June 27, 2018 - Opinions - Louisiana Supreme Court

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<table cellpadding="5" cellspacing="0" style="text-align:justify;" 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 #030</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;27th day of June, 2018, are as follows:&nbsp;BY WEIMER, J.:<a href="/opinions/2018/17-1988.CJ.OPN.pdf">2017-CJ-1988 IN RE: L.M.M., JR., A MINOR&nbsp;</a>(Parish of Jefferson) In this action, the biological mother of a child placed under guardianship with the child&rsquo;s paternal great-aunt filed a petition to terminate that guardianship and to regain custody of the child.&nbsp; Following a trial conducted over three days, the district court rendered judgment terminating the guardianship and awarding joint custody of the child to the guardian and the biological mother, with the mother designated as the domiciliary custodian.&nbsp; On appeal, the court of appeal reversed the district court judgment, reinstated the guardianship, and remanded the case to the district court for purposes of establishing a visitation schedule for the mother.&nbsp; At the mother&rsquo;s behest, we granted certiorari to assess whether the correct legal standards were applied by the courts below and to review the correctness of the district court&rsquo;s determination that the guardianship should be terminated. Finding that this case highlights the distinction that exists between custody determinations under the Civil Code and the guardianship provisions of the Children&rsquo;s Code, we hold that the proper standard for determining whether an order of guardianship should be modified or terminated is statutorily prescribed by Article 724 of the Children&rsquo;s Code, which, in this case, requires proof by the movant/mother by &ldquo;clear and convincing evidence&rdquo; of &ldquo;a substantial and material change in the circumstances of the guardian or child&rdquo; because either &ldquo;[c]ontinuation of the guardianship is so deleterious to the child as to justify a modification or termination of the relationship&rdquo; or &ldquo;the harm likely to be caused from a change in the guardianship is substantially outweighed by the advantages to the child of the modification.&rdquo;&nbsp; La. Ch.C. art. 724(D).&nbsp; Weighing the evidence in light of that evidentiary burden, we agree with the court of appeal&rsquo;s assessment that the district court erred in determining that the mother met her burden of proving the guardianship should be terminated.&nbsp; Therefore, we affirm the judgment of the court of appeal reinstating the guardianship order. AFFIRMED AND REMANDED.
	 HUGHES, J., dissents and assigns reasons.&nbsp;&nbsp;BY GUIDRY, J.:<a href="/opinions/2018/17-1488.C.OPN.pdf">2017-C-1488 ROGER BURCHFIELD AND CAROL BURCHFIELD&nbsp; v. FORREST H. WRIGHT, M.D., THOMAS RENDA, M.D., AND WILLIS KNIGHTON MEDICAL CENTER</a>&nbsp;(Parish of Caddo) In this medical malpractice case, the jury declined to find the defendant surgeon&rsquo;s failure to refer the plaintiff for a cardiac consult before performing non-emergency gallbladder surgery had caused the patient to suffer a severe heart attack thirty or so hours later that ultimately necessitated a heart transplant rather than a heart bypass. Instead, the jury found the plaintiffs had proven the defendant&rsquo;s breach of the standard of care had resulted in the loss of a chance of a better outcome. The jury awarded the plaintiffs lump sum general damages, which the trial court in its judgment made subject to the Medical Malpractice Act&rsquo;s limitation on the total amount recoverable. The court of appeal found legal error in the verdict form necessitated de novo review of the damages awarded. The court of appeal affirmed the jury&rsquo;s determination the plaintiff had suffered a lost chance of a better outcome and awarded both general damages and special damages, including past medicals, future medicals, and lost wages. Because the court of appeal erred in failing to apply the jurisprudence of this court in determining the damages to be awarded in a lost chance of a better outcome case, we reverse and reinstate the jury&rsquo;s verdict, its lump sum award of general damages, and the trial court&rsquo;s judgment.&nbsp; REVERSED; JUDGMENT OF THE DISTRICT COURT REINSTATED AND AFFIRMED.
