Senate committee advances permitless concealed carry


www.houmatimes.com/news/senate-committee-advances-permitless-concealed-carry/

US Court of Appeals for the Fifth Circuit Opinions
Taylor v. LeBlanc

Docket: 21-30625
Opinion Date: May 15, 2023
Judge: James C. Ho
Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Plaintiff was detained beyond the expiration of his sentence because Department officials gave him credit for time served in pre-trial detention but only for one (rather than both) of his two consecutive sentences. That was the right thing to do under the law, then in effect. But Plaintiff was entitled to the more generous provision in effect at the time his sentence was entered. As a result, he served over a year longer than he should have. After his release, Plaintiff brought suit against various Louisiana officials under 42 U.S.C. Section 1983, among other claims. This appeal concerns only one of those claims: Plaintiff’s claim against the head of the Department, Secretary James LeBlanc (“Defendant”). Defendant appealed the denial of qualified immunity, arguing that his conduct wasn’t objectively unreasonable in light of clearly established law.
 
The Fifth Circuit reversed. The court explained that while the right to timely release is clearly established, Plaintiff does not show how Defendant’s conduct was objectively unreasonable in light of clearly established law. Plaintiff contends that Defendant was objectively unreasonable because he failed to assign the task of calculating release dates to an attorney. But nothing in the Constitution requires that such actions be undertaken by a member of the bar.

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US Court of Appeals for the Fifth Circuit Opinions
Texxon v. Getty Leasing

Docket: 22-40537
Opinion Date: May 3, 2023
Judge: Stephen A. Higginson
Areas of Law: Bankruptcy, Civil Procedure, Contracts

Appellant Texxon Petrochemicals, LLC (“Texxon”) filed for bankruptcy. In that proceeding, Texxon filed a motion to assume executory contract, alleging that it entered into a contract with Getty Leasing in 2018 to purchase the property. Getty Leasing objected to the motion. After an evidentiary hearing, the bankruptcy court denied the motion on the grounds that, for multiple reasons, there was no valid contract to assume. The district court affirmed, finding there was insufficient evidence to show that, as required under Texas law, the alleged contract was sufficient as to the property identity or comprised an unequivocal offer or acceptance. Texxon appealed. Getty Leasing primarily contends that the appeal is mooted by the dismissal of the underlying bankruptcy proceeding.
 
The Fifth Circuit affirmed. The court held that the brief email exchange did not demonstrate an offer or acceptance, as required for a contract to be binding under Texas law. Texxon fails to show that the email exchange satisfied any of the three required elements of an offer. A statement that a party is “interested” in selling a property is not an offer to sell that property—it is an offer to begin discussions about a sale. Nor were the terms of the offer clear or definite. Finally, the alleged offer failed to identify the property to be conveyed. For these reasons, Texxon is unable to show the existence of a binding contract.

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Adams v. City of Harahan

Docket: 22-30218
Opinion Date: April 16, 2023
Judge: Carl E. Stewart
Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Personal Injury

This appeal arises from Plaintiff’s suit against the City of Harahan (“the City”) for its alleged deprivation of his Fourteenth Amendment right to due process. In October 2019, the Harahan Police Department (“HPD”) Chief of Police determined that Plaintiff was guilty of numerous offenses. Plaintiff was entitled to a fifteen-day appeal window of the Chief’s disciplinary determinations. Plaintiff exercised his right to appeal a week after the charges. However, the Chief emailed the Jefferson Parish District Attorney’s office (“JPDA”) to inform it of his disciplinary action against Plaintiff before he exercised his right. Plaintiff brought a civil rights suit against the City for violation of his procedural due process rights, stigma-plus-infringement, and defamation. He included Louisiana state law claims for defamation, invasion of privacy, and negligence. The City moved to dismiss his Section 1983 claims under Rule 12(c). The primary issue is whether the district court erroneously determined that Plaintiff had a liberty interest in his “future employment as a law enforcement officer.
 
