19 results for 'judge:"Herman"'.
[Consolidated.] J. Herman finds that the trial court should not have denied a truck driver's motion to continue trial after he claimed that the car driver concealed telephone calls with “an indicted conspirator in over 50 staged accidents.” In this case, the possibility of fraud being perpetrated on the judicial system constitutes good cause for a continuance. The record shows that the car driver placed or received approximately 30 calls to and from the indicted conspirator on the day of the accident, both before and after the collision. Vacated.
Court: Louisiana Court Of Appeal, Judge: Herman , Filed On: May 8, 2024, Case #: 2023-CA-0480, Categories: Evidence, Negligence
J. Herman finds that the trial court should not have found for an apartment complex on the decedent's family's wrongful death action after the decedent was shot while visiting the apartment of a friend. In this case, there is a genuine issue of material fact as to whether the shooting of decedent was foreseeable and as to whether the apartment complex had a duty to provide security to its guests. The family made statements regarding the prior incidents of crime on the property and the lack of security measures implemented by the apartment complex. Reversed.
Court: Louisiana Court Of Appeal, Judge: Herman, Filed On: May 1, 2024, Case #: 2023-CA-0588, Categories: Evidence, Wrongful Death
J. Herman vacates the trial court's denial of the Department of Public Safety's motion for summary judgment on an inmate's claim that he was detained beyond his legal sentence after he pleaded guilty. In this case, an offender’s claim regarding the computation of good time credit must be addressed through the Corrections Administrative Remedy Procedure. Without a ruling through the Corrections Administrative Remedy Procedure, damages for the inmate’s claims of wrongful detention cannot be assessed. Vacated.
Court: Louisiana Court Of Appeal, Judge: Herman, Filed On: April 17, 2024, Case #: 2023-C-0786, Categories: Civil Rights
J. Herman finds that the trial court should not have granted defendant's motion to sever the trials with his co-defendants. Although the co-defendants have made statements incriminating each other, the state indicated that it had no intention of using these statements at trial and instead will rely on the testimony of the two victims. Reversed.
Court: Louisiana Court Of Appeal, Judge: Herman, Filed On: March 22, 2024, Case #: 2024-K-0159, Categories: Criminal Procedure, Evidence
J. Herman finds that defendant was properly convicted of second degree murder and obstructing justice by evidence tampering. Defendant's right to counsel was not violated because the defense counsel did not send a text message to the trial judge after access to meet with defendant was denied by jail personnel. Further, the defense counsel could have requested to meet privately with defendant in the trial judge’s chambers before trial, during breaks, or when trial proceedings had ended for the day. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Herman, Filed On: February 15, 2024, Case #: 2023-KA-0493, Categories: Constitution, Murder
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J. Herman finds that defendant was properly convicted of the first-degree murder of his stepfather and did not show that he acted in self-defense. The evidence supports that the victim did not have a weapon and was engaged in a verbal argument until defendant armed himself with a gun. Further, the autopsy report showed that the victim was also hit hard with a shovel as well as being shot in the chest. Also, there was no evidence that a physical altercation occurred at the murder scene. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Herman, Filed On: February 5, 2024, Case #: 2023-KA-0386, Categories: Evidence, Murder
J. Herman finds that the trial court should not have found for the defendant drivers in a car collision action. Although the dash cam footage only shows three cars involved in the accident, and not plaintiff's car, there were conflicting expert reports regarding the number of vehicles in the collision. Further, the parties submitted inconsistent and contradictory testimony, and the glare contained in the dash cam video is sufficient to create a material issue of fact. Reversed.
Court: Louisiana Court Of Appeal, Judge: Herman, Filed On: January 31, 2024, Case #: 2023-CA-0478, Categories: Evidence, Negligence
J. Herman finds that the trial court properly found for a pedestrian on her action after being hit by a delivery bicyclist for a sandwich shop. In this case, there was testimony presented that the sandwich shop bicyclists wore black shirts and black hats and that the backpacks they wore covered the shop logo, which supported the pedestrian's description of the bicyclist who hit her. Further, there was surveillance video showing a man, wearing a black shirt and backpack, get on a bike in front of the sandwich shop and hit the pedestrian on the sidewalk. Therefore, the decision to permit body cam footage of the pedestrian's interview with the police a week after the collision was harmless. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Herman, Filed On: January 10, 2024, Case #: 2023-CA-0173, Categories: Evidence, Negligence
[Consolidated.] J. Herman finds that the trial court properly found for an insurer of an equipment rental company that provided an elevator hoist that fell, injuring construction workers. The insurer properly denied coverage under its commercial general liability policy's "Wrap-Up Exclusion" which excludes coverage in “[a]ll locations where you perform or have performed work that is or was to be insured under a consolidated (wrap-up) insurance program." The general contractor arranged for the project to be insured under the Contractor Controlled Insurance Program policy to provide coverage for the rental company's work at the project site. The Contractor Controlled Insurance Program policy was issued by a different insurer. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Herman, Filed On: December 21, 2023, Case #: 2022-CA-0352, Categories: Insurance, Contract
J. Herman finds that the district court properly granted the Housing Authority employer's exceptions of no cause of action, and dismissed an employee's claims alleged under the Police Officer’s Bill of Rights, and for alleged violations of rights for classified civil service employees and whistleblower protections. The Police Officer’s Bill of Rights is inapplicable to Housing Authority officers under Smith. Further, the employee does not have a right of action to raise classified civil service claims under the state constitution because the Housing Authority is excluded from the State Civil Service under La. R.S. 40:539(C)(8)(b). Further, the employee's statutory remedy to his whistleblower claim is to allow the Board of Ethics to complete its investigation of the complaint he lodged. Affirmed in part.
