November 30, 2010 - Opinions - Louisiana Supreme Court

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November 30, 2010 
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<table cellpadding="5" cellspacing="0" width="90%"><tbody><tr valign="top"><td valign="top" width="63%">FOR IMMEDIATE NEWS RELEASE</td><td valign="top" width="37%"><div align="right">NEWS RELEASE #081</div></td></tr><tr valign="top"><td valign="top">FROM: CLERK OF SUPREME COURT OF LOUISIANA</td><td valign="top">&nbsp;</td></tr></tbody></table>&nbsp;The Opinions handed down on the&nbsp;30th day of November, 2010, are as follows:&nbsp;BY JOHNSON, J.:<a href="/opinions/2010/09C2705.opn.pdf">2009-C -2705 IBERIA MEDICAL CENTER v. WENDY WARD</a>&nbsp;(Office of Workers&rsquo; Compensation District 4)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.Thus, we reverse the court of appeal's rulings on these issues. AFFIRMED IN PART; REVERSED IN PART.KNOLL, J., concurs in part and dissents in part for reasons assigned.&nbsp;&nbsp;BY VICTORY, J.:<a href="/opinions/2010/10C0373.opn.pdf">2010-C -0373 MARSH ANTHONY NOLAN v. WILSON MABRAY, LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY, AND SHELTER MUTUAL INSURANCE COMPANY</a>&nbsp;(Parish of Union)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.For the reasons stated herein, the judgment of the court of appeal is reversed and the judgment of the trial court is reinstated. REVERSED; TRIAL COURT JUDGMENT REINSTATED.&nbsp;<a href="/opinions/2010/10CJ1529.opn.pdf">2010-CJ-1529 STATE OF LOUISIANA IN THE INTEREST OF H.A.S. AND C.W.C.</a>&nbsp;(Parish of Lafayette)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.For the reasons stated herein, the judgment of the court of appeal is reversed, and the case is remanded to the trial court for further proceedings in accordance with this opinion. REVERSED AND REMANDED.GUIDRY, J., dissents. CLARK, J., dissents with reasons.&nbsp;&nbsp;BY KNOLL, J.:<a href="/opinions/2010/10KK0356.opn.pdf">2010-KK-0356 STATE OF LOUISIANA v. SULLIVAN D. HARPER AND BERNARD J. HARPER</a>&nbsp;(Parish of Orleans)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.For the reasons herein, we reverse the judgment of the court of appeal and remand this matter for further proceedings. The stay of proceedings issued by this court is hereby lifted.&nbsp; REVERSED; REMANDED TO DISTRICT COURT; STAY LIFTED.&nbsp;<a href="/opinions/2010/10O2051.opn.pdf">2010-O -2051 IN RE: JUDGE JACQUES A. SANBORN 34TH JUDICIAL DISTRICT COURT PARISH OF ST. BERNARD</a>&nbsp;(Judiciary Commission of Louisiana)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.Accordingly, it is ordered that Judge Jacques A. Sanborn, of the 34th Judicial District Court for the Parish of St. Bernard, is found in violation of La. Supreme Court Rule XXXIX for failure to file his financial disclosure statement for the calendar year 2008. He is ordered to pay civil penalties in the amount of $2,400 no later than thirty days from finality of this judgment to the State of Louisiana, Judicial Branch.&nbsp;&nbsp;BY WEIMER, J.:<a href="/opinions/2010/10C0243.opn.pdf">2010-C -0243 HANS WEDE v. NICHE MARKETING USA, LLC, A LOUISIANA LIMITED LIABILITY COMPANY AND RODNEY C. WHITNEY, JR.</a>&nbsp;(Parish of St. John)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.The judgment of the court of appeal is hereby affirmed. AFFIRMED.&nbsp;<a href="/opinions/2010/10C0435.opn.pdf">2010-C -0435 THE BANK OF NEW YORK, ACTING SOLELY IN ITS CAPACITY AS TRUSTEE FOR EQCC TRUST 2001-2 v. KATHLEEN JOHNSON PARNELL</a>&nbsp;(Parish of Jefferson)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball; Retired Judge Robert J. Klees, assigned as Justice ad hoc, sitting for Justice Greg Guidry, recused.For the foregoing reasons, those portions of the appellate court decision that reversed the trial court's granting of summary judgment in favor of the Bank as to Parnell's HOEPA and wrongful seizure claims are reversed. With respect to these two claims, the judgment of the trial court is reinstated.&nbsp; REVERSED; TRIAL COURT JUDGMENT REINSTATED. (*<a href="/Rehearings?p=2011-003">See News Release 2011-003</a>)&nbsp;&nbsp;BY GUIDRY, J.:&nbsp;<a href="/opinions/2010/09C2602.opn.pdf">2009-C -2602 CHARLES DUPREE v. LAFAYETTE INSURANCE COMPANY</a>&nbsp;(Parish of St. Bernard)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.Accordingly, we conclude the trial court abused its discretion in certifying the class. We therefore reverse the appellate court's judgment affirming the trial court's class certification, reverse the trial court's ruling granting the motion to certify the class, and remand the case for further proceedings. REVERSED AND REMANDED.JOHNSON, J., concurs in part, dissents in part and assigns reason.&nbsp;<a href="/opinions/2010/10C0388.opn.pdf">2010-C -0388 JANICE S. SULLIVAN v. PRISCILLA WALLACE, ET AL.