FOR IMMEDIATE NEWS RELEASE

NEWS RELEASE # 123

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The opinions handed down on the 25th day of November, 1996 , are as follows:
 

BY CALOGERO, C.J. :

94-KA- 2503 STATE OF LOUISIANA v. DONALD GENE COUSAN (Parish of Winn)

For the foregoing reasons, the conviction of first degree murder is affirmed. The death sentence is vacated and set aside. The case is remanded to the district court for a new sentencing hearing. CONVICTION AFFIRMED; DEATH SENTENCE VACATED; REMANDED TO THE DISTRICT COURT FOR A NEW SENTENCING HEARING.

MARCUS, J. - concurs and assigns reasons.

KIMBALL, J. - not on panel. Rule IV, pt. 2, 3.

VICTORY, J. - concurs in affirming the conviction, but dissents from the remand of the sentence and would affirm it.

BLEICH, J. - concurs in affirming the conviction, but dissents from the remand of the sentence; and would affirm the sentence.
 

BY MARCUS, J. :

95-KA- 0320 STATE OF LOUISIANA v. ALBERT EARL LAVALAIS, III (Parish of St. Landry) (First Degree Murder)

For the reasons assigned, defendant's conviction and sentence are affirmed for all purposes except that this judgment shall not serve as a condition precedent to execution as provided by La. R.S. 15:567 until (a) defendant fails to petition the United States Supreme Court timely for certiorari; (b) that Court denies his petition for certiorari; (c) having filed for and been denied certiorari, defendant fails to petition the United States Supreme Court timely, under their prevailing rules, for applying for rehearing of denial of certiorari; or (d) that Court denies his application for rehearing.

KIMBALL, J. - recused; not on panel. Rule IV, Part 2, 3.

CALOGERO, C.J. - dissents and assigns reasons.

JOHNSON, J. - dissents and assigns reasons.

96-C - 0751 KEAN'S PARTNERSHIP D/B/A RED STICK LINEN SERVICES v. PARISH OF EAST BATON ROUGE, CITY OF BATON ROUGE AND LYNN SCHOFIELD, FINANCE DIRECTOR, CITY OF BATON ROUGE AND PARISH OF EAST BATON ROUGE (Parish of East Baton Rouge)

For the reasons assigned the judgment of the court of appeal is affirmed. All costs are assessed against Red Stick.

LEMMON, J. - concurs and assigns reasons.[Ed. Note: Not out 11/26/96]

BLEICH, J. - not on panel. Rule IV, Part 2, 3.
 

BY MARCUS, J. :

96-C - 0929 SHELL OIL COMPANY, ET AL v. SECRETARY, REVENUE AND TAXATION (Parish of Orleans)

For the reasons assigned, the judgment of the Court of Appeal, Fourth Circuit, is affirmed.

JOHNSON, J. - not on panel. Rule IV, Part 2, 3.
 

BY WATSON, J. :

96-C - 0883 HAROLD J. CHARLES v. SOUTH CENTRAL INDUSTRIES (Office of Workers' Compensation District # 9)

Charles failed to prove by clear and convincing evidence entitlement to compensation benefits for a mental injury caused by a work-related physical injury. The hearing officer's contrary conclusion, affirmed by the appellate court, was manifestly erroneous and is reversed. The hearing officer's conclusion that Charles' employer was arbitrary and capricious for failure to pay medical expenses associated with the claimed mental injury was also clearly wrong. The hearing officer's award of penalties and attorneys fees, affirmed by the appellate court, is also reversed.

AWARD OF MENTAL MEDICAL EXPENSES, PENALTIES AND ATTORNEYS FEES REVERSED.

CALOGERO, C.J. - recused; not on panel. Rule IV, Part 2, 3.
 

BY LEMMON, J. :

96-O - 1444 IN RE: JUDGE ROY TUCK, JR.

Accordingly, it is ordered that respondent be, and he hereby is, publicly censured.

WATSON, J. - not on panel. Rule IV, Part 2, 3.

BLEICH, J. - concurs.
 

