31 results for 'judge:"Windhorst "'.
J. Windhorst finds that the trial court properly found for the parish on a pedestrian's claim that he fell into an improperly maintained manhole up to his hips. The parish did not have constructive knowledge about the dangerous condition of the manhole because three days after the incident, a parish employee inspected the manhole and found nothing unusual about it. Also, the parish had no prior work orders for the manhole cover, and there was no history of injuries involving the manhole cover. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: May 1, 2024, Case #: 23-CA-498, Categories: Evidence, Negligence
J. Windhorst finds that the trial court properly annulled and set aside an act of donation of property. The donor was properly determined to be destitute at the time of the donation because the donor testified that he did not own any other property and that his only job was ���working on cars.��� Therefore, the donation was annulled under the theory of donation of the donor's entire patrimony without reserving enough for his subsistence. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: April 10, 2024, Case #: 23-CA-329, Categories: Evidence, Property
J. Windhorst finds that the trial court properly denied defendant's application for post-conviction relief alleging ineffective assistance for not raising the issue of defendant's competency. In this case, defendant did not present any medical records or the victim���s affidavit to show mental incapacity either before or during trial. Further, defendant does not show that his counsel denied him the right to testify. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Windhorst , Filed On: April 10, 2024, Case #: 24-KH-11, Categories: Ineffective Assistance
J. Windhorst finds that the trial court properly found for a dentist on a patient's medical malpractice claim alleging the dentist punctured his tongue while administering local anesthesia. In this case, the patient waited until the dentist filed a motion for summary judgment to retain an expert but failed to provide competent summary judgment evidence in opposition to the dentist���s motion. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: March 27, 2024, Case #: 23-CA-380, Categories: Evidence, Medical Malpractice
J. Windhorst finds that the trial court properly denied defendant's motion to recuse the bench of the 24th Judicial District Court on the basis that a judge was related to a victim in this homicide case. The judge testified that he was estranged from the victim, his first cousin, had not seen the victim since 2005, did not go the cousin's funeral, and did not discuss the victim with any member of the bench. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: March 20, 2024, Case #: 23-K-406, Categories: Criminal Procedure, Judiciary
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J. Windhorst finds that the trial court properly denied the Department of Transportation's second motion for leave to file an amended answer and affirmative defenses on a driver's claim for damages arising from a Department employee rear-ending her vehicle. The department's claim to amend its answer to assert statutory immunity was made over four years into the litigation. The record shows that the driver would be unduly prejudiced by allowing the department to amend their answer and assert an immunity defense at this point in the litigation. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: March 13, 2024, Case #: 23-C-588, Categories: Immunity, Negligence
J. Windhorst finds that the trial court should not have granted a landlord's motion for involuntary dismissal of the tenant's breach of lease action over the failure to use the tenant's lease payments to pay off the principal balance on the property. The lease agreement shows that the monthly rental payment was the equivalent of the ���monthly debt service��� as calculated for the repayment of principal and interest constituting the mortgage indebtedness, plus the lessor's fee. Also, the tenant purchased an option to buy the leased property at any time for the specified price of ���that amount necessary to pay off in full of the mortgage indebtedness." Reversed in part.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: February 28, 2024, Case #: 23-CA-253, Categories: Landlord Tenant, Contract
J. Windhorst finds that defendant was properly convicted of possession of a firearm by a convicted felon and resisting an officer. The restriction on defense counsel's closing statements was proper after the defense counsel attacked the criminal justice system in its entirety and alleged that ���all of us have done something improper��� in his initial closing statements. Defense counsel���s comments regarding the criminal justice system and additional facts of defendant���s previous convictions were not related to the evidence admitted in this case. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: February 28, 2024, Case #: 23-KA-308, Categories: Criminal Procedure, Firearms
J. Windhorst finds that defendant was properly convicted of forcible rape of a known juvenile and sexual battery. The victim, defendant's biological daughter, testified to three incidents in which defendant forced her to have sex with him without consent, and that defendant touched her vagina without consent when she was thirteen or fourteen years old on three or four occasions. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: February 28, 2024, Case #: 23-KA-331, Categories: Evidence, Sex Offender
