trial court’s denial of the plaintiff’s cross motion for summary
judgment nor in the granting of Entergy’s motion for summary judgment in which it sought
dismissal of the plaintiff’s tort suit due to its statutory employer status. The plaintiff did not
dispute that he was engaged in work at the Entergy facility that was in furtherance of its trade,
business, or occupation.
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52
Byron Gulley v. Hope Youth Ranch, et al., 15-1076, (La.App. 3 Cir. 4/6/16)(Amy, J., writing;
Pickett, J., dissenting.)(Panel: Amy, Pickett, and Genovese, J.J.)
The claimant was struck by a golf cart while working for the defendant-employer, and
asserted that he suffered injuries to multiple areas of his body as a result of the accident. The
claimant sought a trial of a spinal cord stimulator. After the insurer denied approval, the
claimant sought approval from the Medical Director. The Medical Director also denied approval
on the basis that the topography of the claimant’s pain was not amenable to stimulation coverage.
The claimant appealed the Medical Director’s decision to the workers’ compensation court, and
the workers’ compensation judge upheld the Medical Director’s decision. The claimant appealed
that judgment to the appellate court.
Affirmed. The claimant argued that the Medical Director and the workers’ compensation
judge erred in requiring that the spinal cord stimulator address every painful area in the
claimant’s body. The majority noted that the applicable Medical Treatment Guideline required
that “[t]he topography of pain and its underlying pathophysiology are amenable to stimulation
coverage (the entire painful area has been covered)” and acknowledged that the workers’
compensation judge concluded that the Guidelines required that “every bit” of a worker’s painful
areas had to be amenable to neurostimulation. However, under the particular facts of this case,
the majority concluded that the Medical Director’s decision could be viewed as a finding that the
claimant’s medical records do not adequately document that the areas of the body identified by
the claimant’s doctor and the associated underlying pathophysiology were amenable to
stimulation coverage and therefore did not necessarily indicate that the Medical Director actually
required the procedure to address all painful areas of the claimant’s body. Accordingly, the
majority did not disturb the workers’ compensation judge’s conclusion that the claimant failed to
show by clear and convincing evidence that the Medical Director’s decision was not in
accordance with the guidelines.
Weaver v. Louisiana Wholesale Drug Company, Inc. et al., 15-747 (La.App. 3 Cir. 3/2/16),
___ So.3d __(Thibodeaux, Chief Judge writing; James T. Genovese and David Kent Savoie,
Judges; Savoie dissents and assigns reasons).
Vanessa Weaver, formerly an employee of Louisiana Wholesale Drug Company, Inc.
(“LWD”), injured her right wrist while working for LWD on March 28, 2013. She was taken to
an emergency room where doctors noted pain and swelling in the right wrist. Ms. Weaver
returned to work after being treated, but was placed on restrictions. In the weeks following her
injury, Ms. Weaver was seen by a general practice physician and a physical therapist. Ms.
Weaver’s medical records from those doctors note continuing pain, swelling, and a palpable
click in her wrist. Ms. Weaver continued to work for LWD until July 12, 2013. While LWD
had accommodated Ms. Weaver’s injury up to that point, Ms. Weaver claims that on that date,
her supervisor insisted that she lift boxes beyond her capabilities, given her wrist injury. Unable
August 26, 2016
53
to comply with her supervisor’s demands, Ms. Weaver left her job. LWD, however, asserted that
Ms. Weaver simply walked out on her job without giving an explanation.
When LWD failed to pay Ms. Weaver any wage benefits, Ms. Weaver filed a Disputed
Claim for Compensation against LWD and its insurer, Continental Casualty Company
(collectively “Appellants”) seeking supplemental earning benefits (“SEB”). Ms. Weaver argued
that Appellants had wrongfully failed to pay her benefits and had acted arbitrarily and
capriciously, entitling Ms. Weaver to penalties and attorney fees. Appellants argued that Ms.
Weaver was not entitled to SEB since she had worked full time at her full wage after her injury,
and had left employment voluntarily rather than because of her injury. The workers’
compensation judge (“WCJ”) found that Ms. Weaver was entitled to SEB but denied her
penalties and attorney fees. In his reasons for judgment, the WCJ cited Ms. Weaver’s medical
records and specifically found Ms. Weaver’s testimony credible. Appellants appealed the WCJ’s
judgment awarding Ms. Weaver SEB and Ms. Weaver appealed the judgment denying her
penalties and attorney fees.
Affirmed. We affirmed the judgment of the WCJ on appeal. We first found that the
WCJ had not committed manifest error in ruling that Ms. Weaver was entitled to SEB. Ms.
