LAFAYETTE BAR ASSOCIATION
2016 CLE BY THE HOUR
DECEMBER 15, 2016
RECENT DEVELOPMENTS IN
PROCEDURE AND PRACTICE IN THE
LOUISIANA THIRD CIRCUIT COURT OF APPEAL
Judge Tommy Duplantier
15th Judicial District Court
Judge Shannon J. Gremillion
3rd Circuit Court of Appeal
Judge Phyllis M. Keaty
3rd Circuit Court of Appeal
THIRD CIRCUIT JUDGES
Chief Judge Gene Thibodeaux `Judge Billy H. Ezell
Judge Sylvia R. Cooks Judge James T. Genovese
Judge John D. Saunders Judge Shannon J. Gremillion
Judge Jimmie C. Peters Judge Phyllis M. Keaty
Judge Marc T. Amy Judge John E. Conery
Judge Elizabeth A. Pickett Judge D. Kent Savoie
Table of Contents
ADMINISTRATIVE RULES OF COURT
ATTORNEY FEES
CIVIL SERVICE
COMMUNITY PROPERTY
COMPARATIVE FAULT
CONFLICT OF LAWS
CONTRACTS
CORPORATIONS
CRIMINAL LAW
CUSTODY & PARENTAL RIGHTS
DAMAGES
DONATIONS INTER VIVOS
FALSE ARREST & DEFAMATION
FOREIGN JUDGMENTS
FREE SPEECH, DEFAMATION, & THE ANTI-SLAPP STATUTE
INSURANCE––UM/UIM COVERAGE
JUDGMENT NOTWITHSTANDING THE VERDICT
JONES ACT
LABOR LAW
LEASE
LIABILITY FOR ANIMALS
LIABILITY––TEACHERS, SCHOOLS, AND SCHOOL DISTRICTS
LIMITATIONS OF OWNERSHIP
MEDICAL MALPRACTICE
MERCHANT LIABILITY
NEGLIGENT CREDENTIALING
OIL & GAS
PRESCRIPTION
PROCEDURE
PRODUCT LIABILITY
PROPERTY
PUBLIC WORKS ACT AND PROCEDURE
REDHIBITION
SETTLEMENT
SUMMARY JUDGMENT
TAX LIABILITY
WILLS AND SUCCESSIONS
WORKERS’ COMPENSATION
December Lafayette Bar Association CLE2016
THIRD CIRCUIT RECENT DEVELOPMENTS
RULES
ADMINISTRATIVE RULES OF COURT
Internal Rule 28 – Appellate Record Request by Email or CD
A party may request the appellate record by e-mail if the record contains two volumes or less. This service is complimentary. A party may also request an appellate record sent in PDF form on a CD. The fee for this service is $25.00. Exhibits separate from the appellate record cannot be e-mailed or sent on CD.
CASES
ATTORNEY FEES
Terry Lee Johnson, Sr. v. Dr. Lynn E. Foret, 15-943 (La.App. 3 Cir. 3/2/16)(Amy, J., writing)(Panel: Amy, Keaty, and Conery, J.J.)
As a result of a previous appeal, judgment was entered against the defendant and he was cast with costs. The defendant thereafter attempted to file a satisfaction of judgment. However, the clerk of court demanded payment of court costs before entering the document into the record. The defendant filed a motion to reduce court costs on the basis that they were excessive. After a hearing, the trial court granted the motion and entered judgment reducing the costs. The clerk of court appealed.
Reversed. Attorney Fees Awarded. The clerk contended that the fees in this matter were statutorily authorized and there is no authority which would allow a trial court to reduce the fees absent a finding that they were excessive. After reviewing the relevant provisions addressing trial and appellate costs, the panel noted that La.Code Civ.P. art. 2126, which is the article addressing appellate costs, provides a mechanism for seeking a reduction in the costs of appeal. However, the panel concluded that that mechanism was inapplicable to this matter for several reasons. The panel noted that La.R.S. 13:841, which enumerates the fees permissible in civil matters, provides no provision for the reduction of the statutorily-authorized fees on any grounds. Noting that neither the parties nor the panel had found any provision of law or jurisprudence that would allow the trial court to reduce the fee, the panel determined that the trial court erred in reducing the costs on the basis that it “is the fair thing to do.” The panel also determined that La.R.S. 13:843 authorizes an award of attorney fees where the clerk of court has to hire an attorney to defend a motion to reduce costs. Accordingly, the panel awarded the clerk attorney fees.
