Learning Center
Plans & pricing Sign in
Sign Out
Your Federal Quarterly Tax Payments are due April 15th Get Help Now >>



  • pg 1
                                                                          ADMINISTRATIVE LAW TO TRUSTS

                                                                                                  Code in refusing to hire her because of
                                                                                                  her bankruptcy filing. The bankruptcy
                                                                                                  court granted Stewart’s motion to dis-
                Administrative                                  Bankruptcy                        miss under 12(b)(6) for failure to state a
                Law                                             Law                               claim, holding that Section 525(b) does
                                                                                                  not create a cause of action with respect
                                                                                                  to private employers who discriminate
                                                                                                  in hiring based on an applicant’s bank-
Agency Decision Presumed                                Job Applicant’s                           ruptcy status. The district court and the
       Legitimate                                      Bankruptcy Status                          5th Circuit affirmed.
                                                                                                     Burnett filed a voluntary petition under
    The Louisiana State Racing Commis-          Burnett v. Stewart Title, Inc., 635 F.3d          Chapter 13 in September 2006. In July
sion imposed the guideline minimum fine         169 (5 Cir. 2011).                                2007, Burnett interviewed for a position
($1,500) and minimum suspension (six               Shani Burnett filed a complaint against        with Stewart, who made her an offer of
months) against two horse trainers accused of   Stewart Title, Inc., alleging Stewart vio-        employment. However, such offer was
allowing horses trained by them to be medi-     lated Section 525(b) of the Bankruptcy
cated by use of a substance forbidden for use

                                                   maps                                                                    leader
on horses entered in races. Neither trainer       Mediation Arbitration
denied that the substance was administered                                                                     ...the
to the horses trained by them, but objected                          Professional Systems, Inc.                            in resolution
based on their conception that the punish-
ment imposed was arbitrary and capricious         800.443.7351     866.769.4553    800.397.9533              E‐mail: resolutions@maps‐adr.com
because the Commission members did not            New Orleans      Baton Rouge     Jackson, MS                   Website: www.maps‐adr.com
know if the sentences could be less than the
minimum set by the guidelines. Their peti-        Free monthly breakfast CLEs
                                                  7:45am ‐ 8:45am
tions for judicial review were unsuccessful,
and the trainers appealed.                        METAIRIE: 
    In Bourgeois v. Louisiana State Racing        3900 N. Causeway Blvd. • 2nd Floor
Commission, 10-0573 (La. App. 4 Cir.
                                                  July 21, 2011 
11/12/10), 51 So.3d 851, the appeal court
                                                        Topic: Structured Settlements                     Kelli C. April      Wayne Wagner
affirmed the lower court decision, and, in so           Speakers: Kelli C. April & Wayne Wagner
doing, reiterated several legal principles:
    ► An agency’s decision is presumed to        August 18, 2011 
                                                          Topic: Understanding the Complex 
be legitimate, and review of it is limited to
                                                                       Construction Case
determining whether it is reasonable;
                                                          Speaker: Eugene R. Preaus
    ► The standard of appellate review
of an agency decision is distinct from and        BATON ROUGE:                                           Eugene R. Preaus       Keith Christie
narrower than that which applies to general       8550 United Plaza Blvd • 1st Floor
appellate application;
                                                   July 29, 2011 
    ► Appellate courts should not intervene
                                                        Topic: Structured Settlements
unless the agency conduct is clearly
                                                        Speakers: Keith Christie & Wayne Wagner
unreasonable and arbitrary; and
    ►The burden is on the licensee to prove      August 26, 2011
that the agency abused its discretion.               Topic: Workers’ Compensation Update
                                                                                                                              Charles J. Duhe, Jr.
                                                     Speaker: Charles J. Duhe, Jr.
                   —Brian M. Bégué                                                                                Like us on Facebook
Chair, LSBA Administrative Law Section
                    2127 Dauphine St.                 See MAPS’ website or MCLE calendar for a complete listing of all our seminars.
              New Orleans, LA 70116

50        June / July 2011
contingent upon the results of a drug          criminate with respect to employment”            sole, exclusive, and complete discretion in
screening and background check. As a           includes all employment-related actions,         the management and control of the busi-
result of the background check, Stewart        the phrase “terminate the employment             ness, operations, and affairs of [FNFS].’”
discovered Burnett’s prior bankruptcy          of” in subsections (a) and (b) would also        Harwood withdrew funds from FNFS in
filing and rescinded its employment offer      be rendered unnecessary. Therefore, the          the form of loans for his personal use
because of this finding.                       5th Circuit concluded, Congress did not          and memorialized these loans in certain
    The only issue on appeal to the 5th        prohibit private employers from denying          promissory notes and deeds of trust in
Circuit was whether there is a legally cog-    employment on the basis of the applicant’s       favor of FNFS. Harwood never filed the
nizable claim for discrimination against a     bankruptcy status.                               deeds of trust with the county clerk, and
private employer that denies employment                                                         he pledged certain property that served
to a potential employee solely because                 Chapter 7 debtor                         as collateral for these notes as security
of that person’s status as a debtor in                                                          for other promissory notes in favor of
bankruptcy. Guided by basic canons of          FNFS, Ltd.; B&W Finance Co., Inc. v.             another bank.
statutory construction, the 5th Circuit        Harwood (In re Harwood), ____ F.3d                  Harwood filed for bankruptcy under
recognized that Section 525 creates one        ____ (5 Cir. 2011).                              Chapter 7 on June 15, 2005, and B&W
standard for government employers under           In Harwood, Chapter 7 debtor David            and FNFS filed an adversary proceed-
525(a), and another for private employ-        S. Harwood appealed the order of the             ing to dispute Harwood’s eligibility for
ers pursuant to 525(b). Specifically, the      district court that affirmed the ruling of the   discharge under various sections of the
5th Circuit noted that Section 525(a)          bankruptcy court that certain of his debts,      Bankruptcy Code. The bankruptcy court
provides that a governmental unit may          namely loans procured from a limited             determined, inter alia, that Section 523(a)
not “deny employment to, terminate the         partnership that Harwood managed as              (4)’s exception to discharge concerning
employment of, or discriminate with            officer and director of the partnership’s        debts resulting from “defalcation while
respect to employment against” a person        corporate general partner, were nondis-          acting in a fiduciary capacity” applied
based on their bankruptcy status, whereas      chargable under Section 523(a)(4).               to Harwood’s outstanding indebtedness
subsection (b) excludes the phrase “deny          Harwood owned 50 percent of the               to FNFS on the notes. Harwood’s ap-
employment to.” Such an omission, the          issued and outstanding stock of B&W              peal to the district court involved only
5th Circuit stated, must be intentional        Finance Co. and also served as president,        the determination that the notes were
and purposeful.                                chief operating officer and director of          nondischargable under Section 523(a)(4),
    The 5th Circuit further stated that        that company. B&W in turn owned a 51             and the district court affirmed.
interpreting the phrase “discriminate          percent partnership interest in FNFS,               Harwood disputed the bankruptcy
with respect to employment,” which             Ltd. “Harwood managed the day-to-day             and district court’s determination that
is included in both subsections (a) and        business affairs of B&W, which pro-              Harwood acted in a fiduciary capacity
(b), as including the act of hiring, would     vided executive and managerial support           towards FNFS under Section 523(a)(4),
render the phrase “deny employment to”         to FNFS and which, pursuant to FNFS’             and that his failure to record the deeds
superfluous. Similarly, if the phrase “dis-    partnership agreement, exercised ‘full,          of trust were tantamount to defalcation.