	 &nbsp;<a href="/opinions/2018/18-0280.CA-CW-18-0285.CA.OPN.pdf">2018-CA-0280 C/W 2018-CA-0285 BEER INDUSTRY LEAGUE OF LOUISIANA AND WINE AND SPIRITS FOUNDATION OF LOUISIANA, INC. v. THE CITY OF NEW ORLEANS AND NORMAN S. FOSTER, IN HIS OFFICIAL CAPACITY AS CHIEF FINANCIAL OFFICER AND DIRECTOR OF FINANCE FOR THE CITY OF NEW ORLEANS&nbsp;</a>(Parish of Orleans)&nbsp; In this case, we are called upon to decide whether an ordinance of the City of New Orleans levying a gallonage tax based on volume upon dealers who handle high alcoholic content beverages is a valid exercise of its authority to levy and collect occupational license taxes within the meaning of La. Const. Art. VI, &sect; 28, which permits a local governmental subdivision to impose an occupational license tax not greater than that imposed by the state. This case is before us pursuant to our appellate jurisdiction, La. Const. Art. V, &sect; 5(D), because the ordinance has been declared unlawful and unconstitutional by the trial court. For the following reasons, we find the portion of the ordinance at issue is not an unconstitutional exercise of the City&rsquo;s taxing authority. We thus reverse the trial court&rsquo;s grant of summary judgment in favor of the plaintiffs, and remand to the trial court for further proceedings. REVERSED AND REMANDED.
	 HUGHES, J., dissents with reasons.&nbsp;&nbsp;BY CLARK, J.:<a href="/opinions/2018/17-1518.C-CW-17-1519.C-17-1522.C.OPN.pdf">2017-C-1518 C/W 2017-C-1519 C/W 2017-C-1522 GLORIA'S RANCH, L.L.C. v. TAUREN EXPLORATION, INC., CUBIC ENERGY, INC., WELLS FARGO ENERGY CAPITAL, INC., AND EXCO USA ASSET, INC.&nbsp;</a>(Parish of Caddo)&nbsp; A landowner brought suit against several mineral lessees for breach of the obligations of its mineral lease.&nbsp; The mortgagee of one of the lessees was also named as a defendant. The lower courts held all lessees and the mortgagee solidarily liable for damages resulting from the failure to furnish a recordable act evidencing the expiration of the lease, i.e., failure to release the lease.&nbsp; We granted these consolidated writ applications to determine (1) whether the mortgagee was properly held solidarily liable as an &ldquo;owner&rdquo; of the lease under La. Mineral Code art. 207 and a &ldquo;lessee&rdquo; under La. Mineral Code art. 140; (2) whether the imposition of solidary liability was correct with regard to the owner of the shallow rights; (3) whether La. Mineral Code art. 140&rsquo;s calculation of damages contemplates the inclusion of unpaid royalties (the amount due) in addition to double the amount of unpaid royalties (as a penalty) or whether the maximum damage award allowed is twice the amount of unpaid royalties; and (4) whether $125,000 in attorney fees for work done on appeal is excessive.For the reasons that follow, we find (1) the mortgagee was not an &ldquo;owner&rdquo; for purposes of La. Mineral Code art. 207 and is, therefore, not liable for failure to release the lease.&nbsp; For the same reasons, we find the mortgagee was not a &ldquo;lessee&rdquo; for purposes of La. Mineral Code art. 140 and, is, therefore, not liable for failure to pay royalties that were due.&nbsp; (2) We find Tauren is solidarily liable for the damages because the failure to release the lease is an indivisible obligation. (3) We hold La. Mineral Code art. 140 authorizes as damages a maximum of double the amount of unpaid royalties. (4)&nbsp; Last, we amend the award of attorney fees to reflect our holdings herein. REVERSED IN PART; AMENDED IN PART; AND AFFIRMED AS AMENDED.
