Petition for Writ of Certiorari — Crisler v. Browne

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Supreme Court, U.S

FILED

02 58077 | 52002

No. OFFICE OF THE CLERK

In the

Supreme Court of the United States

WILLIAM J. CRISLER, JR. and DEGAULLE MANOR, LTD.,

Petitioners,

KATHY BROWNE, et al.,

Respondents.

On PETITION FOR A Writ OF CERTIORARI

TO THE LOUISIANA SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

ROBERT E. KERRIGAN, JR.

Counsel of Record

JOSEPH L. MCREYNOLDS

JOSEPH E. LEE, III

DEUTSCH, KERRIGAN & STILES,

755 Magazine Street

New Orleans, LA 70130

RECEIVED

OCT 1? ongo

(504) 581-5141

(504) 566-1201

Attorney for Petitioners

Curry & Tavior ¢ (202) 393-4141 ¢ HTTPY/USSCINFO.cCOM

1

QUESTIONS PRESENTED

Petitioners William J. Crisler, Jr. and DeGaulle

Manor, Ltd. were cast in judgment for over $2 million

each in a Louisiana state court tort action. Louisiana

law required each petitioner to post a bond in the

amount of his judgment liability plus irterest in order to

stay enforcement of the judgment pending his appeal to

the Louisiana Court of Appeal. Neither Crisler nor

DeGaulle has the financial means to obtain a bond in

that amount, and they have accordingly sought relief

from this requirement.

Following denials of relief by the Louisiana

district court and court of appeal, the Louisiana

Supreme Court refused to Stay enforcement of the

judgment against Crisler and DeGaulle pending their

appeal. The question presented is whether the Equal

Protection and Due Process clauses of the Fourteenth

Amendment preclude a state from arbitrarily denying a

request for stay of a judgment pending appeal when the

appellant is otherwise unable to post a bond equal to no

less than the amount of the judgment plus interest.

BEST AVAILABLE COPY

ii

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

The petitioners are William J. Crisler, Jr., a

Mississippi resident, and DeGaulle Manor, Ltd., a

Mississippi limited partnership, both defendants in the

Louisiana state court action. The respondents are Kathy

Browne, Tara Mosley, and Rydell Bienaime, all plaintiffs

in the Louisiana state court action. Zurich American

Insurance Company and KONE, Inc. were both

defendants in the Louisiana proceedings, but neither

Zurich nor KONE is before this Court.

Petitioner DeGaulle Manor, Ltd., has no parent

companies or subsidiaries (except wholly-owned). In

Ane interest of full disclosure, however, DeGaulle Manor,

L.L.C., a Mississippi limited liability company of which

William J. Crisler is a member, is the general partner of

DeGaulle Manor, Ltd.

ll

TABLE OF CONTENTS

SP RIONE FIRE IND sncvececvcvscsinseveneseesonvsepnecssevnssecenssonsosones i

PARTIES TO THE PROCEEDINGS AND RULE 29.6 STATEMENT ii

ITT naccadsasipahaneoepanbonbeiienaeneeneonecudeiaess iii

PE Ot PII ca casccinecsessnsevsesesnenasesenescnesnesovenvssinonens iv

TTI cd dc tlesdisedeidnscnbtnseennnspoietehanasionten 1

Aichi ec ncinhanbliainclabbetecnntbcmnatlens 1

RELEVANT PROVISION(S) INVOLVED.........cccsccscssesssscsssecesceceeee 1

IIIT PI UII AI c.ssannssstnsisninncsescencconesonsovenetenceavense 2

REASONS FOR GRANTING THE WRIT ...........cscsccssssssessessessecesees 8

EF EC a ee ee 18

APPENDIX

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IPE SIE CIID sceccnvenvcscsasoncecsnsoccevncecsevnsancseses 13a

DISTRICT COURT BENCH RULING ..........cccsccsssssssessesssceeees 15a

APPENDIX

SUPREME COURT OF LOUISIANA DECISION (7/17/02)........ la

SUPREME COURT OF LOUISIANA DECISION (7/16/02)........ 3a

SUPREME COURT OF LOUISIANA DECISION (7/10/02)........ 5a

COURT OF APPEAL, FOURTH CIRCUIT DECISION

TTT Taian iAalsseittebdeenacilaesnallcheilitiisdannabieiaiowiseanansesane 8a

COURT OF APPEAL, FOURTH CIRCUIT DECISION

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CIVIL DISTRICT COURT DECISION (7/1/02).......c.scssseesesee. 12a

OTHER RELEVANT MATERIAL..............sccccecsscssessssssseceesees l4a

iv

TABLE OF AUTHORITIES

FEDERAL CASES

BURNS V. OHIO, 360 U.S. 252, 257-258

ESIEIUEIY scpiseiisticesethicliilideaiiaiiaicalabiiiaciiadiiichiclaicaeaiatia as dnidiinasetptlinis 12

DOUGLAS V. CALIFORNIA, 372 U.S.

ey I I jccinrcesedihestnilsacsiataaitgtsiashchiniiatanintebinaiiaiiadaiiniad 12

EVITTS V. LUCEY, 469 U.S. 387, 405

GRIFFIN V. ILLINOIS, 351 U.S. 12, 17-

Sa CITE sininissiseeneitinciniuastediapnesabaiiiaicisinsciadastslianebidaainaabvamiacaahiian 12

‘LINDSEY V. NORMET, 405 U.S. 56, 77

«es Ra ERLE Ce en ian ee ROR rae 8, 12

MODJESKI & MASTERS V. CARTER, 485

Sie Bee IIE steninidkcnnataddinilsshatngebieeincioiasialiun 3, 6, 7,9

WILLIAMS V. OKLAHOMA CITY, 395 U.S.

|___Screen eon aes nee ae 12

STATE CASES

BOWEN V. GEICO, 451 So.2D 1196

CA, SR a ak ee seth ia csneensnitensitiilieninediaaibiiaiatiite 5

RACINE V. Moon's TOWING, INC., 01-

2837 (LA. 5/14/02), 817 SO.2D 211 ........ccscscsesscssccessreerees 17

FEDERAL STATUTES

Ut i i a 1

U.S. CONST., AMENDMENT XIV § 1............sssecssssscceeeeessseees 12

STATE STATUTES

DEL.C.ANN.CONST., ART. BA i enicticnmiitiieiigaate tata ae 8

La. CODE CIV. PROCEDURE ART.

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LA. CODE Clv. PROCEDURE ART.

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LA. CODE Civ. PROCEDURE ART. FE

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Re TEED aincsenssinssissiniiintppasinie: ie he 16

LOUISIANA CIVIL CODE ARTICLES 3047, -

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Miss. CODE § 79-29-305( ED stseiiutiivibucsdiininipitncialeaianene maga 16

MISS. CODE § 79-29-305(2) .....ccssscsssessssssssssssseccsssccseseseccccg. 16

NEB. REV. ST. § 25-1916(1)....c..ccssscsssscssssssessssssescsssescssssecccsg. 8

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VA. CODE ANN. § 8.01-676.1(A) ...cccscsecssssessssesosseosseeseoseeccss.n. .

STATE RULES

AL R RCP RULE 62(D)...........ccsscsssssssccessscessseeecosesooesooeeeees.... 8

DE Sup. CT. RULES, RULE _) MRE Le 8

BEN BE. BCP BRULE 68.08 .n..acscceosscvvsesecsveccsssossssecsecncesoeeese.. 8

ii | RT RE en eee, Ne 8

1

PETITION FOR A WRIT OF CERTIORARI

William J. Crisler, Jr. and DeGaulle Manor, Ltd.

respectfully petition for a writ of certiorari to review the

decision of the Louisiana Supreme Court in this case

and impose a stay on enforcement of the civil money

judgment pending petitioners’ appeal on the merits in

the Louisiana appellate court.

OPINIONS BELOW

The decision of the Louisiana Supreme Court

(App. 34) denying writs and affirming the district court

is unreported. The decision of the Louisiana Fourth

Circuit Court of Appeal (App. 8a) denying writs and

affirming the district court is unreported. The decision

of the Civil District Court for the Parish of Orleans (App.

12a-13a) denying petitioners’ motion to stay

enforcement of the judgment is unreported.

JURISDICTION

On July 16, 2002, the Louisiana Supreme Court

denied petitioners’ application for supervisory and/or

remedial writs. This Court has jurisdiction under 28

U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Due Process Clause of the Fourteenth

Amendment provides that no state shall “deprive any

person of life, liberty, or property, without due process

of law”.' The Equal Protection Clause of the Fourteenth

Amendment provides that no state shall “deny to any

U.S. Const., Amendment XIV, § 1.

Rg ee a Te ee ee ee eee ye

—<—<—_<—_—_= ——————— ee

2

person within its jurisdiction the equal protection of the

laws.”

The Louisiana statute dealing with the security

required for a suspensive appeal’ provides in pertinent

part as follows:

B. The security to be furnished for a

suspensive appeal is determined in

accordance with the following

rules:

(1) When the judgment is for a

sum of money, the amount of

security shall be equal to the

amount of the judgment, including

the interest allowed by the

judgment to the date the security is

furnished, exclusive of the costs.“

STATEMENT OF THE CASE

Be Introduction

This matter arises out of the death of one boy and

injury to another at the Live Oak Apartments, a high-rise

apartment building in New Orleans, Louisiana. Not

surprisingly, suit in tort followed this tragic occurrence.

The instant petition is based not on the outcome of that

tort suit but rather on the Louisiana courts’ post-

judgment refusal to address a fundamental inequity in

the application of the Louisiana appeal-bond

: U.S. Const., Amendment XIV, § 1.

: A “suspensive appeal” is one that “suspends the effect or

execution of an appealable order or judgment”. La. Code Civ. P. art.

2123(A).

' La. Code Civ. P. art. 2124(B)(1).

requirement. The application of the requirement in this

case has led the Louisiana courts to conclude that

Crisler and DeGaulle must post appeal bonds that are

three times in excess of their available insurance

coverage, and exceed by an even greater factor their

available assets, if they wish to forestall bankruptcy

while pursuing an appeal. In light of this Court’s order

in Modjeski & Masters v. Carter,’ so onerous a security

requirement violates petitioners’ constitutional rights

under the Due Process and Equal Protection clauses of

the Fourteenth Amendment.

2. The Facts And Proceedings At Trial

With the curiosity characteristic of young boys,

Ron Brown, age 13, and Kevin Mosley, age 11, broke into

an elevator shaft at the Live Oak Apartments in October

1999. As one stood on the other’s shoulders, they

opened the hoistway doors by jimmying the safety lock

atop the outer doors and climbed down onto the top of

the elevator cab. Sadly, once inside, they lost their

footing and fell down the elevator shaft.

The owner of the Live Oak Apartments at the

time of the accident was DeGaulle Manor, Ltd., a

Mississippi Limited Partnership. The general partner of

DeGaulle Manor, Ltd. at that time was DeGaulle Manor,

L.L.C., a Mississippi Limited Liability Company of which

William J. Crisler, Jr. is a member. Crisler is a

Mississippi small businessman with no_ substantial

assets and a negative net worth who now faces certain

bankruptcy and financial ruin as a result of alleged acts

or omissions in the course of his role as a member of

DeGaulle Manor, L.L.C.

. 485 U.S. 1031 (1988).

4

Tara Mosley and Kathy Browne, the boys’

mothers, filed suit against DeGaulle, as owner of the

property; Crisler individually; and KONE, Inc., the

company obligated since 1995 to maintain the elevators.

