Brady Michael Fitzsimmons

Exxon sued Foster Wheeler for over $50 million in damages from a 1993 fire at a Baton Rouge petrochemical facility, alleging the blaze was caused by a defective pipe elbow installed during the facility's 1962-1963 construction under a contract with Exxon's predecessor. Foster Wheeler raised an exception of peremption under LSA-R.S. 9:2772, which bars actions against builders of immovables more than ten years after the owner takes possession. The trial court sustained the exception and dismissed the claims, and the Court of Appeal affirmed. The court reasoned that the elbow qualified as a component part of the immovable facility under Louisiana Civil Code articles 465 and 466, so the peremptive period applied and had long expired since possession began in 1963.

propertyproceduretorts & liabilitybusiness & regulatory

This case involved a lawsuit by Michael Neuman against the parents of minor John Watts Mauffray and their insurer Allstate after a fire allegedly set by the minor destroyed Neuman's mother's home. The trial court granted summary judgment to Allstate, finding that its policy excluded coverage for the claims. On appeal, the court affirmed the dismissal of claims based on the minor's intentional acts, including those for negligent parental supervision, because the policy excluded losses from intentional or criminal acts by any insured person. However, it reversed the dismissal regarding a potential claim of negligence by the minor himself, as the evidence did not conclusively establish intent and the policy did not exclude negligence.

torts & liabilitypropertyprocedure

In Chiro v. Harmony Corp., plaintiff Henry Chiro sued his former employer under Louisiana's Environmental Whistleblower Statute (LSA-R.S. 30:2027) after he voluntarily quit his job protesting unsafe chemical exposure at a worksite and later faced delays in rehiring plus a lower wage upon return. The trial court granted summary judgment to the defendant, and the Court of Appeal affirmed. The court reasoned that Chiro was not an "employee" covered by the statute once he resigned, as the alleged retaliatory acts occurred afterward; even assuming coverage, the record lacked evidence linking the rehiring issues to his protected complaints or reports about environmental violations. The opinion reviewed the facts of the mustard gas incident, Chiro's OSHA contacts, and his deposition testimony showing no obstruction of his inquiries.

labor & employmentenvironment

The case involved inmate Otis Mingo challenging the Louisiana Department of Public Safety and Corrections' calculation of his good time credits and resulting release date from a 1981 forty-year sentence for attempted armed robbery. Mingo argued for an earlier release in 2000, while the Department calculated 2003 based on the applicable good time rates. The court affirmed the district court's dismissal of the suit, finding no error in the Department's computation. It reasoned that pre-1992 law (15 days good time per month served) applied to time up to January 1, 1992, after which the new 30-days-per-30-days rate applied only prospectively to the remaining sentence portion, leading to the later release date after accounting for pre-sentence straight time and accrued credits.

criminal law

The case involved a wrongful death lawsuit filed by Carol S. Cox Frain against the City of Baton Rouge and East Baton Rouge Parish in 1994, where the plaintiff noted 'PLEASE HOLD SERVICE' on the petition. After a 1996 statute (La. R.S. 13:5107(D)) took effect requiring service on governmental defendants within 90 days of filing, the plaintiff requested service over two years later, more than 90 days after the law's effective date. The defendants moved to dismiss for untimely service, but the trial court denied the motion. On appeal, the court reversed, holding that the statute is procedural in nature and applies to pending cases by granting plaintiffs 90 days from its effective date to perfect service; since the plaintiff failed to do so, dismissal was required. The court rejected arguments that the statute was substantive or applied only to defendants never served at all.

proceduretorts & liability

The case involved Michael and Maria Barrilleaux, owners of land in Iberville Parish subject to a highway right-of-way, who sought a temporary restraining order and preliminary injunction to stop NPC, Inc. from installing pipelines on their property without consent or expropriation proceedings. The trial court dissolved the TRO and denied the injunction after finding the plaintiffs failed to prove irreparable injury. On appeal, the Louisiana Court of Appeal, First Circuit, reversed and remanded, holding that under La. C.C.P. art. 3663, injunctive relief is available to protect ownership or possession of immovable property against trespassers without any showing of irreparable harm. The court noted that the plaintiffs had established their ownership and that NPC had entered the property without agreement or expropriation, making the trial court's requirement of irreparable injury erroneous.

propertyprocedure

In Banks v. New York Life Ins. Co., plaintiffs who had purchased whole or universal life insurance policies from New York Life between 1982 and 1994 filed suit alleging issues with those policies and sought to represent a class of similarly situated Louisiana residents who had opted out of a related nationwide settlement. The trial court certified the class, but the Louisiana Court of Appeal, First Circuit, reversed that decision on appeal. The appellate court held that the claims lacked the required common character under Louisiana Code of Civil Procedure articles 591-597 because the transactions involved over 1,800 policies sold by approximately 1,000 independent agents over 13 years, making individual issues such as oral representations, reliance, causation, and comparative negligence predominant. The court applied an abuse-of-discretion standard of review and concluded that a class action would not promote fairness or judicial efficiency given the absence of a common nucleus of operative facts.

