THIRD CIRCUIT COURT OF APPEALCONTINUING LEGAL EDUCATION

RECENT DEVELOPMENTSIN PROCEDURE AND PRACTICE IN THE

LOUISIANA THIRD CIRCUIT COURT OF APPEAL

Judge Phyllis M. Keaty3rd Circuit Court of Appeal

Judge Candyce G. Perret3rd Circuit Court of Appeal

Judge Jonathan W. Perry3rd Circuit Court of Appeal

December Lafayette Bar Association CLE 2020

McCauley v. McCauley, 20-27 (La.App. 3 Cir. 10/21/20), __ So.3d __.(Keaty, J., writing; Ezell and Gremillion, JJ.)

This matter stems from a protective order involving Plaintiff/Appellee, Rowena McCauley, and Defendant/Appellant, Matthew McCauley. Matthew and Rowena were married and resided in a home in Lake Charles with Rowena's daughter from a previous relationship. No children were born during their marriage and Matthew never adopted Rowena's daughter. Matthew filed for divorce. Rowena answered and alleged they had reconciled. Thereafter, Rowena claimed that Matthew had abused her and filed a petition for a protective order and temporary restraining order. The TRO was granted on May 29, 2019, at which time Matthew was evicted. Matthew filed a rule to dissolve the TRO which the trial court subsequently denied. At the conclusion of trial, the trial court granted Rowena's petition. The protective order, which was signed on June 14, 2019, remained effective through December 14, 2020. Rowena was awarded the exclusive use of the residence for the duration of the protective order. Matthew appealed.

Held: Affirmed. The third circuit held that the trial court did not err because Matthew's motion to dissolve was not served “upon two days’ notice to the adverse party” as required by La.Code Civ.P. art. 3607. The third circuit held that the trial court did not abuse its discretion in allowing certain evidence into the record. Such evidence included certain testimony from Rowena, another suit, a document entitled Declaration of Practices and Procedures, photographs, and medical records. The third circuit held that the trial court did not abuse its discretion in granting the protective order. The third circuit held that the trial court properly awarded attorney fees in light of the Domestic Abuse Protection Act, La.R.S. 46:2136.1(A).

Orsot v. Acadian Ambulance Service, Inc., 19-863 (La.App. 3 Cir. 7/15/20), __ So.3d __. (Keaty, J., writing; Gremillion and Perry, JJ.)

A motorist, Lucas Orsot, filed a petition for concursus and an exception of prescription against Acadian Ambulance Service, Inc. alleging that Acadian’s right to collect an unpaid debt for Orsot’s helicopter transportation to a hospital had elapsed. The car accident occurred on June 7, 2015. The cost for Acadian’s helicopter transportation of Orsot totaled $23,090.00. Acadian submitted a claim to Cigna, the alleged health insurer of the Orsot’s father, for payment. On August 11, 2015, Cigna submitted a partial payment of $13,017.64. On October 15, 2015,

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Acadian billed Orsot for the remaining balance of $10,072.36 which he refused to pay. Orsot alleged that Acadian's right to collect the unpaid debt had prescribed pursuant to La.Civ.Code arts. 3495 and 3277 because three years had elapsed without interruption from the date Acadian rendered its services on June 7, 2015. At the hearing, Orsot's counsel was allegedly blindsided when Acadian's counsel produced a petition for suit on open account that Acadian had previously filed against Orsot on August 8, 2018 in Lake Charles City Court. As a result, the trial court continued the hearing on the exception. Orsot's counsel filed a Motion for Sanctions. Following the second hearing, the trial court ruled that payment was exigible from the time Acadian rendered services to Orsot on June 7, 2015. Thus, the trial court held that the debt had prescribed before the city court suit was filed. The trial court granted Orsot's exception, dismissed with prejudice Acadian's lien against Orsot, ordered the funds deposited into the registry of the court, including interest, be released to Orsot, and assessed Acadian with court costs. Acadian appealed.

Held: Affirmed. The third circuit held that a reasonable factual basis existed for the finding that Acadian’s claim for recovery became exigible on the date that ambulance services were rendered. The third circuit explained that a suit on open account is subject to a liberative prescription of three years. La.Civ.Code art. 3494(4). The third circuit further reviewed the word “exigible” found in La.Civ.Code art. 3495. The third circuit held that the trial court correctly determined Acadian's business decision to collect from Cigna prior to collecting from Orsot did not enlarge the prescription statute. The third circuit found it was reasonable for the trial court to conclude that “the statute intended ... to go back to the date of service being the June 7th date.” The third circuit held that the trial court’s finding as to exigency was not clearly wrong of manifestly erroneous.