Rydell Bienaime, Mosley’s father, who had never

contributed to his son’s welfare and was in fact

incarcerated at the time of the accident, brought suit

against the same defendants. After trial, the jury

rendered a verdict in favor of respondents and against

Crisler and DeGaulle for $2,275,500.00 and $2,200,000.00,

respectively, plus interest.° Zurich American Insurance

Company, their liability carrier, was cast in judgment

with them for its policy limits of $1-million, plus interest,

leaving Crisler and DeGaulle exposed to excess

judgment liability of over $2 million each, far in excess

of either party’s assets. KONE was found not liable.

Final judgment was entered on May 23, 2002.

3. The Louisiana Supersedeas Bond

Requirement

Crisler and DeGaulle timely sought an appeal of

the judgment against them. Louisiana law provides for

two types of appeals: (1) a “suspensive appeal,” in which

the appellant posts a bond equal to at least the amount

of the judgment plus interest;’ and (2) a “devolutive

appeal,” in which the appellant neither posts a bond nor

obtains a stay of the judgment.® Respondents moved for

a suspensive appeal and moved to limit the security

required under Louisiana Code of Civil Procedure

Article 2124B(1) to $1,227,752.00, the amount of Zurich’s

judgment liability plus interest, on the ground that

neither Crisler nor DeGaulle had sufficient assets to

6

With interest, the amount of the judgment against Crisler

and DeGaulle rose to $3,055,034.00 and $2,981,399.00, respectively.

La. Code Civ. Procedure Art. 2123(A).

La. Code Civ. Procedure Art. 2087(A).

post any additional security.” Alternatively, Crisler and

DeGaulle moved for an order Staying or enjoining

pending their appeal.

On July 1, 2002, the Civil District Court for the

Parish of Orleans granted all three defendants a

July 8, 2002." On July 9, 2002, the court of appeal

denied petitioners application for Supervisory review,

matter.” On July 16, 2002, the Louisiana Supreme Court

recalled that Stay, denied the application for supervisory

and/or remedial writs, and ordered petitioners to post

security in the amount ordered by the trial court within

forty-eight hours. “ Justice Jeanette T. Knoll dissented

from the denial of petitioners’ application, citing

precedent from this Court:

: Under Louisiana Law, Zurich is required to post security

only for the amount of its policy limits. See Bowen v. GEICO, 451

So.2d 1196 (La. App. 5" Cir. 1984).

i App. 12a-13a.

. App. lla.

7 App. 8a-9a.

“3 App. 5a-6a.

App. 3a-4a.

6

Knoll, J., concurs in the result but would

grant the writ and remand to the Court of

Appeal. C.C.P. art. 2124 (C) requires the

Court of Appeal to independently review

the amount of security. Without an

evaluation of factors such as_ the

defendants’ net worth, the Court of Appeal

abused its discretion by not ascertaining

whether the amount of security in this

case precludes the defendants from their

opportunity for a meaningful appeal. See

Modjeski & Masters v. Carter, 485 U.S.

1031 (1988). If the defendants’ net worth

were to prove less than the amount of the

security ordered by the trial court, their

inability to post security would be

tantamount to an arbitrary denial of their

access to the courts, violating their right to

due process. Therefore, I would

immediately remand to the Court of

Appeal for such determination.

Petitioners immediately requested an additional

ten days to post security or, in the alternative, seek a

stay from this Court. At 4:35p.m. on July 17, 2002, the

Louisiana Supreme Court denied that requested by a 5-2

16

Petitioners subsequently sought an emergency

stay and/or injunction from this Court through an

application to Justice Antonin Scalia under Supreme

Court Rule 22. On July 26, 2002, Justice Scalia denied

petitioners’ application for expedited and/or emergency

App. la-2a.

7

In addition to seeking formal relief through the

courts, petitioners have sought relief from respondents.

First, Crisler presented respondents with an affidavit

and financial statement detailing his Jack of any

significant assets. Second, Crisler offered himself for a

post-trial deposition that allowed respondents to

explore in great detail his and his family’s assets. This

deposition provided further support for the impecunious

condition established in Crisler’s affidavit, and made it

clear to respondents that the judgment in this matter

cannot be fully satisfied in any event. Despite the fact

that Crisler obviously lacks funds sufficient to satisfy

the judgment and will be forced into bankruptcy if

enforcement of the judgment is sought, respondents

have refused to give petitioners any assurance that they

will refrain from enforcing the judgment pending the

appeal. Accordingly, petitioners have no other recourse

than to seek a review by this Court.

As shown below, the Louisiana Supreme Court’s

refusal to stay the posting of petitioners’ appeal bond

raises a significant question of federal constitutional

law: the extent to which the states may deny a request

for stay of a judgment pending appeal based on the

inability of the appellant to post a bond equal to no less

than the amount of the judgment plus interest. At

present, at least 10 states impose such a statutory

requirement. The constitutionality and propriety of

Louisiana's appeal bond requirement was directly

addressed by this Court in Modjeski-& Masters v.

Carter. Following the entry of a preliminary stay by

Justice White, this Court concluded that the Louisiana

appeal bond requirement may not be blindly applied in

cases in which the appellant can provide some security

but is unable to obtain security in the full amount of the

judgment against him.

ee oo ee eee

8

REASONS FOR GRANTING THE WRIT

1. The Application Of The _ Louisiana

Supersedeas Bond Requirement In This Case

Is Neither Rational Nor Related To Any

Government Interest.

The refusal of the Louisiana courts to stay

execution of the judgment based solely on petitioners’

inability to post a bond far in excess of their respective

net worth raises a significant constitutional question: Is

it permissible under the Due Process and Equal

Protection clauses for a state automatically to refuse to

stay execution pending appeal based solely on the

appellant’s inability to post a supersedeas bond in the

full amount of the judgment against him? That this is an

important question is shown by the fact that no fewer

than 10 states have statutes making the posting of a

bond at least equal to the judgment plus interest a

prerequisite to obtaining a stay pending appeal.”

The Louisiana supersedeas bond requirement as

strictly applied in this case asks petitioners to do the

impossible: obtain security for assets they do not

possess. It is undisputed that the judgment liability of

Crisler and DeGaulle -— which collectively exceeds $5

million — far exceeds what assets petitioners possess for

satisfaction of the judgment against them. Petitioners

recognize the legitimate state interest in preserving a

judgment debtor’s property in the event that the appeal

is unsuccessful.’ However, respondents here will never

= AL R RCP Rule 62(d); Ala. R. App. P. 8(a);

Del.C.Ann.Const., Art. 4, § 24; DE Sup. Ct. Rules, Rule 32(c); Mn St.

RCP Rule 62.03; Neb. Rev. St. § 25-1916(1); NY CPLR § 5519(a); OR

R. RCP 72(a); Va. Code Ann. § 8.01-676.1(a) & (c).

Lindsey v. Normet, 405 U.S. 56, 77 (1972) (“a State may

9

be able to fully satisfy their judgment in this case, given

the vast discrepancy between the amount of the

judgment and the judgment debtors’ available assets and

insurance coverage. As this Court has previously

acknowledged, there is no rational interest in requiring a

judgment debtor to obtain security where there are

insufficient funds to satisfy the judgment in any event.

In Modjeski & Masters v. Carter,” this Court

recognized that, as a matter of federal constitutional

law, some measure of discretion inheres in the appeal

bond requirement. The Modjeski & Masters Court

fashioned the only reasonable remedy available when

faced with an appeal bond requirement that, for no

rational reason, forces an appellant into bankruptcy or

extinction during the pendency of his appeal: it allowed

the appellant to post a bond in the amount of its net

worth. This remedy strikes the appropriate balance

between the seemingly irreconcilable interests of the

judgment debtor and judgment creditor by securing the

assets actually available for satisfaction of the judgment.

No amount of security can preserve for enforcement of

a judgment assets that do not exist.

Like the present matter, Modjeski & Masters”

originated in the Civil District Court for the Parish of

Orleans and eventually made its way to this Court.

Modjeski & Masters involved a money judgment

rendered in the Civil District Court against an

engineering firm that provided consulting services in

connection with the Greater New Orleans Bridge over

the Mississippi River. The firm, Modjeski & Masters,

properly take steps to insure that an appellant post adequate

security before an appeal .. . to guard a damage award already

"485 U. S. 1031 (1988).

Id.

10

had a net worth of approximately $700,000.00, but had

been cast in judgment for approximately $14 million,

including interest. Like Crisler and DeGaulle here,

Modjeski & Masters sought but was unable to obtain a

suspensive appeal bond for the full amount of the

judgment against it, based on the discrepancy between

the firm’s net worth and the amount of the judgment.

Modjeski & Masters petitioned the district court

for an order eliminating the suspensive appeal bond

requirement, or, in the alternative, for an injunction,

urging that the enforcement of the bond requirement

would force the firm into bankruptcy and cause

irreparable harm. The district court found that

argument persuasive, but felt constrained to deny relief

from the full bond requirement because of the

mandatory nature of Article 2124. Modjeski & Masters

filed writs to both Louisiana Fourth Circuit and the

Louisiana Supreme Court, but both courts denied relief.

Modjeski & Masters then sought and obtained a

temporary stay from Justice White. This Court then

granted Modjeski & Masters’ request for a permanent

stay, and directed the Louisiana courts to allow

Modjeski & Masters to suspend execution of the

judgment against it by posting a bond for the firm’s full

net worth. The rationale behind the ruling was simple:

A final judgment merely gives the judgment creditor the

right (absent reversal of the judgment on appeal) to

satisfy the judgment out of the judgment debtor’s net

worth — not the right to collect the full judgment

regardless of the assets available to satisfy it. No bond

requirement can preserve assets that a judgment debtor

does not have. And no surety, recognizing that he will

be called upon to satisfy the judgment if affirmed on

appeal, will issue a bond securing the judgment liability

aac

11

of a bankrupt judgment debtor.”

The rationale underlying Modjeski & Masters is

equally applicable to the instant matter. Though they

face judgment liability in excess of $5 million, neither

Crisler nor DeGaulle possess sufficient assets to satisfy

the judgment. Neither Crisler nor DeGaulle is able to

obtain a suspensive appeal bond. Crisler is not willfully

refusing to pay the judgment against him; he simply

cannot obtain security for assets that he does not have.

Requiring Crisler or DeGaulle to either furnish security

in the full amount of the judgment or else appeal

devolutively is no less than a requirement that they

bankrupt themselves while pursuing their constitutional

right to appeal the judgment against them.

20

Article 2124(E) requires that the suspensive appeal bond

provide “in substance, that it is fwmished as security that the

appellant will prosecute his appeal, that any judgment will be paid

or otherwise satisfied from the proceeds of the sale of his property,

or that otherwise the surety is liable for the amount of the

judgment.” All sureties in Louisiana, even commercial sureties on

appeal bonds, have a right of reimbursement and the right to

require security from the principal. See Louisiana Civil Code

Articles 3047, 3049 and 3053.

. .

12

2. The Irrational And Unjustified Impairment

Of Petitioners’ Right To Appeal Violates The

Due Process And Equal Protection Clauses

Because It Is Irrational.

It is established law that the states need not

provide for appeals in the first place.” If they do

provide a right of appeal, however, they cannot

arbitrarily exclude certain parties from exercising that

right;” nor may they capriciously or arbitrarily grant the

right to some litigants and deny it to others without

violating the Equal Protection Clause.” For these

reasons, where a state has erected financial barriers _

effectively denying the defendant “a fair opportunity” to

” appeal and rendering his right to appeal “a meaningless

ritual,” this Court has struck down those barriers as

arbitrary, in violation of the Fourteenth Amendment.”

The strict application of the Louisiana bond requirement

in this case effectively renders petitioners’ appeal a

meaningless ritual.

