January 19, 2005 - Opinions - Louisiana Supreme Court

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January 19, 2005 
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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 #003</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;<div style="text-align:justify;">The Opinions handed down on the&nbsp;19th day of January, 2005, are as follows:BY CALOGERO, C.J.:&nbsp;
	 <a href="/opinions/2005/04c0968.opn.pdf">2004-C -0968&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; TERREBONNE PARISH SCHOOL BOARD v. CASTEX ENERGY, INC.&nbsp;SAMSON HYDROCARBONS COMPANY, BOIS D'ARC CORPORATION, FINA OIL &amp; CHEMICAL COMPANY, SAMSON RESOURCES COMPANY</a> (Parish of Terrebonne) We reverse the First Circuit's judgment and its holding that the law and/or the executed contracts in this case impose an implied duty upon Samson and Bois D'Arc to restore the surface of the leased land to its pre-lease condition by backfilling the canals, and we vacate the court of appeal's order compelling specific performance of this ostensible duty. We also find that the language of the contractual assignment to Bois D'Arc did not establish an express duty to restore the surface. Our resolution of these issues obviates the need to consider the defendants' five alternative arguments alluded to earlier, including the argument that the court erred in finding that Samson's attempted assignment to Castex was ineffective. REVERSED AND RENDERED.Judge Thomas C. Wicker, Jr., retired, sitting ad hoc for Associate Justice Chet D. Traylor, recused.KIMBALL, J., dissents for reasons assigned by Weimer, J. KNOLL, J., dissents and assigns reasons. WEIMER, J., dissents and assigns reasons.&nbsp;<a href="/opinions/2005/04c1086.opn.pdf">2004-C -1086&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; LINDA FRITH v. RIVERWOOD, INC.&nbsp;</a>(Office of Workers' Compensation District No. 5) The portion of the court of appeal decision finding that Riverwood is entitled to a credit against its SEB obligation to Ms. Frith for TTD previously paid is reversed and the WCJ judgment on this issue is reinstated. Because we find no manifest error in the WCJ's finding that Riverwood's termination of Ms. Frith's indemnity benefits was arbitrary and capricious, the portion of the court of appeal decision reversing the attorney fee award by the WCJ is also reversed and the WCJ judgment on this issue is reinstated. The judgment is amended to award Ms. Frith $3,000 in attorney fees for appellate work. The portion of the court of appeal decision denying Ms. Frith's claim for PTD is affirmed. REVERSED IN PART; AFFIRMED IN PART; AMENDED.	 VICTORY, J., dissents in part for the reasons assigned by Weimer, J. TRAYLOR, J., dissents in part for reasons assigned by Weimer, J. WEIMER, J., concurs in part and dissents in part and assigns reasons.&nbsp;<a href="/opinions/2005/04ca2147.opn.pdf">2004-CA-2147&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; GREATER NEW ORLEANS EXPRESSWAY COMMISSION v. HONORABLE REBECCA M. OLIVIER, JUDGE FIRST PARISH COURT, DIVISION "A" AND HONORABLE GEORGE W. GIACOBBE, JUDGE FIRST PARISH COURT, DIVISION "B"</a> (Parish of Jefferson) The district court's holding that the defendant judges had standing to challenge the constitutionality of La. Rev. Stat. 32:57 is reversed, and its judgment finding the statute unconstitutional and denying the Commission's petition for writ of mandamus is vacated and set aside. In light of our ruling in this case, it becomes unnecessary for the court to decide the constitutional issue at this time. We remand the case to the district court with instructions to find that defendants did not have standing to raise the constitutional issue as a defense, and to permit the litigation to go forward. VACATED, SET ASIDE, AND REMANDED.