	 Retired Judge Hillary Crain assigned as Justice ad hoc, sitting for Crichton, J., recused.CRICHTON, J., recused. WEIMER, J., concurs in part and dissents in part and assigns reasons. GENOVESE, J., dissents in part and assigns reasons.&nbsp;<a href="/opinions/2018/17-1811.C.OPN.pdf">2017-C-1811 WARREN MONTGOMERY, IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY FOR ST. TAMMANY PARISH&nbsp; v.&nbsp; ST. TAMMANY PARISH GOVERNMENT, BY AND THROUGH THE ST. TAMMANY PARISH COUNCIL; AND PATRICIA "PAT" BRISTER, IN HER OFFICIAL CAPACITY AS PARISH PRESIDENT&nbsp;</a>(Parish of St. Tammany)&nbsp; We granted writ of certiorari in this case to determine whether the lower courts erred in finding that the St. Tammany Parish District Attorney is not legally obligated and entitled to serve as legal adviser to the St. Tammany Parish Council, Parish President and all departments, offices and agencies, and represent the Parish government in legal proceedings.&nbsp; For the reasons that follow, we find that the lower courts did, in fact, err, and we reverse the trial court&rsquo;s grant of the St. Tammany Parish Government&rsquo;s Motion for Summary Judgment.&nbsp; Furthermore, finding that there is no genuine issue of material fact that the Louisiana Constitution, the laws of the State, and the St. Tammany Parish Charter mandate that Applicant is the general attorney for St. Tammany Parish, we grant the St. Tammany Parish District Attorney&rsquo;s Motion for Summary Judgment. REVERSED AND RENDERED.
	 Retired Judge Michael Kirby, assigned as Justice ad hoc, sitting for Guidry, J., recused.GUIDRY, J., recused. HUGHES, J., concurs and assigns reasons.&nbsp;&nbsp;BY CRICHTON, J.:<a href="/opinions/2018/16-1708.KP.OPN.pdf">2016-KP-1708 STATE OF LOUISIANA v. CATINA CURLEY</a>&nbsp;(Parish of Orleans)&nbsp; This case presents the question of whether the defendant was deprived of effective assistance of counsel where trial counsel failed to investigate and present a cogent defense of &ldquo;battered woman&rsquo;s syndrome&rdquo; (&ldquo;BWS&rdquo;), including failing to investigate the benefits of expert testimony concerning BWS. We hold that the defendant was deprived of effective assistance of counsel in this case, given the documented evidence of repeated abuse the victim perpetrated upon the defendant before his death. We therefore reverse the court of appeal, vacate the defendant&rsquo;s conviction and sentence, and remand to the trial court for further proceedings consistent with this opinion. REVERSED; CONVICTION AND SENTENCE VACATED; REMANDED.
	 WEIMER, J., dissents and assigns reasons.&nbsp;<a href="/opinions/2018/17-1112.CC.OPN.pdf">2017-CC-1112 KERRY MAGGIO v. JAMES PARKER; THE SANDWICH KINGS, LLC (D/B/A JIMMY JOHN'S); REPUBLIC-VANGUARD INSURANCE COMPANY; AND METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY</a>&nbsp;(Parish of Ascension)&nbsp; In this matter, which is at the summary judgment phase, we are called upon to decide whether a settlement which purports to release &ldquo;all other persons, firms, or corporations who are or might be liable&rdquo; applies to defendants who were not direct parties to the settlement. For the reasons that follow, we find that the defendants are not entitled to summary judgment, reverse the opinion of the court of appeal, and remand for further proceedings. AFFIRMED.