In Lindsey v. Normet,” this Court recognized that

the burden placed by an appellate bond requirement on

the statutory right to appeal must be somehow

rationally related to the state’s interest in preserving the

property at issue. That is, in the case of a money

judgment such as the one entered below, it is rational

and legitimate for the state “to guard a money award

already made”.” The state’s rational interest in

“i Lindsey v. Normet, 405 U.S. 56, 77 (1972).

wd Evitts v. Lucey, 469 U.S. 387, 405 (1985).

58 Lindsey, 405 U. S. at 77.

1 Evitts, 469 U.S. at 394, 405. See Lindsey, 405 U.S. at 77;

Williams v. Oklahoma City, 395 U.S. 458, 460 (1969); Douglas v.

California, 372 U.S. 353, 356-58 (1963); Burns v. Ohio, 360 U.S. 252,

257-258 (1959); Griffin v. Minois, 351 U.S. 12, 17-18 (1956).

si 405 U.S. 56 (1972).

- Id. at 77.

13

preserving a judgment debtor’s assets is inapplicable

here, for no bond requirement will preserve for

satisfaction of the judgment assets that Crisler and

DeGaulle have never possessed. |

The Louisiana provision, Code of Civil Procedure

Article 2124, actually makes some allowance for judicial

discretion, but does not specifically grant the trial court

discretion in all cases. Article 2124 underwent a major

revision by the Louisiana Legislature in 2001, and now

specifically provides discretion on the part of the trial

judge to lower security requirements when the money

judgment exceeds $150 million. Subparagraph (B)(1)(a)

specifically states that, “where the amount of the

judgment exceeds $150 million, the trial court, upon

motion and after hearing, may, in the exercise of its

broad discretion, fix the security in an amount sufficient

to protect the rights of the judgment creditor while at

the same time preserving the favored status of appeals

in Louisiana.” Paragraph D of the Article also gives a

trial court discretion to increase security “for good

cause,” further statutory authority for judicial

discretion.

Moreover, Paragraph~C specifically allows for

review of an onerous supersedeas bond by the

intermediate appellate court when “the party seeking to

appeal from a judgment for a sum of money is aggrieved

by the amount of the security fixed by the trial court”.”

These provisions in the bond statute evidence express

legislative recognition of judicial discretion to balance

the rights of judgment creditors and judgment debtors

27

La. Code Civ. P. art. 2124(C). As Justice Knoll of the

Louisiana Supreme Court observed in her dissent, there is no

evidence that the Louisiana appellate court conducted any

independent evaluation of the amount of security fixed by the trial

court in this case.

14

by fashioning an appropriate amount of security

according to the needs of a particular case.

Louisiana’s bond provision, as applied to the

petitioners, imposes a clear financial barrier to appeal

on these facts and, as such, cannot be expected to

withstand this Court’s constitutional scrutiny. As

explained above, the only way for petitioners to obtain a

stay of execution pending appeal under Louisiana law is

for them to post a bond equal to the amount of the

judgment plus interest. This they cannot do. For this

reason, petitioners may be forced into a bankruptcy

from which they may not emerge. They may never have

meaningful review of this civil death sentence, a review

available under Louisiana law for those with sufficient

resources to post suspensive appeal bonds.

Nor is there any reason for refusing to stay

judgments against those in petitioners’ position. If

respondents were permitted to enforce their judgment

against petitioners, the most that they could hope to

recover would be the value of the Zurich policy, which

has already been posted as security. Requiring a bond

of over $6 million surely has little to do with protecting

respondents’ position. The most that could rationally be

required would be a bond equal to petitioners’ net

worth, which, in Mr. Crisler’s case, would be a negative

amount.

Denial Of A Stay Of Enforcement Of The

Judgment Would Cause Irreparable Injury to

Petitioners By Exposing Them To

Bankruptcy During The Pendency Of Their

Appeal.

Petitioners will be irreparably injured unless this

Court grants a writ of certiorari to prevent immediate

enforcement of the judgment against them.

Respondents have already begun proceedings designed

to allow execution of the Louisiana judgment in Crisler’s

home state of Mississippi. The outstanding judgment

and interest so far exceed the amount of existing assets

and insurance coverage that immediate enforcement

will certainly mean bankruptcy for Crisler and

extinction for DeGaulle.

Although irreparable, this financial ruin might not

be so troubling were it inevitable. But it is far from

certain that petitioners would be forced into bankruptcy

were the proceedings in the Louisiana appellate courts

allowed to run their full course. Respondents are

essentially seeking to force Crisler to bankrupt himself

while appealing a judgment that will likely not withstand

review on appeal.

William Crisler did not own the Live Oak

Apartments, nor did he “own” DeGaulle Manor, Ltd. At

no time pertinent to this action was Crisler a partner in

DeGaulle Manor, Ltd. Rather, the general partner of

DeGaulle Manor, Ltd. was DeGaulle Manor, L.L.C.

Crisler, in turn, was a member of DeGaulle Manor, L.L.C.

Both DeGaulle entities, the limited partnership and the

limited liability company, were duly-organized and

constituted under the laws of the State of Mississippi.

Crisler’s status, as merely a member of the limited

liability company that was a partner in the limited

16

partnership, was clearly established at trial and

unrefuted.

That Crisler cannot be held liable in his capacity

as a member of the limited liability company is clear

regardiess of whether Louisiana or Mississippi law

applies to the question. Under Louisiana law, “no

member, manager, employee or agent of a limited

liability company is liable in such capacity for a debt,

obligation, or liability of the limited liability company.””

Moreover, except in the case of a dispute between the

limited liability company and one of its members, “a

member, manager, employee, or agent of a limited

liability company is not a proper party to a proceeding

by or against a limited liability company[.]”"”

Mississippi law is equally clear on the question,

explicitly providing that “a member of a limited liability

company is not liable by reason of being a member,

under a judgment, decree or order of a court... fora

debt, obligation, or liability of the limited liability

company ... whether arising in . . . tort or otherwise.””

And, as in Louisiana, “[a] member of a limited liability

company is not a proper party to a proceeding by or

against a limited liability company, by reason of being a

member of the limited liability company[.]””

In addition to the logical and jurisprudential

deficiencies in the judgment rendered below as it

applies to Crisler personally, the judgment is further

incorrect as a matter of law in that it effectively

resurrects strict premises liability, a species of liability

without fault that is all but extinct in Louisiana.

2 La.R.S. 12:1320 (B).

= Id.

e Miss. Code § 79-29-305(1).

~ Miss. Code § 79-29-305(2).

17

Moreover, in applying the attractive nuisance doctrine

to this case involving injury to an 11-year-old and a 13-

year-old, the decision below contravenes recent and

relevant Louisiana Supreme Court precedent indicating

that the doctrine only applies to children under 10-years-

old.

On the other hand, staying enforcement of the

judgment pending appeal will not prejudice

respondents’ position. Respondents have already been

offered the full amount of the Zurich policy in

settlement of this matter. If respondents were permitted

to enforce their judgment tomorrow, the most that they

could possibly hope to obtain would be the amount of

the Zurich policy, plus whatever minor amounts they

might eventually obtain from Crisler’s and DeGaulle’s

bankruptcy proceedings. Indeed, it appears that the

only benefit to respondents’ apparent plan to initiate

immediate enforcement of the judgment against Crisler

and DeGaulle, knowing that it cannot lead to collection

of any significant amount over the amount of the Zurich

policy, would be avoidance of an appellate ruling

eliminating the judgment altogether or reducing it to

less than the amount of the Zurich policy.

" _ Racine v. Moon's Towing, Inc., 01-2837 (La. 5/14/02), 817

So.2d 21.

18

CONCLUSION

Therefore, petitioners William J. Crisler, Jr. and

DeGaulle Manor, Ltd. respectfully pray that this Court

grant their Petition for a Writ of Certiorari to the

Louisiana Supreme Court and stay enforcement of the

Judgment of the Civil District Court for the Parish of

Orleans pending petitioners’ appeal of the judgment on

the merits.

ROBERT E. KERRIGAN, JR.*

JOSEPH L. MCREYNOLDS

JOSEPH E. LEE, I

DEUTSCH, KERRIGAN & STILES, L.L.P.

755 Magazine Street

New Orleans, LA 70130

Telephone: (504) 581-5141

Facsimile: (504) 566-1201

*COUNSEL OF RECORD

Counsel for Petitioners

la

SUPREME COURT

STATE OF LOUISIANA

NEW ORLEANS

PASCAL F. CALOGERO, JR. 301 LOYGLA AVENUE

CHIEF JUSTICE NEW ORLEANS, LA

70112

JOHN TARLTON OLIVIER

CLERK OF COURT

TELEPHONE (504) 568-5707

HOME PAGE

http://www.lasc.org

July 17, 2002

Joseph L. McReynolds, Esq.

755 Magazine St

New Orleans, LA 70130

In Re: Browne, Kathy etal vs. DeGualle Manor Ltd. etal

No: 2002-CC-1883 Dear Counsel:

This is to advise that the Court took the following action

on the Motion For Extension of Time to Post Appeal

Bond and File Application to the U.S. Supreme Court in

the above entitled matter:

“Motion denied.”

Knoll, J.. would grant the motion, I find defendant's

request for a ten day extension of time to post an appeal

bond and/or file a writ with the U.S. Supreme Court

reasonable and, therefore, would grant defendant’s

motion under the circumstances of this case.”

Weimer, J., would grant the motion.

2a

With kindest regards, I remain,

Very truly yours,

John Tarlton Olivier

Clerk of Court

By: Katherine A. Fontana

Deputy Clerk of Court

KAF: vre

ccs: All Counsel

Court of Appeal, Fourth Circuit, Number 2002-C-1306

3a

_ The Supreme Court of the State of Louisiana

NO. 2002-CC-1883

KATHY BROWNE, ET AL.

VS.

DEGUALLE NANOR, LTD., ET AL.

IN RE: DeGualle Manor Ltd. etal; Crisler, William J. Jr.,

Defendant(s); Applying for Supervisory and/or Remedial

Writs, Parish of Orleans, Civil District Court Div. A, Nos.

99-18552, 99-19006, 99-19398; to the Court of Appeal,

Fourth Circuit, No. 2002-C-1306

July 16, 2002

Stay recalled; Writ denied. We find no error in the trial

court’s application of La. Code Civ. P. art 2124. Relators

are granted 48 hours from the issuance of this order to

post the requisite suspensive appeal bonds, should they

choose to seek a suspensive appeal.

JLW

4a

KNOLL, J., dissents with reasons. I would grant the writ

and remand this matter to the court of appea!. LSA-

C.C.P. art. 2124(C) requires the court of appeal to

independently review the amount of security. Without

an evaluation of factors such as the defendants’ net

worth, the court of appeal abused its discretion by not

ascertaining whether the amount of security in this case

precludes the defendants from their opportunity for a

meaningful appeal. See Modjeski & Masters v. Carter,

485 U.S. 1031 (1988). It the defendants’ net worth were

to prove less than the amount of security ordered by the

trial court, their inability to post security would be

tantamount to an arbitrary denial of their access to the

courts, violating their right to due process. Therefore, I

would remand this matter to the court of appeal for

such determination

Supreme Court of Louisiana

July15, 2002

Deputy Clerk of Court

For the Court

5a

SUPREME COURT

STATE OF LOUISIANA

NEW ORLEANS

PASCAL F. CALOGERO, JR. 301 LOYGLA AVENUE

CHIEF JUSTICE NEW ORLEANS, LA

70112

JOHN TARLTON OLIVIER

CLERK OF COURT

TELEPHONE (504) 568-5707

HOME PAGE

http://www. lasc.org

July 10, 2002

Hon. Carolyn W. Gill-Jefferson

Parish of Orleans

Judge, Civil District Court

Division A.