                                                             L CORPORATION
                                              CARDONELAWAW FIRM
                                              A PROFESSIONAL
                                              Select Referrals Concentrating In:
                                                • NURSING HOME LIABILITY
                                                • MEDICAL MALPRACTICE
                                                • SERIOUS PERSONAL INJURY & WRONGFUL DEATH
                                                                       AV RATED
                                                    State-wide practice with offices located in
                                                    NEW ORLEANS • WESTBANK • METAIRIE
                                                                 829 Baronne St., New Orleans, LA 70113
   CLIFFORD E. CARDONE                                                 ccardone@cardonelaw.com
                                                                    (504)522-3333 • fax (504)581-7651

                                                                                       Louisiana Bar Journal Vol. 59, No. 1             51
Addressing the first question, the 5th         acted in a fiduciary capacity to FNFS.
Circuit stated that:                           Further, the 5th Circuit determined that
                                               the district court did not err in holding
     it is not only the control that the       that the bankruptcy court properly decided                     Family
     officer actually exerts over the          that Harwood’s remaining indebtedness                          Law
     partnership, but also the confidence      on the notes was nondischargable under
     and trust placed in the hands of the      Section 523(a)(4), as Harwood’s failure
     controlling officer, that leads us to     to ensure proper recordation of the deeds
     find that a fiduciary relationship        amounted to willful neglect of his duties              Child Support
     exists sufficient for the purposes        to FNFS.
     of Section 523(a)(4).                                                                  Vaccari v. Vaccari, 10-2016 (La.
                                                              —Tristan E. Manthey           12/10/10), 50 So.3d 139.
   The 5th Circuit continued that to ascer-      Chair, LSBA Bankruptcy Law Section            By per curiam opinion on writs, the Su-
tain whether Harwood owed a fiduciary                                            and        preme Court interpreted La. R.S. 9:315.21
duty to both tiers of this organization,                      Kendra M. Goodman             and ruled that, for good cause shown,
they would “focus [ ] on the nature of the     Member, LSBA Bankruptcy Law Section          an award of final child support could be
business relationship as a whole” (quoting                    Heller, Draper, Hayden,       made retroactive to the date of demand,
In re Bennett, 989 F.2d 779, 789 (5 Cir.                      Patrick & Horn, L.L.C.        even if an interim award was in place,
1993)). The 5th Circuit ultimately agreed                  Ste. 2500, 650 Poydras St.       overruling prior jurisprudence. Here, it
with the bankruptcy and district courts that                 New Orleans, LA 70130          found that Mr. Vaccari had substantially
the board’s entrustment of management                                                       underrepresented his income when the
of the partnership’s affairs and partners’                                                  interim child support was set, and that it
investments in Harwood, coupled with                                                        was thus proper to make the award fully
the near complete control exercised by                                                      retroactive.
Harwood over the partnership’s manage-
ment, compelled a finding that Harwood                                                      Smith v. Pillow-Smith, 10-0167 (La. App.
                                                                                            4 Cir. 11/17/10), 52 So.3d 264.

                                                     CONCENTRATING IN COMPLEX CIVIL, CRIMINAL AND
                                                          COMMERCIAL TRIAL WORK THROUGHOUT THE GULF SOUTH

                                                             Smith & Fawer,                 llc     iS   proud        to
                                                             announce that itS managing partner,
                                                             randall a. Smith, haS been Selected aS
                                                             the louiSiana member oF the ownerS’
                                                             counSel oF america, a national
                                                             aSSociation oF experienced property
                                                             rightS and eminent domain attorneyS.

                201 St. Charles St. Suite #3702 • New Orleans, LA 70170 • 504/525-2200
                              rasmith@smithfawer.com • www.smithfawer.com

52         June / July 2011
    The trial court did not err in not finding   support she received for a child of another                  Property
Mr. Smith in contempt for failure to pay         marriage could be considered as part of
child support because, although he did           her income for interim spousal support        Grosjean v. Grosjean, 45,529 (La. App. 2
not pay the support as ordered, his failure      purposes because there were overlap-          Cir. 10/13/10), 50 So.3d 233, writs denied,
to do so was not willful, he at times paid       ping expenses. She could be imputed a         10-2619, 10-2623 (La. App. 2/4/11), 56
more than was due, he made other direct          full-time earning capacity even though        So.3d 980, 57 So.3d 311.
payments for the child’s support, and there      she did not work full time due to a court-        Although a partnership interest usually
were other extenuating factors. He was not       ordered obligation to attend Alcoholics       terminates at the death of a partner, be-
in contempt for failing to return the child      Anonymous meetings and counseling as          cause Mr. Grosjean’s partnership interest
after visitation because he tried to do so       he “should not be penalized at this time      continued to be recognized by the other
three times by having her board a plane,         for Ms. Harris’ inability to work full time   members, and because assessments con-
but she refused to do so. Although he was        due to her alcoholism.” Reductions from       tinued to be paid on behalf of his interest,
not in contempt for failing to pay child         his paycheck for 401(k) contributions         his share continued after his death, owned
support, the court of appeal remanded            and insurance payments were properly          by his wife and heirs, although one son was
for the trial court to consider attorney’s       excluded from his net income because          designated as the “member” in accordance
fees under La. R.S. 9:375(A). Because            he had been making such contributions,        with the partnership’s rules. When the
she did not proffer his testimony after the      and the insurance benefitted her and the      partnership was converted to an LLC, the
trial court stopped her from continuing to       party’s child. The court did add back his     fact that the father’s partnership interest
cross-examine him, she waived the right          alleged rent payments to his sister because   was registered in the son’s name did not
to appeal this issue.                            he was not paying rent at the time.           make the son the owner of the member-
                                                                                               ship interest in the LLC to the exclusion
  Interim Spousal Support                            Final Spousal Support                     of the other family members, although he
                                                                                               was to be treated as the voting member,
McFall v. McFall, 10-0181 (La. App. 5            Hindelang v. Hindelang, 10-0397 (La.          and the others as assignees shared in the
Cir. 10/12/10), 50 So.3d 904.                    App. 3 Cir. 11/3/10), 49 So.3d 1065.          economic rights in the LLC.
    Because Ms. McFall had not worked                Final spousal support “is awarded in
as a certified medical assistant since 1995,     the amount required for maintenance” and      Brouillette v. Brouillette, 10-0357 (La.
her certification had lapsed and her skills      “is not meant to allow the receiving party    App. 3 Cir. 11/24/10), 51 So.3d 898.
were obsolete, the trial court did not           to continue the lifestyle they had during        Pursuant to a community property
err in imputing minimum wage to her.             the marriage.” The uncontradicted testi-      settlement in approximately 1986, Mr.
It also correctly found that his income          mony by deposition of Ms. Hindelang’s         Brouillette agreed to pay Ms. Brouillette
was greater than he claimed because he           treating physician as to her inability to     47 percent of his military retirement
received cash through his businesses             work should have been accepted as true        benefits, which were garnished from his
that he did not report and used business         by the trial court, who erred in stating      monthly check. In 2004, payments to her
funds to pay certain personal expenses.          that it did not believe the testimony, but    ceased when he changed his benefits from
The interim spousal support award could          gave no reason therefor. Her ability to       retirement to Combat-Related Special
not be made retroactive to the date of her       travel did not mean she could work, and       Compensation, a form of disability pay.
demand in a petition for protection from         her inability to work should have been        On her petition to enforce the community
abuse that had been dismissed, but could         considered in determining whether she         property settlement, the trial court found
only be retroactive to her later-filed answer    had an earning capacity. Any error in         and the court of appeal affirmed that
and reconventional demand. There was             excluding documents that established Mr.      because the benefits were now disability
no abuse of discretion in the trial court’s      Hindelang’s income was harmless error         and not retirement pay, she had no right
not reserving his right to seek credits at a     because he stipulated that he could afford    to a share of these payments. There was
later date for support he claimed to have        any amount of spousal support she would       a logical dissent.
paid in the interim.                             need for maintenance. The trial court
                                                 erred in limiting the spousal support to 12                    —David M. Prados
Molony v. Harris, 09-1529 (La. App. 4            months when it should have been for an           Member, LSBA Family Law Section
Cir. 10/14/10), 51 So.3d 752.                    indefinite duration due to her inability to         Lowe, Stein, Hoffman, Allweiss
    The court of appeal affirmed the trial       work, although if she were able to work                           & Hauver, L.L.P.
court’s denial of interim spousal support        at a later date he could seek to terminate               Ste. 3600, 701 Poydras St.
to Ms. Harris, finding that her net income       or reduce the support. The final spousal             New Orleans, LA 70139-7735
exceeded her needs and that he had very          support should have been prospective
little ability to pay in any event. Ms.          from the date of judgment and not retro-
Harris’ CPA was not disclosed prior to           active to the date of demand because an
trial, and thus the trial court did not err      interim award was in place, pursuant to
in refusing to allow him to testify. Child       La. R.S. 9:321(B)(1).

