July 6, 2010 - 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 #048</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;6th day of July, 2010, are as follows:&nbsp;BY JOHNSON, J.:<a href="/opinions/2010/09C2161.opn.pdf">2009-C -2161	ISIDORE NEWMAN SCHOOL v. J. EVERETT EAVES, INC. AND WESTPORT INSURANCE CORPORATION</a>&nbsp;(Parish of Orleans)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.For the foregoing reasons, we conclude Defendant did not breach a duty owed to Newman. This finding pretermits any discussion of whether this matter was perempted under LSA-R.S. 9:5606. REVERSED.VICTORY, J., concurs in the result. GUIDRY, J., concurs and assigns reasons.&nbsp;&nbsp;BY KNOLL, J.:<a href="/opinions/2010/08KA1366.opn.pdf">2008-KA-1366	STATE OF LOUISIANA v. DUSTIN DRESSNER</a>&nbsp;(Parish of Jefferson)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.For the reasons assigned herein, the defendant's conviction and death sentence are affirmed. 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 district court 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 the defendant in any State post-conviction proceedings, if appropriate, pursuant to its authority under La. Rev. Stat. Ann. &sect; 15:169; and (2) to litigate expeditiously the claims raised in that application, if filed in the state courts. AFFIRMED.&nbsp;&nbsp;BY WEIMER, J.:<a href="/opinions/2010/08K2262.opn.pdf">2008-K -2262	STATE OF LOUISIANA v. THOMAS WELLS</a>&nbsp;(Parish of Orleans)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.For the foregoing reasons, the court of appeal decision is vacated and the ruling of the trial court denying the motion to suppress is reinstated. Defendant&rsquo;s conviction and sentence are reinstated. REVERSED; CONVICTION AND SENTENCE REINSTATED.JOHNSON, J., dissents and assigns reasons.&nbsp;<a href="/opinions/2010/09C2418.opn.pdf">2009-C -2418	ELLA HAWKINS, ET AL. v. ANDREW JOHN REDMON, ET AL.</a>&nbsp;(Parish of Avoyelles)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball. Retired Judge Thomas C. Wicker, Jr., assigned as Justice ad hoc, sitting for Justice Jeannette Knoll, recused.Accordingly, we find the district court erred in holding the exclusion of Andrew Redmon as a driver of a vehicle insured by Safeway was invalid. Likewise, the court of appeal erred in affirming that judgment. We reverse and remand to the district court for further proceedings consistent with this opinion. REVERSED AND REMANDED.&nbsp;&nbsp;<a href="/opinions/2010/09CC2632.opn.pdf">2009-CC-2632 C/W 2009-CC-2635 DAVID HOGG, JOHN HOGG, GEORGE HOGG III, STEPHEN HOGG AND SANDRA DEFREESE HOGG v. CHEVRON USA, INC. F/K/A GULF OIL COMPANY, E. LEE YOUNG AND E. LEE YOUNG AND COMPANY, INC., WILLIAM BURT AND ABC INSURANCE COMPANY</a>&nbsp;(Parish of Lincoln)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.Accordingly, plaintiffs&rsquo; action, filed more than five years after prescription commenced to run, is prescribed. The judgment of the district court denying the motions for summary judgment filed by defendants Chevron and Young is therefore reversed. This matter is remanded to the district court for further proceedings consistent with this opinion.&nbsp; REVERSED AND REMANDED.JOHNSON, J., dissents. KNOLL, J., dissents and assigns reasons.&nbsp;&nbsp;BY GUIDRY, J.:<a href="/opinions/2010/09C2160.opn.pdf">2009-C -2160	C&amp;C ENERGY, L.L.C. AND RED SOX INVESTMENTS, L.L.C. v. CODY INVESTMENTS, L.L.C.</a>&nbsp;(Parish of Caddo)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.Accordingly, for the reasons set forth above, we conclude the lower courts properly found that summary judgment was warranted in favor of the plaintiffs and that the Cody Tax Sale Deed is null and void in its entirety for failure to provide notice of the tax sale to all record co-owners in indivision prior to the tax sale. The decision of the court of appeal is affirmed.&nbsp; AFFIRMED.&nbsp;<a href="/opinions/2010/09C2195.opn.pdf">2009-C -2195	S.J. ET AL. v. LAFAYETTE PARISH SCHOOL BOARD</a>&nbsp;(Parish of Lafayette)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.Accordingly, we find no manifest error in the trial court&rsquo;s factual conclusion that the plaintiffs failed to prove by a preponderance of the evidence that the School Board breached its duty of reasonable supervision owed to C.C. under the circumstances of this case. The court of appeal decision is reversed and the judgment of the district court dismissing the plaintiffs&rsquo; suit is reinstated. REVERSED; JUDGMENT OF THE DISTRICT COURT REINSTATED.JOHNSON, J., dissents and assigns reasons.&nbsp;&nbsp;BY CIACCIO, J.:<a href="/opinions/2010/09C2037.opn.pdf">2009-C -2037	ROGER D. PHIPPS v. CYNTHIA NELSON SCHUPP AND ROLAND LAWRENCE CUTRER, JR.