421 Loyola Ave.

New Orleans, LA 70112

In Re: Browne, Kathy etal vs. DeGualle Manor Ltd. etal

No: 2002-CC-1883

Dear Judge Gill-Jefferson:

This is to advise that the Court took the following action

with regards to the above entitled matter:

“All proceedings stayed pending further orders of the

Court.”

Knoll, J., concurs in the result but would grant writ and

remand to Court of Appeal. C.C.P. art. 2124 (C) requires

the Court of Appeal to independently review the amount

6a

of security. Without an evaluation of factors such as the

defendants’ net worth, the Court of Appeal abused its

discretion by not ascertaining whether the amount of

security in this ease precludes the defendants from their

opportunity for a meaningful appeal. See Modjeski &

Masters v. Carter, 485 U.S. 1031 (1988). If the

defendants’ net worth were to prove less than the

amount of security ordered by the trial court, their

inability to post security would be tantamount to an

arbitrary denial of their access to the courts, violating

their right to due process. Therefore, I would

immediately remand to the Court of Appeal for such

determination.

With kindest regards, I remain,

Very truly yours,

John Tarlton Olivier

Clerk of Court

By: Katherine A. Fontana Deputy Clerk of Court

KAF: rtd

ccs: Thomas L. Gaudry Esq.

Gregory Carl Weiss Esq.

Terese M. Bennett Esq.

Tamara Kluger Jacobson Esq.

Joseph Edward Lee III Esq

Robert Emmett Kerrigan Jr. Esq.

Marc D. Winsberg Esq.

Eugene P. Redmann Esq.

Thomas William Darling Esq.

Joseph L. McReynolds Esq.

Court of Appeal. Fourth Circuit, Number 2002-C-1306

Civil District Court Div. “A” Number 99-18552

\

7a

Civil District Court Div. "A" N umber 99-19006

Civil District Court Div. “A” Number 99-19398

8a

NO. 2002-C-1306

COURT OF APPEAL, FOURTH CIRCUIT

STATE OF LOUISIANA

KATHY BROWNE, ET AL.

VERSUS

DEGUALLE MANOR, LTD., ET AL.

IN RE: DEGAULLE MANOR, LTD. AND WILLIAM

J. CRISLER, JR.

APPLYING FOR: SUPERVISORY WRITS

DIRECTED TO: HONORABLE CAROLYN GILL-

JEFFERSON, JUDGE CIVIL DISTRICT COURT,

ORLEANS PARISH DIVISION “A”, 99-18552

SUPERVISORY WRIT DENIED; STAY VACATED.

On the showing made, we decline to exercise our

supervisory jurisdiction. We find no error in the trial

court’s application of La. C.C.P. art, 2124. Modjeski

&Masters v. Carter, 485 U.S. 1031, 108 S. Ct. 1590 (1988)

applies only to its unique facts and is distinguishable

from those in the case at bar. We vacate our stay and

grant relators 24 hours from the date and time of this

order to post the requisite bonds.

New Orleans, Louisiana this 9th day of July, 2002, at

11:00 a.m.

JUDGE MAX N. TOBIAS, JR.

9a

Jones, J. Concurs in the Result (see attached)

JUDGE CHARLES R. JONES

JUDGE MICHAEL E. KIRBY

10a

NO. 2002-C-1306

COURT OF APPEAL

FOURTH CIRCUIT

STATE OF LOUISIANA

KATHY BROWNE, ET AL.

VERSUS

DEGUALLE MANOR, LTD., ET AL.

JONES, J. CONCURS IN THE RESULT

lla

NO. 2002-C-1306

COURT OF APPEAL

FOURTH CIRCUIT

STATE OF LOUISIANA

KATHY BROWNE, ET AL.

VERSUS

DEGUALLE MANOR, LTD., ET AL.

(CDC# 99-18552)

DIVISION "A"

ORDER

IT IS ORDERED that this manner be stayed pending

further orders of this court.

IT IS FURTHER ORDERED that the respondents file a

written response to the relator’s application for

supervisory writ by 2:00 p.m. on Monday, July 8, 2002.

New Orleans, Louisiana this 3rd day of July, 2002.

JUDGE CHARLES R. JONES

JUDGE MICHAEL B. KIRBY

JUDGE MAX N. TOBIAS, JR.

12a

CIVIL DISTRICT COURT FOR

THE PARISH OF ORLEANS

STATE OF LOUISIANA

NO. 99-18552 DIVISION “A”

c/w 99-19006

c/w 99-19398

KATHY BROWN, on behalf of her minor son,

RON BROWN

VERSUS

DEGAULLE MANOR, ET AL

FILED:

DEPUTY CLERK

JUDGMENT

This matter came for hearing on the Defendants' Motion

for Suspensive Appeal to Limit Security on July 1,2002 at

10:00 a.m. Present were:

Tamara Kluger Jacobson

HARVEY, JACOBSON & GLAGO

A Professional Law Corporation

2609 Canal Street, 5th Floor

New Orleans, Louisiana 70119

Counsel for Plaintiffs, Kathy Brown and Ron Brown

Thomas McEachin

SCHONEKAS, WINSBERG,

EVANS & McGOEY, L.L.C.

400 Poydras Street, Suite 2040

New Orleans, Louisiana 70130

Counsel for Plaintiff, Tara Mosely

13a

Greg Weiss

WEISS & EASON

1515 Poydras Street, Suite 1100

New Orleans, Louisiana 70112

Counsel for the defendants

Robert Kerrigan

Joseph L. McReynolds

DEUTSCH, KERRIGAN & STILES, L.L.P.

755 Magazine Street

New Orleans, Louisiana 70 130-3672

Counsel for the Defendants

Thomas W. Darling

WINDHORST, GAUDRY, RANDSON,

HIGGINS & GREMILLION

401 Whitney Avenue, Suite 500

Gretna, Louisiana 70056

Counsel for the Defendant,

Zurich American Insurance Company

Alter considering the pleadings, memoranda, exhibits

and arguments of Counsel, this Court finds the

following:

IT IS HEREBY ORDERED that the defendants’ Motion

for Suspensive Appeal is GRANTED provided that the

parties comply with the requirements of posting a bon2

as set forth in La.C.C.P. 2124.

IT IS FURTHER HEREBY ORDERED that the Motion of

the Defendants. William J. Crisler, Jr. and DeGaulle

Manor, Ltd. to limit the amount of the required bond and

all other relief as prayed for in their motion is DENIED.

New Orleans, Louisiana this 1st day of July 2002.

Judge

l4a

CIVIL DISTRICT COURT FOR THE

PARISH OF ORLEANS

STATE OF LOUISIANA

KATHY BROWN ET AL

VERSUS

DEGAULLE MANOR ET AL.

CASE NUMBER: 99-18552 DIVISION A

c/w 99-19006

c/w 99-19398

Transcript of the HEARING held in the above-captioned

matter on Monday, July 1, 2002, before the Honorable

Carolyn Gill-Jefferson, Judge Presiding.

APPEARANCES:

TAMARA JACOBSON, ESQ.

Representing the Plaintiff, KATHY BROWN ET AL.

THOMAS M. MCEACHIN, ESQ.

Representing ‘the plaintiff, TARA MOSLEY ET AL.

GREGORY C. WEISS, ESQ

JOSEPH L. MCREYNOLDS, ESQ.

ROBERT E. KERRIGAN, ESQ.

Representing the Defendant, DEGAULLE MANOR ET

AL.

THOMAS DARLING, ESQ.

Representing the Defendant, ZURICH AMERICAN

INSURANCE COMPANY

REPORTED BY:

Eve S. Kazik, RMR

Colloquy by the Court

PROCEEDINGS

Monday, July 1, 2002

THE COURT:

This is matter No. 99-18552, consolidated with 99-19006,

consolidated with 99-19398, Kathy Brown versus

DeGaulle -Manor, Ltd. Counsel, please identify

yourselves and your representation for the record.

MR. KERRIGAN:

I'm Bob Kerrigan on behalf of Mr. Crisler and DeGaulle

Manor and Zurich.

MR. MCREYNOLDS:

Joe McReynolds, also for the same parties.

MR. WEISS:

Greg Weiss for the same parties.

MR. MCEACHIN:

Thomas McEachin on behalf of Tara Mosley.

MR. DARLING:

Thomas Darling on behalf of Zurich American Insurance

Company. I have a motion to enroll as counsel of record,

THE COURT:

You are in on it?

l6a

MR. DARLING:

Yes.

MS. JACOBSON:

Tamara Jacobson, on behalf of the plaintiffs, Kathy

Brown and her minor son, Ron Brown.

THE COURT:

Before the Court this morning is a Motion for

Suspensive Appeal to Limit Security or Alternatively,

Stay or Enjoin Judgment and/or for Expedited Hearing

and Order.

Basically, as I understand from the pleadings that have

been filed, the defendants are seeking to have this court

either reduce the security or suspend the security during

the period of suspensive appeal. And the plaintiff's

position is that the Court does not have any authority to

do that pursuant to civil Procedure, Article 2124.

I’ve read the memos. I know what they say. How do you

all figure I'd get out of the “shall” language of 2124?

MR. MCREYNOLDS:

Due process grounds under the state and federal

constitution, If an appellant is inpecunious and is unable

to post a statutory required bond, and he would be

forced into bankruptcy pending his right to have the

judgment against him or in this case, excessive

judgment against him — on review. And that’s irreparable

harm. it violates his due process rights, which Justice

white of the Supreme Court held in the Modjeski &

Masters case, a case that came out of the same court.

That’s the basis for it. It’s a violation of due process and

equal protection.

17a

THE COURT:

The only thing I have here is self-serving affidavits that

tell me you can’t afford it. I don’t have any financial

documents or anything. All It says is “that, We can’t

afford it; we are going bankrupt. And that DeGaulle

Manor is out.

MR. WEISS:

I think he attached a financial statement.

MR. MCREYNOLDS:

I have the original of the affidavit that he signed.

MS. JACOBSON:

I have the copy.

MR. MCREYNOLDS:

It's an attachment to the original. I got it in the mail after

I filed the motion. It lists his assets.

MR. MCEACHIN:

Do you have a copy of that, Joe?

MR. MCREYNOLDS:

I gave it to him.

MR. MCEACHIN:

I'll get Tamara’s.

MR. MCREYNOLDS:

An affidavit was filed in the Modjeski & Masters case,

and it was found to be sufficient by the Supreme court

as proof of assets.

MR. WEISS:

Additionally, Judge, le me just say for the record that

Mr. Crisler has been deployed by the United States

18a

Army. I'm not exactly sure; I think he’s in Germany. He

has been officially -he has been deployed.

MS. JACOBSON:

When is that as of?

MR. WEISS:

On active duty.

MS. JACOBSON:

Because there were negotiations between the parties

that we were going to take his deposition and that was

going to happen either last week or this week. And now

he has been deployed to Germany as of which day?

THE COURT:

I don’t know anything about it.

MR. WEISS:

I’m just saying it for the record, Judge. That’s the fact of

the matter is, is that he’s been deployed.

MS. JACOBSON:

Your Honor, on behalf of the plaintiffs, the problem with

this affidavit and typed-up financial statement that

hasn’t been notarized or certified by any competent CPA

or anything to that effect is that it is self-serving. And it’s

difficult for the parties in this matter to wholeheartedly

rely upon the assertions of counsel for the reason that

was just stated.

Again, we were in the middle of negotiations to take this

gentleman’s judgment debtor deposition which would

have provided us, if not for this purpose, for at least the

purposes of discussing settlement, more of a basis for

believing what is being said. And suddenly he’s in

Germany.

19a

MR. MCREYNOLDS:

Your Honor, we have posted a bond in the amount of

Zurich’s judgment liability. Now the policy limits plus

accrued interest to date. if, as we believe, this judgment

is reversed, at least as to the liability of Crisler, then it

would certainly be a violation of his due process rights

to force him into bankruptcy while waiting for the

appellate court to review that judgment.

