June 29, 2005 - Opinions - Louisiana Supreme Court

<div>
 <div class="content">
 <div class="bcrumb">
 <ol class="row breadcrumb offprint">
 <li><a href="/">Home</a></li>
 <li><a href="CourtActions/2005">Court Actions</a></li>

</ol>

</div>
 </div>

<div id="mainbodycontent" class="col col-md-12 mainbodycontent" style="margin-top:-10px;"> 
<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 #051</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;29th day of June, 2005, are as follows: BY CALOGERO, C.J.: <a href="/opinions/2005/05CC0074.pdf">2005-CC-0074 BECKY BOUTON STELLUTO v. DONALD LOUIS STELLUTO</a>&nbsp;(Parish of Orleans) The judgment of the court of appeal reversing the trial court's denial of Mr. Stelluto's exception of lack of subject matter jurisdiction with respect to the custody claim is reversed. The trial court's judgment denying the exception is reinstated, and the case is remanded to the trial court for determination of the custody claim and any other remaining claims. REVERSED AND REMANDED. VICTORY, J., dissents for the reasons assigned by Weimer, J. TRAYLOR, J., dissents for reasons assigned by Weimer, J. KNOLL, J., additionally concurs and assigns reasons. WEIMER, J., dissents and assigns reasons. &nbsp;<a href="/opinions/2005/05O0783.pdf">2005-O- 0783 IN RE: JUSTICE OF THE PEACE WADE COOK,&nbsp;JUSTICE OF THE PEACE COURT&nbsp;DISTRICT 1, PARISH OF SABINE, STATE OF LOUISIANA</a> (Judiciary Commission of Louisiana) Accordingly, it is ordered, adjudged, and decreed that the respondent, Justice of the Peace Wade Cook, District 1, Parish of Sabine, State of Louisiana, be, and is hereby, removed from office, and that his office be, and is hereby, declared to be vacant. Furthermore, pursuant to La. Sup. Ct. Rule XXIII, &sect;22, we cast the respondent with $129.50 for the costs incurred in the investigation and prosecution of his case. REMOVAL FROM JUDICIAL OFFICE ORDERED. &nbsp;&nbsp;BY KIMBALL, J.: <a href="/opinions/2005/04C1089.pdf">2004-C- 1089 MALLARD BAY DRILLING, INC. v. JOHN NEELY KENNEDY, SECRETARY OF&nbsp;DEPARTMENT OF REVENUE, STATE OF LOUISIANA</a> (Parish of Iberia) For all the above reasons, we find that Act 40 is inapplicable to the instant suit which was pending prior to the Act's effective date. Furthermore, we find that under the provisions of La. R.S. 47:305.1(B)as they existed prior to the effective date of Act 40, Mallard is not the owner or operator of a "vessel." Accordingly, it is not entitled to the exemption provided by La. R.S. 47:305.1(B). Furthermore, we find that the provisions of La. R.S. 47:305(E)do not prohibit the imposition of the sales tax on diesel fuel sold, delivered, and consumed in Louisiana. Finally, we conclude that the imposition of the tax does not violate the Commerce Clause. Mallard's request for a refund of the sales taxes at issue was properly denied by the DOR and the Board. The court of appeal's judgment to the contrary is erroneous. Consequently, the judgment of the court of appeal affirming the judgment of the district court is reversed. REVERSED. JOHNSON, J., concurs in part, dissents in part and assigns reasons. WEIMER, J., concurs in the result. &nbsp;&nbsp;BY VICTORY, J.: <a href="/opinions/2005/04CC2893.pdf">2004-CC-2893 LEA SINCLAIR FILSON, ET AL. v. WINDSOR COURT HOTEL, ET AL</a>. (Parish of Orleans) For the reasons expressed herein, the judgment of the court of appeal is affirmed. AFFIRMED. CALOGERO, C.J., concurs and assigns reasons. KIMBALL, J., dissents. JOHNSON, J., dissents and assigns reasons. TRAYLOR, J., dissents and assigns reasons. &nbsp;<a href="/opinions/2005/05O0782.pdf">2005-O- 