                                                                                      Louisiana Bar Journal Vol. 59, No. 1              53
                                               provided that “[a]ll blank spaces in the                                                                                        form as “Jim Thomas,” identifying himself
                                               proposal form [i.e., the Uniform Bid Form]                                                                                      as the vice president of the company (and
                Fidelity,                      shall be properly filled in.” Plaintiff argued                                                                                  accompanying that with an affidavit to the
                Surety and                     that the failure of the low bidder to fill in,                                                                                  same effect). The plaintiff urged that because
                Construction                   in some manner, the blanks in the bid form                                                                                      the name of the vice president reflected
                Law                            section dealing with alternates — even                                                                                          in the records of Louisiana Secretary of
                                               though there were no alternates for the                                                                                         State was “James R. Thomas,” the bid was
                                               project — constituted a violation of the                                                                                        defective (so arguing without ever suggest-
 Louisiana Public Works Act/                   bid instructions. (The plaintiff posited that                                                                                   ing that the two names did not refer to the
              Public Bids                      something akin to “N/A” should have been                                                                                        same person). The court likewise rejected
                                               inserted in the blanks by the low bidder.)                                                                                      this argument (as well as the third allega-
The Lemoine Co., L.L.C. v. Lafayette           The court disagreed, noting the applicable                                                                                      tion regarding the trial court’s acceptance
Airport Comm’n, 10-0833 (La. App. 3 Cir.       state jurisprudence prohibiting public entity                                                                                   of parol evidence concerning the identity
12/8/10), 54 So.3d 140.                        waiver of deviations from the advertisement                                                                                     of the vice president, which necessarily
    Plaintiff, the second low bidder on        for bids, the bid form and the public bid law,                                                                                  failed when the court found the information
a nearly $8 million project at Lafayette       but deciding in any event that, under the                                                                                       submitted with the bid on the vice president
(Louisiana) Regional Airport, sought to        circumstances, the airport had not waived                                                                                       to be sufficient on its own).
have the first low bidder (whose bid was a     any requirements at all. The court further
mere $70,000 lower) disqualified for failing   added that “[r]equiring a bidder to fill in                                                                                     Hamp’s Constr., L.L.C. v. Housing Auth.
to properly complete the state-mandated        blanks having no bearing on its bid simply                                                                                      of New Orleans, 10-0816 (La. App. 4 Cir.
Uniform Public Work Bid Form. The trial        for the sake of making a notation on the                                                                                        12/1/10), 52 So.3d 970.
court rejected the attack on the bid, and the  document would lead to an absurd conse-                                                                                             An aggrieved bidder on a scattered site
plaintiff appealed.                            quence in that it would require a bidder to                                                                                     remediation and demolition contract sought
    The plaintiff urged three grounds in       perform a vain and useless act.”                                                                                                a writ of mandamus and injunctive relief
support of its argument that the low bid           The second attack on the bid focused on                                                                                     when its low bid was summarily rejected
failed to meet the strictures of the Public    the signature of the vice president of the low                                                                                  by the public owner on grounds unrelated
 LSJB Ad4 '11_Layout 1 5/19/11 11:11 AM        bidder. The vice president signed the bid
Bid Law. First, the instructions to bidders Page 1                                                                                                                             to the content of the bid. The owner rejected

           A Louisiana Leader in providing Litigation Services,                                                                                                                              New Orleans 504.835.5522
                Forensic Accounting, Business Valuation,                                                                                                                                      Covington 985.892.5850
                      and Law Firm Management                                                                                                                                                Baton Rouge 225.296.5150
                                                                                                                                                                                               Houston 713.963.8008

     From left to right, standing: Daniel Simpson, Jr., CPA; Jeanne Driscoll, CPA; Michele Avery, CPA/ABV, MBA, CVA, CFFA;
             Stephen Romig, CPA, CFP; Jennifer Bernard-Allen, CPA; Anna Breaux, CPA, JD, LLM; Ryan Retif, MS;
                 Brenda Christiansen, CPA; seated: Irina Balashova, CPA, MBA, CIA; Chav Pierce, CPA/ABV, MS;
                                               Holly Sharp, CPA, MS, CFE, CFF
                    The McGladrey Alliance is a premier affiliation of independent accounting and consulting firms. The McGladrey Alliance member firms maintain their name,
                       autonomy and independence and are responsible for their own client fee arrangements, delivery of services and maintenance of client relationships.