</a>&nbsp;(Parish of Claiborne)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.For the reasons set forth above, we find that a co-owner of immovable property may not be held liable to his fellow co-owners under La. Rev. Stat. 3:4278.1 when he cuts and sells timber without his co-owners' consent. We thus conclude the punitive "timber trespass" statute is inapplicable against co-owners of immovable property. Accordingly, we affirm the appellate court's judgment.&nbsp; AFFIRMED.KNOLL, J., dissents and assigns reasons.&nbsp;&nbsp;BY CLARK, J.:<a href="/opinions/2010/10C0188.opn.pdf">2010-C -0188 THE SUCCESSION OF WILLIAM EDWARD FAGET C/W PIER MARIE FAGET JENKINS, AS INDEPENDENT ADMINISTRATRIX OF THE SUCCESSION OF WILLIAM EDWARD FAGET v. AUDREY MENARD FAGET</a>&nbsp;(Parish of St. Tammany)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.For the reasons stated herein, the judgment of the court of appeal is reversed and the trial court judgment is reinstated. REVERSED; TRIAL COURT JUDGMENT REINSTATED.&nbsp;&nbsp;BY CIACCIO, J.:<a href="/opinions/2010/09KA0199.opn.pdf">2009-KA-0199 STATE OF LOUISIANA v. ANTHONY BELL</a>&nbsp;(Parish of E. Baton Rouge)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.For the reasons assigned herein, the defendant's convictions and death sentences are affirmed. This judgment becomes final on direct review when either: (1) the defendant fails to petition timely the United States Supreme Court for certiorari; or (2) that Court denies his petition for certiorari; and either (a) the defendant, having filed for and been denied certiorari, fails to petition the United States Supreme Court timely, under its prevailing rules, for rehearing of denial of certiorari; or (b) that Court denies his petition for rehearing. The district court shall upon receiving notice from this court under La.C.Cr.P. art. 923 of finality of direct appeal, and before signing the warrant of execution, as provided by La.R.S.15:567(B), immediately notify the Louisiana Indigent Defense Assistance Board and provide the Board with a reasonable time in which: (1) to enroll counsel to represent the defendant in any state post-conviction proceedings, if appropriate, pursuant to its authority under La. R.S. 15:169; and (2) to litigate expeditiously the claims raised in that application, if filed in the state courts. AFFIRMED.CLARK, J., additionally concurs and assigns reasons.&nbsp;<a href="/opinions/2010/10C0140.opn.pdf">2010-C -0140 THEODORE LANGE v. ORLEANS LEVEE DISTRICT C/W THEODORE LANGE v. ORLEANS LEVEE DISRICT</a>&nbsp;(Louisiana State Civil Service Commission)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.The decisions of the Commission and the court of appeal are hereby reversed. REVERSED.&nbsp;<a href="/opinions/2010/10C0800.opn.pdf">2010-C -0800 AGILUS HEALTH (ALLISON TAYLOR) v. ACCOR LODGING NORTH AMERICA</a>&nbsp;(Office of Workers&rsquo; Compensation District 2)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.For the reasons set forth above, we find the court of appeal erred in finding that PPO discount agreements for workers' compensation services violate the provisions of the LWCA. We find the LWCA does not prohibit PPO agreements providing for discounted fees for workers' compensation services to health care providers. The decision of the court of appeal is hereby reversed.&nbsp; REVERSED.&nbsp;&nbsp;PER CURIAM:<a href="/opinions/2010/10C0051.opn.pdf">2010-C -0051 JAMES LASTRAPES, ET UX. v. PROGRESSIVE SECURITY INSURANCE COMPANY</a>&nbsp;(Parish of St. Landry)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.For the reasons assigned, the judgment of the court of appeal affirming the district court's judgment granting judgment notwithstanding the verdict and awarding penalties and attorney fees is reversed. In addition, the judgment of the court of appeal reversing the district court's denial of judgment notwithstanding the verdict and awarding additional damages for future medical expenses, future pain and suffering, loss of enjoyment of life, and loss of consortium is reversed. In all other respects, the judgment of the court of appeal is affirmed. REVERSED IN PART; AFFIRMED IN PART.&nbsp;<a href="/opinions/2010/10B1479.opn.pdf">2010-B -1479 IN RE: WADE RICHARD</a>&nbsp;(Attorney Disciplinary Proceedings)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Wade Paul Richard, Louisiana Bar Roll number 19119, be and he hereby is disbarred, retroactive to February 15, 2006, the date of his interim suspension. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, Section 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.KNOLL, J., dissents and assigns reasons. GUIDRY, J., dissents and would impose permanent disbarment. CLARK, J., dissents and assigns reasons.&nbsp;
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