Appellate Practice – Case Results

Maurice Fontenot and Susan Melton Fontenot v. Jarred Levar Stevens, Carl’s Rentals, and Republic Fire and Casualty Insurance Company
(April 2015)

 Mike Sistrunk, Lynda Tafaro and Matt Garver succeeded on a Motion to Set Aside a JNOV as absolutely null on behalf of The Republic Group and its insureds. In May, 2013, a jury in the 14th Judicial District Court in Lake Charles returned a verdict in favor of plaintiff for $500,500.00. Plaintiff quickly filed a Motion for JNOV, the trial judge having pre-judged the case, opining in pre-trial conference that the case was valued at close to the $1 million insurance limits based solely on plaintiff’s $275,000.00 in past medical expenses. The Motion for JNOV was granted, and the jury’s award was raised to $1,075,417.90, resulting in an excess judgment against the insureds. Once the defendants’ Motion for New Trial on the JNOV and Motion to Recuse were denied, the trial judge then denied defendants’ appeal, concluding that appeal delays had run. The judge then abruptly resigned from the bench, and a judge pro tempore was appointed. McCranie, Sistrunk was then retained by The Republic Group as appellate counsel for all defendants.

 A thorough review of the record revealed that although a judgment had been signed granting the JNOV, the trial court had failed to sign and issue notice of a judgment on the jury’s verdict. Defendants filed a Motion to Set Aside the JNOV as absolutely null, arguing that the court had no jurisdiction to consider the Motion for JNOV as it was premature until the court issued notice of judgment on the jury’s verdict.

 The trial judge, pro tempore, denied the Motion to Set Aside, concluding that the judgment granting the Motion for JNOV contained sufficient language to constitute a judgment on the jury’s verdict, thus satisfying the requirements of La. C.C.P. arts. 1911, 1913 and 1916.

 The Louisiana Third Circuit Court of Appeal granted and docketed defendants’ application for supervisory writ. After oral argument, the Third Circuit reversed and remanded, agreeing with defendants that the trial court lacked jurisdiction to consider the Motion for JNOV as no judgment had been signed on the jury’s verdict. As, “the judgment granting the JNOV is null on its face,” no appeal delays had begun, and the trial court was ordered to enter judgment in conformity with the jury’s verdict. The JNOV was set aside and the jury’s verdict reinstated. It is paramount that the jury’s verdict be reduced to a signed judgment to start the delays for all post-trial motions and appeals. Thus, delays for post-trial motions and appeals will begin once the trial court issues notice of judgment on the jury’s verdict. In April, 2015, the Louisiana Supreme Court unanimously denied plaintiff’s writ application.

Greater New Orleans Expressway Commission v. Olivier, et al.
(January 2005)

Thomas P. Anzelmo, Burgess McCranie and Kyle P. Kirsch brought suit on behalf of the Greater New Orleans Expressway Commission seeking a writ of mandamus to require the judges of First Parish Court for the Parish of Jefferson to enforce La. R.S. 32:57(G). In response to the mandamus action the judges challenged the constitutionality of La. R.S. 32:57(G). The trial court initially determined that the judges had standing to challenge the constitutionality of the statute and found it to be unconstitutional. On appeal to the Louisiana Supreme Court determined that the judges lacked standing to challenge the statute and vacated the trial court’s ruling. Greater New Orleans Expressway Commission v. Olivier, 2005 WL 106498 (La. 2005). After the Louisiana Supreme Court rendered its decision the judges issued an order requiring the imposition of the cost mandated by La. R.S. 32:57(G).

Cook v. Jefferson Parish Hospital Service
(May 2004)

Thomas Anzelmo won an appeal at the 5th Circuit in favor of East Jefferson General Hospital in Cook v. Jefferson Parish Hospital Service. East Jefferson argued a plaintiff should not be able to recover the portion of medical expenses written off by a hospital pursuant to Medicare under the collateral source rule. The 5th Circuit acknowledged a previous ruling by the 2nd Circuit which held “a plaintiff may not recover as damages that portion of medical expenses ‘contractually adjusted’ or ‘written off’ by a healthcare provider pursuant to the requirements of the Medicaid program.” The court further held that “[b]ecause the portion of medical expenses that are “written off” by a healthcare provider are not damages incurred by the injured plaintiff, they are not subject to recovery by application of the collateral source rule.” The 5th Circuit concurred with the decision of the 2nd Circuit and held “…that the trial court erred in awarding that portion of medical expenses which were ‘contractually adjusted’ or ‘written off’ by East Jefferson pursuant to Medicare.”

Jesco Construction Corp. v. Nationsbank Corp., et al.
(October 2002)

Thomas P. Anzelmo and Kyle P. Kirsch on behalf of Underwriters at Lloyds of London, and Peter J. Wanek on behalf of Continental Casualty Company obtained dismissal of plaintiff’s claims in a case entitled Jesco Construction Corp. v. Nationsbank Corp., 830 So.2d 989 (La. 2002). The plaintiff, Jesco Construction Corporation, claimed that its damages from the failed loan resulted in damages amounting to $240,000,000.00. The trial court originally granted in part defendants’ Motion for Summary Judgment finding that no credit agreement existed. However, the district court refused to dismiss plaintiff’s remaining claims because it determined that the Louisiana Credit Agreement Statue did not preclude all actions arising from oral credit agreements. The denial of defendants’ motion was certified to United States Court of Appeal for the Fifth Circuit. The Fifth Circuit after oral argument certified the question to the Louisiana Supreme Court. See Jesco Construction Corp. v. Nationsbank Corp., 278 F.3d 444 (5th Cir. 2001). The Louisiana Supreme Court rendered a decision in favor of defendants’ finding that “[t]he Louisiana Credit Agreement Statute precludes all actions for damages arising from oral credit agreements regardless of the legal theory of recovery asserted.” Jesco Construction Corp. v. Nationsbank Corp., 830 So.2d 989, 992 (La. 2002). The Fifth Circuit after receiving the answer to its certified question from the Louisiana Supreme Court reversed the district court’s partial denial of defendants’ summary judgment motion and ordered the district court to enter summary judgment on all of plaintiffs’ claims. See Jesco Construction Corp. v. Nationsbank Corp., 321 F.3d 501 (5th Cir. 2003).