CIVIL SERVICE
Nolvey Stelly v. Lafayette City-Parish,16-328 (La.App. 3 Cir. 10/12/16), ___ So.3d ___ (Thibodeaux, Chief Judge writing; Gremillion and Savoie, Judges).
Lieutenant Nolvey Stelly (Officer Stelly) of the Lafayette Police Department (LPD) had been on extended sick leave with pay for a year due to job-related stress. He was preparing to return to duty, and thus was required to undergo a psychological fitness-for-duty exam, which was scheduled for him in Baton Rouge at 8:00 a.m. Officer Stelly was ordered to report to the LPD at 6:30 a.m. for transport to Baton Rouge by two plain clothes internal affairs officers. Officer Stelly had plans to be in Baton Rouge on other business the night before the scheduled appointment and refused to show up for the LPD transport, though he did go to the Baton Rouge appointment as scheduled. He was given a fifteen-day suspension from duty which was approved by the Lafayette Municipal Fire & Police Civil Service Board (the Board) and sustained on appeal by the district trial court. He then appealed to this court seeking a reversal of the district trial court’s judgment.
Affirmed. Finding no manifest error in the trial court’s judgment, we affirmed. Contrary to Officer Stelly’s assertions on appeal, we found that he did violate LPD procedures. Under Lafayette Consolidated Government Policies and Procedures,PPM 2161-2–Conditions of Employment, Officer Stelly’s willful refusal to comply with a lawful directive from a supervisor amounted to insubordination which is a major offense. Officer Stelly was provided a copy of PPM 2161-2, and two General Orders known as GO 201.2, governing professionalism, and GO 204.6, governing the fitness-for-duty examination (FFDE) process, in advance, and he was aware of the consequences.
Further contrary to Officer Stelly’s assertions on appeal, we found that the conclusions and penalties imposed by the Board were reasonable and just. GO 204.5 provides various levels of informal and formal action including counseling, retraining, warning, caution, reprimand, suspension with or without pay, demotion, and dismissal. Officer Stelly’s offense was a category 3 offense; thus, suspension was commensurate with his conduct.
We further found that, contrary to his assertions, Officer Stelly was afforded constitutional due process. He received notice of the charges, an explanation of the evidence, and an opportunity to present his side of the story pursuant to Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487 (1985).
COMMUNITY PROPERTY
Carmichael v. Brooks, 16-93 (La.App. 3 Cir. 6/22/16), ---So.3d--- (Genovese, J.; Saunders, J. and Ezell, J.)
Both Plaintiff, Heather Carmichael, and Defendant, Ray Brooks, appeal the trial court judgment partitioning their community property.
Affirmed in part; reversed in part; vacated in part; rendered; and remanded. Numerous issues were raised by the parties in the appeal of this matter. This appellate decision is noteworthy for its consideration of the trial court’s application of LA.R.S. 9:2801.1 to grant Heather a $22,000.00 credit against Ray’s social security benefits. Ray argued on appeal that the trial court’s ruling is preempted by Supremacy Clause of the U.S. Constitution, art. VI, cl. 2. The appellate court disagreed and reasoned that in community property partitions, the federal law provisions must be considered in conjunction with state law. The appellate court reasoned that “Federal law preempts the classification of social security benefits as community property, but it does not prohibit an assignment of property equal in value to the amount of social security benefits. 42 U.S.C.A. § 407.” Rather, state law, La.R.S. 9:2801.1, “simply allows a trial court, depending upon the facts and circumstances of the community property regime, to provide a spouse an offset in an amount equal to that of the social security benefits, when doing so would be equitable and in furtherance of Louisiana’s community property laws.” The appellate court found that it would be inequitable for Ray to receive much more than one-half of the social security benefits, and that La.R.S. 9:2801.1’s provisions “allowing for an offset equal in value, is in fact enacted for the purpose of achieving an equitable result.” Thus, the court concluded that the state law did not classify community property in contravention of federal law, “it merely provides for a discretionary equitable offset.” Therefore, that portion of the trial court’s judgment was affirmed by the appellate court.