The Fifth Circuit reversed the district court’s denial of the City’s Rule 12(c) motion and dismissed Plaintiff’s due process claim. The court explained that Plaintiff’s alleged liberty interest in his career in law enforcement has no basis in Supreme Court or Fifth Circuit precedent. Moreover, he does not provide a different constitutional anchor for this proposed liberty interest. Because he fails to state facts supporting the violation of a cognizable liberty interest, he fails to plead a due process violation. Furthermore, the court declined to address the adequacy of the process he received.

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Southern Orthopaedic Speclalists v. State Farm Fire

Docket: 22-30340
Opinion Date: April 4, 2023
Judge: Per Curiam
Areas of Law: Civil Procedure, Contracts, Insurance Law

Appellant Southern Orthopaedic Specialists, L.L.C. (“Southern Orthopaedic”) sued its insurer, State Farm Fire & Casualty Company (“State Farm”), to recover business interruption losses caused by covid-related shutdowns. It also claims that State Farm negligently misrepresented the scope of the policy’s coverage. The district court dismissed these claims as foreclosed by the policy and Louisiana law.
 
The Fifth Circuit affirmed. The court held that Southern Orthopaedic’s pleadings fall short. They do not allege that covid caused “tangible or corporeal” property damage. Nor do they allege that the presence of covid particles required physically repairing or replacing any part of Southern Orthopaedics’s property. Nor do they claim that the presence of covid necessitated lasting alterations to the property. Without allegations of this nature, Southern Orthopaedic cannot meet the requirement of pleading an “accidental direct physical loss” under the policy.

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LOUISIANA
Proposed law: Louisiana 3rd graders reading below level would not be promoted



www.klfy.com/louisiana/proposed-law-louisiana-3rd-graders-reading-below-level-would-not-be-promoted/

Louisiana Supreme Court Opinions
Jones v. Market Basket Stores, Inc.

Docket: 2022-C-00841
Opinion Date: March 17, 2023
Judge: Jefferson D. Hughes, III
Areas of Law: Business Law, Civil Procedure, Personal Injury

The district court awarded damages to plaintiff Lashondra Jones who was allegedly injured when she stepped on a wooden pallet with an attached pallet guard, holding a bulk watermelon bin, to reach a watermelon in the bottom of the bin, and the pallet guard collapsed. Defendant Market Basket Stores, Inc. appealed, and the appellate court reversed the award, finding manifest error in the factual findings of the district court requiring de novo review and concluding that the watermelon display did not present an unreasonable risk of harm to plaintiff. After review, the Louisiana Supreme Court concluded there was no manifest error in the district court’s finding of negligence on the part of the defendant; therefore, the appellate court erred in its ruling.

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Huge Louisiana Victory In Court: California’s Alligator Ban Defeated

www.houmatimes.com/news/huge-louisiana-victory-in-court-californias-alligator-ban-defeated/

USA v. Hagen

Dockets: 21-11273, 21-11279
Opinion Date: February 27, 2023
Judge: Stephen Andrew Higginson
Areas of Law: Constitutional Law, Criminal Law, White Collar Crime

The Hagens (Leah and Michael) were convicted by a jury of conspiring to defraud the United States and to pay and receive health care kickbacks. Each was sentenced to 151 months of imprisonment, followed by three years of supervised release, plus restitution. Both Hagens appealed, arguing that the district court erred in excluding evidence, refusing to instruct the jury on an affirmative defense, and imposing a sentencing enhancement and restitution.

The Fifth Circuit affirmed the Hagens' convictions and sentences. The court found that the excluded evidence, which consisted of witness testimony, was irrelevant and cumulative. Thus, the district court did not err in excluding it. Even if the exclusion of the evidence wasn't warranted, the court determined that any error below was harmless.

The court also held that the Hagans failed to put sufficient evidence forward justifying their requested jury charge on the safe-harbor affirmative defense. Finally, the court rejected the Hagens' claim that the lower court erred in applying a sentencing enhancement for the couple's "sophisticated money laundering scheme." The court explained that evidence suggested the Hagens manipulated their wire transfer payments to conceal the kickback scheme, which justified the enhancement.