procedurebusiness & regulatory

In State v. Palmer, the defendant pled guilty to two counts of forgery after presenting stolen checks to two businesses and was sentenced to three years at hard labor on each count, to run consecutively. He appealed, claiming the sentences were unconstitutionally excessive and that the trial court failed to adequately consider mitigating factors such as his age, education, employment, and first-offender status or to justify consecutive terms. The Louisiana Court of Appeal, First Circuit, affirmed the convictions and sentences, holding that the record demonstrated proper consideration of Article 894.1 factors and that consecutive sentences were permissible and supported by the separate acts involved plus the defendant's risk to public safety.

criminal lawprocedure

The case involved William and Julie Shinew suing their employer, Luciano Refrigerated Transport, Inc., for breach of an employment contract and failure to pay final wages within three days under Louisiana law. The trial court granted a partial exception of no right of action dismissing the wage claim, finding the plaintiffs were not within the class protected by the statute. On appeal, the court dismissed the appeal, holding that the partial grant of the peremptory exception was an interlocutory judgment that was not appealable because it did not dismiss any parties, consistent with precedent allowing such partial exceptions on distinct causes of action but classifying them as non-final.

labor & employmentprocedure

This case was a products liability action under Louisiana Civil Code article 2317, in which plaintiff Ernest Alford sought damages from the titled owner of allegedly defective equipment, First Fidelity Leasing Group, Inc. (FFLG), after an injury involving a digger derrick that had been leased to his employer under a financed lease. The trial court granted summary judgment to FFLG on the ground that it lacked the custody or "garde" required for strict liability because it never had physical possession. The Court of Appeal reversed and remanded, reasoning that ownership creates only a rebuttable presumption of garde and that unresolved factual questions remained about the parties' respective rights of direction and control, benefits derived, and whether the lease contemplated eventual ownership by the lessee.

torts & liabilityproperty

The case involved an ex-wife's appeal of a trial court judgment finding her at fault for the dissolution of her 1962 marriage, which barred her from receiving post-divorce permanent alimony under Louisiana law. The court affirmed the ruling after reviewing evidence of the wife's conduct, including cursing, belittling, making accusations of criminal activity, and other hostile acts toward her husband, which the trial court determined constituted legal fault as an independent proximate cause of the separation. The appellate court held that the burden was on the alimony claimant to prove freedom from fault and that factual findings on fault in domestic cases receive great deference unless manifestly erroneous. It rejected arguments that the husband's alleged adultery excused the wife's conduct or that the trial court improperly relied on certain evidence like tapes and witness testimony.

family law

This case involved a dispute over whether an insurance company waived its right to assert policy defenses in a lawsuit brought by plaintiff Jennifer Hiser against multiple defendants, including an insured fraternity and its members. The Court of Appeal of Louisiana, First Circuit, denied the insurer's writ application. The court reasoned that the insurer had knowledge of potential noncoverage facts from the start but continued the joint defense through a single law firm without obtaining a nonwaiver agreement, thereby waiving those defenses under established Louisiana precedent. The court also noted that the plaintiff had standing under the state's direct action statute to challenge the defenses and criticized the trial court's procedural violations in setting the case for trial before an answer was filed, though it declined to reset the ongoing trial for reasons of judicial economy.

proceduretorts & liability

This case involved a deputy sheriff who was injured during a felony vehicle stop when a Plaquemine police sergeant arrived at the scene at high speed without communicating his approach, prompting the deputy to dive into his vehicle for safety and sustain a back injury. The trial court held the sergeant negligent for failing to exercise reasonable care toward fellow officers and deviating from training on felony stops, and found the city and police department vicariously liable as well as directly negligent for inadequate training and pursuit procedures; it awarded the deputy and his wife over $368,000 in damages. On appeal, the Louisiana First Circuit Court of Appeal affirmed the findings of liability and the damage award, concluding that the evidence supported the duty-risk analysis showing the sergeant's breach caused the injuries.

torts & liabilityprocedure

In State v. Cousin, Ellis Cousin was charged with two counts of possession of cocaine with intent to distribute after evidence was found during an inventory search following a traffic stop for an open container violation and an expired driver's license, as well as a later consent search. He moved to suppress the evidence, arguing the inventory search was pretextual, but after the motion was denied, he entered a Crosby guilty plea and appealed the suppression ruling and his concurrent twenty-year sentences. The Louisiana Court of Appeal, First Circuit, affirmed the convictions and sentences, holding that the initial stop was justified by the observed municipal ordinance violation and that La.C.Cr.P. art. 881.2(A)(2) barred review of the sentences imposed under the plea agreement.