J. Windhorst finds that the trial court properly dismissed a patron's slip and fall claim against a store. The patron did not show that he properly e-filed his petition within the prescriptive period. The email that the patron admitted to establish the filing does not reference a specific case or the type of pleading. Further, there is no evidence from the clerk of court showing any record of an e-filing or attempted e-filing regarding this case. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: January 31, 2024, Case #: 23-CA-189, Categories: Civil Procedure, Evidence, Tort
J. Windhorst finds that the trial court properly granted a creditor's motion for no cause of action on a debtor's negligence claim related to the creditor improperly disbursing money to the debtor's contractor for remodeling work. In this case, the debtor signed an authorization to immediately disburse the funds to the contractor after signing the loan documents. Further, the debtor does not show that she signed the loan and authorization under duress. Affirmed in part.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: January 31, 2024, Case #: 23-CA-174, Categories: Bankruptcy, Negligence, Contract
J. Windhorst affirms defendant���s conviction for vehicular homicide while impaired and his resulting 25-year prison sentence. In pleading guilty, defendant was informed of his right against self-incrimination, his right to a trial by jury and his right and his right to confront his accusers, all of which he waived. Defendant was also advised of the sentencing range, so his plea is not inadequate and the sentence is within reason. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: December 27, 2023, Case #: 21-4026, Categories: Sentencing, Dui, Plea
J. Windhorst affirms defendant���s convictions for possession of heroin and cocaine, noting the trial court did not abuse its discretion when allowing the state to submit unredacted scientific analysis showing traces of methadone, methamphetamine and fentanyl in defendant���s drugs. Because of inconsistencies in the sentencing between the transcript and the minute entry, the sentence is vacated and the case is remanded for resentencing. Affirmed in part, vacated in part.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: December 27, 2023, Case #: 23-KA-263, Categories: Drug Offender, Evidence, Sentencing
J. Windhorst finds that defendant was properly convicted on eight counts of possession of pornography involving juveniles under the age of thirteen. There was evidence presented that a police officer, using a P2P network, downloaded child pornography from a device connected to defendant���s IP address. During a search of defendant's residence, the police found defendant���s electronic devices that contained child pornography in his bedroom, downstairs in the living room, and in a backyard shed. Further, the child pornography found on defendant���s devices from 2010 was highly relevant and probative of defendant���s charges in that it showed his lustful disposition towards children. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: December 20, 2023, Case #: 23-KA-149, Categories: Evidence, Sex Offender
J. Windhorst finds that the trial court properly granted a mother's motion to obtain court approval to move the parties' children. The mother established that she does not have family in the New Orleans area and moved there on a temporary basis for the father's medical residency program. The mother testified that she wants to move to Florida where her parents and other family live because her financial opportunities would improve, and she would have a family support system. Further, the children would have the opportunity to attend excellent preschools in the area. Also, there was evidence of the father's inability to abide by the parties' visitation schedule and the instability of his life due to moving around the country for his medical residency. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: December 20, 2023, Case #: 23-CA-311, Categories: Evidence, Family Law
J. Windhorst finds that the trial court properly denied the former employer an injunction over an alleged breach of a non-competition agreement. The record shows that the employee denied electronically signing the non-competition agreement, and that the onboarding documents he signed in person did not contain a non-competition agreement. Further, the record does not contain an autogenerated email containing a link for the eight required onboarding documents to the employee's email. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: December 20, 2023, Case #: 23-CA-133, Categories: Employment, Contract, Injunction
J. Windhorst vacates the $10 million award in exemplary damages to a car driver who was injured in an accident with an 18-wheeler tractor-trailer truck. The statutory purpose of exemplary damages is to punish and deter and should be assessed on the truck driver's conduct instead of the
plaintiff���s injuries. In this case, the truck driver was driving impaired with a level of Xanax beyond the therapeutic range during the morning rush hour. However, the truck driver's financial situation is greatly disproportionate to the jury���s exemplary damage award. Based on the truck driver's financial situation, the amount of compensatory damages awarded to the car driver, and other exemplary damage awards, the $10 million exemplary damage award is excessive. Therefore, an award of $1.5 million dollars is sufficient to satisfy the objectives of an exemplary damage award. Reversed in part.
