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To Err is Human, To Rescind-Declined
The Louisiana Supreme Court recently addressed the impact of contractual "errors" in Cynthia Fry Perionnet and Elizabeth Fry Franklin v. Matador Resources Company, 2012-2292, 2012-2377, -- So. 3d --.
The Perionnet case involved a dispute over the intent of a contract to extend a mineral lease. The property owners believed that the lease was extended as to only 168.95 acres of nonproducing land. The defendant/lessors argued that the contract contemplated that the lease would extend to the entire 1850.34 acres to include producing wells. Plaintiffs/property owners argued that their unilateral error regarding the terms of the contract was ground for rescission. The jury ruled in favor of the defendant/lessors. The Court of Appeal reversed. The Supreme Court granted writs.
The Perionnet Court began its opinion with an overview of basic tenets of contract law. The Louisiana Civil Code defines a contract as "an agreement by two or more parties whereby obligations are created, modified, or extinguished." La. C.C. art. 1906. Contracts are formed through offer and acceptance. La. C.C. art. 1927. Once formed, contracts have "the effect of law for the parties and may be dissolved only through the consent of the parties or on grounds provided by law." La. C.C. art. 1983. One such "ground" under Louisiana law is "error." La. C.C. art. 1948.
The Louisiana Civil Code recognizes two forms of error: mutual error (both parties are mistaken) or unilateral error (only one party is mistaken). However, for either error to cause the dissolution of a contract, the error (1) must effect the cause of the obligation and (2) the other party must have known that the matter impacted by the error was the reason for the contract. La. C.C. art. 1949. In a case of mutual error, the court can reform the contract. Either partial or full rescission is the only remedy available for unilateral error. La. CC. art. 1952.
A party challenging a contract for unilateral error must also prove that the error was excusable. "Louisiana jurisprudence is sprinkled with cases which deny relief to the parties who claim an agreement should be invalidated because of unilateral error which is caused, in large part, by the complaining party's inexcusable ignorance, neglect or want of care." Id. p. 25.
The Perionnet Court found that the plaintiffs' alleged mistake was inexcusable. The defendants demonstrated that: 1) plaintiffs could show no excuse for failing to read and understand the contract; 2) plaintiffs' agents who negotiated and reviewed the contract were self-proclaimed experts in oil and gas; and 3) the original lease was on the plaintiffs' agent's own forms. The Court found a "sea of flags" in the written agreement that should have notified the experienced plaintiffs that the agreement extended to the entire property. Therefore, the Court found that the mistake was easily detectable and could have been rectified by a minimal amount of care, i.e. "by simply reading the document and/or requesting simple changes to the written offer before acceptance." Id. at 30.
The Supreme Court's Perionnet decision serves as a healthy reminder of a basic concept - read your contracts. Although to err may be human, it can affect your bottom line.
Contracts
Louisiana Supreme Court
Insight
Modern Problems: Paternity in a New Age
Can a child have more than one father? Yes, according to Louisiana law which allows for "dual paternity."
Louisiana's "family law" has undergone many changes in an attempt to react to the challenges presented by new medical technology and a breakdown of the traditional family structure. The recent Supreme Court decision in Derek Alan Pociask v. Kera Mosely is the latest effort to address these "modern problems."
The Pociask Court explained that there is a public interest in "protect[ing] innocent children, born during marriage, against scandalous attacks upon their paternity by the husband of the mother, who may be seeking to avoid paternal obligations to the child ... Thus, the traditional and historical position of Louisiana jurisprudence was to zealously guard and enforce the presumption of paternity created by the Civil Code." This public policy was easier to promote in the past when a husband may have had no reason to question or ability to challenge his paternity. However, in a world of vasectomies and DNA testing, the husband now has an increased ability to factually prove that he is not the father.
With "dual paternity," the first "father" is the husband of the child's mother. The second "father" is the biological father of the child. This situation can occur because the husband is presumed to be the father of the child under Louisiana law. See, La. C.C. art. 185. This "presumption" becomes incontrovertible if the husband does not bring an action to disavow his paternity within one year from when he learns or should have learned of the child's birth unless the husband lived separate and apart continuously from the mother for three-hundred days immediately preceding the birth of the child. See, La. C.C. art. 189.
