S. J. v. Lafayette Parish School Board

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT P.O. Box 16577 Lake Charles LA 70616 (337) 433-9403

Dawn L. Morris Larry Lane Roy Law Office of Dawn L. Morris Preis & Roy 1106 Coolidge Blvd., Suite A P. O. Drawer 94-C Lafayette LA 70503 Lafayette LA 70509

Catherine Marie Landry Preis, Kraft & Roy P. O. Drawer 94-C Lafayette LA 70509

REHEARING ACTION: September 9, 2009

Docket Number: 08 00900-CA

S. J., ET AL. VERSUS LAFAYETTE PARISH SCHOOL BOARD

Appealed from Lafayette Parish Case No. C-20051082

BEFORE JUDGES:

Hon. Ulysses Gene Thibodeaux Hon. Sylvia R. Cooks Hon. John D. Saunders Hon. Jimmie C. Peters Hon. Shannon J. Gremillion

As counsel of record in the captioned case, you are hereby notified that the application

for rehearing filed by Lafayette Parish School Board has this day been

DENIED. Thibodeaux, C. J., would grant the rehearing. Cooks, J., would deny for the reasons assigned. Peters, J., would grant the rehearing.

cc: Kay Karre Gautreaux, Counsel for the Appellee Jeffery F. Speer, Counsel for the Appellant ON REHEARING APPLICATION

Cooks, J. voting to deny,

Defendant, Lafayette Parish School Board, has filed an application for

rehearing specifically complaining that the majority decision rendered by this court

is constitutionally defective and not “executable” because a majority of the five judge

panel failed to concur “on all issues” in the case. Defendant now directs the five

panel members to the Supreme Court’s decisions in Parfait v. Transocean Offshore,

Inc., 2007-1915/2007-1998 (La. 3/14/08), 980 So.2d 634 and Rainey v. Entergy Gulf

States, Inc., 2008-2233 (La. 12/12/08), 996 So 2d 1058. I have reviewed these cases

carefully; and, now suggest that the defense should carefully review the holdings in

Butler v. Zapata Haynie, Corp., 94-1171 (La. 7/5/94), 639 So.2d 1186; Derbofen v.

T.L. James & Co., Inc., 355 So.2d 963 (La. App. 4 Cir. 1977); and Vincent v. Vincent,

2005/1175 (La. App. 4 Cir., 1/10/07), 949 So.2d 535. Also all that can be fairly

surmised from the holding in Parfait, with only three signing the Per Curiam, is that

Butler is still good law and applies in this case. Here, three of the judges on the

panel agree that the Lafayette Parish School Board is liable in some proportion for the

harm suffered by plaintiffs and plaintiffs are entitled to an award of damages. All

three agree that the trial judge clearly erred in failing to find the Board liable at all.

Two judges joined in finding the School Board was 25% at fault and agreed to award

$100,000 to C.C. and $20,000 to S.J. I authored the majority opinion, and in a

separate concurrence stated: “I concur in the result because it provides a measure of

relief for the harm caused to C.C. and her mother.” Simply stated I agree that the

Board is liable and the trial judge erred in failing to find so. I also agree the plaintiffs

are entitled to damages in an amount at least as great as that awarded by two of the

panel members and the School Board is at minimum 20% at fault as found by these

members. The Constitution only requires that a “majority” of a five judge panel “must concur to render judgment.” A majority of this court did just that. There is

no basis for rehearing.