54         June / July 2011
the bid without conducting a hearing of                                                                     create violence.
any type or kind concerning the basis for                                                                       Snyder, Matthew’s dad, filed suit
the rejection, in apparent contravention of                     Insurance, Tort,                            in federal district court, alleging, inter
Louisiana state law on disqualification of                      Workers’                                    alia, a state tort law claim for intentional
this type and kind, which requires notice and                   Compensation &                              infliction of emotional distress. A jury
“an informal hearing at which such bidder                       Admiralty Law                               found for Snyder, awarding $2.9 million
is afforded the opportunity to refute the                                                                   compensatory damages and $8 million
reasons for the disqualification” (La. R.S.                                                                 punitive damages. The 4th Circuit Court
38:2212J). The low bidder prevailed on           First Amendment: Intentional                               of Appeals reversed, concluding that
its protest in the trial court, and the public       Infliction of Emotional                                “Westboro’s statements were entitled
authority appealed. The court of appeal af-                   Distress                                      to First Amendment protection because
firmed the trial court judgment, and the low                                                                those statements were on matters of public
bidder was awarded the project.                  Snyder v. Phelps, 131 S.Ct. 1207 (2011).                   concern, were not provably false, and
    The public authority raised several as-          Phelps, founder/pastor of Westboro                     were expressed solely through hyperbolic
signments of error in the court of appeal,       Baptist Church in Topeka, Kan., traveled                   rhetoric.”
including inapplicability of the Louisiana       to Maryland with six of his relatives/                         TheSupremeCourtgrantedcertiorari,and
Public Bid Law (and, therefore, the informal     parishioners (collectively, Westboro) to                   Chief Justice Roberts set the argument:
hearing requirement set forth above) to con-     protest at the funeral of Marine Lance Cpl.
tracts funded by theAmerican Recovery and        Matthew Snyder, killed in Iraq in the line          Whether the First Amendment
ReinvestmentAct Grant (ARRA), as well as         of duty by an improvised explosive device           prohibits holding Westboro liable for
to a demolition contract. (See Louisiana At-     (IED). On the day of the funeral, they              its speech in this case turns largely
torney General Opinion 10-0026, wherein          picketed on public land adjacent to public          on whether that speech is of public
theAG determined that demolition contracts       streets near the Maryland State House,              or private concern, as determined
are not subject to the Louisiana Public Bid      the U.S. Naval Academy and the Catholic             by all the circumstances of the case.
Law.) For its part, the aggrieved low bidder     church of Matthew’s funeral service. They           [S]peech on “matters of public
argued that, under any circumstances and         carried signs stating, e.g., “God Hates the         concern” . . . is “at the heart of the
irrespective of whether federal or state law     USA/Thank God for 9/11,” “America                   First Amendment’s protection.” .
applied, the action of the public authority      is Doomed,” “Don’t Pray for the USA,”               . . Deciding whether speech is of
rejecting the low bidder without a hearing       “Thank God for IEDs,” “Thank God for                public or private concern requires us
violated federal constitutional safeguards of    Dead Soldiers,” “Priests Rape Boys,” “Pope          to examine the “content, form, and
“due process and fair play” for a contract       in Hell,” “God Hates Fags,” “You’re Going           context” of that speech.
for which the public entity solicits open        to Hell” and “God Hates You.” The church
competition. The court agreed.                   notified the police of its intent to picket the     The content of Westboro’s signs related
    Citing cases interpreting the Louisiana      funeral and complied with instructions to       to issues of interest to society at large.
Public Bid Law (including the specific pro-      confine activity to a 10-by-25-foot plot of     “While these messages may fall short of
vision within that statutory scheme calling      public land adjacent to a public street, behind refined social or political commentary,
for an informal hearing at which a disquali-     a temporary fence, approximately 1,000 feet     the issues they highlight — the political
fied bidder “is afforded the opportunity to      from the church. The picketers displayed        and moral conduct of the United States
refute the reasons for the disqualification”)    their signs, sang hymns and recited Bible       and its citizens, the fate of our Nation,
as well as several safeguards prescribed in                                                      homosexuality
                                                  BusinessLoss not enter church property, 3:01 PM Page 1in the military, and scandals
                                                 verses. They did   1-6pg.qxp 6/28/10
a Louisiana Supreme Court decision on            go to the cemetery, yell or use profanity or    involving the Catholic clergy — are matters
the topic, the court of appeal, in affirming
the trial court, found that the disqualified
bidder “was not provided a fair opportunity        Business loss engagements involve cases in many areas including oil spills.
to rebut [the owner’s] finding that it was
non-responsible. . . .” The court of appeal           “Our Professionals have on hand experience dealing in all
maintained the trial court’s decision, which           financial aspects of the legal profession. We have extensive
ordered the award of a contract to the ag-             experience in Business Loss and Bankruptcy.”
grieved low bidder.
                                                                                                 —Kernion T. Schafer, CPA
                  —Daniel Lund III
Member, LSBA Fidelity, Surety and
                                                                        Certified Public Accountants
           Construction Law Section
           Shields Mott Lund, L.L.P.
                                                   SCHAFER              701 Aurora Avenue • Suite A • Metairie, LA 70005

           Ste. 2600, 650 Poydras St.
                                                   GROUP          LTD   Phone 504.837.6573 • Fax 504.837.6570 • Email tina@schafergroup.net
                                                    Forensic Accounting Emerging Issues Financial Services Litigation Services Legal Services Emerging Business
             New Orleans, LA 70130

                                                                                               Louisiana Bar Journal Vol. 59, No. 1                               55
of public import.” Even if some of the signs      might feel the same about Westboro.
were viewed as relating to the Snyders            Westboro’s funeral picketing is
specifically, “that would not change the          certainly hurtful and its contribution                     International
fact that the overall thrust and dominant         to public discourse may be negligible.                          Law
theme of Westboro’s demonstration spoke           But Westboro addressed matters of
to broader public issues.”                        public import on public property,
    As to context, Westboro had staged            in a peaceful manner, in full
similar demonstrations at some 600 funerals       compliancewith the guidance of
over 20 years, establishing their bona fides      local officials. The speech was indeed       U.S. International Trade
as espousers of moral and public policy           planned to coincide with Matthew                   Commission
issues, rather than conducting a vendetta         Snyder’s funeral, but did not itself
against the Snyders.                              disrupt that funeral, and Westboro’s      Five-Year (Sunset) Review of Certain
                                                  choice to conduct its picketing at that   Frozen Warmwater Shrimp from Brazil,
     Westboro’s choice to convey its              time and place did not alter the nature   China, India, Thailand and Vietnam
     views in conjunction with Matthew            of its speech.                            (Inv. Nos. 731-TA-1063, 1064 and 1066-
     Snyder’s funeral made the expression                                                   68 (Review), USITC Publication 4221
     of those views particularly hateful          Speech is powerful. It can stir people    (March 2011).
     to many, especially to Matthew’s             to action, move them to tears of both         The U.S. International Trade Commis-
     father. The record makes clear that the      joy and sorrow, and — as it did here      sion (USITC) determined that revoking
     applicable legal term — “emotional           — inflict great pain. On the facts        the existing antidumping duty orders on
     distress” — fails to capture fully the       before us, we cannot react to that        frozen warmwater shrimp from Brazil,
     anguish Westboro’s choice added to           pain by punishing the speaker. As a       China, India, Thailand and Vietnam
     Mr. Snyder’s already incalculable            Nation we have chosen a different         would be likely to lead to continuation
     grief. But Westboro conducted its            course — to protect even hurtful          or recurrence of material injury within a
     picketing peacefully on matters of           speech on public issues to ensure         reasonably foreseeable time. The USITC
     public concern at a public place             that we do not stifle public debate.      affirmative determinations will keep the
     adjacent to a public street. “Such           That choice requires that we shield       existing orders in place until the next
     space occupies a special position in         Westboro from tort liability for its      five-year sunset review required under the
     terms of FirstAmendment protection.          picketing in this case.                   Uruguay Round Agreements Act estab-
     [W]e have repeatedly referred to                                                       lishing the World Trade Organization.
     public streets as the archetype of a         Seven justices joined in the opinion.         The decision was widely hailed by the
     traditional public forum,” noting that    Justice Alito filed a six-page dissenting    domestic shrimp industry that has been
     “[t]ime out of mind” public streets       opinion.                                     struggling to regain its footing after the
     and sidewalks have been used for                                                       Macondo disaster that closed Gulf fish-
     public assembly and debate.                     —John Zachary Blanchard, Jr.           ing waters for several months. Senators
                                                     Past Chair, LSBA Insurance, Tort,      Mary Landrieu, Thad Cochran and Roger
     Justice Roberts continued:                  Workers’ Compensation and Admiralty        Wicker testified in support of the orders.
                                                                          Law Section       Many other members of the Gulf Coast
     Westboro believes that America is                               90 Westerfield St.     congressional delegation also delivered
     morally flawed; many Americans                             Bossier City, LA 71111      letters of support.

                                                                                            United Nations International
                                                      INSURANCE &                                 Court of Justice
                                                  FINANCIAL CONSULTING
                                                                                            Certain Activities Carried Out by Nica-
                                                       WAYNE CITRON                         ragua in the Border Area, Request for
                                                                                            Provisional Measures (Costa Rica v.