If the husband lived separate and apart for three-hundred days immediately preceding the birth of the child, the husband can bring a disavowal action within one year from being notified in writing that a party in interest asserts that he is the father of the child. If he fails to bring the disavowal action, he will be considered the "father" for all legal purposes. The purpose behind the "separate and apart" exception is to bring legal and biological paternity into "closer association." See, Katherine Shaw Spaht, Who's Your Momma, Who are Your Daddies?: Louisiana's New Law of Filiation, 67 La. L. Rev. 307 at 314 (2007).
In Pociask, the Louisiana Supreme Court addressed what it means to "live separate and apart continuously" from the mother. The plaintiff in Pociask (the presumed father and ex-husband of the defendant mother) brought an action to disavowal his paternity. The disavowal action was brought well over a year after the child's birth.
Factually, the presumed father in Pociask underwent a vasectomy prior to the birth of the child, had not entered into sexual relations with the mother for over three-hundred days (over nine months) prior to the child's birth and had barely seen the mother in the three-hundred days prior to the birth of the child. Moreover, DNA testing proved that he was not the biological father. Nevertheless, the Louisiana Court of Appeals determined that the husband was the presumed father of the child because he did not bring his disavowal action within a year of the child's birth.
The Court of Appeals interpreted the phrase "lived separate and apart continuously" so strictly that the husband's one night stay at the marital domicile during the three-hundred day period preempted the disavowal action. The Appeals Court held that the phrase "lived separate and apart continuously" should not be interpreted in pari materia (in a like manner) with the divorce articles of the Civil Code. In the divorce setting, a spouse will be found to have lived "separate and apart" when the overall circumstances show that there was no mutual intention to resume the marital relationship.
The Pociask Court disagreed with the strict reading of the "separate and apart" language used by the appellate court. According to the Pociask Court, the phrase "lived separate and apart continuously" should be interpreted the same way in a disavowal action as it interpreted with a divorce. Therefore, the overnight visit in Pociask did not serve to interrupt the three-hundred day period and the disavowal action was timely.
Family Law
Louisiana Supreme Court
Insight
"Cash Balance" Retirement Plan Bounces
The Louisiana Supreme Court recently held that the enactment of the "Cash Balance Plan" was unconstitutional. See The Retired State Employees, Association et. al v. The State of Louisiana et. al., 2013-0499, - So.3d -. The Cash Balance Plan is a 401-k style retirement plan that was to be put in place for state employees, including teachers, hired after July 1, 2014.
The key issues in The Retired State Employees litigation were: 1) whether the Cash Balance Plan was a new retirement plan or merely a modification of an existing retirement plan; and 2) whether the Cash Balance Plan had an "actuarial cost." If the Cash Balance Plan was a new plan or had an actuarial cost, a two-thirds vote would be required to pass the legislation rather than a mere majority of votes under Louisiana Constitution Article X, § 29(F).
The Speaker of Louisiana House of Representatives determined that a mere majority was required to pass the bill (HB 61 (Act 483)) containing the Cash Balance Plan. The bill passed by a majority, but with less than a two-thirds vote and was signed into law on June 5, 2012.
The 19th JDC determined that the Cash Balance Plan required a two-thirds vote to be enacted and was therefore unconstitutional. The Supreme Court granted writs.
The Retired State Employees Court determined that the Cash Balance Plan, even if it was a new plan, was a part of the old retirement system and therefore was subject to Constitutional Article X, § 29(F). Article X, § 29(F) requires a two-thirds vote when there is an actuarial cost related to the bill being enacted.
The Court reasoned that whether there is an actuarial cost to a bill is a determination to be made by the legislative auditor. While multiple fiscal advisors expressed the opinion that there was no actuarial cost, the legislative auditor determined that the Cash Balance Plan did, in fact, have an actuarial cost. Therefore, a two-thirds vote was required to pass the Cash Balance Plan and its enactment was unconstitutional.