Weaver’s medical records demonstrated that she lacked full use of her right wrist and hand
because of her injury. Ms. Weaver testified that she had always used both hands in her work—
testimony that the WCJ specifically found credible. Based on this evidence, it was reasonable
for the WCJ to infer that Ms. Weaver was unable to work only with her left hand at any job, and
so her injury prevented her from earning at least 90% of her pre-injury income. Moreover,
because the WCJ had relied on both Ms. Weaver’s testimony and her medical records, there was
sufficient evidence to support the WCJ’s findings. We also found that Appellants had failed to
show the existence of a suitable job within Ms. Weaver’s physical capabilities, as required to
defeat Ms. Weaver’s claim for SEB. Appellants argued that since Ms. Weaver had been offered
and accepted her previous position, there was a suitable job available. However, we found that
Ms. Weaver was unable to perform her previous job, and Appellants presented no evidence of
other alternative employment. Accordingly, the WCJ did not err in awarding Ms. Weaver SEB.
Finally, we found that Appellants had presented sufficient information to reasonably, albeit
unsuccessfully, counter Ms. Weaver’s claim. Therefore, the WCJ did not err in denying Ms.
Weaver penalties and attorney fees.
Ardoin v. Calcasieu Par. Sch. Bd., 15-814 (La.App. 3 Cir. 2/3/16), 184 So.3d 896 (Saunders,
J., writing; Pickett, J.; Conery, J.)
Following post-injury laminectomy and fusion, Claimant experienced ongoing pain and
repeatedly reported difficulty sleeping, lying down, and rolling in bed. Her surgeon, who
provided ongoing post-surgical care, prescribed an adjustable mattress in light of her ongoing
complaints. Her pain management physician also prescribed an adjustable bed. After filing
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54
Form 1010, the request was denied. Then, Form 1009 was filed, and the request was reviewed
and denied by the Medical Director. Claimant filed disputed claim for compensation, requesting
authorization for purchase of an adjustable mattress. The OWC ruled in favor of claimant, taxed
the expert witness fees to the employer, and cast the employer with penalties and attorney’s fees.
Employer appealed.
Affirmed. The employer or carrier is under a continuing duty to investigate, assemble,
and assess factual information before denying benefits. La.R.S. 23:1203.1 and the medical
treatment guidelines do not alter a claimant’s rights to necessary medical treatment under La.R.S.
23:1203(A). Instead, the guidelines create rebuttable presumptions as to the necessary treatment
required by La.R.S. 23:1203(A). An employer must rely on competent medical evidence when
the decision to deny medical treatment is made in order to avoid imposition of penalties and
attorney’s fees and cannot rely on the decision of the Medical Director. Although Medical
Treatment Guidelines indicated that, as a general rule, items such as mattresses were not
necessary, where claimant reported to physician and physical therapist that she had difficulty
sleeping and rolling in bed, that lying down increased her pain, and that her difficulty in sleeping
was improved by doing so in a recliner, sufficient evidence was submitted to establish that an
adjustable mattress was presumably the necessary treatment for Claimant. Thus, it was
incumbent on the employer to reasonably controvert the claim and rebut the presumption.
August 26, 2016
55
SOME BASIC RULES OF
MECHANICS, GRAMMAR, USAGE, AND EDITING
Shelli Smith Caballero, Civil Staff, Research Attorney
Third Circuit Judges’ Association CLE
August 26, 2016
“Good grammar is tantamount to credibility.” Wang, C. “5 Common
Grammar Mistakes to Avoid in Business Writing.” 29 May 2015.
Shutterstock. 15 July 2016.
‹www.shutterstock.com/blog/5-common-grammar-mistakes-to-avoid-inbusiness-writing›
MY BASIC RULES
A. If you are having trouble punctuating a sentence, re-write it.
B. Be consistent.
C. The rules of grammar do not change based upon how often a
particular mistake is made.
D. Proofread, edit, and proofread again.
MECHANICS
A. Basic Punctuation Rules
1. Commas
a. Use a comma to separate two independent clauses which
are linked by a coordinating conjunction. Coordinating
conjunctions are: and, but, or, for, nor, so, and yet.
Correct: I went to school, and then I went home.
Incorrect: I went to school, and then went home.
b. Use a comma to separate introductory words, phrases, and
commas.
Correct: When you speed, you break the law.
Correct: Having gone to the hospital to see my friend
after she had a stroke, I was afraid that she would not
regain use of her left arm.
1
Correct: Well, now I am tired.
c. Use a comma to separate items in a series.
Correct: She is silent, moody, and withdrawn.
d. The Oxford Comma is the final comma in a list of things.
Example: I bought a dress, a pair of shoes, and a jacket.
(i.)
use is stylistic (newspapers use AP style which
does not require its use)
(ii.)
omission of it can cause ambiguity in certain
sentences
Example: I love my parents, the President and
Madonna.
Are your parents the President and Madonna?
Without the use of the Oxford Comma, one
cannot be certain.
e. Dates
Correct: I went to the White House on May 24, 2016, for
my birthday.
Correct: The May 24, 2016 report was incorrect.
Correct: I was offered a teaching position on May 24,
2016, and accepted the job on Tuesday, May 31, 2016.
Correct: I accepted a teaching position on Monday, 31
May, 2016.