Court: Louisiana Court Of Appeal, Judge: Herman, Filed On: November 8, 2023, Case #: 2023-CA-0192, Categories: Employment, Whistleblowers
J. Herman finds that the trial court should not have declined to award interest for the failure of the City of New Orleans to timely pay six invoices to a construction company. The city did not have reasonable cause to delay payment, and the delays were due to the city's internal problems and not due to the fault of the construction company. Further, since the city paid some of the prior invoices on time, it cannot attribute its delay in paying the subsequent invoices to its policy of processing invoices in order. Reversed in part.
Court: Louisiana Court Of Appeal, Judge: Herman, Filed On: October 25, 2023, Case #: 2023-CA-0193, Categories: Construction, Contract
[Consolidated.] J. Herman finds that a husband's challenge to the trial court naming a specific therapist for reunification therapy is moot because the therapist has resigned. Further, the trial court properly granted the husband's exception of no cause of action on the wife's motion to set aside the consent judgment based on the findings of a doctor because the wife did not challenge the doctor's recommendation for reduced contact between the wife and her children based on the children's mental health functioning being correlated to the wife's behavior. Affirmed in part.
Court: Louisiana Court Of Appeal, Judge: Herman, Filed On: October 16, 2023, Case #: 2023-CA-0309, Categories: Evidence, Family Law
J. Herman finds that the trial court should not have denied a property owner's motion to dismiss based upon abandonment related to a neighboring property owner's claims over damage due to construction work being performed. In this case, the last step taken by the property owner was on June 26, 2019, and the neighboring property owner took no step in the prosecution or defense of the case within three years of the filing of a motion for voluntary dismissal. Reversed.
Court: Louisiana Court Of Appeal, Judge: Herman, Filed On: October 16, 2023, Case #: 2023-C-0579, Categories: Civil Procedure, Property
[Consolidated.] J. Herman finds that the trial court properly found a mother to be in contempt for not participating in court ordered Dialectical Behavior Therapy and Parent-Child Interaction Therapy. The mother acknowledged, before a doctor's custody evaluation, that she self-reported with borderline personality disorder, PTSD , and anxiety. The expert refuted the mother's contention that she did not participate in Parent-Child Interaction Therapy since her children were "too old" because, when the parties entered into the consent judgment in 2019, the children were at an appropriate age. Further, the appeal of the trial court’s designation of a specific reunification therapist is rendered moot because the therapist has resigned. Affirmed in part.
Court: Louisiana Court Of Appeal, Judge: Herman, Filed On: August 23, 2023, Case #: 2023-CA-0309, Categories: Family Law, Contract
J. Herman finds that the trial court properly determined that certain employees' claims against their employer seeking benefits owed under their welfare benefits plan had prescribed. The applicable prescriptive period is three years for the employees' contract claims because the contract between the parties revolves around the recovery of compensation under La. C.C. art. 3499(1). In this case, prescription commenced to run either from the date the employer sent a letter explaining that it did not have the financial resources to pay retirement benefits due to Hurricane Katrina, or the date of each employees' retirement. Affirmed in part.
Court: Louisiana Court Of Appeal, Judge: Herman, Filed On: July 20, 2023, Case #: 2022-CA-0506, Categories: Employment, Contract
J. Herman finds that defendant was properly convicted of manslaughter, armed robbery and obstruction of justice. The other crimes evidence that defendant committed a shooting in 2018 and that 45-caliber casings were discovered at the crime scene was properly admitted because it showed how a detective connected the nickname "Frog" to defendant and was able to successfully proceed with his investigation. Further, the cell phone tower records place defendant’s phone within one mile of the crime scene at the time of the shooting. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Herman, Filed On: July 5, 2023, Case #: 2022-KA-0721, Categories: Evidence, Manslaughter
J. Herman finds that the trial court should not have denied defendant's motion to suppress. In this case, defendant was handcuffed in the backseat of the police car when the officer made the warrantless entry into defendant's unoccupied home and discovered the gun in his fiancée's dresser drawer. Therefore, the exigent circumstances exception does not apply. Further, defendant authorized the officer's entry into the house for the limited purpose of retrieving his cigarettes from a specific location. Reversed.
Court: Louisiana Court Of Appeal, Judge: Herman, Filed On: May 31, 2023, Case #: 2023-K-0210, Categories: Evidence, Search