criminal lawprocedure

This case involved a claim by Julie Miramon against her uninsured motorist insurer, State Farm, for damages from a minor 1990 rear-end car accident that she alleged exacerbated pre-existing psychological and eating disorder issues stemming from a 1988 accident. The trial court dismissed the claim with prejudice after finding that Ms. Miramon suffered no additional damages from the second accident. On appeal, the Louisiana Court of Appeal reversed, holding that the second accident caused a minor neck injury and temporarily increased her anxiety, depression, and related symptoms until fall 1990. The court based this on uncontradicted testimony from the plaintiff and her treating physicians, along with expert agreement that a subsequent accident would aggravate such conditions, and it awarded medical expenses and pain and suffering damages after de novo review.

torts & liability

This case involved Dennis Glenn Barnett, who was charged with attempted second degree murder of his wife and unauthorized entry of an inhabited dwelling after breaking into friends' home and assaulting her at about 2 a.m. Defendant entered pleas of not guilty and not guilty by reason of insanity, waived a jury trial, and was convicted on both counts after a bench trial. The court reviewed the sufficiency of the evidence under the Jackson v. Virginia standard and found that specific intent for attempted second degree murder was proven beyond a reasonable doubt despite the defendant's claims of intoxication; it also concluded that any misjoinder of the offenses was harmless error because the trial was by judge and the acts formed a continuous transaction. The convictions were affirmed, and the sentences were amended and affirmed as consecutive terms with restitution orders.

criminal lawprocedure

The case involved Amber Barrino, a high school senior who missed numerous classes due to medical issues, suing the East Baton Rouge Parish School Board, her teachers, and principal for intentional or negligent infliction of emotional distress after they refused to accept late makeup work for assignments from earlier in the semester, resulting in her failing two courses and not graduating with her class. The trial court granted summary judgment to the defendants, dismissing the suit, and the Court of Appeal of Louisiana, First Circuit, affirmed after de novo review. The court found no genuine issues of material fact, concluding that the defendants' conduct in enforcing grading and makeup policies was not extreme or outrageous to support an IIED claim and did not breach any duty for a NIED claim, as Barrino had prior failing grades, failed to timely request makeup work, and the policies permitted the teachers' discretion regardless of excused absences or extenuating circumstances determinations.

torts & liabilityprocedure

Catherine Trahan sued Rally's Hamburgers, Fifty-Five, Inc., and Johnny Carter for sexual harassment and verbal abuse by Carter, an assistant manager at a Rally's franchise. Johnny Carter separately sued the same companies and Dean Pertuit for retaliation after reporting Pertuit's harassment of another employee. The Court of Appeal of Louisiana affirmed summary judgment for Rally's, dismissing the claims against it because Johnny Carter was employed by Fifty-Five, Inc., not Rally's, precluding any vicarious liability. The court dismissed the defendants' answer to the appeal seeking reversal of the denial of summary judgment for Fifty-Five and Pertuit, as that denial was an unappealable interlocutory judgment.

labor & employmentcivil rightstorts & liability

This case involved a wrongful death suit brought by Gloria Strickland and Felicia Strickland against Sheriff Ed Layrisson and two of his employees after Claude Smith, a prisoner serving time for felony theft, was released for a supervised family visit, became unsupervised and intoxicated, and then caused a fatal car crash that killed the plaintiffs' daughter and sister, Shemika Butler. The trial court sustained exceptions of no cause of action and dismissed the claims, reasoning that any breach of the sheriff's duty to supervise the inmate was not a basis for liability to those injured by the inmate's later negligent driving. On appeal, the Court of Appeal of Louisiana, First Circuit, dismissed the appeal against the Sheriff for lack of jurisdiction due to the absence of a proper order granting the appeal, but reversed the dismissal as to the two employees, holding that the petitions alleged facts sufficiently broad to potentially impose liability and allow proof of a cause of action. The court remanded the case for further proceedings against those defendants.

criminal lawproceduretorts & liability

This case involved a dispute over royalty payments under a 1977 mineral lease on Louisiana property that plaintiff Asia Jane Harvey acquired during her marriage, with the deed declaring it her separate property purchased with paraphernal funds. Amoco Production Company paid only half the royalties to Harvey, treating the other half as community property belonging to her then-husband Clarence Harris, who later assigned his interest. After Harvey sued in 1990 seeking full payment and lease dissolution, a jury determined the property was her separate estate but found her claims for underpaid royalties had prescribed under the three-year period of LSA-C.C. art. 3494, limiting recovery to the three years before filing; the trial court denied dissolution and other damages. On appeal, the court addressed challenges to jury instructions on community property presumptions and the doctrine of contra non valentem, as well as the jury's prescription finding. The core reasoning centered on the jury's factual determination of separate property status alongside the statutory prescription bar for mineral royalty actions.

propertyfamily lawprocedure