                                                Expert Insurance Testimony                  Nicaragua) (March 8, 2011).
                                                                                               Costa Rica commenced proceedings
                                               A Leading Firm in Life, Health,
                                                                                            at the International Court of Justice
                                                  Disability, Property and
                                                                                            (ICJ) in November 2010 against Nica-
                                                  Casualty Insurance for
                                                                                            ragua under the 1948 American Treaty
        1-800-CITRON1                                 Over 38 Years
                                                                                            on Pacific Settlement and Article 36(2)
     www.citronagency.com                      Insurance Law and Regulations                of the ICJ Statute seeking, inter alia, a
                                                                                            ruling that the Nicaraguan army had im-

56         June / July 2011
permissibly encroached on Costa Rican                                                         of her co-workers had received raises. She
territory. Specifically, Costa Rica claims                                                    then confronted her supervisor, complain-
sovereignty over Isla Portillos, an island                      Labor and                     ing that the employer was showing favorit-
area in which Nicaraguan military troops                        Employment                    ism to the two employees based on their
were dredging a canal. Costa Rica claims                        Law                           national origin. The supervisor reported
that the dredging operations are causing                                                      the conversation to the employer’s Human
significant environmental damage to the                                                       Resources manager. Then, the HR manager
surrounding wetlands in the area.                                                             met with the employee and terminated her
    Costa Rica sought imposition of pro-          NLRB Developments:                          employment based on her violating a com-
visional measures pursuant to Article 41          Changes to “Protected                       pany rule against discussion of individual
of the ICJ statute requiring the immediate        Concerted Activities”                       wage information. The ex-employee then
withdrawal of troops and cessation of                                                         went to her local NLRB office and filed
the canal construction. The ICJ first re-         The National Labor Relations Board          an unfair labor practice charge.
affirmed that a party seeking provisional     (NLRB) recently issued several decisions           Under the federal labor laws adminis-
measures need only demonstrate a prima        extending the rights of non-represented         tered by the NLRB, employees, whether
facie basis for the court’s jurisdiction in   employees. In Parexel International,            unionized or not, have the right to engage
order to request provisional measures.        L.L.C., and Theresa Neuschafer, Case            in protected concerted activity. Because
The court then addressed whether pro-         5-CA-33245 (Jan. 28, 2011), the NLRB            discussions of wages and other terms
visional measures were necessary to           held than an employer violated the NLRA         and conditions of employment qualify
preserve Costa Rica’s rights pending the      when it fired an employee as a “preemp-         as protected concerted activities, retalia-
final decision on the merits, employing       tive strike” to prevent her from speaking       tion for the exercise of that right violates
the plausibility test first enunciated in     to other employees and thus to engage in        federal labor laws. So, the employer’s
Questions Relating to the Obligation          protected concerted activity. The charging      rule itself, standing alone, violated the
to Prosecute or Extradite (Belgium v.         party, a nurse employed with a pharmaceu-       law. Yet, protected concerted activity
Senegal). The plausibility test assesses      tical research company, discovered what         has heretofore meant that more than one
whether the rights asserted by the com-       turned out to be false information that two     employee engaged in the conduct. In fact,
plainant are “plausible” and are causally

linked to the merits of the case.
    The ICJ voted unanimously to impose
provisional measures, ordering both
Costa Rica and Nicaragua to “refrain
from sending to, or maintaining in the                                                  EXPERIENCE HANDLING
disputed territory, including the [canal],                                                ACCUTANE CLAIMS
any personnel, whether civilian, police
                                                                                             SINCE 2003
or security.” The court did allow Costa
Rica to dispatch environmental personnel
necessary to avoid irreparable prejudice                                                         If you have taken:
to the wetlands. The court specifically                                                     ACCUTANE, AMNESTEEM,
added that its provisional measure have                                                       CLARAVIS or SOTRET
immediate binding effect, creating certain                                                    And been diagnosed with:
international legal obligations between
the parties to the ICJ statute.
                                                                                     CROHN’S DISEASE OR
                   —Edward T. Hayes
                                                       Van Robichaux                 ULCERATIVE COLITIS:
           Member, LSBA International                                                You may have a claim against the manufacturer
                           Law Section
               Trial Attorney
            Leake & Andersson, L.L.P.
            Ste. 1700, 1100 Poydras St.
                 Since 1975
               New Orleans, LA 70163                                         800-404-9281

                                                                                                       New Orleans, LA
      New Orleans • info@RobichauxLaw.com

                                                                                   Louisiana Bar Journal Vol. 59, No. 1                57
in this case, the initial judge in this case          State Discrimination Law                      that her former employer, C&C Self Enter-
ruled that because she had acted alone, her                                                         prises, Inc., had terminated her based on her
conduct was not protected and thus she                 In almost all employment discrimination      age in violation of Louisiana’s Employment
could lawfully be terminated. On appeal,           cases alleging wrongful termination, the         Discrimination Law, La. R.S. 23:301 et seq.
the full NLRB reversed the judge’s deci-           central issue becomes the employer’s mo-         The employer argued that she was terminat-
sion, finding that the employer’s action           tivation for firing the employee. A plaintiff    ed for inadequate job performance. The trial
in firing her was an unlawful “preemp-             will claim that a manager was motivated          judge ruled for the plaintiff, stating that while
tive strike” to prevent the employee from          by the intent to discriminate on an unlaw-       he didn’t “quite know why she was fired,”
speaking to other employees and thus to            ful basis. The employer counters with its        the reasons given by the employer didn’t
engage in protected concerted activity.            allegedly legitimate, non-discriminatory         square with previous explanations given
The NLRB stated that: “[W]hat is critical          business rationale. Under a long line of         on her termination papers and in contesting
in those cases is not what the employee            federal and state precedents starting with       the plaintiff’s employment discrimination
did, but rather the employer’s intent to           McDonnell Douglas Corp. v. Green, 93             claim. Therefore, since the judge found the
suppress protected concerted activity.”            S.Ct. 1817 (1973), which Louisiana courts        employer’s asserted reasons false, he found
The employer was ordered to reinstate              use in interpreting our state’s discrimination   for the plaintiff on her age discrimination
the charging party and provide her with            laws, the ultimate burden to prove discrimi-     claim, in reliance on Reeves v. Sanderson
back pay. This decision reflects the views         nation then rests with the plaintiff to prove,   Plumbing, 120 S.Ct. 2097 (2000).
of the three board members appointed or            by a preponderance of the evidence, that the         On appeal, the 3rd Circuit reversed. In
designated by President Obama, including           employer’s proffered reason is a “pretext”       a 2-1 decision, Judge Amy found that the
Craig Becker, a former in-house counsel            for unlawful discrimination — either the         trial judge had misconstrued the Reeves
of the Service Employees International             reason is false or “unworthy of credence.”       case, noting that the Supreme Court had
Union, who serves as a recess appointee            Proof of discriminatory intent is always         explicitly held that “[t]he plaintiff always
after the Senate refused to confirm his            crucial. Such was the issue in Montgomery        bears the ultimate burden of proving to the
nomination.                                        v. C&C Self Enterprises, Inc., 10-0705 (La.      trial court that his or her evidence establishes
                                                   App. 3 Cir. 3/30/11), ____ So.3d ____.           intentional discrimination; it is not enough
                                                       Plaintiff, Roxanne Montgomery, claimed       that the trial court simply disbelieves the
                                                                                                    employer’s proffered reasons.” The major-
                                                                                                    ity then held that the record, on its face, did
                                                                                                    not support a finding of age discrimination,
                                                                                                    rendering a decision in favor of the em-
                                                                                                    ployer. Plaintiff’s proof of discrimination
                                                                                                    was based on her subjective opinion of
                                                                                                    her managers’ conduct and no evidence of
                                                       A More Noble Cause                           disparate treatment. Moreover, the majority
                                                       A. P. Tureaud and the Struggle for           also applied the “same actor” inference used
                                                       Civil Rights in Louisiana                    in federal litigation to the effect that if the
                                                       Rach e l l . e m a n u e l a n d             same manager hires and fires the plaintiff
                                                       a lexa n d eR P. T uRe au d, JR .            who is in a protected status, there is a rebut-
                                                       22 halftones, $35.00                         table presumption that he or she didn’t act
                                                                                                    on the basis of that status.
                                                     “This account of a. P. Tureaud’s life              The dissent, authored by Chief Judge
                                                      is a fascinating portrait of the man,         Thibodeaux, argued that the plaintiff’s
                                                      whom they rightly portray as one of           showing that the employer’s proffered
                                                      the most important figures in twenti-         reasons were false permitted a finding of
                                                      eth century louisiana. A More Noble           age discrimination by the judge. It appears
                                                      Cause does a very good job of show-           that the trial judge’s statement in his reasons
                                                      ing Tureaud’s role in the civil rights        that he did not know why the plaintiff was
                                                      movement, including his involve-              fired was dispositive to the majority. This
                                                      ment with the naacP and the many              case is sure to be appealed.
                                                      civil rights cases he brought.
  It also explores his role in politics, a particularly important contribution. If all that            —Gerald J. (Jerry) Huffman, Jr.
  were not enough, it provides a personal, family portrait of the public man.”                      Member, LSBA Labor and Employment
  — Gaines m. Foster, T. harry Williams Professor of history at louisiana State university                                    Law Section
                                                                                                                   Curry & Friend, P.L.C.
         LSU       PreSS               Available in bookstores and online at www.lsu.edu/lsupress          Ste. 1200, 228 St. Charles Ave.
                                                                                                                  New Orleans, LA 70130