Court: Louisiana Supreme Court, Judge: Windhorst, Filed On: December 13, 2023, Case #: 22-CA-593, Categories: Evidence, Negligence
J. Windhorst finds that the Office of Workers��� Compensation properly denied a worker's claim for disability benefits. In this case, the worker failed to show that he was disabled as a result of the work accident when part of a ceiling fell on his back while performing demolition and cleanup work because there was expert testimony that the worker could return to a low demand job immediately. Also, the worker testified that he had some jobs after his work-related injury. However, the $750 cap to a doctor's bill does not apply because the right to reimbursement for medical expenses and the right to compensation are separate and distinct. Affirmed as amended.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: December 6, 2023, Case #: 23-CA-26, Categories: Evidence, Workers' Compensation
J. Windhorst finds that the trial court properly found a husband in contempt of the parties' consent judgment of final partition of joint assets and liabilities. In this case, the consent judgment was not modified because any modification needed to be in writing or transcribed for the record. Further, the trial court properly determined that the husband owed $209,000 on the credit line borrowing portion of the mortgage indebtedness based on bank statements and the testimony, including the husband confirming that he owed the amount. Under the unambiguous terms of the valid and enforceable consent judgment, the husband was obligated to pay the credit line borrowing portion of the mortgage indebtedness. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: December 6, 2023, Case #: 23-CA-80, Categories: Contempt, Evidence, Family Law
J. Windhorst dismisses defendant's appeal of his guilty pleas to reckless operation of a vehicle, drug and paraphernalia possession, and possession of an open alcoholic beverage in a vehicle. In this case, defendant's appeal of his misdemeanor guilty pleas is untimely, and he did not brief any assignments of error regarding the misdemeanor charges.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: October 31, 2023, Case #: 23-KA-79, Categories: Sentencing, Plea
J. Windhorst vacates defendant's sentence of 30 years' imprisonment on his conviction for vehicular homicide while under the influence of alcohol with a blood alcohol content of 0.20 percent or more and other drugs. In this case, since the bill of information charged defendant with a blood alcohol content of 0.20 percent or more and having two prior DUI convictions, his sentence should have been imposed with a restriction of benefits for any period of time as required by statute. Vacated.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: October 31, 2023, Case #: 23-KA-78, Categories: Sentencing, Dui, Vehicular Homicide
J. Windhorst finds that the trial court properly determined the decedent's last will and testament to be valid and dismissed with prejudice his daughter's petition to annul probated testament and to annul judgment of possession. The will was signed by the decedent, three witnesses, and a notary, and the decedent signed his name on the bottom of the first page of the will and at the end of the second page before the witnesses and notary. Further, the decedent clearly declared that the document was his last will and testament, and the will's deviations of form do not nullify it. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: October 18, 2023, Case #: 22-CA-502, Categories: Wills / Probate, Contract
J. Windhorst finds that the trial court properly determined that a decedent's transfer on death beneficiary designation of a brokerage account in favor of her cousin is invalid and that the funds belong to the decedent's estate. In this case, the form does not comply with the state requirements for the legal transfer of assets upon death. The form was not handwritten by the decedent, is not dated as required for an olographic will, and does not satisfy the requirements for a notarial will. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: September 6, 2023, Case #: 22-CA-460, Categories: Family Law, Wills / Probate
J. Windhorst finds that the trial court properly denied a voter's petition objecting to the candidacy of a candidate for office of Jefferson Parish Council District 3. The evidence shows that the candidate is domiciled in Jefferson Parish since the candidate has lived much of his life at his Jefferson Parish house, sleeps and entertains at the house, claims a homestead exemption on the property, receives mail there, and has the address listed on his driver's license. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: August 28, 2023, Case #: 23-CA-414, Categories: Elections, Evidence
J. Windhorst finds that the trial court improperly sentenced defendant to 16 years imprisonment at hard labor for distribution of methamphetamine. The trial court incorrectly deviated from the 20-year mandatory minimum sentence for a fourth-felony offender. The reasons given by the trial court for finding defendant exceptional based on his age, military history, cooperative behavior during incarceration and other factors are insufficient to warrant the downward deviation from the mandatory minimum sentence. Vacated.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: August 9, 2023, Case #: 22-KH-300, Categories: Drug Offender, Sentencing
J. Windhorst finds that the trial court properly convicted defendant of distributing methamphetamine but incorrectly sentenced him to 16 years imprisonment at hard labor. Sufficient evidence was presented to support defendant's conviction and defendant failed to show that he was prejudiced by the admission of evidence that a confidential informant bought drugs from him on multiple occasions. The trial court incorrectly deviated from the 20-year mandatory minimum sentence. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: August 9, 2023, Case #: 22-KA-383, Categories: Drug Offender, Sentencing
J. Windhorst finds that the trial court properly convicted defendant of manslaughter and obstruction of justice and correctly sentenced him to 80 years in prison. The trial court correctly denied defendant's motion to suppress his identification from a six-person photo lineup. The lineup was not unduly suggestive and there was sufficient similarly between the people in the lineup to reasonably test identity. Defendant failed to show that there was a substantial likelihood of misidentification. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: August 9, 2023, Case #: 22-KA-597, Categories: Obstruction, Manslaughter, Identification
J. Windhorst finds that the trial court properly convicted defendant of sexual battery of a juvenile under the age of 13 and sexual battery. Sufficient evidence was presented to support defendant's convictions. The trial court correctly sentenced defendant to 75 years imprisonment at hard labor. Defendant's sentence is not excessive. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: August 9, 2023, Case #: 22-KA-468, Categories: Sex Offender, Child Victims
J. Windhorst finds that the trial court properly granted a driver's motion to reinstate his license after being arrested for drunk driving. The driver requested an administrative hearing to contest the Office of Motor Vehicle's decision to disqualify him from operating a commercial motor vehicle for one year. In this case, the Office did not show that the police officer had reasonable grounds to believe that the driver had been driving under the influence of alcohol at the time of the traffic stop. Affirmed.
Court: Louisiana Court Of Appeal, Judge: Windhorst, Filed On: July 26, 2023, Case #: 22-CA-374, Categories: Administrative Law, Licensing, Contract