Square Mile Energy, LLC v. Pommier, et al., 15-807 (La.App. 3 Cir. 6/1/16), ___ So.3d ___ (Thibodeaux, Chief Judge, writing; Peters and Keaty, Judges).
Paul Roy Pommier and Roxanne Pommier were married from 1986 to 2007. In 2001, Paul and his four siblings each inherited a tract of land and a one-fifth interest in a mineral servitude burdening all five tracts of land. Also during their marriage, Paul and Roxanne bought one of the other five tracts of land (“Tract 2”). Tract 2 had initially been inherited by Paul’s brother Luby, and it, along with Luby’s interest in the mineral servitude, passed to Luby’s daughters (Paul’s nieces) when Luby died. Luby’s daughters sold the surface rights to Paul and Roxanne, but reserved all minerals and mineral rights.
In 2010, three years after Paul and Roxanne divorced, they executed an agreement entitled “Partition of Community Property” (“Partition Agreement”) in order to “settle and liquidate the community which formerly existed between them[.]” In Paragraph I of the Partition Agreement, Paul conveyed to Roxanne “all of his rights, title and interest in and to” Tract 2. Paragraph I also included the following clause (“N.B. Clause”): “N.B.: Included in this transfer are any and all mineral rights, when available, to Rox G. Pommier and all surface rights.” Roxanne maintained that Paragraph I conveyed a portion of the interest in the mineral servitude that Paul had inherited, since that interest was not expressly exempted from the transfer. Paul asserted that he never intended to transfer any portion of the mineral interest to Roxanne. Square Mile Energy, LLC, who signed a lease to form a drilling unit on the property at issue in 2008, filed a concursus petition to determine whether the Partition Agreement transferred a portion of the mineral interest to Roxanne. Both Paul and Roxanne filed motions for summary judgment. The trial court concluded that the phrase “when available” rendered the N.B. Clause ambiguous. The court then looked to parol evidence, including an affidavit signed by Paul and deposition testimony from Paul and Roxanne, and ruled neither party intended for the Partition Agreement to transfer any portion of the mineral interest to Roxanne. Accordingly, the court granted Paul’s motion for summary judgment and denied Roxanne’s motion. Roxanne filed a timely appeal of the judgment.
Affirmed. Reviewing the trial court’s judgment de novo, we found that no portion of Paul’s interest in the mineral servitude was transferred to Roxanne. While the plain language of the Partition Agreement transferred the mineral rights underlying Tract 2 to Roxanne, whenever they became available, Paul did not own those mineral rights and could not transfer them; they were burdened by a mineral servitude which was co-owned by Paul and his siblings in indivision. However, if that servitude ever expired (for example, after nonuse for a period of ten years), then the mineral rights underlying Tract 2 would become available, and Roxanne would own them. This outcome gives effect to the N.B. Clause, and makes sense in the context of a community property agreement, as it does not result in a transfer of Paul’s separate property (the interest in the mineral servitude). Moreover, since this was not an absurd consequence, no further search for the parties’ intent was required under Louisiana law. Regardless, we noted that this conclusion was further supported by both parties’ deposition testimony and by a sworn affidavit submitted by Paul. We, therefore, found that the Partition Agreement did not transfer any of Paul’s interest in the mineral servitude to Roxanne.
Stephanie Keenan v. Horace Keenan, III, 15-828 (La.App. 3 Cir. 2/3/16)(Amy, J. writing)(Panel: Amy, Ezell, and Savoie, J.J.)
The parties to this matter were formerly married and sought a judicial partition of community property. After a hearing, the trial court entered judgment partitioning the property. Both parties appealed.
Affirmed in part and affirmed as amended; reversed in part; and remanded for further proceedings. Both parties made claims with regard to immovable property. The former husband contended that the trial court erred in finding that the sale of immovable property in Hawaii was profitable and in failing to reimburse him for associated expenses associated. The panel found that the trial court was manifestly erroneous in finding that the sale was profitable, and that there was a mathematical error in the trial court’s reimbursement award for expenses. The former husband also claimed entitlement to reimbursement for mortgage payments for that property. The trial court denied that request and the panel found no manifest error in the denial, noting that the record was sufficient for the trial court to determine that the former husband either failed to establish that the payments were for a community obligation and made with separate funds or that the parties’ agreement concerning spousal support and/or child support included the former husband’s responsibility for paying the mortgage.