Winmill Tire, LLC. v. Colt, Inc., 19-766 (La.App. 3 Cir. 5/6/20), __ So.3d __.(Keaty, J., writing; Pickett and Gremillion, JJ.)

Plaintiffs, waste tire generators, filed suit against Defendants, waste tire processors, seeking a declaratory judgment that the transportation fee charged by the processors to transport waste tires to their processing facilities was unlawful, and sought recovery of damages. The trial court granted the generators’ motion for partial summary judgment, denied the processors’ motions for summary judgment on fee legality, and granted the generators’ subsequent motion to correct the judgment. The processors appealed. The third circuit dismissed the appeals due to lack of decretal language in the judgment. The trial court thereafter amended the

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judgment and the processors appealed. On appeal, Defendants’ argued that the trial court erred in declaring their transportation fee to be unlawful.

Held: Affirmed. The third circuit noted the issue on appeal was whether the statutes and regulations governing waste tires prohibit or permit Defendants to charge Plaintiffs an additional fee. The third circuit held that Defendants were prohibited from charging a fee to Plaintiffs based upon the statutes and regulations whereby the legislature has set a maximum fee to run the Waste Tire Program, and the DEQ has prohibited any fee that exceeds the authorized fee. In support, the third circuit relied upon La.R.S. 30:2418(I)(1)(a) and La.Admin.Code tit. 33, § 10519(G). The third circuit further acknowledged that in 2016, La.Admin.Code tit. 33, § 10515 was repealed and replaced with La.Admin.Code tit. 33, § 10516, which no longer contains language requiring processors to pay tire transporters. The third circuit explained that eliminating this language from the regulation, however, failed to support Defendants’ argument that they can charge the disputed fee. The third circuit reasoned that testimony and evidence in the record shows that the purpose of the 2016 revision was not to shift the responsibility to pay transporters from processors to generators.

Hill v. State Farm Mutual Ins. Co., 19-395 (La.App. 3 Cir. 11/13/19), 283 So.3d 629 (Keaty, J., writing; Thibodeaux and Savoie, JJ.)

A passing motorist filed a petition against a left-turning motorist and her insurer seeking medical expenses and damages for pain and suffering, loss of enjoyment of life, loss of earnings, and loss of earning capacity. The road where the accident occurred was marked with a broken yellow line. Following a bench trial, the trial court found the parties contributorily negligent in causing the accident, allocated 95% of the fault to the passing motorist and 5% of the fault to the left-turning motorist, awarded the passing motorist $18,720.38 for general damages, past lost wages, and past medical expenses, and reduced the award by 95% for a total award of $936.02. The passing motorist appealed.

Held: Affirmed as amended. The third circuit held that it was reasonable for the passing motorist to rely on specific markings in the area of the roadway indicating that passing was allowed. The third circuit amended the judgment to reduce the allocation of fault regarding the passing driver to 50% and increase the allocation of fault regarding the left-turning driver to 50%. The third circuit amended the trial court’s award for general damages by increasing it to $20,000.00. The third circuit affirmed the trial court’s judgment in all other respects.

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Lopez v. Louisiana Citizens Property Insurance Corp., 18-841 (La.App. 3 Cir. 3/27/19), __ So.3d __. (Keaty, J., writing; Pickett and Perry, JJ.)

This litigation arises from the theft of a tractor and its attachments from a storage building. The tractor belonged to the Lopezes and at the time of the theft, they had in effect a Dwelling/Builders Risk Policy issued by LCPIC. The Lopezes submitted two claims for the actual cash value of the tractor. LCPIC denied both claims on the basis that “theft” was not one of the named “Perils Insured Against” in the policy. As a result, the Lopezes filed a petition for damages against LCPIC. Both parties subsequently filed cross motions for summary judgment. The trial court granted summary judgment in favor of the Lopezes and denied the summary judgment filed by LCPIC. LCPIC appealed.

Held: Affirmed. The third circuit held that the insurance policy was ambiguous as to whether it covered loss by theft, and thus, the Lopezes were entitled to coverage.

O’Neal v. Foremost Ins. Co., 18-510, 18-599 (La.App. 3 Cir. 2/13/19), __ So.3d __. (Keaty, J., writing; Thibodeaux and Cooks, JJ.)

A woman sustained injuries when her vehicle collided with a tree which had fallen across a road. Plaintiffs filed suit against RLN Investments, LLC, the owner of the property on which the tree was located, and its insurer, RLN Investments, LLC. RLN Investments filed third party demands against Messina Realty, its agent, Don Van Cleef, and Messina Realty’s insurer, pursuant to a Property Management Agreement executed between Messina Realty and RLN Investments. Messina Realty filed a Motion for Summary Judgment, and Van Cleef filed a Petition for Declaratory Judgment, based on an indemnity clause in the contract. Following a hearing, the trial court granted both motions via separate judgments. RLN Investments appealed.