Correct. I began teaching in May 2016.
f. Geographical Names and Addresses
Correct: The White House is located in Washington, D.C.
Correct: Washington, D.C., is the capital of the United
States.
Correct: We sent the letter to John Doe, 214 Main Street,
Lake Charles, LA 70616.
g. Appositives
(i.)
A nonrestrictive appositive, which is set off by
commas, gives additional but nonessential details
about the noun or pronoun that it renames. The
nonrestrictive appositive can be omitted without
changing the meaning of the sentence.
2
Example: My son, Greg, is a first year medical
student.
Example: He will be Greg Jones, MD, when he
graduates.
(ii.)
The meaning of a noun or pronoun is limited by a
restrictive appositive, and a restrictive appositive
is not set off by commas.
Example: My cousin Will is always on time.
h. Adjective Clauses or Phrases
(i.)
Use commas to set off nonrestrictive adjective
clauses or phrases which describe something.
Example: My mother, who went to Rome,
converted to Catholicism.
Example: In May, those fields, covered with
flowers, are beautiful.
(ii.)
Do not use commas to set off restrictive adjective
clauses and phrases which limit the noun or
pronoun that they modify.
Example:
Any mother who converts to
Catholicism would enjoy a trip to Rome.
Example: In May, fields covered with flowers are
beautiful.
i. A comma splice is the use of a comma to join two
independent clauses without the use of a coordinating
conjunction or instead of a period or semicolon.
Comma Splice: The boys were rowdy, they were always
running and jumping.
Correct: The boys were rowdy, and they were always
running and jumping.
Correct: The boys were rowdy.
running and jumping.
They were always
(i.)
Comma splices should be avoided so as not to
confuse or distract the reader.
(ii.)
Some authors deliberately use comma splices for
stylistic reasons.
3
(iii.)
Comma splices are occasionally used to join two
short clauses.
Example: You win some, you lose some.
j. Superfluous commas are those which are unnecessary and
which make the sentence confusing or difficult to read.
“What grammar hath jointed together, let no comma put
asunder.” Peck, Frances, “Cancelling Commas:
Unnecessary Commas.” Language Portal of Canada.
2003. 17 August 2016. ‹www.noslangues-ourlanguages.
gc.ca›
Example: The girl understood at once, what her mother
wanted her to do.
Correct: The girl understood at once what her mother
wanted her to do.
2. Semicolons
a. Use a semicolon to connect independent clauses not linked
by a coordinating conjunction.
Example: I went to mass; the homily was long.
b. Use a semicolon to separate items in a series which
themselves contain commas.
Example:
I went to Washington, D.C.; Baltimore,
Maryland; and Arlington, Virginia.
c. Do not use to connect parts of unequal grammatical rank.
Incorrect: I went to mass; after I waited for an hour for
the preceding mass to end.
d. If you link two sentences with “however,” you must use a
semicolon and a comma.
Correct: I like to walk; however, I do not like to run.
3. Colons
a. Use a colon to direct attention to an explanation, a
summary, a series or list, or a quotation.
Example: Here is my Christmas list: books, socks, and
perfume.
b. Use a colon to introduce a second main clause that
explains or modifies the first main clause.
4
Example: Baseball is more than a sport: it teaches life
lessons.
c. Use a colon between figures in scriptural and time
references, between titles and subtitles, after the salutation
of a business letter, and in biographical data.
Example: I read my favorite bible verse, John 3:16, at
8:00 p.m.
4. Quotation Marks
a. Direct quotations, directly quoted conversations, and
thoughts require the use of quotation marks at their
beginnings and at their ends.
b. Use single quotation marks for quotations within a
quotation.
c. According to The Bluebook: Uniform System of Citation.
18th ed., do not use quotation marks for directly quotations
that contain fifty or more words. The Harbrace College
Handbook notes that quotation marks should not be used
when the quoted material is more than four lines for MLA
style and more than forty words for APA style. Such
quotes should be indented.
d. Short stories, essays, short poems, songs, episodes of
television or radio shows, articles in periodicals, and
subdivisions of books are enclosed by quotation marks.
e. Quotation marks can be used to enclose words used in a
special or ironic sense but should not be used to enclose
clichés. Quotation marks should not be overused.
Correct: Sheila’s “best friend” did not come to visit while
Sheila was in the hospital. Note that the use of “so-called”
would eliminate the use of quotation marks.
Incorrect: Do not “count your chickens before they
hatch” in business dealings.
f. Pay attention to the use of punctuation marks within
quotation marks.
(i.)
Commas are placed within quotation marks.
5
(ii.)
According to the Harbrace College Handbook,
periods are placed within the quotation marks
when the quotation ends the sentence. Other
sources note that periods are always placed inside
of quotation marks.
(iii.)
Unless they are part of the quoted material,
semicolons and colons are generally placed
outside the quotation marks.
(iv.)
