FOR IMMEDIATE NEWS RELEASE

NEWS RELEASE # 092

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The opinions handed down on the 21st day of October, 1997 , are as follows:

BY MARCUS, J. :

96-C - 0803 MELVIN FOSTER AND LOU M. FOSTER v. DESTIN TRADING CORPORATION AND BLESSEY MARINE SERVICES, INC. (Parish of Jefferson)

ON REHEARING

For the reasons assigned, the judgment of the court of appeal is affirmed.

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

CALOGERO, C.J. - dissents.[Ed. Note: added November 14, 1997]

JOHNSON, J. - dissents and assigns reasons .

96-KA- 1609 STATE OF LOUISIANA v. MANUEL A. ORTIZ (Parish of Jefferson)

For the reasons assigned, defendant's conviction and death sentence for the murder of Tracie Williams Ortiz 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.

Defendant's conviction and first degree murder and his death sentence for the murder of Cheryl Mallory is set aside. The jury's verdict of first degree murder is hereby modified and a judgment of conviction of second degree murder is rendered. We remand the case to the trial court for sentencing on the modified judgment. La. Code Crim. P. art 821.

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

97-C - 0350 KRISTY M. LEE v. STATE OF LOUISIANA THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, ET AL (Parish of Livingston)

For the reasons assigned, the judgment of the court of appeal is reversed and judgment is rendered in favor of the State of Louisiana, through the Department of Transportation and Development, and against Kristy M. Lee and Ondria Lee, dismissing their suit at their cost.

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

BY LEMMON, J. :

96-KA- 1798 STATE OF LOUISIANA v. ADRIAN P. SMITH (Parish of East Baton Rouge)

The judgment of the trial court declaring unconstitutional La. Rev. Stat. 14:98A(1)(b), as that statute provided prior to August 5, 1997, is set aside, and defendant's application for post-conviction relief is dismissed.

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

96-C - 2388 GORDON J. TRENTECOSTA v. ROBERT BECK, RONNIE JONES, KERMIT SMITH AND THE STATE OF LOUISIANA, DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS, ET AL (Parish of St. Bernard)

For the foregoing reasons, the judgments of the lower courts are set aside, and judgment is rendered against Kermit Smith and the State of Louisiana, Department of Public Safety & Corrections, in solido, for the damages caused by Smith's defamation. The case is remanded to the court of appeal to fix the amount of those damages.

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

JOHNSON, J. - dissents and assigns reasons.

TRAYLOR, J. - dissents and assigns reasons.

BY KIMBALL, J. :

97-CC- 0742 STATE OF LOUISIANA THROUGH THE DIVISION OF ADMINISTRATION v. McINNIS BROTHERS CONSTRUCTION, INC. AND GREAT AMERICAN INSURANCE COMPANY (Parish of Caddo)

Accordingly, because the State's suit was not filed

within five years from the registry of the notice of acceptance, we reverse the court of appeal's affirmance of the trial court's denial of defendants' peremptory exception of prescription.

REVERSED.

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

LEMMON, J. - dissents and assigns reasons.

JOHNSON, J. - dissents.

BY VICTORY, J. :

97-C - 0239 O. WILLIAM REEDER, M.D. v. BRUCE A. NORTH AND MOLONY, NORTH & KEWLEY (Parish of Jefferson)

For the reasons stated herein, the judgment of the court of appeal is reversed and the judgment of the trial court sustaining the exception of peremption is reinstated; however, the case is remanded to the trial court to allow plaintiff time to amend and supplement his petition.

REVERSED; JUDGMENT OF TRIAL COURT REINSTATED; REMANDED.

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

JOHNSON, J. - dissents and will assign reasons. [Ed. Note: Added December 16, 1997]

BY TRAYLOR, J. :

97-CJ- 0330 STATE OF LOUISIANA v. CHARLES WALKER (Parish of Orleans)

For the reasons expressed above, the decisions of the Fourth Circuit Court of Appeal and the Orleans Parish Juvenile Court are hereby reversed and set aside. The matter is remanded to the Juvenile Court for further proceedings.

REVERSED.

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

BY KNOLL, J. :

96-C - 1690        MR. & MRS. MICHAEL SHEPHARD ON BEHALF OF THEIR DECEASED
C/W                     MINOR CHILD, MATTHEW E. SHEPHARD v. ALFRED L. SCHEELER,
96-C - 1720        ET AL AND OTHER CONSOLIDATED CASES (Parish of St. Bernard)

For the reasons assigned, the claims against the State of Louisiana through Department of Transportation and Development are dismissed with prejudice. The judgment of the court of appeal allocating fault in this case is amended and recast in the following proportions: Alfred Scheeler 80%, St. Bernard Parish Police Jury 20%. This case is remanded to the district court for further proceedings consistent with the views expressed herein. REVERSED IN PART; AMENDED IN PART, AND AFFIRMED IN PART.

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

CALOGERO, C.J. - concurs in part, dissents in part and assigns reasons.

JOHNSON, J. - dissents and assigns reasons.

TRAYLOR, J. - dissents and assigns reasons, and concurs in part.

96-C - 2700 MARGARETTE McCARROLL v. DONALD P. McCARROLL (Parish of Tangipahoa)

For the foregoing reasons, we reverse the judgment of the lower courts. The March 3, 1990, community property settlement executed by Donald McCarroll and Margarette McCarroll was lesionary. We therefore grant Margarette McCarroll's amended petition, and rescind the March 3, 1990 settlement. This case is remanded to the district court for further proceedings consistent with the foregoing opinion.

REVERSED AND REMANDED.

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

97-CC- 0014 JOSEPH G. ALBE v. LOUISIANA WORKERS' COMPENSATION CORPORATION (Office of Workers' Compensation District No. 8)
C/W
97-CA- 0581 BYRON T. CLARK v . SCHWEGMANN GIANT SUPERMARKET (Office of Workers' Compensation District No. 8)
In Albe v. Louisiana Workers' Compensation Corporation, 97-CC-0014, we reverse the hearing officer's denial of defendant's declinatory exception of lack of subject matter jurisdiction. In Byron Clark v. Schwegmann Giant Supermarkets, 97-CA-0581, the rulings of the hearing officer, declaring La.R.S. 23:1201.4 unconstitutional as applied, are reversed. These cases are remanded to the Office of Workers' Compensation Administration, District 8, for further proceedings consistent with this opinion and the reasoning expressed herein.
REVERSED AND REMANDED.

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

JOHNSON, J. - dissents and will assign reasons.[Ed. Note: Added December 16, 1997]

97-C - 0244 RAYMOND PALMER, ET AL v. LOUISIANA FORESTRY COMMISSION AND LOUISIANA TAX COMMISSION (Parish of East Baton Rouge)

For the foregoing reasons, the reclassification of chip and saw did not constitute an ultra vires act on the part of the Commissions, nor did that action result in the levy of a new tax. Accordingly, the judgment of the court of appeal is reversed.

REVERSED.

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