Is it possibile that the contractual agreement limiting the time within which an owner must file suit to enforce a private works performance bond may be unenforceable in Louisiana? We cannot predict how a judge or jury would decide the issue but humbly suggest it is this type of gray area that warrants more consideration than it typically receives. Read the article

From the indispensable newsletter of Professor Frank L. Maraist, sage non pareil at the Paul M. Hebert Law Center, comes a pointer to a recent First Circuit Court of Appeal opinion relating to protected medical records.

Article 510 of the Louisiana Code of Evidence establishes the basic privilege which protects a “confidential communication made for the purpose of advice, diagnosis or treatment” of a patient’s “health condition between or among himself or his representative, his health care provider, or their representatives.” This privilege belongs to the patient, to exercise or to waive, as he or she sees fit. Section 510(B)(2) lists a number of exceptions to the privilege.

In Moss v. State, 2004-2160 (La. App. 1 Cir. 6/24/05), 2005 WL 1490450, Ms. Smith and Mr. Moss were both killed in a head-on collision between their respective cars. Mr. Moss’ survivors sued the Department of Public Transportation for a defective highway. The Department urged the comparative fault of the late Ms. Smith – whose estate was not a party to the lawsuit. Continue Reading Privileged Medical Records and La. R.S. 13:3715.1

If the terms “removal” and “fraudulent joinder” pique your interest, you will want to familiarize yourself with the recent United States Fifth Circuit Ruling in Boone v. Citigroup, Inc., ___ F.3d ___ (5th Cir. 2005), 2005 WL 1581091 (5th Cir. (Miss.)).

In Boone, the Fifth Circuit explained its holding in its earlier en banc opinion in Smallwood v. Illinois Central Railroad Company, 385 F.3d 568 (5th Cir. 2004) (referred to as “Smallwood II”). Essentially, the Boone panel explained that a defense is considered to be a “common defense” under Smallwood II only when the showing or factual basis that demonstrates the applicability of the defense to the resident defendants, also necessarily demonstrates the applicability of the defense to all of the claims asserted against the non-resident defendants.

The Boone court reminded its readers that under Smallwood II, a removal based upon improper joinder should not be allowed when all of the defendants, both resident and non-resident, have interposed a “common defense.” Further, a defense is considered to be “common” under Smallwood II only when the showing or factual basis that demonstrates the applicability of the defense to the resident defendants also necessarily demonstrates the applicability of the defense to all claims asserted against the non-resident defendants. Continue Reading Boone – Pathfinding in Smallwood

So you’ve built a successful business that provides you a good salary and employment for several of your children. Things are going fine, but you are worried about what happens to the business when you retire in a few years, or die. What are you going to do? (i) sell to that “national group” for cash and a nice consulting arrangement; (ii) sell to several loyal employees who have helped grow the business, but have not participated in management; or (iii) transfer the business to the children working in the business. Continue Reading Transferring the Family Business to Your Children

The Governor has signed into law Act no. 79 of the 2005 Louisiana Legislature which creates New Code fo Civil Procedure Article 2904 allowing for the admissibility of videotape of the execution of a testament. The videotape evidence may be entered in a contradictory trial to probate a testament or in an action to annul a probated testament. For the videotape evidence to be admissible, the testator must be sworn by a person authorized to take oaths and the oath must be recorded on the videotape. The videotape of the execution and reading of the testament by the testator may be admissible as evidence of any of the following:

1. The proper execution of the testament.

2. The intentions of the testator.

3. The mental state or capacity of the testator.

4. The authenticity of the testament.

5. Matters that are determined by a court to be relevant to the probate of the testament.

Videotape is defined broadly under the new provision.

This opens a whole new pandora’s box to the world of will executions. Here are a few thoughts. Wills are normally not “read” at the time of execution unless the testator is sight impaired. Is there a new requirement that wills be read when videotaping is used? Will there be some inference drawn in a will contest if the videoping is not done? Could heirs make claims against the attorney preparing the will if videotaping would have proved proper execution of the testament? What will be the cost of videotaping? In order to determine the intentions of the testator, or the mental state or capacity of the testator does the attorney have to ask questions of the testator? If so, what questions are sufficient? Will the attorney have to have a script to make certain all issues are covered during the videotaping? How many copies of the videotape do you need? Clearly the videotape can be used to annul a testament, so in effect it can be used against the testator who has requested the taping. Do attorneys have to offer videotaping to their clients, or is it just a tool of the trade for the attorney if he feels there will be an attack on the testament? This list is not exhaustive but shows just some of the issues that may be raised.

By way of BeSpecific, a wonderful weblog, comes a pointer to some overdue recognition for the Louisiana State Legislature web portal.