If the question mark, exclamation point, or a dash
applies only to the quoted material, place them
inside of the quotation marks. If they do not, then
the marks should be placed outside of the
quotation marks. “Quotation marks and adjacent
punctuation.” The Punctuation Guide. 15 August
2016. ‹www.the punctuationguide.com/quotationmarks.html›
5. A fused sentence (sometimes called a run-on sentence) is one
where two independent clauses are joined without an
appropriate conjunction or punctuation.
Example: We went to the store it was crowded.
Correct: When we went to the store, it was crowded.
Correct: We went to the store, and it was crowded.
6. Contractions
a. “Using the full version of a word is always grammatically
correct.” “Using Contractions Correctly.” Your
Dictionary. 14 July 2016.
‹grammar.yourdictionary.
com/style-and usage/using-contractions.html›
b. Use for stylistic purposes.
c. In formal writing, the use of contractions should be
avoided. “Asking whether you should use contractions in
formal academic writing is sort of like asking whether you
should wear a bathing suit to a party.” Lee, Chelsea.
“Contractions in Formal Writing: What’s Allowed,
What’s Not.” APA Style. 10 December 2015. American
Psychological Association.
15 August 2016.
‹blog.apastyle.org/apastyle/
2015/12/contractions-informal-writing-whats-allowed-whats-not.html›
6
7. Fragments: Groups of words that look like a sentence but are
not a sentence. A complete sentence requires a subject and a
verb, and it expresses a complete thought. If any of these
three components is missing, then the group of words is a
fragment.
8. Spelling: The dictionary is still a perfectly acceptable
reference. See grammar.yourdictionary.com for a list of the
one hundred words that are most often misspelled.
GRAMMAR
A. Prepositions
1. Avoid using a preposition at the end of a sentence.
Correct: Where is the meeting?
Incorrect: Where is the meeting at?
a. Some argue that this rule is not one that should be rigidly
followed. Winston Churchill is reported to have responded
that “this is rule up with which I will not put” when
someone noted that he should not end a sentence with a
preposition in the margins of a draft of a speech that he
had written.
b. “In emails, text messages, and notes to friends, ending a
sentence with a preposition is informal and accepted.
However, if you are writing a research paper or submitting
a business proposal, using formal language is your best
option. In those cases, avoid ending a sentence with a
preposition.” Joki, Kimberly. “You’ve been lied to.
Here’s why you absolutely can end a sentence with a
preposition.” Grammerly.com. 27 July 2015. 14 July
2016. ‹https://www.grammarly.com/bog/youve-been-liedto-heres-why-you-absolutely-can-end-a-sentence-with-aprepostion/›
B. Subject-Verb Agreement
1. Verb Forms
7
a. Lie vs. Lay. “Lie” means to stay or to rest. The subject is
the one doing the thing. “Lay” means to put something
down and must have an object.
Correct: I lie down to read.
Incorrect: I lay down to read.
Correct: Lay it on the couch.
Incorrect: Lie it on the couch.
Be consistent and avoid tense shifts in the same sentence.
Correct: When we asked, they said that they were going.
Incorrect: When we asked, they say that they are going.
2. Who vs. That. “Who” refers only to people. “That” refers
only to things.
3. Passive Voice
a. Avoid when you want to be clear and forceful.
I mailed the letter. Not: The letter was mailed by me.
4. Possessive Nouns
a. If the noun is plural, add the apostrophe after “s”.
b. If the noun is singular and ends in “s”, put the apostrophe
after the “s”.
5. Me vs. I
a. “I” refers to the subject of the sentence.
b. “Me” refers to the object of the sentence.
Correct: Send it to Joe and Me.
Incorrect: Send it to Joe and I.
You would not say: Send it to I.
6. Who vs. Whom
a. “Who” refers to the subject of the sentence. Can you
replace “who” with “he” or “she”? If so, “who” should be
used.
Correct: Who went to the concert with you?
8
b. “Whom” refers to the object of the sentence. Can you
replace “whom” with “him” or “her”? If so, “whom”
should be used.
Correct: Whom should I take to the concert with me?
7. Necessity of Using “That”
Example: She testified that she was at the store when the
robbery happened and she went home afterwards.
Did she go home after the robbery or after she testified.
Better: She testified that she was at the store when the
robbery happened and that she went home afterwards.
8. Dangling Modifiers: descriptive phrases that do not apply to
the nouns that immediately follow it.
Correct: John tried a new study method after his grades had
been declining for months.
Incorrect: After declining for months, John tried a new study
method to improve his grades.
9. i.e. vs. e.g.
a. e.g. = exempli gratia = for the sake of example
Example: If you want to join me for lunch, I am going to
one of the new restaurants downtown, e.g., The Blue Dog
Café or Tia Juanita’s Fish Camp.
b. i.e. = id est = that is to say or in other words
Example: If you want to join me for lunch, I am going to
that new restaurant downtown, i.e., The Blue Dog Café.
10. Between vs. Among
a. Use “between” when you have two clearly separated
things.
Correct: It was a heated competition between Sally and
Jane.
b. Use “among” when you are referring to a group or mass of
objects.