0782 IN RE: JUSTICE OF THE PEACE R. E. CHAFFIN, JUSTICE OF THE PEACE COURT, WARD 4 PARISH OF EVANGELINE STATE OF LOUISIANA</a> (Judiciary Commission of Louisiana) IT IS ORDERED that Justice of the Peace R. E. Chaffin be suspended from the office of Justice of the Peace for a period of one year, with the suspension being totally deferred. It is further ordered that Justice of the Peace R.E. Chaffin be placed on probation for the remainder of his term of office, with the probationary condition being that he strictly comply with the requirements of La. R.S. 49:251.1. Any failure by Respondent to comply with this condition during the probationary period will be grounds for making the deferred suspension executory or imposing additional discipline, as appropriate. IT IS FURTHER ORDERED that costs and expenses in the matter in the amount of $220.50 are assessed against Respondent with legal interest to commence 30 days from the date of finality of this Court's judgment until paid. KIMBALL, J., dissents and would impose an actual suspension. JOHNSON, J., dissents and would impose a period of actual suspension. &nbsp;&nbsp;BY TRAYLOR, J.: <a href="/opinions/2005/04c0485.pdf">2004-C- 0485 JAMES W. LONG, ET AL. v. STATE OF LOUISIANA</a>, THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT (Parish of Morehouse) JUDGMENT REVERSED, CASE REMANDED TO THE TRIAL COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. JOHNSON, J., dissents and assigns reasons. &nbsp;<a href="/opinions/2005/04ka2137.pdf">2004-KA-2137 STATE OF LOUISIANA v. GLENN D. SKIPPER</a>&nbsp;(Parish of Orleans) GRANTING OF MOTION TO QUASH BILL OF INFORMATION AFFIRMED; RULING FINDING LA. R.S. 40:982 TO BE UNCONSTITUTIONAL IS REVERSED. <a href="/opinions/2005/04b2397.pdf"> </a><a href="/opinions/2005/04b2397.pdf">2004-B- 2397 IN RE: ROGER W. JORDAN, JR.</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 Roger W. Jordan, Jr., Louisiana Bar Roll number 19642, be suspended from the practice of law for a period of three months. It is further ordered that the suspension shall be deferred in its entirety, subject to the condition that any misconduct by respondent during a one-year period following the date of finality of this court's judgment may be grounds for making the deferred 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. JOHNSON, J., concurs in part, dissents in part and assigns reasons. &nbsp;&nbsp;BY KNOLL, J.: <a href="/opinions/2005/03ka2418.pdf">2003-KA-2418 STATE OF LOUISIANA v. JOHN DALE ALLEN</a>&nbsp;(Parish of Red River) (First Degree Murder) For the reasons assigned herein, the defendant's conviction and sentence 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 their 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. Rev. Stat. Ann. &sect;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 defendant in any state post-conviction proceedings, if appropriate, pursuant to its authority under La. Rev. Stat. Ann. &sect;15:149.1; and (2) to litigate expeditiously the claims raised in that original application, if filed, in the state courts. AFFIRMED. JOHNSON, J., concurs in part, dissents in part and assigns reasons. &nbsp;<a href="/opinions/2005/04c2804.pdf">2004-C- 2804 C/W 2004-C- 2857&nbsp; DAVE F. AGUILLARD v. AUCTION MANAGEMENT CORP.,&nbsp;</a>GILMORE AUCTION &amp; REALTY COMPANY, BANK OF NEW YORK, AND ITS SERVICER, NEW SOUTH FEDERAL SAVINGS BANK (Parish of Calcasieu) For the foregoing reasons, the judgments of the lower courts that found the contract, including the arbitration clause, adhesionary and lacking in mutuality are reversed, and this matter is stayed pending arbitration. REVERSED; STAY