BY KIMBALL, J. :

95-C - 3054 SHANNON O'ROURKE, WIFE OF/AND GEORGE O'ROURKE v. MARK CAIRNS, D.D.S. (Parish of Jefferson)

For these reason, the judgment of the court of appeal apportioning the attorney fees award is amended as follows: The amount awarded to the intervenor shall be increased from $25,000 to $61,800, and the amount awarded to subsequent counsel shall be reduced from $181,000 to $144,200. The disputed amount is to be disbursed forthwith from the registry of the court and divided in accordance with this opinion.

AFFIRMED AS AMENDED.

LEMMON, J. - not on panel. Rule IV, Part 2, 3.

CALOGERO, C.J. - concurs and assigns reasons.

JOHNSON, J. - recused.

VICTORY, J. - dissents and assigns reasons.

BLEICH, J. - concurs.
 

BY KIMBALL, J. :

96-B - 1401 IN RE: ERNEST L. CAULFIELD

DISCIPLINARY PROCEEDINGS.

For the reasons assigned, it is ordered that the name Ernest L. Caulfield be stricken from the roll of attorneys and that Respondent's license to practice law in the State of Louisiana be revoked and cancelled at his cost.

DISBARMENT ORDERED.

JOHNSON, J. - not on panel. Rule IV, Part 2, 3.
 

BY JOHNSON, J. :

95-KA- 2307 STATE OF LOUISIANA v. WILLIAM EARL POWDRILL, III AND UWE SCHMIDT (Parish of Caddo)

For the reasons stated herein, we affirm the trial court's finding that La. R.S. 51.712(A)(2) is unconstitutional as applied in the criminal context in that it impermissibly places the burden of proof upon defendants. We reverse the trial court's finding that La. R.S. 51:721(A) and (B) are unconstitutional. AFFIRMED IN PART, REVERSED IN PART.

Pursuant to Rule IV, Part 2, 3, Victory J. was not on panel. The panel consisted of Justice Johnson, Chief Justice Calogero, and Justices Bleich, Kimball, Lemmon, Marcus and Watson.

96-CA- 0543 MED EXPRESS AMBULANCE SERVICE, INC. v. EVANGELINE PARISH POLICE JURY, ET AL (Parish of Evangeline)

For the reasons assigned, the ruling of the district court declaring Evangeline Parish Code Art. II, Section 24-20 through 24-32 unconstitutional is vacated and set aside; the judgment granting Med Express Ambulance Service, Inc. a preliminary injunction and ordering the Evgangeline Parish Police Jury to issue a permit to Med Express Ambulance Service, Inc. is hereby reversed. Plaintiff's action is dismissed.

WATSON, J. - not on panel. Rule IV. Part 2, 3

KIMBALL, J. - concurs but would remand the case to determine constitutionality "as applied" to this party.
 

BY VICTORY, J. :

95-C - 1863 C/W 95-C - 2675 FLOYD F. DEGRUISE, ET AL v. HOUMA COURIER NEWSPAPER CORPORATION, ET AL (Parish of Terrebonne)

For the reasons stated herein, we affirm the judgment of the trial court in favor of plaintiffs and against Federated and amend the amount of general damages awarded by the jury by awarding $471,399.35 to Degruise, $21,012.00 to Della Degruise, and $7,004.00 each to Trent and Trevor Degruise. The judgment of the court of appeal awarding penalties and attorney fees under LSA-R.S. 22:658 is affirmed and amended as follows: Degruise is awarded $94,279.87, Della Degruise is awarded $4,202.40 and Trent and Trevor are awarded $1,400.80 each. The judgment of the court of appeal awarding attorney fees and costs under LSA-R.S. 23:1103 is reversed.

AMENDED IN PART; AFFIRMED IN PART, REVERSED IN PART.

Because of the vacancy created by the resignation of Dennis, J., now a judge on the United States Court of Appeals for the Fifth Circuit, there was no justice designated "not on panel" under Rule IV, Part 2, 3. Panel included Chief Justice Calogero and Justices Marcus, Watson, Lemmon, Kimball, Johnson and Victory.

WATSON, J. - concurs in part and dissents in part with reasons.

LEMMON, J. - concurs in part and assigns reasons.