Constitutional Law
Louisiana Supreme Court
Insight
A More "Direct Action"
The Louisiana Supreme Court recently announced a decision that could alter the impact of Louisiana's "Direct Action Statute." See Soileau v. Smith True Value and Rental, et. al., 2012-1711, -- So. 3d ---.In Soileau, the injured plaintiff initiated suit after a John Deere front-end loader malfunctioned. She settled with a number of parties but proceeded to trial against the store from which the machinery was rented, the store's owners (collectively, the Smiths) and the Smiths' insurer, Hartford Insurance Company.The plaintiff sued Hartford under Louisiana's Direct Action Statute, which was enacted to provide plaintiffs with a "direct" right of action against a tortfeasor's insurance company. In many other states, a plaintiff cannot sue a tortfeasor's insurer directly as this cause of action is not permitted by the common law. Insured Lloyd's v. Bobo, 156 S. E. 2d 518 (Ga. App. 1967).Generally, the Direct Action Statute allows a plaintiff to assert a claim against both the insured and its insurer. However, suit may be brought against the insurer only in the few exceptions outlined in the statute.The plaintiff's original petition in Soileau complied with the statute because it joined both Hartford and its insureds, the Smiths. During the trial, the plaintiff verbally dismissed the Smiths from the suit, not seeking "any damages personally against them."Following the dismissal, Hartford was the only party who remained. The plaintiff did not expressly reserve any rights against Hartford who then sought dismissal on two grounds:
- Hartford according to its policy was obligated it to pay only "those sums that the insured becomes legally obligated to pay as damages." Because Hartford's insureds were fully released (and therefore could not be "legally obligated to pay damages"), Hartford denied liability.
- Hartford also asserted that the dismissal terminated the plaintiff's right to sue Hartford under the Direct Action Statute because none of the six circumstances allowing suit to be brought against Hartford alone existed.
The trial court rejected both of Hartford's arguments. The jury found for the plaintiff in the amount of $9.4 million and allocated 15% of the fault to the Smiths. Judgment was then rendered against Hartford. Hartford appealed. The Third Circuit Court of Appeal agreed with Hartford's arguments and dismissed it from the suit. The Louisiana Supreme Court accepted writs.In a 4-3 decision, the Supreme Court held that the plaintiff maintained her right of action against Hartford despite the dismissal. The Court accepted the plaintiff's position that she intended to reserve her rights against Hartford and cited to Civil Code article 1802 which provides that the renunciation of rights against one solidary obligor "must be express." Therefore, because the plaintiff did not expressly release Hartford, its release would not be presumed.The majority also ruled that the Direct Action Statute did not bar the plaintiff's claim against Hartford. Under the Court's reasoning, the circumstances outlined in the Direct Action Statute are relevant only at the time suit is filed. Thereafter, after suit is "brought," a plaintiff can freely dismiss the insured and maintain its suit against the insurer alone.The Court expressed that its holding is consistent with the statute because the naming of the Smiths in the caption of the suit allowed the jury to recognize that the suit was not just against a "company." In support, the Court quoted from one of the drafters of the Direct Action Statute who testified as follows:[T]he purpose of the bill is to permit the trier of fact to see that there are two human beings involved, a plaintiff and an insured defendant, rather than just a victim and a company.However, the plaintiff's counsel in Soileau was allowed to inform the jury during closing arguments that Hartford was the only defendant left in the lawsuit and that the Smiths could not be held liable.Three justices dissented.One dissenting opinion reasoned that Hartford should not be held liable because it could never be liable for the conduct of a dismissed insured who could not be "legally liable to pay damages."All dissenters complained that the majority's holding will, in effect, allow plaintiffs to sidestep the requirements of the Direct Action Statute. Justice Guidry wrote that the majority ruling will allow plaintiffs to "circumvent" the direct action. Justice Victory added that the Court's holding allows a "plaintiff to name the insured along with the insurer as defendants in order to comply with the statute, but then dismiss the insured and proceed at trial against the insurer alone..." The true impact of Soileau remains to be seen.
Direct Action
Insurance
News
Partner Steve Judice releases third, full-length album "Dead End Gravel Road"
Keog Cox partner Steve Judice is an accomplished litigator, but has also begun to make his mark in the world of country music. We take this opportunity to congratulate Steve on the June 19th release of his third, full length CD entitled "Dead End Gravel Road."