PENDING ARBITRATION GRANTED. KIMBALL, J., concurs in the result. JOHNSON, J., concurs in the result. WEIMER, J., dissents &amp; assigns reasons. &nbsp;<a href="/opinions/2005/04o3031.pdf">2004-O- 3031 IN RE: JUDGE KIRK GRANIER</a>, TWENTY-NINTH JUDICIAL DISTRICT COURT, PARISH OF ST. CHARLES, STATE OF LOUISIANA (Judiciary Commission of Louisiana) For the reasons assigned, it is ordered that Judge Kirk Granier be publicly censured for violating Canons 1, 2A and 2B, and 3B4 of the Code of Judicial Conduct. It is further ordered that Judge Kirk Granier reimburse the Judicial Expense Fund of the 29th Judicial District Court $2,321.78 and the Judiciary Commission of Louisiana $448. KIMBALL, J., dissents and would impose a greater sanction. JOHNSON, J., concurs. TRAYLOR, J., dissents and would impose a greater sanction. &nbsp;<a href="/opinions/2005/05ca0374.pdf">2005-CA-0374 WORLD TRADE CENTER TAXING DISTRICT v. ALL TAXPAYERS PROPERTY&nbsp;</a>OWNERS, AND CITIZENS OF WORLD TRADE CENTER TAXING DISTRICT AND NONRESIDENTS OWNING PROPERTY OR SUBJECT TO TAXATION THEREIN, AND ALL OTHER PERSONS INTERESTED IN OR AFFECTED IN ANY WAY BY THE EXECUTION OF A COOPERATIVE ENDEAVOR AGREEMENT BY AND AMONG THE WORLD TRADE CENTER TAXING DISTRICT, AND WTC DEVELOPMENT, LIMITED PARTNERSHIP PROVIDING FOR THE LEVY AND COLLECTION OF A TAX ON HOTEL ROOMS AND OVERNIGHT CAMPING FACILITIES WITHIN THE WORLD TRADE CENTER TAXING DISTRICT AND THE PLEDGE AND COLLATERAL ASSIGNMENT OF THE TAX PROCEEDS TO WTC DEVELOPMENT, LIMITED PARTNERSHIP (Parish of Orleans) For the foregoing reasons, we affirm the judgment of the court of appeal.&nbsp; AFFIRMED. Retired Judge Lemmie O. Hightower assigned as Associate Justice ad hoc, sitting for Associate Jusice Chet D. Traylor, recused. JOHNSON, J., dissents and will assign reasons. &nbsp;&nbsp;BY WEIMER, J.: <a href="/opinions/2005/03ka2425.pdf">2003-KA-2425 STATE OF LOUISIANA v. GLYNN JUNIORS, JR.</a>(Parish of St. James) (First Degree Murder) For the reasons assigned herein, defendant's conviction and sentence 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 LSA-C.Cr.P. art. 923 of finality on direct appeal, and before signing the warrant of execution, as provided by LSA-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 LSA-R.S. 15:149.1; and (2) to litigate expeditiously the claims raised in that original application, if filed, in the state courts. AFFIRMED. CALOGERO, C.J., concurs in part, dissents in part and assigns reasons. JOHNSON, J., concurs in part, dissents in part and assigns reasons. &nbsp;&nbsp;PER CURIAM: <a href="/opinions/2005/04b2947.pdf">2004-B- 2947 IN RE: J. CLEMILLE SIMON</a> (Disciplinary Proceedings) Upon review of the findings and recommendation of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that J. Clemille Simon, Louisiana Bar Roll number 19996, be and he hereby is suspended from the practice of law for a period of six months. It is further ordered that all but thirty days of this suspension shall be deferred, subject to the condition that respondent shall enroll in and attend the next session of the Ethics School program offered by the Louisiana State Bar Association's Practice Assistance and Improvement Committee. Failure to comply with this condition or any other misconduct within a period of one year from the finality of this opinion 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., concurs in part and dissents in part, and assigns reasons. JOHNSON, J., dissents and would impose a longer period of actual suspension. WEIMER, J., concurs in part and dissents in part and assigns reasons.&nbsp;&nbsp;
 </div>

</div>