</a>&nbsp;(Parish of Orleans)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.For the reasons assigned, the summary judgment rendered in favor of Cynthia Nelson Schupp and Roland Lawrence Cutrer, Jr., is hereby vacated and the case is remanded for further proceedings. VACATED AND REMANDED.&nbsp;<a href="/opinions/2010/09KK2581.opn.pdf">2009-KK-2581 STATE OF LOUISIANA v. PORFIRIO ESCOTO</a>&nbsp;(Parish of St. Tammany)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.For the foregoing reasons, the pills found during the search of the vehicle were lawfully seized pursuant to a valid inventory search by Officers Maricelli and Stevens. The trial court&rsquo;s determination that the evidence should be suppressed is hereby reversed and this case is remanded to the trial court for further proceedings not inconsistent with this opinion. REVERSED AND REMANDED.&nbsp;&nbsp;PER CURIAM:<a href="/opinions/2010/09K1355.PC.pdf">2009-K -1355	STATE OF LOUISIANA v. MARYLN A. LEBLANC</a>&nbsp;(Parish of Lafayette)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.We therefore reverse the decision below, reinstate defendant's sentence for vehicular homicide, and remand this case to the district court for execution of sentence. COURT OF APPEAL DECISION REVERSED; DEFENDANT'S SENTENCE REINSTATED; CASE REMANDED.&nbsp;<a href="/opinions/2010/09KK1983.PC.pdf">2009-KK-1983	STATE OF LOUISIANA v. AUGUSTUS JACKSON</a>&nbsp;(Parish of Orleans)Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.Accordingly, Officer Diel lawfully retrieved the evidence in the present case when he unscrewed the false bottom of the bug spray can and pulled out the marijuana. The decision of the court of appeal is therefore reversed, the ruling of the trial court denying the motion to suppress is reinstated, and this case is remanded to the trial court for further proceedings consistent with the views expressed herein. DECISION OF THE COURT OF APPEAL REVERSED; JUDGMENT DENYING THE MOTION TO SUPPRESS REINSTATED; CASE REMANDED.&nbsp;<a href="/opinions/2010/09C2477.PC.pdf">2009-C -2477	MARK H. FOSHEE v. GEORGIA GULF CHEMICALS &amp; VINYLS, L.L.C.</a>&nbsp;(Parish of Iberville) Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball. Accordingly, we affirm that judgment.KNOLL, J., dissents and assigns reasons. WEIMER, J., dissents. CIACCIO, J., ad hoc, dissents for the reasons assigned by J. Knoll.&nbsp;<a href="/opinions/2010/09B2658.PC.pdf">2009-B -2658	IN RE: W. SCOTT MAXWELL</a>Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.Upon review of the findings and recommendations of the hearing committees and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that the name of W. Scott Maxwell, Louisiana Bar Roll number 9074, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, &sect; 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. Respondent shall make restitution to all clients subject of the formal charges and repay the Louisiana State Bar Association&rsquo;s Client Assistance Fund any amounts paid to claimants on his behalf. 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/2010/10B0079.PC.pdf">2010-B -0079	IN RE: EDWARD M. NICHOLS, JR.</a>Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record and the briefs filed by the parties, it is ordered that Edward M. Nichols, Jr., Louisiana Bar Roll number 17727, be and he hereby is suspended from the practice of law for one year, with all but six months deferred, followed by a one-year period of supervised probation. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, 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.&nbsp;<a href="/opinions/2010/10B0323.PC.pdf">2010-B -0323	IN RE: JOHN H. CLEGG</a>Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that John H. Clegg, Louisiana Bar Roll No. 1034, be and hereby is suspended from the practice of law for a period of one year and one day. All but six months of that suspension shall be deferred with the explicit condition that before being reinstated pursuant to Supreme Court Rule XIX, &sect; 23, in addition to complying with all other requirements set forth in &sect; 23, respondent shall provide the court with a letter from the Executive Director of the Lawyers Assistance Program confirming that he has executed a recovery agreement with the Lawyers Assistance Program. Upon reinstatement, respondent shall be placed on unsupervised probation for a period of two years, subject to the condition that he fully comply with all obligations of his recovery agreement with the Lawyers Assistance Program. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, 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&rsquo;s judgment until paid.KNOLL, J., concurs in part and dissents in part, with reasons.&nbsp;
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