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​
US Court of Appeals for the Fifth Circuit Opinions
Kling v. Hebert

Docket: 21-30658
Opinion Date: February 17, 2023
Judge: James L. Dennis
Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Labor & Employment Law

After prevailing in state court on claims that he was fired in retaliation for exercising his state constitutional right to freedom of expression, Plaintiff filed a federal suit alleging the same set of facts but asserting for the first time a First Amendment claim. The district court dismissed Plaintiff’s suit, finding that Defendants’ factual attack showed that the only remedy not barred by sovereign immunity was impossible to grant and that Kling’s claim was prescribed. On appeal, Plaintiff contends that a factual attack on a district court’s subject matter jurisdiction is improper at the pleadings stage and that his state lawsuit interrupted prescription on his newly asserted federal claim because both rely on the same set of operative facts.
 
The Fifth Circuit concluded that the district court did not err in dismissing Plaintiff’s official capacity claims as barred by sovereign immunity and accordingly affirmed that ruling in the district court’s decision. However, because there are no clear controlling precedents from the Louisiana Supreme Court as to whether prescription on Plaintiff’s federal claim was interrupted by his state action, the court certified to that court to answer the following:

In Louisiana, under what circumstances, if any, does the commencement of a suit in a court of competent jurisdiction and venue interrupt prescription as to causes of action, understood as legal claims rather than the facts giving rise to them, not asserted in that suit?

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​United States Court of Appeals for the Fifth Circuit

Percy Taylor,
Plaintiff—Appellee,
versus
James LeBlanc, Secretary,
Defendant—Appellant.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:21-CV-72

Constitutional Law:

"qualified immunity protects government officials
from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quotation omitted). “A public official is entitled to qualified immunity
unless the plaintiff demonstrates that (1) the defendant violated the
plaintiff’s constitutional rights and (2) the defendant’s actions were
objectively unreasonable in light of clearly established law at the time of the
violation.” Porter, 659 F.3d at 445. “Both steps in the qualified immunity
analysis are questions of law.” Wyatt v. Fletcher, 718 F.3d 496, 503 (5th Cir.
2013). We are free to decide which prong of the qualified immunity analysis
to address first. See Pearson, 555 U.S. at 242 (“[T]he judges of the district
courts and the courts of appeals are in the best position to determine the
order of decisionmaking that will best facilitate the fair and efficient
disposition of each [qualified immunity] case.”).
We proceed to consider whether Secretary LeBlanc’s “actions were
objectively unreasonable in light of clearly established law at the time of the
violation.” Porter, 659 F.3d at 445. “The second prong of the qualified
immunity test is better understood as two separate inquiries: whether the
allegedly violated constitutional rights were clearly established at the time of
the incident; and, if so, whether the conduct of the defendants was
objectively unreasonable in the light of that then clearly established law.”
Hare, 135 F.3d at 326 (emphasis omitted).
Case: 21-30625 Document: 00516645415 Page: 6 Date Filed: 02/14/2023
No. 21-30625
7
It is clearly established that inmates have the right to timely release
from prison consistent with the terms of their sentences. See Crittindon, 37
F.4th at 188; Porter, 659 F.3d at 445. Taylor’s claim against Secretary
LeBlanc nevertheless fails because he has forfeited any argument that the
Secretary’s conduct was objectively unreasonable.
The objectively unreasonable standard is not “that an official action is
protected by qualified immunity unless the very action in question has
previously been held unlawful; but it is . . . that in the light of pre-existing law
the unlawfulness must be apparent.” Hope v. Pelzer, 536 U.S. 730, 739 (2002)
(citation omitted). The critical consideration is fair warning. See id. at 739–
41. “The relevant, dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a reasonable official that his
conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533
U.S. 194, 202 (2001), overruled in part on other grounds by Pearson, 555 U.S. at
236.
Taylor does not present any meritorious argument that Secretary
LeBlanc acted in an objectively unreasonable manner in this case.
To begin with, he argues that whether Secretary LeBlanc acted
objectively unreasonably is a fact question not amenable to appellate review
at this stage in the proceedings. But we have long held precisely the opposite.
Whether “a given course of conduct would be objectively unreasonable in
light of clearly established law” is a “purely legal question” and plainly
within our jurisdiction on interlocutory review. Kinney v. Weaver, 367 F.3d
337, 347 (5th Cir. 2004). See also Wyatt, 718 F.3d at 503 (noting both steps
of the qualified immunity analysis “are questions of law”).
To the extent that Taylor argues the merits, it’s inadequately briefed.
Taylor’s entire presentation on the issue of objective unreasonableness
amounts to just this single conclusory statement: “It is inherently
Case: 21-30625 Document: 00516645415 Page: 7 Date Filed: 02/14/2023
No. 21-30625
8
unreasonable for the secretary . . . to fail to enact policies and procedures to
ensure the prompt release of inmates who have served their sentences in
accordance to law.” A single, unsupported sentence isn’t enough to
adequately brief the issue. See Melgar v. T.B. Butler Publ’g Co., Inc., 931 F.3d
375, 382 n.6 (5th Cir. 2019) (noting that when an “issue [is] inadequately
briefed, it is forfeited”). To be sure, we have said that forfeiture principles
may apply “more leniently when the party who fails to brief an issue is the
appellee” rather than the appellant. Hernandez v. Garcia Pena, 820 F.3d 782,
786 n.3 (5th Cir. 2016). But Taylor bears the burden on the issue of objective
unreasonableness. See, e.g., Angulo v. Brown, 978 F.3d 942, 949 (5th Cir.
2020) (“The plaintiff has the burden to negate a properly raised defense of
qualified immunity.”). And he has not meaningfully briefed that issue. See,
e.g., Hornbeck Offshore Servs., L.L.C. v. Salazar, 713 F.3d 787, 796 (5th Cir.
2013) (applying forfeiture to the appellee because an issue “has not been
meaningfully briefed”).
We reverse