&nbsp;	 JOHNSON, J., dissents and assigns reasons. WEIMER, J., concurs and assigns reasons.&nbsp;&nbsp;BY KIMBALL, J.: <a href="/opinions/2005/04c0561.opn.pdf">2004-C -0561&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; NOLAN DELCAMBRE AND PATRICIA DELCAMBRE v. BLOOD SYSTEMS, INC.&nbsp;</a>(Parish of Lafayette) For the above reasons, we conclude that a voluntary blood donor, who is allegedly injured during the process of blood donation by an employee of a community blood bank, is not a "patient" as defined by the Medical Malpractice Act, and therefore, is not required to initially submit his case to a medical review panel because the case is not covered by the Act. Accordingly, we affirm the judgment of the court of appeal reversing the district court's judgment granting BSI's dilatory exception of prematurity, and remand this case to the district court for further proceedings. AFFIRMED AND REMANDED.&nbsp;<a href="/opinions/2005/04ca0882.opn.pdf">2004-CA-0882&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; J. ROBERT WOOLEY IN HIS CAPACITY AS ACTING COMMISSIONER OF INSURANCE, STATE OF LOUISIANA v. STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, HONORABLE MURPHY J. FOSTER IN HIS CAPICITY AS GOVERNOR OF LOUISIANA, ANNE WISE IN HER CAPACITY AS DIRECTOR OF THE DIVISION OF ADMINISTRATIVE LAW, AND ALLEN REYNOLDS IN HIS CAPACITY AS DIRECTOR OF THE DEPARTMENT OF STATE CIVIL SERVICE</a> (Parish of E. Baton Rouge) For all the reasons discussed above, we find the Commissioner has not satisfied his burden of proving that the legislature's enactment of Act 739 of 1995 and Act 1332 of 1999 is in violation of any constitutional provision. Consequently, the judgment of the district court declaring these Acts unconstitutional, null and void in their entirety is reversed, vacated, and set aside. The judgment of the district court declaring the decision and order of the ALJ null and void on the ground that it was rendered by an entity without constitutional authority is similarly reversed, vacated, and set aside. The judgment of the district court granting permanent injunctive relief on various grounds in favor of the Commissioner is reversed, vacated, and set aside. The case in remanded to the court of appeal for further proceedings consistent with this opinion. REVERSED IN PART, VACATED IN PART, SET ASIDE IN PART; AND REMANDED TO THE COURT OF APPEAL.JOHNSON, J., concurs. WEIMER, J., concurs and assigns reasons.&nbsp;&nbsp;BY JOHNSON, J.:<a href="/opinions/2005/03cc3211.opn.pdf">2003-CC-3211&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; GERALD CHAMPAGNE, SR. v. SHARONDA L. WARD, INDEPENDENT FIRE INSURANCE COMPANY AND SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY</a> (Parish of Orleans) For the reasons set forth herein, we reverse the lower courts' determinations that Louisiana law automatically applies to automobile accidents occurring in Louisiana. Under a choice-of-law analysis pursuant to La.C.C. arts. 3515 and 3537, we hold that Mississippi law applies. REVERSED.&nbsp;&nbsp;BY VICTORY, J.:<a href="/opinions/2005/04kk1197.opn.pdf">2004-KK-1197&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; STATE OF LOUISIANA v. DEONTA GRAY AND JONTA GRAY&nbsp;</a>(Parish of Orleans) (Attempted Second Degree Murder) For the reasons stated herein, the judgment of the court of appeal is reversed and the trial court judgment denying the defendant's motion to suppress is reinstated. The matter is remanded to the trial court for further proceedings. REVERSED AND REMANDED. CALOGERO, C.J., concurs and assigns reasons. KIMBALL, J., concurs in the result and assigns reasons. JOHNSON, J., dissents.&nbsp;&nbsp;BY TRAYLOR, J.:<a href="/opinions/2005/01ka2730.opn.pdf">2001-KA-2730&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; STATE OF LOUISIANA v. CLARENCE HARRIS&nbsp;</a>(Parish of Orleans) (First Degree Murder) For the reasons assigned herein, the defendant's conviction and sentence of death are affirmed. In the event 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 trial judge shall, upon receiving notice from this Court under La. Code Crim. Proc. 