96-O - 2105 IN RE: JUDGE ROY CASCIO

Accordingly, it is ordered that Judge Roy Cascio, 2nd Parish Court, Parish of Jefferson, be, and he hereby is censured for violating Cannon 7 of the Code of Judicial Conduct. It is further ordered that Judge Roy Cascio reimburse the Louisiana Judiciary Commission $220.00, representing costs incurred during the investigation and prosecution of the case.

MARCUS, J. - not on panel. Rule IV, Part 2, 3.
 

BY BLEICH, J. :

95-KA- 0305 STATE OF LOUISIANA v. GLEN E. SEALS (Parish of Jefferson)

(First Degree Murder)

For the reasons assigned, the defendant's conviction and sentence are affirmed for all purposes except that this judgment shall not serve as a condition precedent to execution, as provided by La.R.S. 15:657, until (a) the defendant fails to petition the United States Supreme Court timely for certiorari; (b) that Court denies his petition for certiorari; (c) having filed for and been denied certiorari, the defendant fails to petition the United States Supreme Court timely, under their prevailing rules, for rehearing of denial of certiorari; or (d) that Court denies his application for rehearing.

CALOGERO, C.J. - not on panel. Rule IV, Part 2, 3.

VICTORY, J. - concurs.
 

BY BLEICH, J. :

96-C - 0732 C/W 96-C - 0741

HELENA BABIN KENNEDY v. JAMES KENNEDY (Parish of Claiborne)

The judgment of the court of appeal is affirmed as to the 30-acre portion of land on which selective cutting operations were allowed. The court of appeal is reversed as to the 113-acre tract. The proceeds from the 113-acre tract should be allocated to Mrs. Kennedy insofar as they may be considered fruits flowing from an appropriate selective cutting plan, and to Mr. Kennedy insofar as they constitute products resulting from clear cutting operations exceeding the management plan proposed by Mr. Kennedy's experts. The case is remanded to the trial court for a determination of the amounts Mrs. Kennedy should receive in accordance with the selective cutting plan proposed by James Kennedy's forest management experts. AFFIRMED in part, REVERSED in part, and REMANDED.

VICTORY, J. - not on panel. Rule IV, Part 2, 3.

CALOGERO, C.J. dissents for reasons assigned by Kimball, J.

MARCUS, J. dissents.

KIMBALL, J. dissents and assigns reasons.
 

PER CURIAM :

95-C- 0939 PATRICIA ANN MISTICH, ET AL v. VOLKSWAGEN OF GERMANY, INC, ET AL (Parish of St. Bernard)

ON REHEARING

Upon further review, we find that the evidence supports the trial court's findings. Accordingly, we reinstate our original opinion which reaffirms the trial court's judgment.

ORIGINAL OPINION REINSTATED.

WATSON, J. - not on panel. Rule IV, Part 2, 3.

MARCUS, J. - dissents.

LEMMON, J. - concurs.

VICTORY, J. - dissents.

96-B-1631 IN RE: E. LYNN SINGLETON

DISCIPLINARY PROCEEDING.

For the reasons assigned, it is ordered, adjudged and decreed that E. Lynn Singleton be suspended from the practice of law in Louisiana for a period of six months from the date of this judgment, said suspension itself being suspended, that he be placed on probation for a period of one year, and that he bear all costs of these proceedings.

LEMMON, J. - not on panel. Rule IV, Part II, 3.

BLEICH, J. dissents and would suspend respondent for 18 months.

96-O - 1866 IN RE: JUDGE MICHAEL JOHNSON

Accordingly, it is ordered, adjudged, and decreed that respondent, Judge Michael Johnson, of the Twelfth Judicial District Court for the Parish of Avoyelles, State of Louisiana, be and is hereby, removed from office; and that his office be, and is hereby, declared vacant. Respondent is cast with all stipulated costs and any other costs incurred in the investigation and prosecution of his case pursuant to Supreme Court Rule XXIII, Sec. 22.

REMOVAL FROM JUDICIAL OFFICE ORDERED.

JOHNSON, J. - not on panel. Rule IV, Part 2, 3.