www.ca5.uscourts.gov/opinions/pub/21/21-30625-CV0.pdf

USA v. Rahimi

Docket: 21-11001
Opinion Date: February 2, 2023
Judge: Cory T. Wilson
Areas of Law: Constitutional Law, Criminal Law

Defendant brought a facial challenge to Section 922(g)(8). The district court and a prior panel upheld the statute, applying the Fifth Circuit’s pre-Bruen precedent. Defendant filed a petition for rehearing en banc; while the petition was pending, the Supreme Court decided Bruen. The prior panel withdrew its opinion and requested a supplemental briefing on the impact of that case on this one.
 
The Fifth Circuit reversed the district court’s ruling and vacated Defendant’s conviction. The court held that Bruen requires the court to re-evaluate its Second Amendment jurisprudence and that under Bruen, Section 922(g)(8) fails to pass constitutional muster. The court explained that the Government failed to demonstrate that Section 922(g)(8)’s restriction of the Second Amendment right fits within the Nation’s historical tradition of firearm regulation. The Government’s proffered analogues falter under one or both of the metrics the Supreme Court articulated in Bruen as the baseline for measuring “relevantly similar” analogues: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” As a result, Section 922(g)(8) falls outside the class of firearm regulations countenanced by the Second Amendment.

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Louisiana Supreme Court Opinions
Hidden Grove, LLC v. Brauns

Docket: 2022-C-00757
Opinion Date: January 27, 2023
Judge: Crichton
Areas of Law: Civil Procedure, Contracts, Real Estate & Property Law