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Resource
JULY 2013 LEGAL UPDATE
EXPERTS - In Benjamin v Zeichner, 2012-1763 (La. 4/15/13), 113 So.3d 197, the Louisiana Supreme Court examined the requirements for a physician to qualify as an expert in a medical malpractice case, as set forth in La. R.S. 9:2794(D). At trial, plaintiff sought to introduce the testimony of Dr. Shamblin as an expert witness in general surgery, with specific expertise in bariatric surgery. Dr. Shamblin had relinquished his medical license in Louisiana, and had not renewed his license in Alabama. The trial court refused to qualify Dr. Shamblin as an expert witness and granted defendant's directed verdict. The Court of Appeal reversed, holding that La. R.S. 9:2794(D) did not specifically require that the expert be licensed at the time of the testimony. The Court held that a physician licensed when the claim arose is qualified under the statute.The Supreme Court reversed, finding that the statute unambiguously provides that a physician may only qualify as an expert if he "is" licensed to practice medicine. The Court reasoned that the statute's use of the present tense "is" signifies that the physician only qualifies if he is currently licensed to practice medicine. The Court held that the relevant time for determination of whether Dr. Shamblin met the qualifications of La. R.S. 9:2794 was at the time he was presented for qualification as an expert, i.e. at trial. Therefore, Dr. Shamblin did not qualify as an expert because he was not licensed to practice medicine at the time of trial.SETTLEMENT - In Feingerts v. State Farm Mutual Automobile Insurance Company, 2013 WL 3214811 (La. Appl. 4 Cir. 6/26/13), the Fourth Circuit upheld the settlement of an attorney fee dispute between the client and multiple sets of attorneys. Mr. Feingerts was injured in an automobile accident and retained multiple sets of attorneys over the course of the litigation. Ultimately, the plaintiff obtained a settlement in the sum of $784,000.00. However, he was unable to reach an agreement with any of his attorneys pertinent to the fees owed.A full-day mediation was conducted concerning the attorney fee issue. At the end of mediation, a hand-written document was executed by all of the participants. The document was entitled "Fee Dispute Settlement Agreement," referenced the case docket number and outlined the amount of payment to be made to the settling attorneys. Nevertheless, the plaintiff failed to compensate any of the attorneys after the mediation.In response to the failure to pay, separate motions to enforce the settlement agreement were filed and granted. On appeal, Feingerts alleged that the handwritten document failed to satisfy the legal requirement for a settlement under Louisiana law because the agreement contained no specific language resolving any claim or waiving any rights. Moreover, he alleged that there was no "concession" made by the attorneys in the agreement such that it was unenforceable.The Fourth Circuit affirmed and held the agreement valid. It accepted the appellees' argument that the title of the agreement expressed an intent to settle the fee dispute; therefore, it was unnecessary to include specific release language in the agreement. Citing earlier cases, the Fourth Circuit held that, absent evidence of duress, a mediation agreement signed by the parties constitutes a legal and binding compromise.PRESCRIPTION - In Milbert v. Answering Bureau, Inc., 2013 WL 3285852 (La. 6/28/13), the Louisiana Supreme Court held that, when a non-healthcare provider is a "joint tortfeasor" with a healthcare provider, the provisions of the Medical Malpractice Act which suspend prescription against the healthcare provider will also suspend prescription against the non-healthcare provider. In Milbert, the plaintiff/patient brought a malpractice claim against the physician. He also sued an answering service (Dexcomm) after it allegedly failed to promptly and accurately forward medical information.Mr. Milbert fell off of his roof and broke his right ankle. Surgery was performed and he was released and instructed to call his doctors if he had any problems. When his pain level increased, he called the answering service asking that his physician, Dr. Yerger, be notified. When the service failed to receive return calls from the physician, Mr. Milbert went to the hospital emergency and sat for several hours. The answering services' logs indicated that it employees initially paged the wrong doctor. When the correct doctor was reached, the Milberts had already arrived at the emergency room. Despite Dr. Yerger's directive to contact him if the Milberts called again, he was not informed of the subsequent phone calls by the Milberts. After several hours in the emergency room, Mr. Milbert was examined and diagnosed with a syndrome of the right leg. At that time, Dr. Yerger was finally contacted and thereafter performed surgery.Under these facts, the Milberts filed suit against Dr. Yerger, the hospital and other physicians. Among other allegations, the Milberts alleged that the damages suffered could have been prevented had he received prompt medical care after calling the answering service.After the Medical Review Panel rendered an opinion favorable to the medical providers, the Milberts filed a timely medical malpractice action against various doctors and the hospital and moved to consolidate the claim with the District Court suit filed against Dexcomm. In response, Dexcomm filed a Motion for Summary Judgment asserting that the claims were prescribed. The alleged negligence of Dexcomm occurred on September 7, 2008 but suit was not filed until December 23, 2009. Milberts argued that prescription against Dexcomm was suspended because it was a "joint tortfeasor" with the medical defendants under Louisiana Medical Malpractice Act, specifically citing LSA-R.S. 40:1299.47(A)(2)(a).Dexcomm's Motion for Summary Judgment was granted and affirmed on appeal. The Appellate Court concluded that Dexcomm was neither a healthcare provider nor a joint or solidary obligor with any healthcare provider; therefore, it held that the language in Louisiana's Medical Malpractice Act and its suspension of prescription for joint tortfeasors did not apply.The Louisiana Supreme Court disagreed. It found that Dexcomm was a "joint tortfeasor" such that the interruption of prescription as to the medical providers equally applied as to Dexcomm.