Correct: She was a diamond among a thousand lumps of
coal.
9
RECOMMENDED REFERENCES (in MLA citation form)
A. www.grammarly.com
1. This site also includes a free grammar checker.
B. citationmachine.net
1. This site will automatically generate citations in several
different styles.
C. Quickanddirtytips.com/grammar-girl
D. Glenn, Cheryl, and Gray, Loretta. Harbrace College Handbook.
18th ed. Massachusetts: Lyn Uhl, 2013.
1. The 18th edition can be downloaded in PDF format from
www.steporebook.com/book/the-hodges-harbracehandbook-18th-edition-76620-pdf.html. It is free of
charge.
2. The 19th Edition will be out in 2017.
E. Garner, Brian A. The Redbook: A Manual on Legal Style. 2nd
ed. Minnesota: Thompson/West, 2006.
F. Strunk, William, Jr., and White, E.B. The Elements of Style.
4th ed. Massachusetts: Allyn & Bacon, 2000.
G. Shertzer, Margaret. The Elements of Grammar. New York:
Macmillan Publishing Company, 1986.
1. This is a companion book to The Elements of Style.
H. Strumpf, Michael, and Douglas, Auriel. The Grammar Bible.
New York: Henry Holt and Company, 2004.
I. Columbia Law Review Editors, Harvard Law Review Editors,
University Pennsylvania Law Review Editors, and The Yale
Law Journal Editors. The Bluebook: Uniform System of
Citation. 18th ed. Massachusetts: Garnet House, 2006.
10
The Code of Professionalism
Adopted by the Louisiana State Bar Association
Approved by the Louisiana Supreme Court
on January 10, 1992,
Revised March 15, 2002
My word is my bond.
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I will never intentionally mislead the court or other counsel.
I will not knowingly make statements of fact or law that are untrue.
I will clearly identify for other counsel changes I have made in documents
submitted to me.
I will conduct myself with dignity, civility, courtesy and a sense of fair play.
I will not abuse or misuse the law, its procedures or the participants in the
judicial process.
I will consult with other counsel whenever scheduling procedures are required
and will be cooperative in scheduling discovery, hearings, the testimony of
witnesses and in the handling of the entire course of any legal matter.
I will not file or oppose pleadings, conduct discovery or utilize any course of
conduct for the purpose of undue delay or harassment of any other counsel or
party. I will allow counsel fair opportunity to respond and will grant reasonable
requests for extensions of time.
I will not engage in personal attacks on other counsel or the court. I will support
my profession's efforts to enforce its disciplinary rules and will not make
unfounded allegations of unethical conduct about other counsel.
I will not use the threat of sanctions as a litigation tactic.
I will cooperate with counsel and the court to reduce the cost of litigation and
will readily stipulate to all matters not in dispute.
I will be punctual in my communication with clients, other counsel and the court,
and in honoring scheduled appearances.
Louisiana Association for Justice Lawyer's Creed
I.
I revere the law, the civil justice system, and the
profession, and I pledge that in my private and
professional life, and in my dealings with fellow
members of the Bar, I will uphold the dignity and respect
of each in my behavior toward others.
II.
In all dealings with fellow members of the bar, I will be
guided by a fundamental sense of integrity and fair play;
I know that effective advocacy does not mean hitting
below the belt.
III.
I will not abuse the civil justice system or the profession
by pursuing or opposing discovery through arbitrariness
or for the purpose of harassment or undue delay.
IV.
I will not seek accommodation from a fellow member of
the bar for the rescheduling of any court setting or
discovery unless a legitimate need exists. I will not
misrepresent conflicts, nor will I ask for accommodation
for the purpose of tactical advantage or undue delay.
V.
In my dealings with the court and my fellow counsel, as
well as others, my word is my bond.
VI.
I will readily stipulate the undisputed facts to avoid
needless cost and inconvenience to any party and will
work with opposing counsel to reduce the expense of
litigation.
VII.
I recognize that my conduct is not governed solely by the
Rules of Professional Conduct, but also by standards of
fundamental decency and courtesy.
VIII. I will strive to be punctual in communications with
others and in honoring scheduled appearances, and I will
recognize that neglect and tardiness are demeaning to me
and to the profession.
IX.
If a fellow member of the bar makes a just request for
cooperation, or seeks scheduling accommodation, I will
not arbitrarily or unreasonably withhold consent.
X.
I recognize that effective advocacy does not require
antagonistic or obnoxious behavior, and as a member of
the bar, I pledge to adhere to the higher standard of
conduct which we, our clients, and the public may
rightfully expect.
LOUISIANA SUPREME COURT GENERAL ADMINISTRATIVE RULES
Section 11. The Code of Professionalism in the Courts
PREAMBLE
The following standards are designed to encourage us, the judges and lawyers, to
meet our obligations to each other, to litigants and to the system of justice, and
thereby achieve the twin goals of professionalism and civility, both of which are
hallmarks of a learned profession dedicated to public service.