This case arose from a dispute regarding the excavation of lots located in the The Grove Subdivision between plaintiff Hidden Grove LLC (“Hidden Grove”), the developer of The Grove, and homeowner defendants Richard and Lisa Brauns (the Braunses). In 2011, the Braunses purchased a home located on Lot 14 of The Grove from a third party not involved in this litigation. The next day, the Braunses purchased Lot 15 from Hidden Grove for $100,000. They also acquired a right of first refusal to purchase Lots 16 and 17. The surface elevations of Lots 16 and 17 were eight feet higher than that of Lot 15. Because the Braunses intended to add on to their home and build a swimming pool on Lot 15, they sought to lower the elevation of Lots 16 and 17 to match the elevation of the lots previously purchased. Hidden Grove agreed the Braunses could lower the elevation of Lots 16 and 17, at their own expense. Before the parties executed a written agreement setting forth the engineering specifications for the excavation, work began in January 2013 on oral permission of Hidden Grove. In June 2013, after the excavation was near completion, disputes arose between the parties, specifically as to whether the Braunses were required to extend the retaining wall onto Lots 16 and 17. When Richard Brauns told Hidden Grove that the wall would terminate at the boundary of Lot 15 and 16, Hidden Grove ordered the Braunses to stop work and “get off the property.” Hidden Grove filed suit against the Braunses alleging breach of contract and requesting specific performance of concluding the excavation and construction of a retaining wall through the backs of Lots 16 and 17. The Louisiana Supreme Court granted review in this matter to review the court of appeal’s determination that Hidden Grove could not assert a claim for enrichment without cause under Civil Code article 2298 for failure to establish the “no other remedy at law” element of the claim. The Court concluded the court of appeal erred and remanded the matter to the court of appeal for consideration of pretermitted issues.

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USA v. Wright

Docket: 21-40849
Opinion Date: January 18, 2023
Judge: Rhesa Hawkins Barksdale
Areas of Law: Constitutional Law, Criminal Law

At issue is whether Defendant was seized in violation of the Fourth Amendment when an officer, with emergency lights engaged, pulled behind Wright’s parked vehicle, and he did not attempt to flee or terminate the encounter but failed to comply fully with the officer’s commands. The district court, at the end of an evidentiary hearing, however, denied Defendant’s motion to suppress, concluding erroneously that the Terry stop was initiated instead at a later point in the encounter.
 
The Fifth Circuit, while retaining jurisdiction over the appeal, remanded to the district court for it, based on the record developed at the suppression hearing, to prepare expeditiously written findings of fact and conclusions of law on whether the seizure at the earlier point in time was in violation of the Fourth Amendment. The court explained that Defendant not complying fully with some of the Officer’s commands was improper, to say the least, but his behavior does not show defiance of the Officer’s authority. Defendant sufficiently submitted to the show of authority because he objectively appeared to believe he was not free to leave, and he did not attempt to flee, nor terminate the encounter. The court further explained that because the district court’s findings and conclusions turn instead on events occurring after the Terry stop, the court is unable to deduce from them whether the district court concluded the totality of the circumstances prior to the Officer’s pulling behind Wright’s vehicle provided reasonable suspicion justifying the stop.

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In re: LA Pub Svc Comm

Docket: 22-60458
Opinion Date: January 18, 2023
Judge: Patrick E. Higginbotham
Areas of Law: Energy, Oil & Gas Law, Government & Administrative Law

The Louisiana Public Service Commission (“LPSC”) petitioned the Fifth Circuit for a writ of mandamus compelling the Federal Energy Regulatory Commission (“FERC”) to resolve several of its complaints before the agency related to a ratemaking dispute with System Energy Resources, Inc. (“SERI”), operator of the Grand Gulf Nuclear Station.
 
The Fifth Circuit concluded that FERC has yet to provide the court with sufficient explanation for its delay despite ongoing irreparable harm to consumers. Accordingly, the court ordered FERC to provide the court—within 21 days—with a meaningful explanation for the length of time the Commission takes for final action in Section 206 complaint proceedings, including those at issue here.

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US Court of Appeals for the Fifth Circuit Opinions
Hanover Ins v. Binnacle Development

Docket: 21-40662
Opinion Date: January 12, 2023
Judge: Leslie H. Southwick
Areas of Law: Contracts, Real Estate & Property Law, Zoning, Planning & Land Use

This dispute involves three construction projects (the “Projects”) in Galveston County, Texas. Defendants, Binnacle Development, Lone Trail Development, and SSLT, are land developers. Each developer contracted with R. Hassell Properties, Inc. to complete paving and infrastructure projects in Galveston County Municipal Utility District (“MUD”) No. 31. The three Hassell contracts were form MUD contracts created by MUD attorneys. Each contract stated that it was “for Galveston County Municipal Utility District No. 31.” Hanover subsequently sued the developers in federal court to recover the contract balances on the Projects. The liquidated-damages clause would, if enforced, amount to an offset of $900,000. Both parties moved for summary judgment. The district court concluded that because no district is a party to the contracts at issue, the economic disincentive provision from the Water Code does not apply. On the second issue, the district court found that the damages clauses in the contracts constitute an unenforceable penalty. The court granted summary judgment for Hanover.
 