If it turns out that he’s not liable or that the damage

award is excessive, then he will have suffered the harm

of a bankruptcy when, in all likelihood, he inay not have

any judgment liability whatsoever.

THE COURT:

So, why is he filing bankruptcy?

MR. MCREYNOLDS:

If they proceed, as they are indicating that they’re going

to do, with executing on this judgment for the excess

amount over the amount of Zurich’s liability and bond,

he'll have no choice but to have to file for bankruptcy.

He can’t pay a million and a half dollar judgment.

MS. JACOBSON:

Your Honor, with regard to the claim that his due

process rights have been violated, this gentleman was

represented at a trial of this matter. Further, he was at

the trial for a good portion of the beginning of the trial.

And he was fully aware of the situation as it existed. He

participated in the proceedings, and he knew what this

trial was about. It’s not as though we came down here

and did a default judgment against him! and he had no

opportunity to obtain counsel. If he wasn’t informed by

his counsel of the enormity of the damages that he was

facing, it’s certainly not the plaintiff's problem,

20a

MR. WEISS:

Judge, I can assure you that Mr. Crisler, during the

entire course of this litigation, was informed of all of the

ramifications of this case, but he was also informed that

we felt that he didn’t do one single thing in terms of his -

in terms of tiability with respect to this case. I mean, the

reason that I appreciate the reason that the Court let

them in this case, as far as I’m aware, was because of

this 1995 letter, that U.S. Elevator document, the one

from Matthew Binder.

But it was clear and unmistakable in this record that

two or three months later KONE, Montgomery required

that they — that Crisler, Crisler’s partnership perform

$38,000 in repairs to that elevator, and they took over

the contract. so for three years prior to this accident he

was relying on the expertise of KONE Elevator. He was

exonerated. I think when you look at the overall — the

potential and even though I know this court, most

respectfully, Judge, I know you disagree, but I think it’s -

you've got at least to concede that Mr. Crisler does have

a good faith basis for extricating himself from suit on

appeal. He — he — but to require him now while he’s out

serving his country, to force him into bankruptcy so that

he does not get to suspensively appeal this judgment, I

think violates his due process rights.

I think, you know, we are not talking about Zurich and

DeGaulle Manor here. We are talking about William

Crisler. And Crisler didn’t hold this hoistway door for

these kids to jump into it. I meant the evidence shows

that Crisler didn’t even receive the 1995 letter. But

assume — even if he did, is a landowner entitled to rely

on experts in the elevator maintenance industry to tell

him when his elevators are dangerous? And the jury

found that the elevator company was not negligent.

Z2la

So here’s Crisler. He has got a negative net worth. He’s

over serving his country. He wants to appeal this

judgment. And he, at least, at the very, very, bare bones

minimum, Judge, has got at minimum a good faith basis

for going upstairs with this case.

MS. JACOBSON:

Your Honor, everything he just said explains to this

court why we briefed in a memo that there was an

outrageous conflict of interest in this case. There was no

way for him to argue that Crisler can rely upon the

expertise of the elevator company and yet also

represent the elevator company as they did. Since

Zurich chose to do that in this case, they should also

choose to protect their insured who they now say is

fighting for this country. Let them put up the bond. They

are more than capable and more than solvent of getting -

- and able to get a bond for this gentleman.

They decided that it was more important to protect the

$10 million policy that was out there rather than their $1

million policy for Mr. Crisler. And as such at this point

let them get him a bond. There are cases out there that

say that the insurance company is responsible to their

insured for more than the liability limits, not necessarily

te pay them but in order to get them a bond for that

matter.

We have cited the Bowen case which went through the

language of if they have clean hands and such! As your

Honor is aware from listening to the trial in this matter

and from seeing our briefs, it’s our position that Zurich

does not have clean hands. And therefore, they should

put up the bond for their insureds.

MR. MCREYNOLDS:

Your Honor, Zurich has -— is facing a judgment liability of

22a

its policy limits plus interest. NOW, It has an obligation

to pay the premium of a bond, if Mr. Crisler can get one.

But he can’t get one. It has no obligation to increase its

own judgment liability beyond its policy limits by

signing onto a bond that, if the judgment is affirmed, it

will then have to pay under a guarantee agreement.

That’s what the Sowen case stands for. And the practical

truth is that Mr. Crisler is unable to get a bond because

he’s got no assets with which to secure the bond. No

surety company is going to come in for the price of a

premium and buy over two and a half, three million

dollars worth of judgment liability. It doesn’t work that

way. I can’t speak to what happened at trial, but I don’t

see any indication that Zurich acted in bad faith in any

way. It’s putting up its bond for its judgment liability, we

are willing to pay the premium of the bond, but Mr.

Crisler can’t obtain one.

And all we're asking is that the security be limited to the

amount of Zurich’s bond so that Mr. Crisler can pursue

his constitutionally-guaranteed rights of appeal in this

state and have his review without pushing him into

bankruptcy.

THE COURT:

But isn’t that provided for under the code articles with

regard to devolutive appeal? I mean, he gets a right to an

appeal. He may not get a right to a suspensive appeal,

but he gets a right to an appeal.

MR. MCREYNOLDS

But I think that under the authority of Modjeski &

Masters he has a right to get it suspended to prevent the

harm that would happen by pushing him into

bankruptcy. That’s what that case was about.

23a

MR. KERRIGAN:

We're just talking about suspending it, Judge. if we’re

wrong, they can execute a judgment later. He’s talking

about for the appeal process, Judge.

THE COURT:

I understand that, and that’s the whole purpose of the

Suspensive appeal. The statute Says that you are to

secure the value of the judgment plus interest until the

date that it’s posted. That’s what gives you the right —

you're suggesting to me this morning somehow that Mr.

Crisler’s due process rights will be violated by the fact

that if this Court orders a suspensive bond to go ahead

pursuant to the statute. And I don’t see how that

happens.

MR. MCREYNOLDS:

Because if that’s true, your Honor, then the only litigants

who would have a right to have a Suspensive appeal are

those rich enough to secure a bond.

THE COURT:

That’s not true. That’s why you have a devolutive appeal.

That's not true. You mean - -

MR. MCREYNOLDS;

No. A suspensive appeal.

THE COURT:

You said that — you said their right to an appeal.

MR. MCREYNOLDS:

I'm sorry. I meant, the only ones who would have a right

to a suspensive appeal are those who are rich enough in

order to buy a bond. Now that is unequal protection.

Those are the arguments that were made and that were

accepted and agreed to by the United States Supreme

24a

Court

MS. JACOBSON:

It’s also unequal protection if you’re only requiring

solvent or wealthy insureds to have to go get a bond.

But folks who don’t have means aren’t required to get a

bond. There is no case law out there except for this

aberrant Modjeski & Masters case. It’s unfair that

wealthy debtors would have to go get a bond but poor

debtors don't.

MR. MCEACHIN:

Your Honor, I disagree with what Mr. McReynolds says

about the Modjeski case being decisive on that issue.

They issued an interim order. And after that interim

order was issued, the case was reversed on appeal The

Supreme Court never got to the constitutionality of the

statute. The statute has been on the books in one form

or another for 190 years. It says you can’t do this. And

with all due respect, I don’t think you can do it. The only

way you can afford the defendants the relief they're

asking for is to declare 2124 unconstitutional. I don’t

think your Honor can do that after 190 years.

THE COURT

But I can’t do that.

MR. MCREYNOLDS:

Of course you can.

THE COURT:

I cannot do that without a hearing. If we are talking

about our constitutionality of a statute -— Mr.

McReynolds, under the law of this state if you challenge

the constitutionality of a statute, then the Attorney

General of the state of Louisiana has to be notified, and

he has to come in and defend it. I’ve done that.

25a

I can’t sit here today and Say, all right, on the basis of

what I have here is this statute is unconstitutional.

That’s what you’re asking me to do, and I cannot do that.

MR. WEISS:

No.

MR. MCEACHIN:

Your Honor, there are Supreme Court decisions that

uphold the language of the statute.

THE COURT:

But as I understand your argument to me this morning is

that the reason why I have to limit the security being

posted in this to Zurich’s amount of the policy plus

interest until it’s posted is that Mr. Crisler’s due process

rights would be violated. And if I do that, then and

you're asserting that this statute is unconstitutional

because it violates his due process rights. Is that what

you're telling me?

MR. MCREYNOLDS:

Let me restate what I’m saying. I’m saying that under the

- on Modjeski & masters you have the authority and

discretion, just as any court does, to take cognizance of

the particular circumstances involved in a case and to

protect a litigant’s appeal rights, including suspensive

appeal rights, to prevent irreparable harm in the form of

bankruptcy by fashioning some other remedy more

appropriate than the statutorily required security.

THE COURT:

And tell me how it’s irreparable harm because we are

talking about money here. The fact that it’s going to be —

he has a credit problem? Is that the irreparable harm?

where is the irreparable harm?

26a

MR. MCREYNOLDS:

The Supreme Court has held that forcing someone into

bankruptcy and effectively forego their right of review,

an appeal, is irreparable harm.

THE COURT:

To forego their rights of a suspensive appeal.

MR. MCREYNOLDS:

A suspensive appeal. That’s exactly right. They are

effectively without any remedy.

MR. WEISS:

That’s what the case says.

MR. MCEACHIN:

Your Honor, I don’t think that’s what the case says. I

read this case. This is a one-page memorandum opinion

that applies to the facts of that case, that particular

defendant and that particular case, and what their net

worth was. Mr. McReynolds —

THE COURT:

The thing that disturbs me about that case is that I am

sure that since this case has come out, that there have

been other defendants or appellants -- I'll put it that way

— who have been in the same position that Mr. Crisler

has been in. But there has never been any other case

since this. And this case was done —

MR. MCEACHIN:

This case hasn’t been cited to once, your Honor.

MS. JACOBSON:

We were unable to find any case.

2%a

THE COURT;

This case came out in 1988. And that’s why I'm

suggesting to you that it’s probably turned on the facts

of that particular case because otherwise it hasn't been -

- I'm sure there are other defendants who have been in

the same position — appellants, rather, in that same

situation. .

MR. MCREYNOLDS:

Your Honor, we have made our argument. Zurich is

certainly entitled to a Suspensive appeal upon the

posting of the bond.

THE COURT:

Certainly Zurich is both of them are entitled to — by law

are required to post a bend in order to suspend the

execution of that judgment. And that’s what 2124 does.

In those instances — the legislature just amended this

thing last year to afford certain defendants — I mean

appellants — some remedies when the judgments are

over and above a certain amount. And they took that

into consideration. And they did not — because | got to

use it the first time last year, around the same time last

year, when I looked at that statute.

MR. WEISS:

See, Judge, the real harm here is that if this bond is not

suspended for Mr. Crisler, Mr. Crisler is going to be

forced into a bankruptcy situation. It’s not going to get

the money — he’s not going to get the money ever to post

this bond. No surety is going to come in and give Mr.

Crisler a bond. He will not get a bond.

The only thing that’s going to happen is they'll try to

execute on the judgment. Okay. Forces him into

bankruptcy. He'll have to seek the protection of the

28a

bankruptcy court in order to perfect even a devolutive

appeal.

So what happens later if Crisler is exonerated, if the

appellate court decides he should have never been in

this case? He has been forced into bankruptcy; he can’t

get credit for another seven years. It’s, you know for a

situation in which perhaps the appellate court, with all

due respect, Judge, may have disagreed with the lower

court as to whether he should have been in the first

place.

THE COURT

It’s their prerogative every day, Mr. Weiss.