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 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. 15:149.1; and (2) to litigate expeditiously the claims raised in that original application, if filed in the state courts. AFFIRMED.&nbsp;<a href="/opinions/2005/04ca0227.opn.pdf">2004-CA-0227&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; LOUISIANA MUNICIPAL ASSOCIATION, THE PARISH OF JEFFERSON, LOUISIANA, ET AL. v. THE STATE OF LOUISIANA AND THE FIREFIGHTERS' RETIREMENT SYSTEM&nbsp;</a>(Parish of E. Baton Rouge) Based on the foregoing analysis, this court finds that there is no conflict between the provisions of La. R.S. 11:103 and La. R.S. 11:2262(D)(1); that there has been no improper delegation of legislative authority to the PRSAC in La. R.S. 11:103 and La. R.S. 11:104; that Act 645 of 1991, Act 397 of 1991 and &sect;2 of Act 1160 of 2001 do not violate La. Const. art. 10, &sect;29(E)(5); that Acts 792 and 1293 of 1997 do not violate La. Const. art 10, Section 29(E)(3) and (4); and that La.R.S. 11:103 and La. R.S. 11:104 are constitutional both facially and as applied to the Firefighters' Retirement System. So finding, the district court's judgment is affirmed in part and reversed in part, and the permanent injunction enjoining the Firefighters' Retirement System from collecting an amount in excess of nine percent from any employer whose employees are members of the Firefighters' Retirement System is hereby lifted. AFFIRMED IN PART; REVERSED IN PART; PERMANENT INJUNCTION LIFTED.Retired Judge Walter I. Lanier, Jr., assigned as Justice ad hoc, sitting in place of Associate Justice Bernette J. Johnson, recused.CALOGERO, C.J., concurs and assigns reasons. KNOLL, J., dissents and assigns reasons. WEIMER, J., concurs and assigns reasons. LANIER, J., ad hoc, concurs in part, dissents in part, and assigns reasons.&nbsp;BY KNOLL, J.:<a href="/opinions/2005/03ca0732.opn.pdf">2003-CA-0732&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; UNWIRED TELECOM CORP., FORMERLY KNOWN AS UNWIRED, INC. AND SUCCESSOR IN INTEREST BY MERGER TO MERCURY CELLULAR TELEPHONE COMPANY v. PARISH OF CALCASIEU, LOUISIANA; THE CALCASIEU PARISH SCHOOL BOARD; THE CALCASIEU PARISH POLICE JURY; THE CALCASIEU PARISH SCHOOL BOARD SYSTEM; THE TREASURER OF THE CALCASIEU PARISH SCHOOL BOARD; AND THE TREASURER'S DESIGNATED AGENTS, INCLUDING RUFUS R. FRUGE, JR., IN HIS CAPACITY AS DIRECTOR OF THE CALCASIEU PARISH SCHOOL SYSTEM, SALES AND USE TAX DEPARTMENT</a> (Parish of Calcasieu) ON REHEARINGFor the foregoing reasons, we reverse the lower courts' judgment regarding the assessment of interest, penalties and attorney fees and remand to the district court for a determination of the precise amount of sales and use taxes, interest, penalties and attorney fees owed by Unwired Telecom Corp. consistent with this opinion and the views expressed in&nbsp;Anthony Crane Rental, L.P. v. Fruge&nbsp;, 03-0115 (La. 10/21/03), 859 So. 2d 631. In all other respects we affirm the judgment of the Court of Appeal, Third Circuit. COURT OF APPEAL JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED TO THE DISTRICT COURT.KIMBALL, J., dissents and assigns reasons. JOHNSON, J., concurs. WEIMER, J., concurs in the result.&nbsp;<a href="/opinions/2005/04c0589.opn.pdf">2004-C- 0589&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; PETER DRISCOLL, M.D. v. FRED J. STUCKER, M.D., ET AL&nbsp;</a>(Parish of Caddo) For the foregoing reasons, we reverse the lower courts' judgments as to the individual liability of Dr. Stucker. In all other respects, we affirm the judgments of the Court of Appeal, Second Circuit, and the First Judicial District Court. AFFIRMED IN PART; REVERSED IN PART.JOHNSON, J., dissents. VICTORY, J., dissents. TRAYLOR, J., dissents.