The former wife asserted that the trial court erred in its award of reimbursement to the former husband for taxes for the former family home in Texas, and in its inclusion of penalties and fees in the award. The panel determined that the trial court did not err in including the penalties and fees, but determined that the record only supported a finding that the former husband paid a portion of the amounts for which he sought reimbursement. The former wife also sought reimbursement for GI Bill benefits, which had been transferred to pay for the parties’ son’s education. The panel found no error in denial of that request, noting that the burden of proof was on the former wife to prove entitlement to reimbursement and that there was insufficient evidence in the record to support her claim. The panel also found no error in the trial court’s determinations with regard to movables, rental income, and savings bonds.
The trial court awarded title to the former family home in Texas to the former wife, but conditioned the transfer of title upon payment of an equalizing payment to the former husband. The panel determined that it was an abuse of discretion for the trial court to impose such a condition. Accordingly, the panel amended the judgment and affirmed it as amended with regard to the reimbursement claims of the parties. The panel also reversed the condition imposed upon the transfer of the immovable property, and remanded for further proceedings.
Marilyn Williams Hedleskyv. Steven Hedlesky, 15-837 (La.App. 3 Cir. 2/3/16)(Amy, J. writing)(Panel: Amy, Ezell, and Savoie, J.J.)
The property of the parties’ former marriage was partitioned by a December 2013 judgment. In January 2015, the former wife filed a petition to annul judgment for fraud and ill practices, alleging that she had since discovered that her former husband made certain omissions in the detailed descriptive list filed in the partition proceeding. The former husband filed exceptions of no cause of action and prescription. The trial court sustained both exceptions, dismissing the suit. The former wife appealed.
Reversed in part and rendered; Affirmed in part. Reviewing the petition(s), the panel concluded that the trial court erred in sustaining the exception of no cause of action. The former wife alleged that the former husband failed to include evidence regarding his separate debt as would be necessary to accurately partition the property of the former community. Although the broad allegation may not ultimately be demonstrated by sufficient evidence to prevail on a nullity action, the petition set forth a cause of action for nullity as a preliminary matter. However, the panel determined that the trial court’s determination that the matter was prescribed was supported by the record. La.Civ.Code art. 2004(B) provides that an action for nullity due to fraud or ill practices must be brought within one year of discovery. Jurisprudence further indicates that the date of discovery is the date on which a plaintiff knew or should have known through the exercise of reasonable diligence of facts sufficient to put him or her on notice of the need for inquiry. The plaintiff testified that she knew during the proceedings at the time of partition hearing and as well as at the time of the resulting judgment that something was wrong. Notably, she testified that she felt that she would leave the partition hearing able to retain the property in her possession, yet the resulting judgment cast her in judgment for in excess of $263,000.00. Finding that suit was not filed within one year of that discovery, the panel affirmed the sustaining of the exception of prescription.
COMPARATIVE FAULT
Sandalon Jacobs, et al. v. David Sampson, et al., 16-506 (La.App. 3 Cir. 11/9/16)(Amy, J.; writing; Conery, J., concurring.)(Panel: Amy, Pickett and Conery, J.J.)
The panel reviewed a matter involving an accident alleged to have occurred when the driver of a truck applied the brakes in order to avoid striking a vehicle that turned into his lane of travel. Although he avoided contact with the turning vehicle, the driver of a vehicle being towed by the lead truck could not stop, resulting in an accident between those two vehicles. The passenger of the lead truck and the driver of the towed vehicle alleged injury as a result of the impact. Both the driver of the turning vehicle and the driver of the lead truck were named as defendants, as were their insurers. The trial court assessed 95% of the fault for the accident to the driver of the turning vehicle due to a finding that she entered the highway without yielding to the trucks traveling at highway speed. It assessed the remaining 5% of the fault to the driver of the lead truck, finding that he was driving at an excessive speed given the fact that he was towing a vehicle. It awarded general damages and past medical expenses to both plaintiffs. The insurer of the driving of the turning vehicle appealed.