MR. WEISS:

Why should he be hurt as a result of this judgment? Why

should he be irreparably harmed in bankruptcy if

ultimately he’s exonerated? Why does he have to go

through that, Judge? How is that —

MR. KERRIGAN:

Judge, your feelings are abundantly clear. Are you going

to prepare a judgment?

THE COURT:

Well, it’s not my feelings. It’s what the law says. Look,

Let me tell you something. I do this business based on

the facts and the law. It doesn’t have anything to do with

feelings.

MR. KERRIGAN:

Judge. I misspoke. They get absolutely nothing if he

takes bankruptcy. They get nothing. Everything will be

discharged. We understand the track we're going

through. Let’s just go through it. Let’s get a judgment

signed and move on.

29a

MR. DARLING:

I think the Court has discretion if you read 2124-B along

with 2124-D. 2124-B says, “It shall set the bond.” You

know, shall be limited of the judgment plus the interest

through the date of the Setting of the bond.

Then you go to more specific 2124-D, where it says,

“upon good cause shown, the Court may set a bond but

no more than 150 percent.” It doesn’t say what a

minimum should be in 2124-D. So if you read 2124-D and

apply it to these facts, it gives the court discretion, less

than the amount of the total judgment.

MS. JACOBSON:

And along those lines, your Honor, we would have no

problem with your Honor Setting the bond at 150

percent for Zurich and allow them to afford their

insured some additional protection, if that’s the case.

MR. DARLING:

There is no — Zurich’s bond is what their policy limits

are. It shouldn’t be any greater because at the end of the

day if a surety —

THE COURT:

I would agree with you on Zurich. Zurich is in on the

extent of whatever its policy is.

MR. KERRIGAN: 7

That’s exactly what the judgment says.

MR. MCEACHIN:

Your Honor, we would argue that there is due cause in

this case for the same reason they are arguing that their

defendant shouldn’t be posting a bond. There is a

chance that these guys are insolvent. If that’s true, then

our client is left hanging with no place to collect a

30a

judgment.

MR. KERRIGAN: —

Your clients are hung with the people you got a

judgment against, counsel.

(off the record discussion. )

THE COURT:

Counsel made a statement about 2124-D.

MR. DARLING:

2124-D gives you discretion to limit the bond.

MR. MCEACHIN:

Asking the Court to raise the amount of the bond under

2124-D. We believe there is good cause here to have a

bond in excess of 100 percent required, minimum

required, and up to the 150 percent that’s allowed by

2124-D.

MR. MCREYNOLDS:

Are you representing to the Court that you would accept

a bond in the amount of 150 percent of the judgment?

MR. MCEACHIN:

We would accept a bond in the amount of 1.8 million for

Zurich's suspensive appeal.

MR. DARLING:

That’s greater than their policy limits.

MR. MCEACHIN: "

They’re asking you to do something that’s not allowed

by the statute. I’m asking you to do something that is

allowed by the statute. It’s in your discretion to do that.

But it's not in your discretion to do what the defendants

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have asked you to do.

MR. MCREYNOLDS:

Well, are you representing to the Court that you would

accept security in the amount of 150 percent of the

judgment as to all three defendants?

MS. JACOBSON:

That is in the Court’s discretion. We are asking, and we

set forth in our memo a little bit more extensive about

the duty of Zurich and the reason that we believe good

cause is being shown that there should be a bond of 150

percent in this matter.

MR. MCREYNOLDS:

As to all three defendants or simply —

MR. MCEACHIN:

As to Zurich only.

MR. MCREYNOLDS:

I think that would be completely unreasonable and

unfair.

MR. DARLING:

The bond I have today is for the million dollar plus the

interest, and that’s the Statutory required amount. We

have it — a Motion and Order for Appeal is-prepared.

MR. MCEACHIN:

Your Honor, that’s the memo. As you know, 2124-D does

allow you to go above 100 percent. And what — Tamara

and I are arguing that that’s the case here. There was

good cause. If there is ever a case for good cause shown

~ ened

——

32a

THE COURT:

. You want them to go above their policy limits because

they have got an insured who says he can’t meet the

bond.

MS. JACOBSON:

No, your Honor. That’s not the reason. NO, that’s not

what I’m saying, and that’s not what I briefed. Our

position is that the statute provides that if good cause is

shown that a party can be required to post up to 150

percent bond. That’s under 2124-D.

Our position is that Zurich, their behavior in this case, as

we have set forth in our memo, the inherent conflict in

representing two parties and our lack of knowledge as

to what was told to Mr. Crisler and his participation

which would then be a departure from the ruling in the

Bowen case. For those reasons we believe that Zurich

should be required to put up the 150 percent bond.

As an example, and what we put forth in our brief, is

that if it’s found that Zurich was arbitrary and capricious

in not settling this case with us, then it’s possible they'll

have to eat the entire $7 million of judgment in this case.

And for those reasons we are asking that the court post

the bond at 150 percent.

MR. DARLING

That’s not the plaintiff's argument.

MS. JACOBSON:

That’s exactly — I made the argument, and I wrote it.

MR. DARLING:

That's not the right party to make the argument. They

don’t have standing to claim bad faith. under 22 — 1220

only the insured.

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33a

MR. MCEACHIN:

We're saying there is a potential claim in the future, and

that’s —

THE COURT:

But the 1220 claim is left to the insured.

MR. MCEACHIN

Your Honor, that is not as outrageous as the defendants

make it seem. That was the rule for 150 years.

THE COURT:

I know, until they changed it last year in June. I told you,

I got the first crack at one, a discretion case. |

understand.

MR. MCEACHIN:

The defendants have been posting 150 percent bond as

long as the law has been around.

MR. DARLING:

What would happen, though, in this case, assuming the

case is affirmed as it stands now, we won't be able to get

a bond for 150 percent because who is going to write a

bond saying. wait, Zurich, you're only liable right now

for 1.2 million, and we are going to write a bond for 18

million. And then that $600,000 window is going to be

collected upon because there is no one else to pay it

because Zurich is only liable for their policy limits. So

you're going to be going to a surety and saying, we want

you to insure a $600,000 payment that if this judgment is

affirmed, you're guaranteed to have to pay it. They won’t

do it.

MR. MCREYNOLDS:

They won’t do that unless Zurich Says -unless Zurich

agrees to indemnify the surety company. And to order

34a

that, then you're increasing Zurich’s judgment liability,

and that’s not good cause. That’s unfair.

MS. JACOBSON:

But the statute provides that you're entitled to — require

them to post up to 150 percent bond. obviously, this is

not a fluke. This happens, where the Court allows —

rather, requires the parties to post up to 150 percent. In

fact, it was the law until not that long ago.

MR. DARLING:

And there are cases where the judgment is well within

policy limits. That’s where the discretion comes in. But

when you have a case that’s in excess of policy limits,

the discretion is that you can’t post the bond. It’s

economically impossible to go get a surety when you're

guaranteeing that surety will have to pay because our

policy, limits are one million dollars.

MS. JACOBSON:

But you said you think this whole thing is going to get

overturned on appeal.

MR. DARLING:

I didn’t say that.

MS. JACOBSON:

Weli, that’s the position of lead counsel.

THE COURT:

Let me tell you what my position is on this and what my

understanding is of the law — and I know what the facts

are in this case because I tried the case, and I have held

numerous motions and stuff on it. So I’m clear as to

what the facts are. The jury has entered a verdict in this

case against the parties that they chose to do that

against.

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35a

Now what I’m required here to do is in the instance of a

motion for a request for a Suspensive appeal is to make

a determination about the bond. My reading of 2124 says

that there shall be a posting of the bond in an amount of

the judgment plus interest from the date of the posting.

As it relates to the defendant Crisler, I’m not going to

order that he post — limit his security in this amount. It

is my position and my understanding of the law that he

has to follow 2124.

As to Zurich Insurance Company, I’m going to order that

they follow 2124, and that they post a bond in the

amount of the judgment plus interest from the date of

the posting.

Prepare a judgment to that effect.

MR. MCEACHIN:

Your Honor, what about DeGaulle? You didn’t address

DeGaulle.

THE COURT:

DeGaulle has to post — it applies to DeGaulle and

Crisler. Everybody has to follow 2124.

MS. JACOBSON:

'll prepare a written judgment to that effect, your

Honor.

MR. MCREYNOLDS;

Can we indicate for our — it will be on the minutes, the

motion for suspensive appeal is granted conditioned

upon the posting of the security as you just outlined?

THE COURT:

Yes.

MS. JACOBSON:

I'll prepare a judgment.

THE COURT:

And circulate it to all counsel.

MS. JACOBSON:

I will.

MR. KERRIGAN:

Judge, we need that signed today.

THE COURT:

I'll be here all day. Is yours ready now?

MR. DARLING:

Well, I'm going to wait. I want to see the judgment. |

don’t want to file an appeal until I see the judgment on

the suspensive, what we just —

MS. JACOBSON:

I’m going to prepare it.

THE COURT:

I will be here all day; I'll be here tomorrow all day. So

whenever you all get it in, I'll sign it.

MS. JACOBSON:

I will fax it to everybody.

THE COURT:

Wait. Before you all leave, wait. Wait. There is this other

motion you all have got here, A Motion to Continue

Hearing on Plaintiffs Motion for Sanctions. The

37a

defendants have asked for a continuance on that until

my next rule date. You all object to it? Everybody gets

one.

MS. JACOBSON:

Your Honor, but the next rule date is September. That’s

the problem.

THE COURT:

I know. What's the problem? Sanctions — | mean, what is

the — whether or not I impose sanctions is that going to

bother somebody between now and then?

MS. JACOBSON

If your Honor wants to —

THE COURT:

I give everybody one. You all get one continuance.

That’s my policy. I give them one and whatever the first

rule date — because I’m on vacation in August. That’s

probably why you can’t get another one. It was left here

last week, and that’s why I’m addressing it now.

MS. JACOBSON:

Right. Move it to September?

THE COURT;

Yes. Because I’m on Vacation. It’s set for September 6th.

You all want new notices?

MS. JACOBSON:

No.

THE COURT:

I'm going to do it right now. I’m doing it right now. And

Mr. Carter can give you all -that’s the only reason it’s put

off is because I wen’t be here.

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38a

CIVIL DISTRICT COURT FOR THE

PARISH OF ORLEANS

STATE OF LOUISIANA

REPORTER'S CERTIFICATE

I, Eve S. Kazik, RPR, do hereby certify that:

I am an official court Reporter of the Civil District Court

of the State of Louisiana, in and for the parish of

Orleans, Louisiana, and that as such I reported in

stenotype the proceedings had in the within-entitled

matter at the time and place therein set forth, and that

the same is a full, true, and correct transcription of said

stenotype notes as taken by me in said matter to the

best of my ability.

Eve S. Kazik, RPR

Official Court Reporter

License No. 87028

July 1, 2002

LA C.C.P. Art. 2124

LSA-C.C.P. Art. 2124

WEST’S LOUISIANA STATUTES ANNOTATED

LOUISIANA CODE OF CIVIL PROCEDURE ACTS 1960.

NO.15 BOOK II. PROCEEDINGS IN APPELLATE

COURTS TITLE I. APPELLATE PROCEDURE

CHAPTER 2. PROCEDURE FOR APPEALING _

Current through all 2001 Regular and

Extraordinary Session Acts

39a

Art. 2124. Security robe furnished for an appeal

A. No security is required for a devolutive appeal.

B. The security to be furnished for a suspensive

appeal is determined in accordance with the rollowing

rules:

(1) When the judgment is for a sun’ of money, the

amount of the security shall be equal to the amount of

the judgment, including the interest allowed by the

judgment to the date the security is furnished, exclusive

of the costs.