&nbsp;<a href="/opinions/2005/04ca2477.opn.pdf">2004-CA-2477&nbsp;C/W 2004-CA-2523&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; FORUM FOR EQUALITY PAC,&nbsp;A REGISTERED LOUISIANA POLITICAL ACTION COMMITTEE, LOUISIANA LOG CABIN REPUBLICANS, AN UNINCORPORATED LOUISIANA ASSOCIATION, LAURENCE E. BEST, JEANNE M. LEBLANC, GERALD W. THIBODEAUX, WILLIAM A. SCHULTZ AND JULIE A. JACOBS v. THE HONORABLE W. FOX MCKEITHEN, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE OF LOUISIANA ONLY, AND NOT INDIVIDUALLY, AND CITY OF NEW ORLEANS</a> (Parish of E. Baton Rouge) For the foregoing reasons, we reverse the district court's declaration of unconstitutionality and find La. Const. art. XII, &sect;15 constitutional. We further dissolve the stay. REVERSED.CALOGERO, C.J., concurs and assigns reasons.&nbsp;&nbsp;BY WEIMER, J.:<a href="/opinions/2005/04ka0559.opn.pdf">2004-KA-0559&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; STATE OF LOUISIANA v. TINA THOMAS&nbsp;</a>(Parish of Jefferson) (Crime Against Nature) For these reasons, we reverse the trial court's granting of defendant's motion to quash and we remand this matter to the trial court for further proceedings. REVERSED AND REMANDED.CALOGERO, C.J., concurs and assigns reasons.&nbsp;<a href="/opinions/2005/04cc0703.opn.pdf">2004-CC-0703&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; PATRICK R. CHERON v. LCS CORRECTIONS SERVICES, INC.,&nbsp;AND THE STATE OFLOUISIANA THROUGH THE DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS ANDWARDEN GARY COPES</a> (Parish of E. Baton Rouge) For the foregoing reasons, the decision of the court of appeal denying the Department's application for writ of certiorari is affirmed. AFFIRMED.&nbsp;<a href="/opinions/2005/04cc0744.opn.pdf">2004-CC-0744&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; SHARON DAILEY v. HELEN TRAVIS, IN HER CAPACITY AS ASSISTANT WARDEN&nbsp;OF LOUISIANA CORRECTIONAL INSTITUTE FOR WOMEN, JOHNNIE JONES IN HER CAPACITY AS WARDEN OF LOUISIANA CORRECTIONAL INSTITUTE OF WOMEN, STATE OF LOUISIANA THROUGH THE DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, AND ABC INSURANCE COMPANY</a> (Parish of Iberville) For reasons assigned in this matter, as well as the discussion in Cheron v. LCS Corrections Services, Inc., the decision of the court of appeal denying the Department's application for writ of certiorari is affirmed. AFFIRMED.&nbsp;&nbsp;PER CURIAM:<a href="/opinions/2005/04b0680.opn.pdf">2004-B -0680&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; IN RE: MICHAEL G. RIEHLMANN</a> (Disciplinary Proceedings) Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Michael G. Riehlmann, Louisiana Bar Roll number 2072, be publicly reprimanded. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, &sect;10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.&nbsp;	 VICTORY, J., dissents and assigns reasons.&nbsp;<a href="/opinions/2005/04b2361.opn.pdf">2004-B- 2361&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; IN RE: HANY A. ZOHDY</a> (Disciplinary Proceedings) Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Hany A. Zohdy, Louisiana Bar Roll number 21409, be suspended from the practice of law in Louisiana for a period of three years. It is further ordered that one year of the suspension shall be deferred, subject to the condition that any future misconduct may be grounds for making the deferred portion of the suspension executory or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, &sect;10.1 with legal interest to commence thirty days from the date of finality of this court's judgment until paid.CALOGERO, C.J., dissents and assigns reasons. KIMBALL, J., dissents.&nbsp;&nbsp;</div>
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