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Insight
Parish Finds Debris Clean-Up Doesn't Come For Free
The Louisiana Supreme Court has ruled that St. Tammany Parish must pay for hurricane clean-up services even though it had no formal contract with the party that did the work. See USA Disaster Discovery, Inc. v. St. Tammany Parish Government, 2013-0656, -- So.3d ---.
Fallen trees and loose debris were familiar sights across Louisiana in the aftermath of Hurricane Katrina. Immediately after the storm, emergency protocols were followed to rescue those trapped in their homes or in other buildings. To perform search and rescue, trees and debris had to be cleared. This duty fell to the Sheriff's office under St. Tammany's emergency operation plan. However, neither the Parish nor the Sheriff's office had the necessary resources. Therefore, the Parish contracted with various entities to help clear the debris.
Two individuals, acting as a joint venture, approached a representative of the Sheriff's office and volunteered to assist in the removal of the debris. Although these individuals did not have a contract with the Parish, they were "confident" the Parish would pay them for their services. As such, they went to work with no assurance of payment. The confident volunteers later sent bills to the Parish and the Sheriff's office, but both refused to pay.
The joint venture incorporated itself as USA Disaster Recovery, Inc. ("USA") and sued the Parish and Sheriff to collect the unpaid bills. The trial court found that USA provided the Parish with valuable services following the storm. Under a theory of "unjust enrichment," it held that the Parish had to pay for the work.
The Supreme Court's recent ruling reaffirmed the five elements necessary to show that one party was "unjustly enriched" through the action of another, namely:
1) an "enrichment" of one party;
2) an "impoverishment" of the other;
3) a connection between the enrichment and the impoverishment;
4) no justification or cause for the enrichment and the impoverishment; and,
5) no other legal remedy available to the plaintiff.
On appeal, the appellate court examined the facts and held that unjust enrichment was not available because USA did not factually demonstrate criteria #2, #4 and #5. In short, the appellate court found that USA did the work at its own risk, knowing that payment was not guaranteed. Therefore, its "impoverishment" was not established.
The Supreme Court disagreed and reinstated the trial verdict. An appellate court is to review a trial court's factual findings under a "manifest error" standard. In USA Disaster, the Supreme Court held that the appellate court incorrectly substituted its own factual findings for those of the trial court. As a result of the deference to be given to a trial court's findings of fact, the "volunteers" in USA Disaster were rescued by an uneasy application of the unjust enrichment doctrine.
Louisiana Supreme Court
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Insight
Six Little Letters
tenure (ten'yer)
1. The status of holding one's position on a permanent basis without periodic contract renewals; example: a teacher granted tenure on a faculty.
...
Despite its benign and somewhat boring definition, the word "tenure" has become a flash point of controversy in recent years. To one camp, tenure for teachers gives them academic freedom to pursue research and to teach as they see fit. To another camp, it is an outdated idea that keeps poor teachers in the classroom and negatively impacts education.
These two camps battled when a constitutional challenge was raised to a 2012 state law designed to make it more difficult for public school teachers to earn and retain tenure. The changes to the tenure rules were part the Jindal administration's education reform package which also included "vouchers," another small word that generates intrigue.
On March 4th, the trial court ruled that the tenure law was unconstitutional because it included multiple "objects" in one legislative "bill." This widely-reported decision was appealed to the Louisiana Supreme Court.