(a) However, in all cases, except litigation related to

the Tobacco Master Settlement Agreement, or any

litigation where the state is a judgment creditor? where

the amount of the judgment exceeds one hundred fifty

million dollars, the trial court, upon motion and after a

hearing, may, in the exercise of its broad discretion, fix

the security in an amount sufficient to protect the rights

of the judgment creditor while at the same rime

preserving the favored stems of appeals in Louisiana.

(b) The time for taking the suspensive appeal under

Article 2123 shall be interrupted for judgments pursuant

to Article 21 24(B)(1 )(a) until the trial court fixes the

amount of the security and commences anew on the

date the security is fixed.

(2) When the judgment distributes a fund in custodia

legis, only security sufficient to secure the payment of

costs is required.

(3) In all other cases, the security shall be fixed by

the trial court at an amount sufficient to assure the

Satisfaction of the judgment, together with damages for

the delay resulting from the suspension of the

execution.

C. Where the party seeking to appeal from a

judgment for a sum of money is aggrieved by the

amount of the security fixed by the trial court, the party

so aggrieved may seek supervisory writs to review the

appropriateness of the determination of the trial court in

fixing the security. The application for supervisory writ

shall be heard by the court of appeal on a priority basis.

The time for taking a suspensive appeal under Article

2123 shall be interrupted until the appellate court acts

on the supervisory writs to review the determination of

the trial court in fixing the security and commences

anew on the date the action is taken.

D. For good cause shown, the trial judge in the case

of the appeal of a money judgment to be secured by a

surety bond may fix the amount of the security at an

amount not to exceed one hundred fifty percent of the

amount of the judgment, including the interest allowed

by the judgment to the date the security is furnished,

exclusive of the costs.

E. A suspensive appeal bond shall provide, in

substance, that it is furnished as security that the

appellant will prosecute his appeal, that any judgment

against him will be paid or satisfied from the proceeds

of the sale of his property, or that otherwise the surety

is liable for the amount of the judgment.

CREDIT(S)

2002 Main Volume

Amended by Acts 1977, No. 176, 1, eff. Jan. 1, 1978; Acts

1988, No. 444, § 1, cf. Jan. 1, 1989; Acts 1989, No. 307, §

2; Acts 2001. No. 450, § 1, eff. June 19, 2001.

OFFICIAL REVISION COMMENTS- 1960

2002 Main Volume

(a) This article establishes the formulae for determining

the proper amount of bond required to suspend

execution. Subparagraphs (I) and (2) of the second

paragraph are taken directly from Art. 575 of the 1870

Code of Practice.

(b) Those portions of Art. 575 dealing with the

technicalities of the bond filed, e.g., how it shall be

payable, how tested, are not included in this Book. See

nook IX, Title I, Chapter 3.

(c) Subparagraph (3) of the second Paragraph is taken in

principle from Fed. Rule 73(d). It is flexible in that it

gives the court a wide discretion in fixing the bond in

Cases not involving a money judgment.

(d) Both Arts. 575 and 579 of the 1870 Code require that

appeal bonds have sureties and that the sureties beheld

under the terms of the bonds. See Book IX, Title I,

Chapter 3.

(e) This article applies to bonds in injunction cases,

where appeals from such are available. See Art. 3612,

infra.

Fashion, 10 La.Ann. 345 (1855); State ex rel. Blocky.

Rightor, 44 La.Ann. 564.10 So. 866 (1892): Metropolitan

Bank v. Blaise, 109 La. 92, 33_So. 95(1902); Succession

42a

of Jones. 189 La. 693. 180 So. 48.9 (1938); State ex rel.

Messina v. Cage. 152 So. 399 (La.App. 1934). And, in

such cases when the appellant has sued in forma

pauperis where no cost bond is required, the suspensive

appeal may be taken without furnishing any bond.

Succession of Jones, supra; State ex rd. Messina v. Cage,

supra. These tales of the jurisprudence are not changed

by this Code.

(g) See, also, Comments under Arts. 2126, 2252, infra.

HISTORICAL AND STATUTORY NOTES

2002 Main Volume-

Source:

C.P. Arts. 575-578; Fed. Rule 73(d); cf. Comments

preceding.

The 1977 amendment substituted “No security is

required for a devolutive appeal.” for the first paragraph

and deleted a final paragraph. Prior to the 1977

amendment, the paragraphs had read:

“The security to be furnished for a devolutive appeal

shall be fixed by the trial court at an amount sufficient

to secure the payment of costs.”

“Both devolutive and suspensive appeal bonds shall

afford security for the payment of all appellate costs

paid by the appellee, and all costs due by the appellant,

including those due the clerk of the trial court for the

preparation of the record on appeal.”

43a

Acts 1977, No. 176, § 4 provides as follows:

“Section 4. The effective date of this Act is January 1,

1978; the provisions hereof shall apply to all appeals in

which the order of appeal is granted on or after the

effective date hereof.”

The 1988 amendment, in subpar. (B)(1) inserted “and a

surety bond is furnished as security”, substituted “be

equal to” for “exceed by one-half’, inserted “the”

preceding “costs” and added " otherwise, the amount of

the security shall exceed by one-half the amount of the

judgment and interest as described in this Paragraph”; in

Subpar. (B)(2), substituted a period for ", and"; and

inserted art unnumbered paragraph, following subpar.

(B)(8), relating to good cause.

In this article as amended in 1988, paragraph

designations A to D were made pursuant to the statutory

revision authority of the Louisiana State Law Institute.

Section 2 of Acts 1988, No. 444 (§ I of which amends this

article) provides:

“Section 2. This Act shall become effective January 1,

1989 and shall apply to cases in which an order of

appeal is entered on or after that date.”

The 1989 amendment rewrote subpar. (B)(1), which had

read:

“(1) When the judgment is for a sum of money and a

surety bond’s furnished as security, the amount of the

security shall be equal to the amount of the judgment,

including the interest allowed by the judgment to the

dare the security is furnished, exclusive of the costs;

44a

otherwise, the amount of the security shall exceed by

one-half the amount of the judgment and interest as

described in this Paragraph.”

Acts 2001, No. 450, § 1, added items (B)( 1)(a) and (B)( 1

)(b) and par. C; and redesignated former pars. C and D

as D and B respectively.

Prior Laws:

Acts 1876, No. 24.

Acts 1890 No. 46.

Acts 1926, No. 289.

Acts 1946, No. 74, § 2.

LSA-C.C.P. Art. 2124

LA C.C.P. Art. 2124

45a

CIVIL DISTRICT COURT FOR THE

PARISH OF ORLEANS

STATE OF LOUISIANA

NO: 99-18552,99-19006, 99-19398 DIVISION: A

KATHY EROWNZ ET AL.

versus

DEGAULLE MANOR, LTD., ET AL.

DEPUTY CLERK:

AFFIDAVIT OF NET WORTH

Before me, the undersigned Notary Public. personally

came and appeared William J. Crisler, Jr., a person of

the full age of majority, who after being duly sworn, did

depose and state that,,

i My name is William L Crisler, Jr. I reside at 101

Cedar Cove in Clinton Mississippi. I make this Affidavit

of my personal knowledge, and belief.

2. I have been personally cast in judgment in this

case for $2,275,500.00, plus legal interest.

3. The following facts show I have insufficient

assets to satisfy this judgment and insufficient assets to

secure a bond necessary to Suspend execution of the

judgment pending an appeal.

4, I have two mortgages on my home, in the

respective amounts of $ 154,347.16 and $63,262.00. My

home has an estimated value of $245,000, with equity of

$127,390. 84.

endian ie

ne oape pres

46a

5. I have two credit cards, American Express and

Master Card with balances totaling $8,823.33. I have two

checking accounts, Trustmark account number

1003057714 with a balance of $1,943.62 and

BancorpSouth account number 53093902 with a balance

of $ 166.78.

6. I have a personal debt on a business loan in the

amount of $ 46,590.78 with BancorpSouth. This debt is

for S M Business Forms, Ltd, a printing distributor, of

which I am 420% limited partner, but I am the maker of

this note. The assets of the company that would be

accountable to my 20% limited partnership interest

amount to approximately $10,000.

z I own shares of stock currently valued on the

market at $_44, 178.35. The purchase of this stock was

financed with a loan in the amount of $100, 000 and there

is $(55,821.65) in equity.

8. My most recent Federal Tax Returns show that I

earned approximately $95,000 in 2000 and $116,000 in

2001,

9. I am insured under a general liability policy

issued by Zurich American Insurance Company, Number

ACO 8522074-3. This is the only liability policy that

covers the liability of myself and DeGaulle Manor, Ltd.

DeGaulle was also cast in judgment in this case, in the

amount of $2,220,000.

10. I have a homeowners policy issued by State

Farm, for approximately $249,920 in coverage, but that

policy does not provide coverage for my judgment

liability in this case. I have no umbrella coverage.

47a

ll. ‘I own three automobiles that have a Kelly Blue

book value of $31,885 with car loans totaling 18,435.12.

There is a total equity in my automobiles of $13,449.88,

ll. I have no other personal or business assets with

which to Satisfy the judgment and no assets to post as

security for an appeal bond to Satisfy any bonding

company’s indemnity requirements for furnishing an

appeal bond. My personal net worth is $(25,934.86),

Signed this 25 day of June, 2002, in Clinton, Mississippi.

William J. Crisler, Jr.

Sworn to and Subscribed before me this 25th day of

June, 2002

Notary Public in and for the County of Hinds

Mississippi.

NOTARY PUBLIC

48a

Financial Statement of William J. Crisler, Jr.

ASSETS I

Cash

Home

Home Furnishings

Stocks Owned

(@ current

value) Value

Lucent $4,840.00

Applied Micro

Circuit $4,520.00

Redback

Networks $1,580.00

Rambus $3,221.50

Star Media $20.00

Cypress |

Semiconductor $15,510.00

Coming $3,900.00

Globspan

Virata $3,680.00

Ariba $3,735.00

Yahoo $2,262.00

AGR.a $18.90

AGR.b $488.40

Avaya $402.55

3 Automobiles

@ Kelly Blue

Book Value

97 Ford

Explorer $6,855.00

98 Olds 88 $9,545.00

99 Suburban $15,485.00

$2,110.40

$245,000.00 ;

$35,000.00 (this is a guess)

Current

# of shares Price

2000 $2.42

1000 $4.52

1000 $1.58

850 $3.79

2000 $0.01

1000 $15.51

1000 $3.90

1000 $3.68

1500 $2.49

150 $15.08

10 $1.89

264 $1.85

83 $4.85

20 % Limited

Partner of SM

Business

Forms

Total Assets

LIABILITIES

Home

Mortgages

Car Loans

Credit Cards

Am Ex

MasterCard

Stock Pledge

Loans

S M Business

Forms Bank

Debt

Dentist Braces

Debt

Total

NET WORTH

$10,000.00

$368, 173.75

$217,609.16

$18,435.12

$7,873.17

$950.16

$100,000.00

$48,000.00

$1,250.00

$394,117.61

-$25,943.86

DEE en en ae

ERNE METER ERE EES ser ES ce EEE NERS wane

50a

CIVIL DISTRICT COURT

STATE OF LOUISIANA

NO. 99-18552, 99-19006, DIVISION “A”

99-1 9398

KATHY BROWNE, ET AL

VERSUS -

DEGAULLE MANOR, LTD., ET AL

Telephonic deposition of WILLIAM J. CRISLER, JR.,

taken on Tuesday, July 2, 2002, at the Law Office of

Deutsch, Kerrigan & Stiles, L.L.P., 755 Magazine Street,

New Orleans, Louisiana, commencing at 3:45 p.m.

and concluding at 4:55 p.m., C.S.T.

APPEARANCES

DEUTSCH, KERRIGAN & STILES, L.L.P.

BY: ROBERT E. KERRIGAN, JR., ESQ. JOSEPH E.

