June 26, 2009 - Opinions - Louisiana Supreme Court

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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 #041</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;26th day of June, 2009, are as follows:&nbsp;BY KIMBALL, C.J.:<a href="/opinions/2009/09C0075.pdf">2009-C -0075 BYRON P. GUILLORY v. JENNIFER D. LEE, ET AL.</a>&nbsp;(Parish of Lafayette)Retired Judge Philip Ciaccio, assigned as Justice ad hoc, sitting for Justice Chet D. Traylor, now retired.For the foregoing reasons, we find the court of appeal was in error in amending the jury&rsquo;s verdict to increase the award of past medical expenses from $40,000 to $98,272.32; increase the award for general damages from $10,000 to $150,000 for past and future physical and mental pain and suffering; and reverse the trial court&rsquo;s denial of damages for loss of enjoyment of life to award $24,000 for that element of damages, past and future. We also find that the court of appeal erred in reversing the jury&rsquo;s finding of no arbitrary and capricious conduct on the part of Progressive. Finally, we find the court of appeal erroneously reversed the trial court&rsquo;s denial of plaintiff&rsquo;s motion for new trial. The judgment of the court of appeal is therefore reversed, and the jury&rsquo;s verdict is reinstated in its entirety. REVERSED. JURY VERDICT REINSTATED.&nbsp;&nbsp;BY VICTORY, J.:<a href="/opinions/2009/07CC0492.pdf">2007-CC-0492 PAMELA WARREN, THERESA RENE WARREN AND SARAH WARREN JIMENEZ v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, JEFFREY A. LAMP, M.D., ROBYN B. GERMANY, M.D., SANDRA MOODY, NP-C, AND FAMILY HEALTH OF LOUISIANA, INC.</a>&nbsp;(Parish of E. Baton Rouge) ON REHEARINGRetired Judge Philip Ciaccio, assigned as Justice ad hoc, sitting for Justice Chet D. Traylor, now retired.For the reasons expressed herein, the judgment of the court of appeal is reversed and the matter is remanded to the trial court to grant defendants' exception of prescription.&nbsp; REVERSED AND REMANDED.JOHNSON, J., dissents and assigns reasons. KNOLL, J., concurs in the result and assigns reasons. WEIMER, J., dissents and assigns reasons. GUIDRY, J., concurs in the result.&nbsp;<a href="/opinions/2009/08K1033.pdf">2008-K -1033 STATE OF LOUISIANA v. DEMARCUS KENTRELL HOLLINS</a>&nbsp;(Parish of East Feliciana) (Possession of a Schedule II Controlled Drug &ndash; Cocaine)Retired Judge Philip Ciaccio, assigned as Justice ad hoc, sitting for Justice Chet D. Traylor, now retired.For the reasons stated herein, the judgment of the court of appeal is reversed and the defendant&rsquo;s conviction and sentence are reinstated.&nbsp; REVERSED.JOHNSON, J., dissents and assigns reasons.&nbsp;<a href="/opinions/2009/08CC2527.pdf">2008-CC-2527 BENNY NAGHI, ET AL. v. LISA BRENER, ET AL.</a>&nbsp;(Parish of Orleans)Retired Judge Philip Ciaccio, assigned Justice ad hoc, sitting for Justice Chet D. Traylor, now retired.For the reasons stated herein, the judgments of the lower courts are reversed and the case is remanded to the trial court to grant the defendants&rsquo; exception of peremption. REVERSED AND REMANDED.KIMBALL, C.J., dissents and assigns reasons. JOHNSON, J., dissents. KNOLL, J., concurs in the result. WEIMER, J., concurs in the result.&nbsp;&nbsp;BY KNOLL, J.:<a href="/opinions/2009/09C0007.pdf">2009-C -0007 C/W 2009-C -0008 CLYDE A. "ROCK" GISCLAIR, ASSESSOR FOR ST. CHARLES PARISH v. LOUISIANA TAX COMMISSION, ELIZABETH GUGLIELMO, CHAIRMAN OF THE LOUISIANA TAX COMMISSION, ENTERGY LOUISIANA, INC., ENTERGY LOUISIANA LLC &amp; ENTERGY LOUISIANA PROPERTIES</a>&nbsp;(Parish of E. Baton Rouge)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Associate Justice Chet D. Traylor, now retired.For the foregoing reasons, we reverse the judgment of the court of appeal, and we reinstate the judgment of the district court, dismissing plaintiff's claims against defendants with prejudice on the declinatory exceptions of lack of subject matter jurisdiction. REVERSED AND REINSTATED.&nbsp;<a href="/opinions/2009/09C0023.pdf">2009-C -0023 LOUISIANA SAFETY ASSOCIATION OF TIMBERMEN-SELF INSURERS FUND v. LOUISIANA INSURANCE GUARANTY ASSOCIATION</a>&nbsp;(Parish of Winn)Retired Judge Philip Ciaccio, assigned as Justice ad hoc, sitting for Justice Chet D. Traylor, now retired.For the foregoing reasons, the judgments of the lower courts are reversed and set aside. Summary judgment is granted in favor of the Louisiana Insurance Guaranty Association and against the Louisiana Safety Association of Timbermen-Self Insurers Fund, dismissing the Fund&rsquo;s claims against LIGA with prejudice. Costs of this litigation are assessed to the Louisiana Safety Association of Timbermen-Self Insurers Fund. REVERSED AND RENDERED.&nbsp;&nbsp;BY WEIMER, J.:<a href="/opinions/2009/08C2810.pdf">2008-C -2810 MARCO DEMMA, III v. AUTOMOBILE CLUB INTER-INSURANCE EXCHANGE</a>&nbsp;(Parish of St. Tammany)Retired Judge Philip Ciaccio, assigned Justice ad hoc, sitting for Justice Chet D. Traylor, now retired.Based on the foregoing, we hold that Auto Club&rsquo;s unconditional payment of $23,000.00 to Marco Demma, III, pursuant to LSA-R.S. 22:658(A)(1) and McDill, supra, was a tacit acknowledgment that interrupted prescription. The unconditional payment was tendered on November 8, 2006, after which date, prescription began to run anew. See LSA-C.C. art. 3466 (&ldquo;Prescription commences to run anew from the last day of interruption.