Held: Reversed and Remanded. The third circuit held that the trial court erred in granting summary judgment because of conflicting witness testimony surrounding the knowledge and actions of Van Cleef regarding the tree. The third circuit found that there lacked language in the contract showing that RLN Investments intended to indemnify Messina Realty or its agents for damages arising from its own negligence. The third circuit held that Messina Realty and/or Van Cleef is not entitled to recover attorney’s fees associated with establishing the right to indemnification based upon the terms of the contract.

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Greene v. Town of Lake Arthur, 19-232 (La.App. 3 Cir. 1/8/20), 289 So.3d 82. (Panel: Perret, Judge writing; Gremillion, Perry, Judges.

Mr. Greene sustained a work injury, and his treating physician requested a psychological evaluation for a discography/spine surgery. Mr. Greene’s employer denied the request pending a second medical opinion (SMO), which was thereafter scheduled. Mr. Greene failed to appear for the SMO as well as a rescheduled appointment. After a third appointment was scheduled, but before attending, Mr. Greene’s treating physician requested approval of a posterior lumbar interbody fusion. Employer denied this request pending the SMO. Mr. Greene then filed a 1009 Disputed Claim for Medical Treatment and requested review by the Medical Director. Employer responded, informing the Medical Director of the pending SMO. Mr. Green failed to appear for the third SMO as well, and a fourth appointment was scheduled. Prior to the fourth appointment, the Medical Director rendered an opinion approving the surgery.

Employer appealed the Medical Director’s opinion as premature and asserted that it denied Employer of its statutory right to an SMO under La.R.S. 23:1121. After Mr. Greene finally appeared for the fourth SMO, Employer also requested that the court order an IME, asserting that the SMO contradicted the treating physician’s opinion. The workers’ compensation court denied both, finding that Employer failed to prove by clear and convincing evidence that the Medical Director’s decision was not in accordance with the Medical Treatment Guidelines and that an IME was not warranted. Employer appealed.

Affirmed in Part, Reversed in Part, and Remanded. This court determine that, although Mr. Greene followed the proper procedure for seeking review of a denial of a request for authorization, under these facts the Employer was denied a second medical opinion for which it is entitled to under LAC 40:I.2711 when surgery is recommended. In this case, the failure of Mr. Greene to appear at the SMO appointments prevented the Employer from submitting the SMO to the Medical Director for consideration. Additionally, had Employer obtained an SMO, Employer may have approved the requested treatment, requested modifications to the treatment, or requested a variance for the treatment from the Medical Director. However, by Mr. Greene failing to appear for the SMO, filing a dispute with the Medical Director prior to appearing, and the Medical Director’s subsequent opinion prior to the scheduled SMO, Employer was deprived of its statutory right. Thus, this court found it legal error for the workers’ compensation court to affirm the Medical Director’s decision.

Nevertheless, this court affirmed the denial of Employer’s requested IME. An IME is proper when a dispute arises regarding the employee’s condition or

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capacity to work. La.R.S. 23:1123. The workers’ compensation judge (WCJ) found that the SMO, submitted prior to the hearing, did not contradict the treating physicians’ recommendation, although it differed on the necessity of instrumentation. Furthermore, the WCJ also found that the psychological opinion did not contradict the treating physician’s recommendation. After reviewing the record, this court found no manifest error in the WCJ’s conclusion.

Hooper v. La. Pigment Co., LP, 19-816 (La.App. 3 Cir. 5/13/20), 298 So.3d 810. (Panel: Gremillion, writing; Pickett and Perret, Judges).

In this employment-related case, the defendant-appellant, Louisiana Pigment Company, LP (Louisiana Pigment), appeals the jury’s finding of wrongful termination in favor of its former employee, the plaintiff-appellee, Herman Lee Hooper.

In April 2013, Mr. Hooper filed a petition for damages for unlawful termination by Louisiana Pigment. Mr. Hooper alleged that following a knee replacement on November 30, 2011, unrelated to his employment, his employer unlawfully terminated him after it re-worked his job description from a managerial position to a shift supervisor requiring manual labor and required him to undergo a functional capacity evaluation (FCE) despite his physician’s release for work effective May 2, 2012. Mr. Hooper alleged violations of La.R.S. 23:323(A) and (A) (1), (2), (3), (5) and (7).

After a six-day trial, the jury returned a verdict in favor of Mr. Hooper in the amount of $1,754,130.00 plus legal interest and court costs. The jury found by a preponderance of the evidence that Mr. Hooper had a disability; that he was an otherwise qualified person with a disability; that he was terminated based on an FCE that was not directly related to the requirements of his specific job or was not required of all employees who were similarly situated; and that the FCE given to Mr. Hooper was not job-related or consistent with Louisiana Pigment’s business necessity and that his job performance could be accomplished by reasonable accommodation.