58        June / July 2011
                                                 The appellate court affirmed. The appellate             unambiguous, and its effect was to convey
                                                 court noted that the 1983 transaction had               to the lessee the right to explore and drill
                                                 involved several tracts of land owned by                to all depths.
              Mineral                            different individuals. The court concluded
              Law                                that the individuals had made mineral                    “Calculate and Pay” Clause
                                                 reservations prior to combining the land
                                                 for partition, and therefore they must have             Total E&P USA, Inc. v. Kerr-McGee Oil
                                                 intended that each of them would reserve                & Gas Corp., ____ F. Supp. 2d ____ (E.D.
 New Record Leaseholder                          the minerals he owned prior to the partition.           La. 2010).
Necessary Party in Action to                     Thus, they had created multiple servitudes.                The Deep Water Royalty Relief
     Rescind Transfer                            The court concluded that the servitude for              Act (DWRRA) provides incentives for
                                                 the area that now contained a productive                deepwater drilling on federal lease tracts
Morgan v. Winbeau Oil & Gas Co.,                 well had prescribed.                                    sold in certain areas of the Gulf of Mexico
45,921 (La. App. 2 Cir. 2/16/11), 57 So.3d                                                               between 1996 and 2000. For example,
1202.                                            Louisiana Bath Form Lease                               Section 304 provides that lessees will
   Mr. Morgan owned rights as lessee for             Was Unambiguous                                     not owe royalties on the first 87.5 million
several mineral leases, but he assigned                                                                  barrels of oil equivalent (BOE) produced
those rights to Winbeau Oil & Gas. Morgan        Alyce Gaines Johnson Special Trust v.                   from water depths greater than 800 meters.
brought suit to rescind the assignment.          El Paso E&P Co., ____ F. Supp. 2d ____,                 Lesser amounts of royalty relief are granted
He alleged that he had assigned his lease        (W.D. La. 2011).                                        for wells located at depths greater than 200
rights for a low price based on false                This case concerned a standard form                 meters, but less than 800 meters.
representations by an agent of Winbeau that      lease — a Louisiana Bath form 14-BRI-                      In 1999, a lessee granted overriding
the leases had terminated. In the meantime,      24. The lease granted rights “exclusively               royalty interests to several individuals
Winbeau had reassigned the leases to             unto lessee for the purpose of . . . exploring          for a well that qualified for 87.5 million
Petrohawk. The trial court rendered a            . . . and producing oil, gas, and all other             BOE of royalty relief under Section 304.
judgment rescinding the assignment to            minerals” from the leased premises. At                  The agreements granting the overrides
Winbeau. The appellate court reversed            the time the lease was granted in 1950, no              stated that the overrides would be “payable
and remanded, holding that Petrohawk,            wells in the area had been drilled to a depth           out of all oil, gas, casinghead gas and
the record leaseholder, was a necessary          greater than 7,500 feet. The plaintiff/lessor           associated substances produced,” but also
party under La. C.C.P. art. 641.                 sought a declaratory judgment that the lease            provided that “[t]he overriding royalty
                                                 did not apply to the Haynesville Shale,                 interest assigned . . . shall be calculated
    Prescription of Nonuse                       which is found at a depth of about 10,400               and paid in the same manner and subject
                                                 feet. The plaintiff argued that drilling to that        to the same terms and conditions as the
Neumin Prod. Co. v. Tiger Bend, Ltd.,            depth had not been in the contemplation of              landowner’s royalty under the Lease.”
10-1307 (La. App. 3 Cir. 3/9/11), ____           the parties in 1950. The defendant filed a              The latter provision is a “Calculate and
So.3d ____ .                                     motion to dismiss, which the court initially            Pay” clause.
    This was a concursus proceeding to           denied. Upon reconsideration, the court                    Statoil and Total had acquired fractional
determine who owns the royalty proceeds          reviewed long-standing jurisprudence                    working interests in the lease, subject
from a certain well. The competing               relating to Louisiana Bath form leases                  to the overrides. They filed motions for
claimants were the landowner and the             and reversed itself. The court held that                a summary judgment that they did not
Mikell Group, which consisted of several         the lease’s granting clause was clear and               have to pay overriding royalties until the
persons who claimed to be owners of a
single mineral servitude. The Mikell Group
claimed that a single servitude had been                                                                                                      Ask about

created over several contiguous tracts by an                                                                                                 FasTrac℠
act of partition and exchange in 1983, and                                                                                                   Mediation
apparently that the servitude had been kept                                                                                                  3 Hour Limit
                                                                                                                                              Fixed Fee
alive by mineral activity on one of the tracts
covered by the servitude, though not on the                                                  DAVID S. COOK
tract that now had a productive well.                                                                       MEDIATOR
    The landowner sought summary
                                                                                                       Over 2,000 Mediations
judgment, arguing that any servitude rights                                               No charge for travel throughout the State of Louisiana
relating to the well’s location had been
extinguished by 10 years’ prescription of                                                                 (337) 234-4155
nonuse. The trial court granted the motion.