On May 17th, the Louisiana Supreme Court in separate "voucher" litigation addressed the requirement that a bill have only one "object." See Louisiana Federation of Teachers v. State of Louisiana, 13-0120 (La. 5/7/13), __ So. 3d ___. This same "one object" issue was also present in the tenure litigation. Because the parties and the trial court did not have access to the Supreme Court's analysis in Louisiana Federation (which was released after the tenure ruling), the Supreme Court has remanded the case back to the trial court to allow consideration of the decision. It remains to be seen what impact, if any, the Louisiana Federation voucher ruling will have upon the constitutionality of the tenure law.
What is clear is that "tenure" will remain an interesting word for some time.
Constitutional Law
Louisiana Supreme Court
Resource
JUNE 2013 LEGAL UPDATE
PREMISES LIABILITY- In Honore v. Family Dolar Stores of Louisiana, Inc., 2013-93 (La. App. 3 Cir. 6/12/13), the plaintiff tripped on a hole in a parking lot. Family Dollar did not own the property, which was leased from a third party. The plaintiff sought to hold Family Dollar liable despite its non-ownership of the parking lot.The lease signed by Family Dollar Stores provided that it was authorized to step in and fulfill any obligation not performed by the third-party lessor. The plaintiff argued that this provision rendered Family Dollar liable because it did not repair the hole in the parking lot despite its employee's knowledge of the defect. This argument was rejected and Family Dollar's Motion for Summary Judgment was granted. In upholding summary judgment, the 3rd Circuit reasoned that the mere fact that Family Dollar had the contractual ability to fulfill the landlord's duties did not impose an obligation to do so.EVIDENCE- In Housing Authority of New Orleans v. King, 2012-1372 (La. App. 4 Cir. 6/12/13), the 4th Circuit overturned an eviction predicated upon a "one strike" lease provision authorizing termination of a lease for criminal activity. The tenant had been arrested for allegedly interfering with a police investigation, battery on a police officer and related conduct. The tenant denied the allegations.At the eviction hearing, the housing authority offered no evidence or testimony. The trial court, in granting the eviction, relied upon a police report which was not entered into evidence. On appeal, the 4th Circuit overturned the eviction holding that the arguments of counsel, while "artful," did not constitute evidence and that the trial court cannot consider evidence not properly offered and admitted.ANIMALS- the plaintiff in Smith v. Kopynec, 2013 WL 2476543 (La. App. 1 Cir. 6/7/13) sued when she was injured and her pet schnauzer killed by a Pit Bull owned by the son of a couple who resided in the same neighborhood as the plaintiff. The Pit Bull "Boondocks" escaped from the defendants' residence shortly before the attack. The plaintiff had been attacked by Boondocks a few days earlier. In response, the dog was removed by Animal Control only to be reclaimed by its owner (the son) prior to the second incident.The parents of the dog's owner moved for and were granted summary judgment on the basis that they were not aware of Boondocks' presence at their property on the date of the attack. They factually demonstrated that they had advised the son to get rid of the dog and attested to a belief that he had done so. As non-owners of the dog, the parents could not be held "strictly liable" for the dog under Civil Code Article 2321. However, they could be liable if they were aware of the violent propensities of the dog on their land and failed to act reasonably in response.In opposing summary judgment, the plaintiff correctly argued that summary judgment is rarely appropriate where a court must determine "subjective facts" such as intent, motive or knowledge or where the court must determine "the reasonableness of the acts and conduct of parties under all the facts and circumstances of a case." Nevertheless, the 1st Circuit felt that the testimony of the parents must be accepted where no evidence showed that they knew of the presence of the dog or had any legitimate reason to reject the son's claim that he had gotten rid of the dog.
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Insight
Were You Lying Then, Or Are You Lying Now?
Witness For The Prosecution was a 1957 film about the testimony of a German-born wife whose husband was on trial for murdering a rich woman. Based upon an Agatha Christie novel, the film gave a quote which has been parroted by attorneys ever since.
Sir Wilfrid: And when you said that he had accidentally cut his wrist, again, you lied?
Helm: Yes!
Sir Wilfrid: And now today you've told us a new story entirely! The question is, Frau Helm, were you lying then, [or] are you lying now?