Affirmed. Louisiana Pigment appealed, alleging the following assignment of error: (1) The trial court erred when it allowed the admission of evidence of subsequent employee exams through a new medical provider engaged by Louisiana Pigment subsequent and without relationship to the employment of Herman Lee Hooper thereby allowing an improper and irrelevant argument to support a violation of La.R.S. 23:323.B(5); (2) The jury’s general damage award of $701,652 for mental anguish is excessive and not supported by the evidence; (3) The trial court erred when it excluded evidence of disability benefits received by Herman Lee Hooper, benefit payments relevant to defend the general damage

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claim asserted by Herman Lee Hooper; (4) The trial court erred in disallowing a credit for disability payments funded and paid by Louisiana Pigment, payments that do not fall within the definition of the collateral source rule; (5) The trial court abused its considerable discretion and thus erred in its award of fees and costs; and (6) The trial court erred in declining to grant a new trial, judgment notwithstanding the verdict, or alternatively, reducing the award. After a review of the record and exhibits, this court affirmed the trial court judgment.

In our analysis, we addressed whether Louisiana Pigment violated La.R.S. 23:323(B)(5). The relevant parts of the statute state:

A. No otherwise qualified person with a disability shall, on the basis of a disability, be subjected to discrimination in employment.

B. An employer, labor organization, or employment agency shall not engage in any of the following practices:

. . . . (5) Discharge or take other discriminatory action against an

otherwise qualified person with a disability on the basis of physical or mental examinations or preemployment interviews that are not directly related to the requirements of the specific job, or are not required of all employees or applicants.We found that the jury was presented with extensive testimonial and

documentary evidence to support an action under the statute because Mr. Hooper was required to take an FCE test consisting of extreme manual labor that was unrelated to his managerial, primarily office job. This was evidenced by his past history of return-to-work evaluations that mentioned very little in the way of physical labor. Moreover, when Mr. Hooper completed the arduous tasks required of him that were unrelated to his job, he was not allowed to finish the test on the third day even though he had medical clearance to do so. This court found that a reasonable jury could have concluded from the testimony that the test that was administered to Mr. Hooper, as a manager primarily engaged in office work, “set forth requirements that are not directly related to the requirements of the specific job of production supervisor.”

This court also examined the novel issue of whether an employer-provided long-term disability policy earned by an employee is a collateral source when the employer is held liable for lost wages for violating the discrimination statute. Louisiana Pigment argued that, from a public policy perspective, denying it a credit “encourages (if not teaches) the defendant to end the payments and terminate what is a voluntary program.” Mr. Hooper’s policy rationale was that the employer “should not be given a ‘discrimination bonus’ in that it would pay less than it would have if it acted lawfully.” In this case, Mr. Hooper did not purchase the policy in an act of forethought; rather, he earned the policy through service to the

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company. Because Mr. Hooper did not contribute to the plan, nor did the he obtain the plan through collective bargaining activity; this court determined “that the deterrent effect of the collateral source rule still outweigh[ed] the employer’s interest in this case. Otherwise, every long-term disability policy would function as an insurance policy for violations of La.R.S. 23:323.” The long-term disability payments were therefore held to be a collateral source, with Louisiana Pigment not due a credit for offset.

This court also held that the general damage award was left to the total discretion of the jury and that, considering Mr. Hooper’s testimony of how important his job was to him and how the loss of it greatly affected his mental health, this court could not find that the jury erred in its general damage award.

Manning v. State, 19-698 (La.App. 3 Cir. 9/23/20), __ So.3d __. (Panel: Perret, Judge writing; Ezell, Perry, Judges; Cooks, Saunders, Judges, Dissenting).Note: Writs taken to Louisiana Supreme Court.

Ms. Manning filed a suit for declaratory judgment seeking a declaration of her factual innocence of several crimes she was arrested for and named the State as the defendant. Despite being arrested, a Bill of Information or Indictment was never filed. Additionally, the District Attorney’s Office indicated to the trial court that it would not be prosecuting those charges. Ms. Manning asserts that these arrests have caused her prejudice in her ongoing child custody case in Oklahoma. She also asserts she is factually innocent of the crimes, has no other adequate remedy to clear her record and, thus, a judgment to that effect is appropriate under La.Code Civ.P. arts. 1871-1888.

The State filed Declinatory Exceptions of Improper Citation and Insufficiency of Service of Process, and Lack of Subject Mater Jurisdiction; Dilatory Exceptions of Prematurity, and Improper Joinder of Parties; and Peremptory Exceptions of Prescription, No Cause of Action, and No Right of Action. The trial court sustained all exceptions and dismissed Ms. Manning’s petition. Ms. Manning appealed.