                                                                                           Louisiana Bar Journal Vol. 59, No. 1                             59
well produced 87.5 BOE because that is                                                     to release the case “‘as is’ and to await
how the lessor’s or landowner’s royalty                                                    instruction from the Louisiana Supreme
would be “calculated and paid.” One of the                                                 Court.” That instruction came in the form
override owners, Kerr-McGee, opposed the                       Professional                of an order, cited below in its entirety:
motions, arguing that the override royalties                      Liability
were owed on all production, and that the                                                     Vacated and remanded. La. Const.
lessees’ override obligations were not                                                        Art.V, §8(B) provides that a “ma-
affected by DWRRA. The court granted                                                          jority of the judges sitting in a case
the motion for summary judgment, holding         Inapplicability of Cap on                    must concur to render judgment.”
that the obligation to pay overriding           Damages Opinion Vacated                       The Court of Appeal’s decree does
royalties did not begin until there was an           and remanded                             not reflect a majority judgment on
obligation to pay royalties to the lessor.                                                    the principal issues considered in
Kerr-McGee has appealed.                       Oliver v. Magnolia Clinic, 10-2766 (La.        the instant case.
                                               3/25/11), 57 So.3d 307.
                       —Keith B. Hall             The Louisiana 3rd Circuit issued an         ACCORDINGLY, IT IS OR-
   Member, LSBA Mineral Law Section            opinion in which it held that the Medical      DERED that, the ruling of the Court
Stone Pigman Walther Wittmann, L.L.C.          Malpractice Act’s cap on damages was           of Appeal is vacated. It is further
                     546 Carondelet St.        inapplicable to nurse practitioners. The       ordered that this matter be consid-
               New Orleans, LA 70130           five-judge panel advised in a footnote         ered en banc so that a decree can be
                                   and         that “while a majority agrees that the         rendered reflecting a majority vote
                    Colleen C. Jarrott         cap’s limitation should not be imposed in      on each of the issues presented.
   Member, LSBA Mineral Law Section            this case,” two judges assigned constitu-
            Slattery, Marino & Roberts         tional reasons and two assigned statutory          Loss of a Chance:
           Ste. 1800, 1100 Poydras St.         reasons for rejecting the application of             Three Cases
               New Orleans, LA 70163           the cap. An en banc consideration of the
                                               case was denied, and the court decided      Braud v. Woodland Vill., L.L.C., 10-0137
                                                                                           (La. App. 4 Cir. 12/8/10), 54 So.3d 745.
                                                                                               Following a jury verdict finding one
                                                                                           defendant (Woodland) negligent, Wood-

  McLaughlin Mediation
                                                                                           land appealed. One assignment of error
                                                                                           was that the trial court did not, in jury
                                                                                           interrogatories, include any questions that
                                                                                           would have allowed the jury to consider
                                                                                           the possibility of a loss-of-chance-of-
                                                                                           survival claim that would have been
                                                                                           distinguishable from the wrongful death
        MEDIATOR - - SPECIAL MASTER                                                        claim. Another assignment of error, which
                                                                                           the court of appeal recognized, was that
                                                                                           there was “no reasonable basis” for the
                                                                                           jury to conclude that over-sedation, due to
      BERNARD H. McLAUGHLIN, JR.                                                           over-medicating, caused the heart attack
                                                                                           that killed the patient. But the court then
                                                                                           concluded that the plaintiffs had presented
                                                                                           substantial evidence as to Woodland’s
                                                                                           negligence in administering CPR to the
                                                                                           decedent, adding that this evidence was “at
                            713 Kirby Street                                               best” sufficient to establish only a claim
                    Lake Charles, Louisiana 70601                                          for loss of a chance of survival.
                                                                                               Because the decedent had a less-than-
                         (337)310-1609 Office                                              even chance of survival, the plaintiffs’
                           (377)493-2052 Fax                                               burden was then to prove by a prepon-
               E-mail: bernie@mclaughlinmediators.com                                      derance of the evidence that the patient
                                                                                           did have a chance of survival and that
                                                                                           Woodland’s negligence deprived him of
                                                                                           all or part of that chance, adding that the

60       June / July 2011
          plaintiffs “must further prove the value of     were “fixed” at $300,000, and the court         death, but his opinion was based on two
          the lost chance,” which is the only item of     concluded “that a total award of $400,000       erroneous beliefs: (1) the patient had been
          damage at issue in such a case. The case        will adequately compensate the plaintiffs       given a second dose of Remeron and (2)
          was remanded for a new trial, with an           for their general and special damages.”         the second dose was by injection. This
          instruction to the district court to include        The third case yields an entirely differ-   witness also testified that Celexa has
          in jury interrogatories the opportunity         ent result. Skinner v. Christus St. Frances     a half-life of 20 to 40 hours, and there
          to consider a loss-of-chance-of-survival        Cabrini Hosp., 10-0817 (La. App. 3 Cir.         was no evidence that the patient was
          claim, pursuant to the holding in Smith v.      12/8/10), 53 So.3d 567, writ denied, 11-        given Celexa in the hospital. The expert
          State Dep’t of Health & Hosps, 95-0038          0045 (La. 2/18/11), 57 So.3d 338.               admitted that the patient took Celexa
          (La. 6/25/96), 676 So.2d 543.                       A jury found defendant Christus negli-      before his hospitalization and surgery.
             In Bianchi v. Kufoy, 10-0607 (La. App.       gent and that this negligence resulted in a     Furthermore, a review of hospital charges
          3 Cir. 12/8/10), 53 So.3d 530, the roles        lost chance of survival for Mr. Skinner; it     for this Medicare patient showed that
          were reversed from those in Braud. In           awarded $250,000 to his survivors.              during this hospitalization, Mr. Skinner
          Bianchi, a jury found negligence but no             The court of appeal reviewed the de-        was charged for only two 15 milligram
          proof of causation.                             cedent’s contributory past history, which       tablets of Remeron and that there were
             The court of appeal noted that many          included severe psychiatric disorders, de-      no charges for Celexa.
          medical malpractice cases — especially          pression and suicidal thoughts. Although            Two defense witnesses, one a toxi-
          those in which causation is an issue —          Mr. Skinner’s hemorrhoidectomy and anal         cologist, testified that Remeron can only
          involve the loss of a chance of survival        fissure repair were originally scheduled        be given orally — not by injection. This
          or the loss of a chance of a better result.     as outpatient procedures, his physician         toxicologist also testified that the 30 mil-
          Graham v. Willis-Knighten Medical Ctr,          decided to monitor him overnight in             ligrams of Remeron given Mr. Skinner
          97-0188 p. 15 (La. 9/9/97), 699 So.2d           keeping with hospital policy. The fol-          would not have caused his blood Remeron
          365, 372.                                       lowing morning at 7:45 a.m., Mr. Skin-          level to be 262, in addition to which the
             In Bianchi, the plaintiffs provided          ner was discovered to be unresponsive,          Remeron level in Mr. Skinner’s blood was
          evidence of 11 separate acts or omissions       with no pulse or respirations. Efforts          far less than it would take to kill him. But
          that they contended constituted medical         to resuscitate him were to no avail. An         he said that humans have been known to
          negligence. The court of appeal was un-         autopsy determined the death to have            die with Celexa levels as low as the 300
          able to determine which of the alleged          been caused by “acute cardio-respiratory        to 400 level and that the 700 level “has
          acts or omissions the jury equated to           failure resulting from polypharmacy             been reported to kill.”
          negligence, but when it viewed the totality     with markedly elevated levels” of two               The court concluded that the plaintiffs
          of the evidence, it found sufficient proof      antidepressants: Remeron and Celexa.            failed to prove that Mr. Skinner had a
          that defendant’s negligence “took away          Toxicology reported the Remeron level at        chance of surviving that the defendants
          or diminished Mr. Bianchi’s chance for          262.2 (therapeutic range 4.0 or 40.0) and       could have denied him. The damage award
          a better recovery. . . .”                       Celexa at 701.0 (recommended dosage             was vacated and set aside.
             The Bianchi opinion discusses in detail      up to 120). The plaintiffs alleged that the
          the loss-of-chance doctrine. Its refer-         defendants caused Mr. Skinner to lose a                             —Robert J. David
          ence to Smith v. State, Dep’t of Health         chance of survival as a result of several        Gainsburgh, Benjamin, David, Meunier
          and Hosps., acknowledges that in such           acts of negligence, including overdosing                           & Warshauer, L.L.C.
          cases, the loss of a chance of a better         him with Remeron and Celexa.                                Ste. 2800, 1100 Poydras St.
MY 52’ •outcome is compensable, irrespective of               The plaintiffs’ expert opined that an                New Orleans, LA 70163-2800
          the extent or degree of the chance
 IN CAT’S • LOADED • LOW HOURS lost.                      overdose of Remeron was the cause of
          In those cases, the focus OBO
 • WILL SELL FOR $150K, is on the value
          of that chance:
 T. TRITICO, SR.                                           MUST                                           I’M 83 AND TIME TO
           . . . as a distinct compensable in-
                 jury and to value the lost chance
                                                           SELL!                                            LET MY BABY GO!
                 as a lump sum award based on all
                 the evidence in the record, as is
                 done for any other item of general