	 WEIMER, J., dissents and assigns reasons.&nbsp; GUIDRY, J., dissents and assigns reasons.&nbsp; CLARK, J., dissents and assigns reasons.&nbsp; HUGHES, J., additionally concurs and assigns reasons.&nbsp;&nbsp;PER CURIAM:<a href="/opinions/2018/17-0520.K.OPN.pdf">2017-K-0520 STATE OF LOUISIANA v. JUBBARD PRICE</a>&nbsp;(Parish of Orleans)&nbsp; The legislature has provided no statutorily authorized responsive verdicts to the crime of second degree kidnapping in La. C.Cr.P. art. 814, and therefore La. C.Cr.P. art. 815, and its requirement that simple kidnapping be a lesser and included grade of second degree kidnapping before a verdict of guilty of the former can be responsive to a charge of the latter, applies by its plain language. Under State v. Simmons, 01&ndash;0293 (La. 5/14/02), 817 So.2d 16, because reasonable state of facts can be imagined wherein the greater offense second degree kidnapping is committed without perpetration of the lesser offense of simple kidnapping, a verdict of guilty of simple kidnapping is not responsive to a charge of second degree kidnapping. Because the jury&rsquo;s return of the non-responsive verdicts is an implicit acquittal of the crimes charged, we reverse the court of appeal and remand to the trial court to enter a post-verdict judgment of acquittal on the five counts of second degree kidnapping. REVERSED AND REMANDED
	 GUIDRY, J., dissents.&nbsp;<a href="/opinions/2018/17-1875.C.OPN.pdf">2017-C-1875 MARLON EAGLIN v. EUNICE POLICE DEPARTMENT, ET AL.</a>&nbsp;(Parish of St. Landry) In this case, we are called upon to decide whether the false arrest and false imprisonment claims of Paul Powell are prescribed. For the reasons that follow, we conclude the action is prescribed. Accordingly, we reverse the judgment of the court of appeal and reinstate the judgment of the district court. JUDGMENT OF COURT OF APPEAL REVERSED. TRIAL COURT JUDGMENT REINSTATED.
	 JOHNSON, C.J., dissents and assigns reasons. HUGHES, J., dissents and assigns reasons.&nbsp;<a href="/opinions/2018/17-2074.C.OPN.pdf">2017-C-2074 BRANDON FORVENDEL v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY</a>&nbsp;(Parish of Jefferson) In this case, we are called upon to decide whether an insurer waived its defenses to plaintiff&rsquo;s current claim by paying on an earlier claim to him in error. For the reasons that follow, we find that the insurer did not waive its rights. Accordingly, we reverse the judgments of the courts below. REVERSED.
	 &nbsp;<a href="/opinions/2018/18-0170.C.OPN.pdf">2018-C-0170 ANGELA JACKSON v. FAMILY DOLLAR STORES OF LOUISIANA INC., S&amp;S JANITORIAL SERVICES, LLC, SMS ASSIST, LLC</a>&nbsp;(Office of Workers&rsquo; Compensation, District 8) In this workers&rsquo; compensation case, we are called upon to decide whether the employer&rsquo;s appeal, taken within the devolutive appeal delays but outside of the suspensive appeal delays, is timely under the special provisions of La. R.S. 23:1310.5(C).&nbsp; For the reasons that follow, we find the appeal should be maintained as timely, but because the appeal is devolutive in nature, the judgment awarding benefits is subject to immediate execution.
	 AFFIRMED AND REMANDED.
	 &nbsp;JOHNSON, C.J., dissents and assigns reasons. WEIMER, J., dissents and assigns reasons. GUIDRY, J., concurs. CRICHTON, J., additionally concurs and assigns reasons.&nbsp;<a href="/opinions/2018/18-0313.C.OPN.pdf">2018-C-0313 KEVIN COOLIDGE v. AUSTIN BUTLER, DBA AUSTIN'S AUTO SALVAGE</a>&nbsp;(Office of Workers&rsquo; Compensation, District 1E) For the reasons assigned in our opinion in Angela Jackson v. Family Dollar Stores of Louisiana, Inc., et al., 18-0170 (La. __/__/18), ___ So.3d ___, the judgment of the court of appeal is affirmed insofar as it determined it had jurisdiction to consider this devolutive appeal, although it could not entertain the appeal until the bond was posted. The case is remanded to the court of appeal to determine whether the bond has been posted and, if so, to consider the appeal on the merits. AFFIRMED AND REMANDED.JOHNSON, C.J., dissents and assigns reasons. WEIMER, J., dissents and assigns reasons. GUIDRY, J., concurs. CRICHTON, J., additionally concurs for the reasons assigned in Angela Jackson v. Family Dollar Stores of Louisiana, Inc., et al., 18-0170 (La. 6/27/18,___ So.3d.___.&nbsp;&nbsp;</div>
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