Affirmed. We affirmed the trial court’s judgment regarding the exceptions of prematurity and no cause of action; therefore, a discussion of the remaining exceptions was superfluous. Regarding prematurity, we noted that Ms. Manning sought a declaration of her innocence but had yet to be prosecuted for any crime. Under Louisiana and federal law, Ms. Manning “is presumed innocent until proven guilty[.]” La.Const. art. 1, § 16, see generally U.S. Const. amends. V and XIV. Ms. Manning remained legally innocent. Thus, there was no controversy ripe for judicial determination.

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We also found no error in the trial court granting the exception of no cause of action. An exception of no cause of action tests “whether the law affords a remedy on the facts alleged in the pleading.” Everything on Wheels Subaru, Inc. v. Subaru South Inc., 616 So.2d 1234, 1235 (La.1993). A declaratory judgment is proper when a party’s “rights are uncertain or disputed in an immediate and genuine situation, and the declaratory judgment will remove the uncertainty or terminate the dispute.” Spicer v. Spicer, 10-1577, pp. 3-4 (La.App. 1 Cir. 3/25/11), 62 So.3d 798, 800. However, when there is no justiciable controversy, there is no cause of action. Abbott v. Parker, 259 La. 279, 249 So.2d 089 (La.1971). As we determined there was no justiciable controversy when considering Defendants’ exception of prematurity, we similarly agreed with the trial court that there is no cause of action.

We also applied the supreme court’s reasoning in Board of Commissioners of Orleans Levee District v. Connick, 94-3161 (La. 3/9/95), 654 So.2d 1073, wherein the plaintiff also sought a declaratory judgment of criminal culpability in civil court. In that case, the supreme court concluded that “a criminal prosecution may be preempted by recourse to civil relief only in exceptional circumstances” as doing so would bypass the criminal justice system and the issue would not be resolved according to the criminal procedural rules. Id. at. 1081. Finding no exceptional circumstance in this case, and considering Ms. Manning has other means to clear her record—for example, expungement, motions to quash, unlawful arrest—we found no error in the trial court’s judgment.

Dissent. Judges Cooks and Saunders dissented, and Judge Cooks authored a dissent in which she concluded that a declaratory judgment was the proper vehicle for Ms. Manning to pursue relief and the only vehicle which would “right this public stain and invasion of her right to privacy.” Judge Cooks applied the principles of the Innocence Compensation Fund provisions set forth in the Louisiana Administrative Code, Part III, Subpart 8, and also found that Ms. Manning had no other acceptable alternative to resolve her situation as other remedies, such as expungement, offer only limited remedies. Thus, she found that a judiciable controversy existed. Judge Cooks also found the trial court erred in granting the remaining exceptions.

St Martin Par. Gov’t v. Champagne, 19-499, (La.App. 3 Cir. 8/19/20), __ So.3d __, writ denied, 20-1114 (La. 11/10/20), __ So.3d __. (Panel: Perret, Judge writing; Chief Judge Thibodeaux, Pickett, Judge; Conery, Kyzar, Judges Dissenting).

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St. Martin Parish Government (“St. Martin”) sought an injunction against Bryan Champagne and his businesses, The Warf on Lake Martin, LLC and Champagne’s Cajun Swamp Tours, LLC, to prohibit the continued commercial operations of the businesses and to require the removal of all structures at the businesses’ location that infringed on parish zoning restrictions. Champagne’s commercial ventures sold food and drinks, rented kayaks and canoes, and operated paid boat tours. Champagne opened his businesses after obtaining permits from the parish to build the commercial structures as well as all operational licensing. Champagne obtained additional permits for more structures after an on-site visit by the St. Martin Parish President and Planning and Zoning Coordinator. St. Martin filed this suit nearly five years after Champagne was issued the initial permits and began operations.

In seeking injunctive relief, St. Martin asserted that Champagne’s businesses were operating in a zone not designated for commercial activity thereby violating parish zoning ordinances. Champagne raised various defenses including that he had a vested right in the business due to his reliance on the parish permits and that the ordinance was vague, ambiguous, and unconstitutional. Champagne also filed a reconventional demand for damages if the parish was successful in prohibiting his operations.

At the hearing, the evidence showed that Champagne began operations after obtaining the necessary permits, that his application declared the building was for a commercial activity, and that parish representatives had visited the premises before approving additional building permits. Additionally, the evidence suggested that the approval of a commercial building in a zone not designated for commercial activity was an administrative error on the part of the parish. The trial court ultimately dismissed St. Martin’s Petition for Injunctive Relief and denied the reconventional demand as moot.