The Fifth Circuit affirmed. The court held that Section 49.271 allows “economic disincentive” clauses only in contracts where a district is a contracting party. Because no district is party to the Hassell contracts, they cannot incorporate “economic disincentive” clauses permitted under the Texas Water Code. The court also wrote it would not disturb the district court’s finding that the clause is an unenforceable penalty under Texas law.

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US Court of Appeals for the Fifth Circuit Opinions
USA v. Stark

Docket: 22-40557
Opinion Date: January 9, 2023
Judge: Per Curiam
Areas of Law: Constitutional Law, Criminal Law

Defendant challenged the district court's denial of his request for an adjustment to a restitution order. Defendant claimed that the $1,400 stimulus payment he received under the American Rescue Plan was exempt from levy and that any payment would violate the Taking Clause.

The Fifth Circuit affirmed the district court's denial of Defendant's request to adjust his restitution order. In so holding, the court held that the stimulus payment does not meet any exception and that he was required to apply the complete payment towards any restitution he owed.

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Shrimpers v. United States Army Corps

Docket: 21-60889
Opinion Date: January 5, 2023
Judge: King
Areas of Law: Energy, Oil & Gas Law, Environmental Law, Government & Administrative Law

Petitioners Shrimpers and Fishermen of the RGV, Sierra Club, and Save RGV from LNG (collectively, “Petitioners”) challenge the issuance of a Clean Water Act (“CWA”) permit by the U.S. Army Corps of Engineers (the “Corps”). Petitioners allege that the Corps’ permit issuance violated the CWA and its implementing regulations.
 
The Fifth Circuit denied the petition for review, holding that the Corps approved the least environmentally damaging practicable alternative presented before it during the permitting process and did not act arbitrarily in its evaluation of pipeline construction impacts and mitigation efforts. The court explained Petitioners’ first set of arguments centers on the Corps’ estimation that restoration will occur within one year. They state that the Corps did not consider the full construction period when quantifying the duration of impacts, which they allege is improper. However, they supply no evidence that the construction period must be, or even that it typically is, included when assessing whether impacts are temporary.
 
Further, the Corps’ analysis also comports with the EIS, which estimates that herbaceous vegetation will regenerate “within 1 to 3 years.” The EIS estimation necessarily includes the finding that vegetation may revegetate in one year, as the Corps concluded. Finally, the EPA feedback Petitioners relied upon does not consider the approved compensatory mitigation plan or the special conditions of the permit because the comments are from 2015 and 2018— well before the current permit (and even the original permit) was approved. The Corps considered this feedback and aligned its ultimate approach with the EPA’s recommendations.

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US Court of Appeals for the Fifth Circuit Opinions
In re: Grand Jury Subpoena

Docket: 21-30705
Opinion Date: December 28, 2022
Judge: Leslie H. Southwick
Areas of Law: Constitutional Law, Criminal Law, Health Law, Legal Ethics

An individual and an advocacy group seek to appeal from the denial of a motion to quash two grand jury subpoenas and an order compelling compliance with one of them. There is no jurisdiction for appeals challenging a grand jury subpoena for production of documents unless (1) the appellant has been held in contempt, or (2) a client-intervenor asserts that documents in the possession of a subpoenaed, disinterested third party are protected by attorney-client privilege.
 
The Fifth Circuit dismissed the appeal explaining that neither exception applied. The court explained that the subpoenaed documents are in the hands of Appellants. They are interested third parties in that they are being investigated for witness tampering. They have a direct and personal interest in suppressing the documents that could potentially corroborate the witness tampering accusation. Consequently, Appellants obviously have “a sufficient stake in the proceeding to risk contempt by refusing compliance.” Accordingly, the court wrote it lacks jurisdiction over the appeal, and Appellants must either comply with the subpoena or be held in contempt to seek the court’s review.