These standards shall not be used as a basis for litigation or sanctions or penalties.
Nothing in these standards alters or detracts from existing disciplinary codes or
alters the existing standards of conduct against which judicial or lawyer negligence
may be determined.
However, these standards should be reviewed and followed by all judges of the
State of Louisiana. Copies may be made available to clients to reinforce our
obligation to maintain and foster these standards.
JUDGES' DUTIES TO THE COURT
We will be courteous, respectful, and civil to lawyers, parties, and witnesses. We
will maintain control of the proceedings, recognizing that judges have both the
obligation and authority to insure that all litigation proceedings are conducted in a
civil manner.
We will not employ hostile, demeaning, or humiliating words in opinions or in
written or oral communications with lawyers, parties, or witnesses.
We will be punctual in convening all hearings, meetings, and conferences; if
delayed, we will notify counsel, if possible.
We will be considerate of time schedules of lawyers, parties, and witnesses in
scheduling all hearings, meetings and conferences.
We will make all reasonable efforts to decide promptly all matters presented to us
for decision.
We will give the issues in controversy deliberate impartial, and studied analysis
and consideration.
While endeavoring to resolve disputes efficiently, we will be considerate of the
time constraints and pressures imposed on lawyers by the exigencies of litigation
practice.
We recognize that a lawyer has a right and a duty to present a cause fully and
properly, and that a litigant has a right to a fair and impartial hearing. Within the
practical limits of time, we will allow lawyers to present proper arguments and to
make a complete and accurate record.
We will not impugn the integrity or professionalism of any lawyer on the basis of
clients whom or the causes which a lawyer represents.
We will do our best to insure that court personnel act civilly toward lawyers,
parties, and witnesses. We will not adopt procedures that needlessly increase
litigation expense.
We will bring to lawyers' attention uncivil conduct which we observe.
We will be courteous, respectful, and civil in opinions ever mindful that a position
articulated by another judge is the result of that judge's earnest effort to interpret
the law and the facts correctly.
We will abstain from disparaging personal remarks or criticisms, or sarcastic or
demeaning comments about another judge in all written and oral communications.
We will endeavor to work with other judges in an effort to foster a spirit of
cooperation in our mutual goal of enhancing the administration of justice.
LAWYERS' DUTIES TO THE COURTS
We will speak and write civilly and respectfully in all communications with the
court.
We will be punctual and prepared for all court appearances so that all hearings,
conferences, and trials may commence on time; if delayed, we will notify the court
and counsel, if possible.
We will be considerate of the time constraints and pressures on the court and court
staff inherent in their efforts to administer justice.
We will not engage in any conduct that brings disorder or disruption to the
courtroom. We will advise our clients and witnesses appearing in court of the
proper conduct expected and required there and, to the best of our ability, prevent
our clients and witnesses from creating disorder or disruption.
We will not knowingly misrepresent, mischaracterize, misquote, or miscite facts or
authorities in any oral or written communication to the court.
We will not engage in ex parte communication on any pending action.
We will attempt to verify the availability of necessary participants and witnesses
before dates for hearings or trials are set, or if that is not feasible, immediately after
such date has been set, so we can promptly notify the court of any likely problems.
We will act and speak civilly to court marshals, clerks, court reporters, secretaries,
and law clerks with an awareness that they too, are an integral part of the judicial
system.
A Lawyer's Creed of Professionalism of the ABA Tort Trial & Insurance
Practice Section
As a lawyer, I must strive to make our system of justice work fairly and
efficiently. In order to carry out that responsibility, not only will I comply with
the letter and spirit of the disciplinary standards applicable to all lawyers, but I
will also conduct myself in accordance with the following Creed of
Professionalism when dealing with my client, opposing parties, their counsel,
the courts and the general public.
A. With respect to my client:
1.
I will be loyal and committed to my client's cause, but I will not permit that
loyalty and commitment to interfere with my ability to provide my client with
objective and independent advice;
2.
I will endeavor to achieve my client's lawful objectives in business
transactions and in litigation as expeditiously and economically as possible;
3.
In appropriate cases, I will counsel my client with respect to mediation,
arbitration and other alternative methods of resolving disputes;
4.
I will advise my client against pursuing litigation (or any other course of
action) that is without merit and against insisting on tactics which are intended to
delay resolution of the matter or to harass or drain the financial resources of the
opposing party;
5.
I will advise my client that civility and courtesy are not to be equated with
weakness;
6.
While I must abide by my client's decision concerning the objectives of the
representation, I nevertheless will counsel my client that a willingness to initiate
or engage in settlement discussions is consistent with zealous and effective
representation.
B. With respect to opposing parties and their counsel:
1.
I will endeavor to be courteous and civil, both in oral and in written
communications;
2.
I will not knowingly make statements of fact or of law that are untrue;
3.
In litigation proceedings I will agree to reasonable requests for extensions
of time or for waiver of procedural formalities when the legitimate interests of my
client will not be adversely affected;
4.