St. Martin appealed, asserting that no vested right is acquired when a permit is erroneously issued and that a vested right in a building permit does not equate to a vested right in the activity conducted at that building. Champagne filed motions to dismiss appeal for lack of jurisdiction. Champagne asserted that St. Martin only appealed one of the grounds for the trial court’s ruling—the vested rights issue—but did not appeal the trial court’s finding that the ordinance was unconstitutional. Thus, Champagne argues that the appellate court could not provide any practical relief and the appeal should be dismissed.

Affirmed. As to Champagne’s motion to dismiss appeal, we found that the trial court’s judgment made no finding and contained no decretal language regarding the constitutionality of the ordinance; thus, Champagne’s motion to dismiss lacked merit. As to the merits of St. Martin’s appeal, we found no error in the trial court’s determination that Champagne had a vested right in the

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commercial building and commercial operations. First, we reasoned that a determination that Champagne can keep the building, but not run commercial activities out of it, would render the building nugatory. Thus, despite St. Martin’s argument to the contrary, jurisprudence discussing vested rights in permits to build structures was applicable. After reviewing the jurisprudence, we concluded that St. Raymond v. City of New Orleans, 99-2488 (La.App. 4 Cir. 5/17/00), 769 So.2d 562, and Cuccia v. Board of Zoning Adjustments of/and the Parish of Jefferson, 07-152 (La.App. 5 Cir. 7/30/07), 966 So.2d 611, were most instructive. Those cases found that a vested right in a structure existed where the owner, acting in good faith, incurs substantial expense in reliance on a proper permit and the governing body acts arbitrarily in revoking the permit.

We found that Champagne relied on the multiple permits issued to him over the course of several years to build and operate his business, including those issued after parish officials visited the premises. Under the facts if this case, we concluded Champagne acquired a vested right as he relied, in good faith and to his substantial detriment, on the permits issued by the parish to establish his businesses.

Dissent. Judges Conery and Kyzar dissented from the majority, with Judge Conery issuing a well-written dissent, in which he concluded that Champagne cannot acquire a vested right in this case. Judge Conery examined the history of Lake Martin and the statutes creating the “State controlled fish, game and nature preserve.” Judge Conery concluded that the Parish had a constitutional duty under the Public Trust Doctrine to prohibit Champagne’s operation at this location and that the parish could not lawfully issue permits in the preserve. Judge Conery would reverse the trial court’s judgment and remand for a hearing on Champagne’s severed reconventional demand claims, which he suggests would require the notification of indispensable parties, including Louisiana Department of Wildlife and Fisheries, Louisiana Department of Natural Resources, the U.S. Army Corps of Engineers, and the Nature Conservancy.

State v. Hauser, 19-341 (La.App. 3 Cir. 12/30/19), --So.3d--, writ denied, 20-429 (La. 7/2/20), 297 So.3d 764, writ denied, 20-418 (La. 7/2/20), 297 So.3d 764, and reconsideration not considered, 20-429 (La. 10/6/20), 302 So.3d 514. (Panel: Perret, writing; Thibodeaux and Keaty, Judges).

In 1983, Defendant, Aaron G. Hauser, admitted to killing his stepmother and stepbrother at their farmhouse. Defendant was seventeen at the time of his conviction and was sentenced to life in prison without the benefit of parole, probation, or suspension of sentence.

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In 2016, Defendant filed a motion to correct an illegal and invalid sentence based on Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455 (2012)1 and Montgomery v. Louisiana, __ U.S. __, 136 S.Ct. 718 (2016).2 After a lengthy Miller/Montgomery hearing, the trial court denied Defendant’s motion and ordered him to “continue to serve his existing sentences of life imprisonment without parole eligibility on each of the two counts of First Degree Murder.”

Reversed. Defendant appealed to this court seeking review of the trial court’s denial of his motion to correct his illegal sentences pursuant to Miller and Montgomery. After a review of all the testimony and evidence, this court found that the Defendant had provided sufficient evidence to show that he is not irreparably corrupt and that he is entitled to resentencing to two concurrent life sentences with the possibility of parole. In reversing the trial court and resentencing Defendant to two concurrent sentences of life imprisonment with the possibility of parole, this court noted “our decision should not be interpreted as minimizing the seriousness of the horrendous crimes committed by Defendant; rather, our decision merely reflects the distinction that the current law now recognizes a difference between juveniles and adults who commit the crime of murder.”

In our analysis, this court cited to the Supreme Court’s decisions wherein it emphasized that “[t]he opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change.” Montgomery, 136 S.Ct. at 736. The Supreme Court held in Miller that:

1 In Miller, the Supreme Court addressed the life sentences without the possibility of parole of two juvenile defendants, one from Alabama and the other from Arkansas. The Court held “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” Miller, 567 U.S. at 479. The Court did not “foreclose a sentencer’s ability to make that judgment in homicide cases,” but it required courts “to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. at 480.

