                              Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #007


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 25th day of January, 2017, are as follows:



PER CURIAM:


2016-C -1097      LARRY  F.   MITCHELL  v.   STATE  OF   LOUISIANA,  DEPARTMENT   OF
                  TRANSPORTATION AND DEVELOPMENT, ET AL. (Parish of Lincoln)

                  Judge James T. Genovese, assigned as Justice ad hoc, sitting for
                  Knoll, J., for oral argument. He now sits as an elected Justice
                  at the time this opinion is rendered.

                  Accordingly, we recall our order of October 12, 2016, as
                  improvidently granted, and we deny plaintiff's writ application.

                  WEIMER, J., dissents from the recall of the writ and
                  assigns reasons.
                  HUGHES, J., dissents for the reasons assigned by Crichton, J.
                  CRICHTON, J., dissents and assigns reasons.
01/25/17



                        SUPREME COURT OF LOUISIANA

                                      No. 2016-C-1097

                                 LARRY F. MITCHELL

                                           VERSUS

     STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION
                  AND DEVELOPMENT, ET AL.

         ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
               SECOND CIRCUIT, PARISH OF LINCOLN


PER CURIAM *

       We granted plaintiff’s application for a writ of certiorari in this case on

October 12, 2016. After receiving briefing from the parties, hearing oral

arguments, and reviewing the record, we conclude the judgment below does not

require the exercise of this Court’s supervisory authority. Accordingly, we recall

our order of October 12, 2016, as improvidently granted, and we deny plaintiff’s

writ application.




∗Judge James T. Genovese, assigned as Justice ad hoc, sitting for Knoll, J. for oral argument. He
now sits as an elected Justice at the time this opinion is rendered.
                                                   1
01/25/17

                   SUPREME COURT OF LOUISIANA


                                  NO. 2016-C-1097

                               LARRY MITCHELL

                                      VERSUS

    STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION
                 AND DEVELOPMENT, ET AL.


      ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND CIRCUIT,
                          PARISH OF ST. LINCOLN


WEIMER, J., dissenting.

      Like Justice Crichton=s view, and as a matter of prudent court practice, I

disagree with recalling the writ. I have previously explained:

             In the past, I have voted to recall writs, but I have come to the
      conclusion this is a poor practice. See State v. Crandell, 05-1060 (La.
      3/10/06), 924 So.2d 122 (Weimer, J., dissenting: A[A]fter having
      granted the writ, the unique facts and circumstances of this case dictate
      that we should resolve this matter on the merits.@). As a more recent
      example of my view, see Davis v. Prescott, 13-0669 (La. 11/5/13), 130
      So.3d 849, 851 (Weimer, J., dissenting: AI respectfully dissent from the
      majority=s decision to recall the writ. Having granted the writ, I would
      resolve this case on the merits based on the issues and the record before
      this court.@).

George v. Dugas, 16-0710, p. 2 n.1 (La. 11/07/16), 203 So.3d 1043, 1043 n.1

(Weimer, J., dissenting).

      Regarding the merits, I agree with the appellate court=s analysis related to the

liability determination. Particularly, I agree that the testimony of the plaintiff=s

expert was Ascientifically underwhelming@ (Mitchell v. State, Dep=t of Transp. &

Dev., 50,432, p. 14 (La.App. 2 Cir. 3/23/16), 193 So.3d 152, 161, reh=g denied

(5/12/16), writ granted, 16-1097 (La. 10/12/16)); thus, his testimony lacked

credibility. I would affirm the decision of the court of appeal on liability.
Accordingly, I respectfully dissent.
01/25/17

                    SUPREME COURT OF LOUISIANA

                               NO. 2016-C-1097

                            LARRY MITCHELL

                                   VERSUS

    STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION
                 AND DEVELOPMENT, ET AL.

       ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
             SECOND CIRCUIT, PARISH OF LINCOLN



Hughes, J., dissents for the reasons assigned by Crichton, J.




                                       1
01/25/17

                         SUPREME COURT OF LOUISIANA

                                      NO. 2016-C-1097

                                    LARRY MITCHELL

                                            VERSUS

     STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION
                  AND DEVELOPMENT, ET AL.

         ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
               SECOND CIRCUIT, PARISH OF LINCOLN



CRICHTON, J., dissents and assigns reasons:

       This Court granted the writ, received briefing from the parties, and heard

oral arguments; but now a majority of the Court has voted to recall our order as

“improvidently granted.” I dissent. “At this juncture the case should be decided

on its merits.”      McGrail v. Lee, 2002-1496, p. 1 (La. 4/9/03), 874 So.2d 66

(Calogero, C.J., dissenting from a writ recall). 1 In its place is a recall that reflects

poorly on our effort to “ensure adequate consideration of each case and make

decisions based on legally relevant factors, thereby affording every litigant the full

benefit of the judicial process.” La. Sup. Ct. General Administrative Rules, § 10,

Performance Standard 2.1 (emphasis added).


       In this tort suit, a tree on the defendant’s property fell and struck the

plaintiff’s vehicle, and as a result the plaintiff sustained both property damage and

personal injury. Approximately one week before the trial date, the defendant—


1
  See also State v. Davis, 2006-1984, p. 1 (La. 6/29/07), 958 So.2d 1175 (Calogero, C.J.,
dissenting) (“I dissent from the action of the court in recalling the writ as improvidently granted.
The defendant's pro se writ application was granted, the case briefed, and oral arguments made
by the defendant pro se and the district attorney. At this juncture, the case should be decided on
the merits.”); Yarnell Ice Cream Co. v. Allen, 2000-1520, p. 1 (La. 1/17/01), 777 So.2d 472, 473
(Calogero, C.J., dissenting) (“Clearly we were not required to exercise our supervisory
jurisdiction in this case. We had the discretion to deny the application by this claimant who I
must concede is not a most deserving civil claimant. But we did grant the writ to resolve a couple
of fairly important legal issues.”).
                                                 1
who previously agreed to appear for the jury trial by live audio-video—informed

the plaintiff that she would no longer be available. In response, the plaintiff filed a

motion to exclude or limit the trial court from admitting the discovery deposition

of the defendant. Finding the defendant to be unavailable, the trial court ruled that

the deposition was admissible.      Although the Court of Appeal disagreed that

defendant’s showing of unavailability was sufficient, it held that this trial court

ruling was harmless error. Mitchell v. State, Dep’t of Transp. & Dev., 50,432, p.

20–21 (La. App. 2 Cir. 3/23/16), 193 So.3d 152, 164.


      First, I believe that to deprive a party of the ability to cross-examine a party

witness—particularly before a jury of his or her peers—can be prejudicial. This

strikes me as especially important where the plaintiff’s claim requires proving that

the defendant “knew or, in the exercise of reasonable care, should have known of

the ruin, vice, or defect” that caused the plaintiff’s injury. See La. C.C. art. 2317.1.

But regardless of how I ultimately would have analyzed this case for harmless

error, the recall means that this issue is no longer before the Court.


      Further, the plaintiff alleged that he relied on the defendant’s

misrepresentations that she would be available. Although deposition testimony is

admissible if a witness is unavailable, see La. Code Civ. P. art. 1450, a party is not

unavailable if there is “no showing in the record to indicate they made any effort,

much less a diligent and good faith effort, to obtain his presence at trial.” Driscoll

v. Stucker, 2004-0589, p.24 (La. 1/19/05), 893 So.2d 32, 50 (finding no error in the

trial court’s exclusion of hearsay testimony); see also La. Code Evid. art. 804.

Given the allegations of misrepresentations, I question the adequacy of the

defendant’s showing.       But at the very least, whether this was deliberate

professional misconduct or a strategically engineered maneuver, we should have

addressed what I view as an ill-practice.


                                            2
      Although “[t]here exists no rule for determining when a writ, which has been

granted, should be recalled,” George v. Dugas, 2016-0710, p.2, n. 1 (La. 11/7/16),

203 So.3d 1043, 1044 (Weimer & Crichton, JJ., dissenting from a writ recall), I

believe recalling a writ should be rare. And it was certainly not justified here. At

this juncture, we have unnecessarily lost the opportunity to bring the full benefit of

the judicial process to address important legal, ethical, and professionalism issues.




                                          3