I will endeavor to consult with opposing counsel before scheduling
depositions and meetings and before re-scheduling hearings, and I will cooperate
with opposing counsel when scheduling changes are requested;
5.
I will refrain from utilizing litigation or any other course of conduct to
harass the opposing party;
6.
I will refrain from engaging in excessive and abusive discovery, and I will
comply with all reasonable discovery requests;
7.
I will refrain from utilizing delaying tactics;
8.
In depositions and other proceedings, and in negotiations, I will conduct
myself with dignity, avoid making groundless objectives and refrain from
engaging in acts of rudeness or disrespect;
9.
I will not serve motions and pleadings on the other party, or his counsel, at
such a time or in such a manner as will unfairly limit the other party's opportunity
to respond;
10. In business transactions I will not quarrel over matters of form or style, but
will concentrate on matters of substance and content;\
11. I will clearly identify, for other counsel or parties, all changes that I have
made in documents submitted to me for review.
C. With respect to the courts and other tribunals:
1.
I will be a vigorous and zealous advocate on behalf of my client, while
recognizing, as an officer of the court, that excessive zeal may be detrimental to
my client's interests as well as to the proper functioning of our system of justice;
2.
Where consistent with my client's interests, I will communicate with
opposing counsel in an effort to avoid litigation and to resolve litigation that has
actually commenced;
3.
I will voluntarily withdraw claims or defenses when it becomes apparent
that they do not have merit or are superfluous;
4.
I will refrain from filing frivolous motions;
5.
I will make every effort to agree with other counsel, as early as possible, on
a voluntary exchange of information and on a plan for discovery;
6.
I will attempt to resolve, by agreement, my objections to matters contained
in my opponent's pleadings and discovery requests;
7.
When scheduled hearings or depositions have to be canceled, I will notify
opposing counsel, and, if appropriate, the court (or other tribunal) as early as
possible;
8.
Before dates for hearings or trials are set -- or, if that is not feasible,
immediately after such dates have been set -- I will attempt to verify the
availability of key participants and witnesses so that I can promptly notify the
court (or other tribunal) and opposing counsel of any likely problem in that
regard;
9.
In civil matters, I will stipulate to facts as to which there is no genuine
dispute;
10. I will endeavor to be punctual in attending court hearings, conferences and
depositions;
11. I will at all times be candid with the court.
D. With respect to the public and to our system of justice:
1.
I will remember that, in addition to commitment to my client's cause, my
responsibilities as a lawyer include a devotion to the public good;
2.
I will endeavor to keep myself current in the areas in which I practice and,
when necessary, will associate with, or refer my client to, counsel knowledgeable
in another field of practice;
3.
I will be mindful of the fact that, as a member of a self-regulating
profession, it is incumbent on me to report violations by fellow lawyers of any
disciplinary rule;
4.
I will be mindful of the need to protect the image of the legal profession in
the eyes of the public and will be so guided when considering methods and
contents of advertising;
5.
I will be mindful that the law is a learned profession and that among its
desirable goals are devotion to public service, improvement of administration of
justice, and the contribution of uncompensated time and civic influence on behalf
of those persons who cannot afford adequate legal assistance.
I.
What is professionalism?
A. “Scholars” don’t know.
1. Forty-three scholars on professionalism cannot agree on which
core principles and ideals are the most important elements of
professionalism.
2. Some of those elements are integrity, excellence in the skills of
lawyering, honesty, rule compliance, wisdom and practical
judgment, and respect for the legal system.
3. Rather disturbing is the fact that only nineteen of these “scholars”
included integrity as an important element of professionalism, and
only thirteen included honesty!
4. “The practice of law should be a search for truth, through honorable
and professional means long established but perhaps forgotten.”
Hortman v. Louisiana Steel Works, 96-1433 (La.App. 1 Cir.
6/20/97), 696 So.2d 625, 629, writ denied, 97-1919 (La. 11/7/97),
703 So.2d 1268.
B. Perhaps the Disciplinary Board hearing committees don’t know. In re
Ray, 13-1275 (La. 9/13/13), 123 So.3d 707.
C. The purpose of professionalism is to maintain public trust and
confidence in the legal profession and the legal system. In re Cooper,
09-1848 (La. 12/11/09), 23 So.3d 886.
D. Professionalism extends to the court, witnesses, opposing parties, and
opposing counsel. Cooper v. United Southern Assurance Co., 97-250
(La.App. 1 Cir. 9/9/98), 718 So.2d 1029.
E. Is professionalism a one-time thing, or is it developmental?
1. Is professionalism something inherent to us, similar to morals and
character?
2. Or is it something that grows over time, leading to a fullyinternalized ethical professional identity?
F. Have you ever been disappointed by a lawyer’s lack of
professionalism?
1. The Office of Disciplinary Counsel, which prosecutes ethical
violations, does not always display professionalism. In Re Liptak,
06-288 (La. 3/17/06), 924 So.2d 140.