2 In Montgomery, the Supreme Court prescribed a hearing to consider “‘youth and its attendant characteristics’” as sentencing factors. Montgomery, 136 S.Ct. at 735. The Court found parole eligibility ensures “juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.” Id. at 736. “The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change.” Id. Thus, prisoners sentenced to LWOP as juveniles “must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.” Id. at 736-37.

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[C]hildren are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform, . . . ‘they are less deserving of the most severe punishments.’ . . .

. . . .That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between “the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.”

Miller, 567 U.S. at 471, 479-80, (citing Roper v. Simmons, 543 U.S. 551, 573, 125 S.Ct. 1183, 1197 (2005), and Graham v. Florida, 560 U.S. 48, 68, 130 S.Ct. 2011, 2026-27 (2010)). Miller also found the “appropriate occasions for sentencing juveniles to the harshest possible penalty will be uncommon.” Miller, 567 U.S. at 479.

Based on this recent jurisprudence, this court found that Defendant’s prison record and evidence of rehabilitation demonstrated that he is not irreparably corrupt. Although none of the evidence excuses or condones Defendant’s crimes, the record did evidence the fact that Defendant had matured in prison, had demonstrated model behavior in spite of a most difficult environment, had developed positive relationships, and had the opportunity for a successful future outside of prison if in fact he is able to achieve parole.

On July 2, 2020, the Louisiana Supreme Court denied writs on this matter. However, Justices Weimer, Crichton, and Crain voted to grant and docket. Justice Crichton (writer) and Justice Crain provided the following reasons for voting to grant:

CRICHTON, J., would grant and docket and assigns reasons:I would grant and docket the State’s writ application to provide

the Court an opportunity to set necessary parameters and guidelines concerning the scope of a hearing pursuant to both Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) and Montgomery v. Louisiana, 577 U.S. ---, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). The district court in this matter recognized the voluminous evidence of defendant’s rehabilitation since his imprisonment but determined that such evidence did not outweigh the heinousness of his crimes, finding the murders of defendant’s step-brother and step-mother were not the result of impulsiveness or transient immaturity but were calculated acts of cold-blooded murder. Accordingly, the district court denied defendant parole eligibility for either count of first degree murder. On review the court of appeal

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found the district court abused its discretion in denying defendant the benefit of parole on both counts of first degree murder, reasoning that the extensive evidence of defendant’s rehabilitation demonstrated he was not irreparably corrupt.

In my view, the lower courts require further guidance on both the application of the requirements of La. C.Cr.P. art. 878.1 and the appropriate standard of review to be applied by the appellate courts. See also State v. Allen, 18-1042 (La. 11/5/18), 255 So.3d 998 (Crichton, J., would grant and docket) (“[I]n making this determination [as to parole eligibility], a court should focus on the facts of the underlying conviction and defendant’s criminal history, if any, as well as the defendant’s behavior record during confinement. Education, family background, and issues of family support would also likely prove helpful in the judge’s determination.”); see Scott Crichton & Stuart Kottle, Appealing Standards: Louisiana's Constitutional Provision Governing Appellate Review of Criminal Facts, 79 La. L. Rev. 369, 390 (2018) (“Often, the appropriate standard of review is ‘manifest abuse of discretion.”’). Accordingly, I would grant and docket this writ application to examine the multiple issues presented and to address proper procedures and standards for sentencing hearings in juvenile homicide cases, as informed by Miller and Montgomery.

Bayou Bridge Pipeline, LLC v. 38.00 Acres, more or less, located in St. Martin Parish, et al., 19-565 (La.App. 3 Cir. 7/15/20), ___ So.3d___ 2020 WL 4001135 (Panel: Perry, Judge writing; Cooks, Gremillion, and Savoie, Judges; Ezell, Judge, dissenting), writ granted, 20-1017 (La. 12/8/20).

This case involves a final judgment in an expropriation case where the TC ruled in favor of the Bayou Bridge Pipeline, a private pipeline corporation. After Bayou Bridge entered the property in question and began construction for a number of months, it filed an expropriation action against hundreds of co-owners who had not agreed to the easement sought or who could not be located, but only after one of the co-owners sued to enjoin Bayou Bridge’s pre-expropriation construction. Appellants, three of the landowners, resisted the expropriation, raising numerous federal and state constitutional challenges and filed a reconventional demand for trespass and violation of their property and due process rights under the U.S. and Louisiana constitutions; in particular, Appellants challenged the constitutionality of the state’s delegation of the power of eminent

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domain to private oil pipeline companies, filed numerous procedural exceptions, sought damages for Bayou Bridge’s violation of their due process rights, and asked for trespass damages.