&rdquo;). Demma&rsquo;s suit, filed on May 14, 2007, was therefore timely. The lower courts erred in sustaining the exception of prescription. Accordingly, we reverse the decisions of the court of appeal and the district court maintaining the exception of prescription and remand this case to the district court for further proceedings consistent with this opinion. REVERSED AND REMANDED.VICTORY, J., concurs in the result. GUIDRY, J., concurs in the result and assigns reasons.&nbsp;&nbsp;BY GUIDRY, J.:<a href="/opinions/2009/09O0747.pdf">2009-O -0747 IN RE: JUDGE WILLIAM A. MORVANT 19TH JUDICIAL DISTRICT COURT PARISH OF EAST BATON ROUGE STATE OF LOUISIANA</a>Retired Judge Fred Sexton, assigned as Justice ad hoc, sitting for Justice John L. Weimer, recused. Retired Judge Philip Ciaccio, assigned as Justice ad hoc, sitting for Justice Chet D. Traylor, now retired.For the foregoing reasons, it is ordered that the recommendation of the Judiciary Commission of Louisiana is hereby rejected. No official discipline is imposed on Judge William A. Morvant.&nbsp;&nbsp;PER CURIAM:<a href="/opinions/2009/07KP2034.pdf">2007-KP-2034 STATE OF LOUISIANA v. ANTHONY JOHNSON</a>&nbsp;(Parish of Washington) (Second Degree Murder)Calogero, C.J., retired, recused. Chief Justice Calogero recused himself after oral argument and he has not participated in the deliberation of this case. Traylor, J., retired. Justice Traylor retired after oral argument and he has not participated in the deliberation of this case following his date of retirement, May 31, 2009.The trial court is therefore hereby ordered to render a decision on defendant&rsquo;s Brady claims and, in the alternative, defendant&rsquo;s claims to ineffective assistance of counsel, in an expeditious manner. If the trial court finds that further hearings are necessary, it may hold them promptly. In addition, the parties are directed to seek any review of the trial court&rsquo;s decision directly in this court as part of the pending matter already before this court pursuant to our plenary supervisory jurisdiction over all other courts. La. Const. art. V, &sect; 5(A). JURISDICTION RETAINED; REMANDED IN PART.JOHNSON, J., concurs. KNOLL, J., concurs. WEIMER, J., concurs.&nbsp;<a href="/opinions/2009/09B0028.pdf">2009-B -0028 IN RE: VICKI KEMP CRUSE</a> Retired Judge Philip Ciaccio, assigned as Justice ad hoc, sitting for Justice Chet D. Traylor, now retired.Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record and the brief filed by the ODC, it is ordered that Vicki Kemp Cruse, Louisiana Bar Roll number 19531, be and she hereby is suspended from the practice of law for one year and one day, retroactive to her August 22, 2007 interim suspension. It is further ordered that respondent shall make restitution of any unearned fees owed to her clients subject of the formal charges. 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&rsquo;s judgment until paid.&nbsp;<a href="/opinions/2009/09B0083.pdf">2009-B -0083 IN RE: BONNIE B. HUMPHREY</a>Chief Justice Catherine D. Kimball recused herself after oral argument, and she has not participated in the deliberation of this case. Retired Judge Philip Ciaccio, assigned as Justice ad hoc, sitting for Justice Chet D. Traylor, now retired.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 Bonnie B. Humphrey, Louisiana Bar Roll number 17125, be and she hereby is disbarred, retroactive to her March 2, 2005 interim suspension. Her name shall be stricken from the roll of attorneys and her 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, &sect; 10.1, with legal interest to commence thirty days from the date of finality of this court&rsquo;s judgment until paid.&nbsp;<a href="/opinions/2009/09B0116.pdf">2009-B -0116 IN RE: STEPHEN J. HOLLIDAY</a>Retired Judge Robert Lobrano, assigned Justice ad hoc, sitting for Chief Justice Catherine D. Kimball, recused. Retired Judge Philip Ciaccio, assigned Justice ad hoc, sitting for Justice Chet D. Traylor, now retired.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 Stephen J. Holliday, Louisiana Bar Roll number 23496, be and he hereby is suspended from the practice of law for three years. 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&rsquo;s judgment until paid.&nbsp;<a href="/opinions/2009/09B0207.pdf">2009-B -0207 IN RE: JOHN M. SHARP</a>Retired Judge Philip Ciaccio, assigned Justice ad hoc, sitting for Justice Chet D. Traylor, now retired.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 John M. Sharp, Louisiana Bar Roll number 19149, be and he hereby is disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. It is further ordered that respondent shall make full restitution to the law firm of Sharp Henry Cerniglia Colvin Weaver &amp; Hymel, L.L.C. 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&rsquo;s judgment until paid.&nbsp;
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