2. Before you give a letter of recommendation, make sure you have
the facts on the person/issue you are recommending. In re
Touchet, 99-3125 (La. 2/4/00), 753 So.2d 820.
II.
Beware the dangers of a lack of professionalism.
A. Plaintiff appealed after her worker’s compensation claim was denied
and claimed she was entitled to a new trial because of defense
counsel’s violation of the Rules of Professional Conduct. She claimed
he permitted a material witness to offer perjured testimony and
obstructed her access to evidence by instructing a witness not to
appear for trial. No evidence was submitted to support these
allegations. Galle v. Orleans Parish School Board, 623 So.2d 692
(La.App. 4 Cir. 1993).
1. What if the plaintiff had supporting evidence? Would this be a
sanctionable breach of professionalism?
2. What about the plaintiff’s attorney who brought these accusations
without evidentiary support?
Did he display a lack of
professionalism?
B. Making things difficult on the court is not a display of
professionalism. Palmer v. Ameriquest Mortgage Co., 41,576
(La.App. 2 Cir. 12/13/06), 945 So.2d 294, writ denied, 07-353 (La.
3/30/07), 953 So.2d 662.
C. Lack of professionalism can equate with ill practice. Power Mktg.
Direct, Inc. v. Foster, 05-2023 (La. 9/6/06), 938 So.2d 662.
III.
Lack of professionalism has consequences.
A. It can get you sanctioned. Stroscher v. Stroscher, 01-2769 (La.App. 1
Cir. 2/14/03), 845 So.2d 518.
B. Unprofessional behavior might get you held in contempt.
Ewing, 34,413 (La.App. 2 Cir. 3/2/01), 781 So.2d 885.
In re
C. Accusations of perjury, a felony, can also land you in contempt of
court. Anzelmo v. Pelican Computer, L.L.C., 04-464 (La.App. 5 Cir.
12/28/04), 892 So.2d 659, writ denied, 05-219 (La. 4/8/05), 898 So.2d
1279.
D. It might cost you your expert witness. Youngblood v. Lee, 40,314
(La.App. 2 Cir. 11/2/05), 914 So. 2d 1186, writ denied, 06-88 (La.
4/17/06), 926 So.2d 522.
E. You might be ordered to learn the rules. In re Cook, 06-426 (La.
6/16/06), 932 So.2d 669.
F. It can get expensive. Mor-Tem Risk Management. Services., Inc. v.
Shore, 43,169 (La.App. 2 Cir. 3/19/08), 978 So.2d 588.
IV.
An inherent conundrum arises from the promotion of professionalism –
are you zealously representing the client or using predatory tactics that
are unprofessional even though ethically permissible? Johnson v. Berg
Mechanical Industries, 35,290 (La.App. 2 Cir. 12/19/01), 803 So.2d
1067, writ denied, 02-240 (La. 4/26/02), 814 So.2d 556.
A. Problems arise when the cause becomes a crusade. In re Cook, 06-426
(La. 6/16/06), 932 So.2d 669.
B. Counsel was sanctioned because she deliberately violated the court’s
order not to refer to the victim’s character, not because of her zealous
advocacy. In re Fournet, 98-1510 (La.App. 1 Cir. 9/24/99), 757 So.2d
689 (Weimer, J., concurring).
C. Don’t become improper and unprofessional in accusing opposing counsel
of the same thing. Brandt v. St. Bernard Parish School Board, 93-457,
93-1416 (La.App. 4 Cir. 6/7/95), 657 So.2d 1345, writ granted in part,
judgment rev'd in part, 95-2274 (La. 12/15/95), 664 So.2d 436.
V.
Be nice.
A. Courts do not like “intemperate and insulting language” directed by
opposing attorneys at each other. Simon v. Macro, Inc., 09-346 (La. App.
3 Cir. 10/7/09) (unpublished opinion), writ denied, 09-2765 (La.
2/26/10), 28 So.3d 278.
B. It’s unprofessional to take advantage of the circumstances or of pro se
litigants. Fox Electric, L.L.C. v. Moghimi, 41,197 (La.App. 2 Cir.
9/20/06), 939 So.2d 604.
C. Don’t count on the opposition’s lack of professionalism to help you out of
your own mistakes. Isaac v. Benson Chevrolet Co., 04-419 (La.App. 5
Cir. 9/28/04), 885 So.2d 38.
D. Don’t be petty. State v. Jordan, 97-1756 (La.App. 4 Cir. 9/16/98), 719
So.2d 556, writ denied, 98-2595 (La. 1/15/99), 736 So.2d 207.
VI.
Always show respect for judges.
A. Be careful what you say about judges in your briefs. Regions Bank v.
Parish of Caddo, 42,920 (La.App. 2 Cir. 2/27/08), 978 So.2d 494
(Stewart, J. concurring), writ denied, 08-669 (La. 5/30/08), 983 So.2d
897.
B. Don’t include made up telephone conversations between attorneys and
judges in your supreme court writ application. In re Simon, 04-2947
(La. 6/29/05), 913 So.2d 816.