Prior to trial, the TC denied all of Appellants’ affirmative defenses and exceptions. During trial, the TC also made various evidentiary rulings which allowed Bayou Bridge to enter evidence of economic development and incidental benefits of oil and petroleum products. Conversely, the TC disallowed Appellants’ questions as to actual users and uses of the pipeline, and adverse environmental and economic impacts. Ultimately, the TC rejected Appellants’ constitutional challenges, ruling there was a public purpose and necessity for the expropriation. It also ruled that the company trespassed on Appellants’ property but did not award damages for Bayou Bridge’s violation of Appellants’ due process rights.

Affirmed, in part; reversed, in part; and remanded for determination of attorney fees, expert witness fees, and court costs. We upheld the TC’s determination that the Louisiana expropriation system for oil pipelines did not violate either Constitution of the U.S. or Louisiana. The linchpin of that determination was that Louisiana law provides for judicial review to determine if a taking is for a public and necessary purpose prior to a taking. Next, we determined that although the TC awarded trespass damages, such an award did not encompass Appellants’ proof of damages for Bayou Bridge’s breach of their due process rights prior to expropriation. Accordingly, we awarded the three Appellants $10,000 each for this distinct element of damages over and above the TC’s $75 award for Bayou Bridge’s trespass on their undivided co-ownership interest in the property. Finally, we remanded the case to the TC for determination of attorney fees, expert witness fees, and the allocation of court costs.

O’Connor v. Hidden Grove Homeowners Assoc., 19-676 (La.App. 3 Cir. 4/22/20), 297 So.3d 1018, writs denied, 20-593 (La. 9/23/20), 301 So.3d 1187; 20-592 (La. 9/23/20), 301 So.3d 1188 (Perry, Judge writing; Thibodeaux, Chief Judge; Kyzar, Judge).

Property owners filed a petition for declaratory judgment, trespass on immovable property, and injunctive relief against homeowners’ association and lot owners. The defendant homeowners’ association and lot owners answered also seeking injunctive relief against the property owners.

The trial court, at the preliminary injunction hearing, denied the property owners’ petition for preliminary injunction and granted a permanent injunction in favor of the defendant homeowners’ association and lot owners. Property owners appealed.

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Reversed and Rendered. We reversed finding the trial court erred in granting a permanent injunction at a hearing on a preliminary injunction absent stipulation of counsel. Reviewing the matter de novo, we rendered judgment denying the defendant homeowners’ association and lot owners petitions for injunctive relief and granting the property owners a preliminary injunction against the defendant homeowners’ association and lot owners under La.Code Civ.P. art. 3663(2) (“Injunctive relief . . . to protect or restore possession of immovable property or of a real right therein, is available to . . . (2) A person who is disturbed in the possession which he and his ancestors in title have had more than a year of immovable property or of a real right therein of which he claims the ownership, the possession, or the enjoyment.”)

Coody v. Coody, 20-71 (La.App. 3 Cir. 11/12/20), ___ So.3d ___; 2020 WL 6605833 (Panel: Thibodeaux, Perret, Perry, Judge writing)

This case from Beauregard Parish involves a child custody dispute over two teenage boys which has had a ten-year history in the trial court. In the latest disagreement, the trial court held hearings over three days to consider whether the prior considered decree should be altered to change the designation of domiciliary parent from the mother to the father and whether the mother should be held in contempt for denying him court-ordered visitation on at least three occasions. In response, the mother sought to change custody from joint custody to her sole custody.

After finding the mother in contempt of court, the trial court found that neither parent proved a material change in circumstances to alter either joint custody or the mother’s designation as domiciliary parent and further ordered the parents and children to have continued counseling. However, the trial court modified the implementation order, designating the father with the authority and responsibility for making medical decisions regarding the children and for making decisions about the children’s sports, band, and extracurricular activities. The mother appealed the trial court’s rejection of her request for sole custody and the modification of the implementation order.

Affirmed. We held the trial court correctly found the mother failed to meet the Bergeron standard necessary to change from joint custody to sole custody, particularly finding the mother failed to establish by clear and convincing evidence that sole custody, as opposed to the joint custody originally ordered, was in the best interest of the two teenage sons. As to the tweaked implementation order, we found the Bergeron standard inapplicable to the trial court’s decision to divide the legal authority of the parents. We deferred to the trial court’s ten-year familiarity

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with this custody matter and its observation that the two parents simply hated each other and were so entrenched in disagreement with each other that neither one seemed willing to work with each other. Accordingly, the trial court stated, “I hope both of you parents understand the predicament you put me in as a judge.” Ultimately, we agreed that the trial court properly used the implementation order to diffuse the animosity between the parents and improve the communication between the parents and the parents with the children.

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