                 In reversing the trial court’s ruling     1987 JEFFERSON FBMY 52’ • GREAT CONDITION
              and rendering its own opinion, the court     CRUISE/LIVE ABOARD • TWIN CAT’S • LOADED • LOW HOURS
              discussed the evidence of past and future
              medical expenses and decided upon            APPRAISED FOR $190K • WILL SELL FOR $125K, OBO
              $100,000 for both. General damages           RUSSELL T. TRITICO, SR. • 337-540-2556 • LAKE CHARLES, LA

                                                                                                 Louisiana Bar Journal Vol. 59, No. 1              61
                                                    The executor, one of the decendent’s        edly leaving her certain separate property in
                                                other children, opposed the petition, arguing   Avoyelles Parish in his will. When plaintiff
                 Trusts, Estate,                that art. 1705 had been repealed in 1999.       attempted to sell the property, a title search
                 Probate &                      The trial court rendered judgment against       revealed a 1995 donation to the defendant,
                 Immovable                      the plaintiff, but the 2nd Circuit court dis-   who was an unemancipated minor at the
                 Property Law                   agreed. The court noted that the parties did    time the donation was made. The donation
                                                not dispute that the decedent’s testament       was in authentic form and was signed by
                                                was revoked by operation of law as a result     plaintiff’s husband, as donor, and defendant,
       Changes to Revocation                    of the plaintiff’s birth in 1989, so the only   as donee. The donation also provided for a
        Articles Not Given                      question to be resolved was whether the         usufruct for life over the property in favor
                                                revocation survived the subsequent revision     of the donor.
        Retroactive Effect                      to the revocation articles in 1999.                 Plaintiff filed suit for declaratory judg-
Succession of Starks, 46,233 (La. App. 2            The court cited Succession of Clark,        ment, alleging ownership of the property
Cir. 4/13/11), ____ So.3d ____.                 08-1278 (La. App. 1 Cir. 2/13/09), 6 So.3d      based upon three theories: (i) the 1995 dona-
    Decedent died in 2004 and his testament     266, writ denied, 09-0580 (La. 5/13/09), 8      tion was in fact an “offer to donate,” which
was filed for probate. At the time decedent     So.3d 568, in holding that changes to the       donor formally withdrew by authentic act
executed the testament, decedent was mar-       revocation articles should not be given         in 1997; (ii) the property was transferred to
ried and had two children. Twenty-three         retroactive effect. In reaching its decision,   her on two separate occasions, by donation
years later, the decedent fathered a third      the court rejected the executor’s argument      inter vivos of a one-half interest in 1999,
child, the plaintiff in this case.              that the changes to succession articles on      and by donation mortis causa at the time her
    The plaintiff relied on prior La. Civ.C.    revocation should be given retroactive ef-      husdand’s will was probated in 2009; and
art. 1705 in arguing that the decedent’s        fect to uphold the testament because the        (iii) she acquired the property via good faith
testament was revoked as a result of his        revocation articles are not substantive law.    acquisitive prescription of 10 years.
birth in 1989 because the testament made        Rather, the court concluded that the articles       The trial court found that the donation
no provision for the subsequent birth of a      on revocation address the substantive rights    was a nullity because defendant failed to
child. At the time, art. 1705 provided:         of testators and their legatees and should
                                                                                                accept the donation through a legal repre-
                                                apply only prospectively. Thus, the court
     A testament is revoked by the poste-                                                       sentative, either at the time he reached the
                                                determined that the testament had been
     rior birth of a child to the testator or                                                   age of majority or at some point during
                                                revoked by operation of law.
     by the subsequent adoption of a child                                                      the lifetime of the donor. Based upon this
     by the testator, unless the testator has                                                   finding, the trial court granted summary
     declared in the testament that such an     Persons Who Contract with                       judgment in favor of the plaintiff.
     event shall not revoke the testament;      Minors Do So at Their Own Peril                     The 3rd Circuit court disagreed, finding
     provided however, that in no event                                                         that the donation was accepted by donee
     shall this article be interpreted in       Lemoine v. Downs, 10-1073 (La. App. 3           by his execution of the 1995 donation,
     such a manner as to impinge on the         Cir. 3/9/11), 58 So.3d 659.                     and further ratification by donee was not
     legitime of a forced heir.                    Plaintiff’s husband died in 2009, purport-   required solely because he was a minor at

62          June / July 2011
the time. The court noted that La. Civ.C.       so at their own peril.”                          summary judgment in favor of defendant,
art. 1919 provides that a contract executed        Consequently, none of plaintiff’s claims      declaring him to be the owner of the property
by a minor is relatively null and may be        to ownership were found to have merit.           pursuant to the 1995 donation.
rescinded only at the request of the minor      The 1997 rescission of the donation was
or his legal representative. As a result, the   absolutely null, and the 1999 donation inter                     —Jonathan B. Cerise
donor could not unilaterally revoke the         vivos and 2009 donation mortis causa to          Member, LSBA Trusts, Estate, Probate and
donation, as he purportedly did in 1997. The    plaintiff were relatively null. In addition,          Immovable Property Law Section
court also cited Deville v. Federal Savings     the plaintiff, as the spouse of a usufruct              Sher Garner Cahill Richter Klein
Bank of Evangeline Parish, 93-1853 (La.         owner, could not have acquired the property                            & Hilbert, L.L.C.
4/11/94), 635 So.2d 195, for the conclusion     through acquisitive prescription. The court                   Ste. 2800, 909 Poydras St.
that “persons who contract with minors do       reversed the trial court’s holding and granted                  New Orleans, LA 70112

  Don’t trash it -
                               LE It!
                   RECYC is neeDeD!
   Your useD Computer equipment
             LSBA’S CAC & LCLCE PArtnEring in
           “ComPutErS for EduCAtion” initiAtivE
     fACiLitAtE donAtion of uSEd ComPutErS to StudEntS in nEEd.
  How Can You HELp?
  donAtE uSEd ComPutErS And ComPutEr EquiPmEnt
            • All personal and corporate data needs to be removed from the computer equipment before donation.
            • Receive a tax deduction.

  This computer equipment, the initiative organizers said, will allow
  students to participate in distance learning classes from home
  to complete courses that may no longer be offered because of
  low classroom numbers.

  The initiative organizers are working with school boards,
  principals and superintendents to generate the list of eligible
  families and students. Corporate sponsors also are being
  sought to provide free Internet services and software to the
  students’ families.

  If you or your firm has equipment you would like to donate, or
  for more information, contact:
      Krystal L. Bellanger, LSBA Communications Assistant
          (504)619-0131 or e-mail kbellanger@lsba.org.

                                                                                        Louisiana Bar Journal Vol. 59, No. 1               63

To top