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Louisiana Supreme Court Opinions
George v. Progressive Waste Solutions of Louisiana, et al.

Docket: 2022-CC-01068
Opinion Date: December 9, 2022
Judge: Crichton
Areas of Law: Civil Procedure, Personal Injury

Plaintiff Walter George was standing at the roadside of his home in Houma, Louisiana, at the same time defendant Progressive Waste Solutions of La., Inc. (“Progressive”) was picking up garbage on plaintiff’s street. While plaintiff was picking remnants of garbage left behind, he was struck by the hydraulic arm of a garbage truck and sustained injuries. Plaintiff and his wife Janie petitioned for damages against Progressive and ABC Insurance Company. Champion Medical Center entered into a “Professional Service Agreement” (“agreement”) with Ascendant Healthcare (“company”), which identified itself in this agreement as being in “the business of arranging for the provision of professional medical services to persons whose health care costs are paid by liability insurance companies and/or attorneys that enter into arrangements with [Ascendant] for the provision of such services....” The agreement also stated that “[p]rovider agrees and hereby appoints Company as its agent for purposes of filing a medical lien for the services rendered by Provider. Plaintiff’s former counsel at the law firm of Spagnoletti & Company executed a “Letter of Guaranty and Protection.” The document, signed by Marcus Spagnoletti only, identified “the undersigned attorney and law firm” as the “GUARANTOR,” “ASCENDANT HEALTHCARE, LLC” as the “Company,” and the patient as Walter George (who received medical treatment resulting from an “ACCIDENT” in 2015). After the parties engaged in initial discovery, defendant Progressive filed a Motion in Limine on March 10, 2020, seeking to exclude or strike the medical bills related to plaintiff’s surgery and charged to Ascendant Healthcare. Defendant asserted the collateral source rule did not apply for these charges because they were "simply amounts charged," and plaintiff has not diminished his patrimony in order to receive his medical care. The motion was ultimately granted, but the Louisiana Supreme Court reversed. "In the absence of any evidence that plaintiff is not liable for the full billed medical charges in this matter, defendant cannot benefit from any reduction as a result of the subject medical factoring agreement." The matter was remanded for further proceedings.

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​Louisiana passes all three Constitutional Amendments


www.houmatimes.com/news/louisiana-passes-all-three-constitutional-amendments/

Succession of Willie Clyde Burns

Docket: 2022-C-00263
Opinion Date: December 9, 2022
Judge: Jefferson D. Hughes, III
Areas of Law: Family Law, Trusts & Estates

The decedent Willie Clyde Burns married Silver Ruth Cooper in 1959. The couple lived in Claiborne Parish, Louisiana and had three children. A divorce petition was filed in 1966 in Arkansas, captioned “Sybia Ruth Burns vs. W. C. Burns.” A final judgment of divorce was rendered on August 26, 1966 by the Arkansas court. Willie filed a divorce petition in Claiborne Parish in 1967, and the petition was served on Silver, captioned “W.C. Burns (Col.) vs. Sylvia Ruth Burns.” There was no judgment of final divorce rendered in this case. Silver went on to marry Welcome Boyd in 1968. Willie went on to marry Annie Bradley in 1970. Annie testified at trial that at the start of their marriage she and Willie had no assets and that anything Willie owned at the time of his death was acquired during their marriage. The couple was married for 45 years and had two children. Willie died intestate in 2015. Annie petitioned to open Willie’s succession and appoint an administratrix. Silver filed a Petition in Intervention in which she sought to be named Willie’s surviving spouse as she was never lawfully divorced from him. In support of her position, Silver provided a report by a forensic document examiner who concluded that the signatures on the documents of both divorce proceedings did not belong to Silver. She also testified that she never went by the names Sybia or Sylvia. The trial court granted the petition to intervene, declared the Arkansas divorce invalid, and recognized Silver as the legal wife of Willie at the time of his death. In addition, the trial court found that Annie was a good faith putative spouse based on Annie’s testimony that Willie told her he was divorced. The trial court then said that the estate would be divided according to the formula in Prince v. Hopson, 89 So.2d 128 (La. 1956), allocating one-fourth of the community to the legal spouse, one-fourth to the putative spouse, and the decedent’s one half to his heirs. The Lousiana Supreme Court reversed the trial court's division of the community, finding that as a good faith putative spouse, Annie had an undivided one-half interest in the community. Willie’s five children were to divide equally his undivided one-half interest in the community, subject to Annie’s usufruct.