The Center for Digital Government, which describes itself as “a national research and advisory institute on information technology policies and best practices in state and local government,” ranks Louisiana’s legislature the third most digitally-advanced in the country, in the CDG’s 2003 Digital Legislatures Survey.

[Caveat] Nevada was first, and North Dakota and Minnesota were tied for second, so that technically makes Louisiana fourth, I believe. But who wants to carp over technicalities?

From the article: “The Digital Legislatures Survey is the first study of its kind that will be used as a bellwether for electronic government and provide models for best practices. In August, all 50-state legislative offices were invited to participate in the survey. Officials responded to a set of 12 questions and ranked their offices according to a four-point scale, providing URLs and background data for final verification and validation. Questions ranged from online access to legislation and elected officials to legislative technology support and operations. A ranking was established based on the multiple-choice criteria selections.”

I can certainly vouch for the ease with which one can monitor the progress and evolution of a bill during the frenzied session days. I took it for granted that this ease of access was standard operating procedure in all states, but this clearly is not so. Congratulations to those responsible for the creativity, logic, hard work, and meticulous quality control that make the legislature’s portal so accessible and accurate.

The 8-Hour National Ambient Air Quality Standard for Ozone became effective throughout Louisiana on June 15, 2004. The standard is 84 parts per billion (ppb). Compliance with the standard is measured by the 3- year average of the 4th highest reading each year at each monitor within an area. Stated differently, the 3- year average of the 4th highest 8-hour reading at each monitor within an area must equal 84 ppb or less. Currently, the monitor at Kenner, Louisiana is in danger of causing the New Orleans Metropolitan Statistical Area (MSA) be in nonattainment of the standard. According to Louisiana Department of Environmental Quality records, the Kenner monitor has had readings of 87, 85, 83, and 81 parts per billion during the 2005 ozone season which runs from May through October. Due to the readings over the past two years, the Kenner monitor cannot exceed 83 ppb as the 4th high reading this year, or the 3-year average will be greater than 84 ppb. Thus, if that monitor has an 8-hour average of 84 ppb or greater on two more days during this ozone season, then the whole MSA will go into nonattainment. The New Orleans MSA consists of Jefferson, Orleans, Plaquemines, St. Bernard, St. James, St. Charles, St. John the Baptist, and St. Tammany parishes.

Nonattainment status would trigger a number of additional regulatory requirements for businesses within the area, as well as transportation planning requirements and potential restrictions for municipalities.

The Louisiana Department of Environmental Quality publishes notices of Ozone Action Days on its website: http://www.deq.louisiana.gov/evaluation/ozone/oz_today.asp.
Moreover, the Department also has a list of do’s and don’ts to help citizens and business assist in avoiding ozone exceedances. That action guide is available at http://www.deq.louisiana.gov/evaluation/o3act/oap_you.htm.

Ernie the Attorney recently posted an excellent article on e-discovery, noting the increase in lawyer/client sanctions and general anguish due to ignorance of the range of material subject to discovery, and then how to find it and organize it. Clearly not just about e-mails anymore, electronic discovery offers a huge opportunity for skillful exploitation by the knowledgeable. Woe betide those who think they can wait to learn about it AFTER they get served with a request for production.

Ernie also recommends Michael Arkfeld’s blog Electronic Discovery and Evidence for continuing education on this ever-expanding problem area.

On June 29, 2005, the Louisiana Supreme Court struck down as unconstitutional a statute, La. R.S. 33:9038.21, designed to support the construction of a privately-owned $190 million hotel, featuring more than 600 rooms, in the World Trade Center — a 33-story, city-owned building at 2 Canal Street — through the use of revenue bonds secured by a special hotel occupancy tax.

The statute created the World Trade Center Taxing District as a special taxing and tax increment financing district in Orleans Parish, designed to “provide for cooperative economic development between the City of New Orleans, the World Trade Center, the District, and WTC Development Ltd., to provide for the renovation, restoration and development of the city owned property known as the World Trade Center….” The District was empowered to issue revenue bonds to finance “any projects consistent with the purposes of the District,” and to pledge those taxes to “any financing of the WTC property in furtherance of the purposes of the district.”

The problem? The hotels in the District which would be subject to the new tax — including the new hotel itself — were already subject to two hotel occupancy taxes; one levied by the Louisiana Stadium and Exposition District, and the other by the New Orleans Exhibition Hall Authority. Continue Reading Louisiana Supreme Court Nixes World Trade Center Financing

As of today, if you log on to the State Bar’s website at www.lsba.org you can search for cases in all 50 states and all federal cases for free. The state bar has entered a contract with Fastcase (a business run by Baton Rouge attorney Ed Walter’s son, Ed, Jr.). You can run Westlaw/Lexis type searches and download cases on the web at no charge. All you need is your bar roll number and birthdate to log-on.