Whether in court, deposition or on the big screen, the impeachment of witness creates drama-the kind of drama opposing attorneys try to avoid.
In O'Dwyer v. Our Lady of the Lake, -- So. 3d ---, 2013 WL 2131763 (La. 5/17/13), the Louisiana Supreme Court was asked to decide whether audio recordings of a defense witness must be disclosed before the deposition of the witness. The O'Dwyer plaintiff was a nursing student who alleged that she had been targeted for termination from the nursing program through "harassment, bullying, stalking, and intimidation."
O'Dwyer's attorney sought to depose the nursing program director. The defendant sought production of audiotaped conversations between the program director and another student before the deposition was allowed, and successfully obtained a written order that the audiotapes be produced. The First Circuit denied the plaintiffs' writ, but writs were granted by the Louisiana Supreme Court.
The O'Dwyer Court looked to prior jurisprudence. In Wolford v. JoEllen Smith Psychiatric Hospital, 96-2460 (La. 5/20/97), 693 So. 2d 1164), the Supreme Court held that a defendant was not required to produce surveillance of the plaintiff until after the plaintiff's deposition. The Court highlighted the "important function in the search for truth" served by surveillance. After all, the value of the surveillance could be minimized were a plaintiff able to view the evidence and tailor his or her testimony to match. Therefore, the evidence was viewed as potential impeachment evidence and could be withheld prior to deposition.
In Bell v. Treasure Chest Casino, L.L.C., 06-1538 (La. 2/22/07), 950 So. 2d 654, the Court refused to extend Wolford to the production of video which captured the accident itself. Video of the accident upon which the plaintiff sued was direct evidence and not primarily impeachment evidence. Therefore, it had to be produced prior to the plaintiff's deposition.
In O'Dwyer, the Court concluded that the audiotapes were made for impeachment and therefore need not be produced until after the nursing director's deposition. Justice Weimer, in dissent, challenged the characterization of the audiotapes as exclusively impeachment evidence. He cited to the language of the writ application which described the tapes as "unique evidence that may be used for direct or impeachment evidence at trial."
O'Dwyer indicates that a court may look to the primary function of the evidence in deciding its discoverability. The fact that the audiotapes may serve as direct evidence did not require their production when their primary function was impeachment.
Evidence
Louisiana Supreme Court
Insight
Court Cannot Vouch for Voucher Funding
The Louisiana Supreme Court has ruled 6-1 that the funding method for the private school tuition voucher program approved by the Legislature last year is unconstitutional under La. Const. art. VIII, Sect. 13(B). The decision leaves uncertain the status of the approximately 8,000 students who had been approved for vouchers for the 2013-2014 school year.In Louisiana Federation of Teachers et al. (No. 2013-CA-0120), the Court held that once funds are dedicated to the state's Minimum Foundation Program for public education, the Constitution prohibits the use of those funds for the tuition costs of nonpublic schools and nonpublic entities. The Court reasoned that it could not sanction the voucher program's funding method when the source of those funds specifically mandated that they be spent on public education. The Court rejected the argument that the voucher program violated the constitutional requirement that a legislative bill have only "one object."The voucher program was part of a 2012 school reform program that allowed the State to offer vouchers to a large number of Louisiana students and to expand the number of privately managed charter schools.The Jindal administration has pledged to continue the program. In response to the ruling, Jindal stated, "We're disappointed the funding mechanism was rejected, but we are committed to making sure this program continues and we will fund it through the budget."The passing of the voucher program legislation was a high-profile affair prominently covered by local and even national media. In this context, the Court felt it advisable to confirm the Supreme Court's role in approving or rejecting legislation. The first page of the opinion includes the following quote:
The determination of how to best provide for the education of children is not the role of the court in this matter. We defer that determination to those more learned in the fields of education and public policy. The court's role is to evaluate the law set forth in the constitution to determine whether the matters addressed by the legislature comply with the relevant constitutional provisions and "not to legislate social policy on the basis of our own personal inclinations." State v. Smith, 99-0606, 99-2094, 99-2015, 99-2019, p. 11 (La. 7/6/00), 766 So. 2d 501, 510. [Emphasis added]
One might reasonably expect that this will not be the last time the Louisiana Supreme Court will be asked to consider the voucher program.
Constitutional Law
Louisiana Supreme Court