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US Court of Appeals for the Fifth Circuit Opinions
USA v. Thompson

Docket: 21-60535
Opinion Date: December 5, 2022
Judge: Per Curiam
Areas of Law: Criminal Law

Defendant pleaded guilty to possessing a firearm after a felony conviction and was sentenced under 18 U.S.C. Section 924(e), the Armed Career Criminal Act (ACCA), to a mandatory minimum of 180 months in prison. He appealed, arguing that his prior Mississippi convictions for burglary do not qualify as crimes of violence under the ACCA and that the convictions, which occurred when he was a minor, are invalid because the juvenile court never properly transferred jurisdiction to the circuit court. The Government disagreed. It also moved to dismiss based on a waiver of appeal in Defendant’s plea agreement.
 
The Fifth Circuit concluded that Defendant’s arguments are without merit. Thus, the court pretermitted the waiver issue. The court also declined to consider an argument Defendant first raised in his reply brief. Accordingly, the court affirmed the judgment of the district court and denied the Government’s motion to dismiss.

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US Court of Appeals for the Fifth Circuit Opinions
Sanare Energy v. Petroquest

Docket: 21-20677
Opinion Date: November 29, 2022
Judge: Don R. Willett
Areas of Law: Bankruptcy, Civil Procedure, Energy, Oil & Gas Law

Appellant Sanare Energy Partners, L.L.C. agreed to purchase a mineral lease and related interests from Appellee PetroQuest Energy, L.L.C. Later, PetroQuest filed bankruptcy, and Sanare filed an adversary suit in that proceeding. Sanare argued that the lack of certain third-party consents rendered PetroQuest liable for costs associated with some “Assets” whose transfer the sale envisioned. The bankruptcy court and the district court each disagreed with Sanare.
 
The Fifth Circuit affirmed. The court explained that the Properties are “Assets” under the PSA, including section 11.1, even if the Bureau’s withheld consent prevented record title for the Properties from transferring to Sanare. This conclusion is plain from the PSA’s text, which excludes Customary Post-Closing Consents such as the Bureau’s from the category of consent failures that alter the parties’ bargain. Consent failures that do not produce a void-ab-initio transfer also do not alter the parties’ bargain, so the Agreements, too, are Assets under the PSA’s plain text.

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​
USA v. Davis

Docket: 21-10996
Opinion Date: November 15, 2022
Judge: Stuart Kyle Duncan
Areas of Law: Constitutional Law, Criminal Law, White Collar Crime

Defendant was convicted of numerous wire fraud and money-laundering charges arising from a fraudulent scheme to cause the Department of Veterans Affairs to pay over $71 million in GI-Bill funding to his trade school. Defendant raised several challenges to his convictions and his sentence.
 
The Fifth Circuit affirmed in nearly all respects, except that it vacated the forfeiture order and remanded it for further proceedings. The court held that Defendant fails to show the evidence was insufficient to allow a rational jury to convict him on the money-laundering counts. Further, the court concluded that conclude that the indictment was not faulty and the district court did not err in declining to order a bill of particulars.
 
Moreover, the court explained that illegally provided services that could have “hypothetically” been provided in a “legal manner”—like Defendant’s operation of the school—implicate the second definition of proceeds under Section 981(a)(2)(B), under which a defendant may deduct “the direct costs incurred in providing the goods or services.” The focus of any Section 981(a)(2) analysis is the underlying criminal conduct, not the crime itself.
 
That subsection further provides that Defendant “shall have the burden of proof with respect to the issue of direct costs” and also that those costs “shall not include any part of the overhead expenses of the entity providing the goods and services, or any part of the income taxes paid by the entity.” Therefore the court remanded for determining whether Defendant can prove any offset under the terms of Section 981(a)(2)(B).

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