LEE, ESQ.

755 Magazine Street

New Orleans, Louisiana 70130

ATTORNEYS FOR DEGAULLE MANOR, LTD.,

WILLIAM J. CRISLER, JR., AND ZURICH AMERICAN

INSURANCE COMPANY

HARVEY, JACOBSON & GLAGO

BY: ROBERT G. HARVEY, ESQ. TAMARA KLUGER

JACOBSON, ESQ.

2609 Canal Street

New Orleans, Louisiana 70119

ATTORNEYS FOR KATHY BROWNE

EE

ELL LLL LE LE LLL LTT TS LT TL eT aaa aaa

5la

ON BEHALF or RON BROWNE

APPEARANCES CONTINUED:

TAGGART, MORTON » OGDEN, STAUB, ROUGELOT,

BROCATO & O'BRIEN , L.L.C.

BY: JAMES R. MORTON , ESQ.

(Via telephone)

1100 Poydras Street

Suite 2100

New Orleans, Louisiana 70163 ATTORNEYS FOR MR.

WILLIAM J. CRISLER, JR.

WEISS & EASON

BY: TERESE M. BENN ETT, ESQ.

(Via telephone)

1515 Poydras Street

Suite 1100

New Orleans, Louisiana 70112 ATTORNEYS FOR

DEGAULLE MANOR,

MR. WILLIAM J. CRISLER, JR.,

AND ZURICH AMERICAN INSURANCE COMPANY

Reported by: JoLyn A. Halley

Certified Court Reporter

INDEX

DESCRIPTION PAGE

Examination:

1: I crenata TS, 4

Objections:

By: Mr. Kerrigan.................... 6, 9, 28, 34, 39, 48, 48, 49

Fh I i iscscerasiniicrtieaniiidiinadiieied backs 10, 41

CREE PDB erinnereesrsiniviniinisernimaisisecdaicen 54

EXHIBITS

(None offered at this proceeding. )

52a

STIPULATION

It is stipulated and agreed to by and between counsel for

the parties hereto that the deposition of WILLIAM J.

CRISLER, JR. is hereby being taken for all purposes,

pursuant to the Louisiana Code of Civil Procedure and

in accordance with law, pursuant to notice, on Tuesday,

July 2, 2002, in the Law Office of Deutsch, Kerrigan &

Stiles, 755 Magazine Street, New Orleans, Louisiana;

That the formalities of sealing, certification and filing

are waived; that the formality of signing is not waived.

That all objections, save those as to the form of the

question and responsiveness of the answers, are hereby

reserved until the time as this deposition, or any part

thereof may be used or sought to be used in evidence.

JOLYN A. MALLEY, Certified Court Reporter in and for

the Parish of Orleans, State of Louisiana, officiated in

administrating the oath to the above-named witness.

WILLIAM J. CRISLER, JR..,

101 Cedar Cove, Clinton? Mississippi, 39056, after

having been duly sworn to tell the truth, the whole truth,

and nothing but the truth, was hereby examined and

testified as follows:

DIRECT EXAMINATION

BY MR. HARVEY:

Q. Mr. Crisler, how are you? This is Bob Harvey.

A. Hi, Mr. Harvey.

Q. How are you doing?

53a

A. Fine. Before we begin, I wanted to tell you again

how much I appreciated the courtesies that you

extended me at our trial by allowing me to testify out of

sync.

Q. I understand.

A. I wanted to tell you that again how much |

appreciated that.

Q. No problem. No problem. Mr. Crisler, I'm putting

on the Record that Mr. Winsberg is out of town, and he

faxed a letter over and the gist is he couldn't be

available today. And as I indicated before we got on the

Record, numbers of people are out of town. So, what

we'll do is we'll try to cover as much as we can, let him

read the transcript, and hopefully you won't have to do

this again. Okay?

A. Yes, sir.

Q. So, so it appears in the body of the deposition,

why don't you repeat your full name and address.

A. My name is William J. Crisler, Jr., and I reside at

101 Cedar Cove, Clinton, Mississippi, 39056.

Q. And at that address, who lives with you?

A. My wife and four children.

Q. Before we go any further, Mr. Kerrigan has

indicated that you're going to read and sign the

deposition?

MR. KERRIGAN:

That is correct.

ne eR NEE Ta em Oe ae

THE WITNESS:

Yes, sir.

BY MR. HARVEY CONTINUED:

Q. Now, you said your wife and four children?

Yes, sir.

Whai is her name?

Eva, E-V-A.

What was the last name?

Crisler.

No. No. Was that a maiden name you gave me?

No, sir. That’s her first name, Eva.

What was her maiden name?

Krone, K-R-O-N-E.

Oo -— © F&F O&O FF O&O Ff O Y

The home at 101 Cedar Cove, is that the only

property that you own?

A. Yes, sir. And I own that, obviously, in joint

tendency with my wife.

Q. I understand. And I've got your Affidavit, and I'll

try not to repeat things in the Affidavit, just to clear

them up. Okay. And, of course, that question was in

your name. Now, do you own anything else, any other

properties in anyone else’s name?

SOS Nae ae? a ee a

_—

55a

MR. KERRIGAN:

Object to the form of the question. I don’t understand

the question.

BY MR. HARVEY CONTINUED:

Q. Well, I've noticed -— | believe I remember

correctly at trial you had a cousin that was in DeGaulle

Manor with you?

A. Yes, sir. I heard — I don’t know who was talking

after you, but couldn't barely hear him so I just want to

get clarified on that question. Do I own anything in

anybody else’s name?

MR. KERRIGAN:

Yes, that’s the question I objected to.

BY MR. HARVEY CONTINUED:

Q. He objected to it, so let me clear it up.

A. Okay.

Q. Do you have an interest in any property that is

not in your name by virtue of any agreements, counter

letters, or any other legal documents, documents that

you have in your safe; do you understand my question?

A. Mr. Harvey, I think I do, and I'll clear this up right

now. I do not own any real property other than my

house. To my knowledge, I am not involved in any

transaction where I was an owner or am planning to be

an owner. The only piece of property I currently own is

my house. I don’t have any documents in my safe

suggesting that I'm an owner of anything else, no, sir.

Q. All right. Now, do you own any Corporations —

eee st I,

56a

A. — no, sir.

Q. — that own any property?

A. I mean, I guess the stock that I listed is, I guess,

part ownership of that corporation. But, no, sir, not

besides what I have listed on the financial statement I

sent with the Affidavit.

MR. KERRIGAN:

Let me — this is not an objection, but the question by

counsel was do you Own any corporations, and let me

clear that up. The question should be, do you own stock

in any corporation?

MR. HARVEY:

Yes.

THE WITNESS:

My answer is going to stay the same, other than what I

showed to you, and I presume, Mr. Harvey, you’ve got a

copy of that.

BY MR. HARVEY CONTINUED:

Q. Yes.

A. That — you know, stock is partial ownership of a

corporation but that is all, no, sir.

Q. And I got that. No, really what I was referring to

is any small corporations, private corporations where

you would be either the sole owner or partial owner of

stock?

A. No, sir.

Q. Can you tell me I understand your personal

i ae

)

57a

attorney is on the phone, Mr. James Morton?

A. Yes, sir.

Q. When did you — when did Mr. Morton first begin

representing you in this matter?

MR. KERRIGAN:

I object to the form of the question. Go ahead and

answer it.

THE WITNESS:

Okay. I called Mr. Morton probably sometime in the

middle of June specifically to look at the LLC issue that

arose during the trial. Mr. Morton has done commercial

work for us when we owned DeGaulle, that’s my

relationship with him.

BY MR. HARVEY CONTINUED:

Q. Did you have a personal attorney that you were

consulting with from the time this lawsuit was filed up

until the time you hired Mr. Morton?

MR. KERRISAN:

You mean other than counsel of record?

THE WITNESS:

The attorneys that I consulted with were primarily

Weiss & Eason, and they were provided by Zurich.

BY MR. HARVEY CONTINUED:

Q. Did at any time Weiss & Eason, Mr. Weiss or

anyone with their firm, recommend that you seek the

representation of a personal attorney?

MS. BENNETT:

I'm going to object to the form of the question, and I’m

58a

going to object also on the basis of any comments that

may have been given to Mr. Crisler based upon his

previous answer would be_ protected under

attorney/client privilege.

MR. KERRIGAN;

Terese, let me handle this. Number one, don’t answer

the question; number two, the question has nothing to

do with your ability to respond to an adverse judgment;

number three, any questions regarding legal

representation or matters regarding your personal

liability are covered by a privilege. Next question.

MR. HARVEY:

Let me just say for the Record that the issue that I am

covering is covered by his ability to pay a judgment. In

other words well, you know where I’m going, so it is

something that I need for your appeal. So, if you’re going

to instruct him not to answer the question, I think we’re

going to need to get the Judge on the phone to get a

clarification that I’m not limited just to assets.

MR. KERRIGAN:

My instruction to my client is he doesn’t answer the

question.

MR. HARVEY:

All right, then I think we — it's not going to benefit us —

MR. KERRIGAN:

— just hold it. Let’s go through everything else you need

and we'll take it at the end.

MR. HARVEY:

All right.

59a

BY MR. HARVEY CONTINUED:

Q. Mr. Crisler, who was your accountant for the last

five years?

Parker and Associates.

And where are they located?

In Jackson, Mississippi.

Have you given anyone, any institution a financial

Statement in the last two years?

A. Yes, sir. I think the last one I gave is two years

old.

Q. You didn’t send one of those with the documents

that —- excuse me a minute. You didn’t furnish one of

those with -other than — the financial statement that I

see attached to your Affidavit, can you tell me who

prepared that financial statement?

A. I did.

Q. You didn't go to Parker and Associates and have

them prepare it?

A. No, sir.

Q. Would you willingly submit to us a copy of the

last financial statement that was prepared by Parker and

Associates?

MR. KERRIGAN:

Chris, I told counsel based on our conversation earlier

that you would provide them with tax returns for the

last five years, and those are the only documents that

60a

you were going to furnish. Is that still your wish and

inclination?

THE WITNESS;

That’s really what I want to do, yeah.

BY MR. HARVEY CONTINUED:

Q. So, you won't voluntarily give us the last financial

statement prepared by Parker and Associates?

A. Mr. Harvey, Parker and Associates has never

prepared a financial statement for me.

Q. Two years ago — now, maybe I misunderstood

you. I indicated when was the Last time you submitted a

financial statement, and I don’t know if I said prepared

by Parker and Associates.

A. You did not.

Q. Okay. Has Parker and Associates ever prepared a

financial statement for you?

A. No, sir.

Q. The financial statement that you prepared two

years ago, who was that submitted to?

A. Generally, it’s going to be submitted to the bank

in relationship to the loan that we had with S.M.

Business Forms.

Q. Has Parker and Associates ever assisted — so, he

just assisted you in the preparation ofa financial

statement?

A. No, sir. I’ve never asked him to.

6la

Q. Now, just so I'm clear, the financial Statement

we're talking about, the one you prepared two years ago,

you will not voluntarily submit that to us with those tax

returns?

MR. KERRIGAN:

I've not had a chance to look at it, so I would like Jim

Morton to look at that and I would look at it before he

Says he’s going to submit it.

MR. MORTON:

Right.

BY MR, HARVEY CONTINUED:

Q. Okay. Subject to a review by counsel if they’re

Satisfied?

MR. HARVEY:

Is that all right?

THE WITNESS:

I'm sorry?

MR. HARVEY:

I’m asking Bob that. I just want to find out if we can get

it through counsel.

MR. KERRIGAN:

I'll have to look at it, and if J think it’s appropriate we'll

send it over.

BY MR. HARVEY CONTINUED:

Q. Did you see the list of documents to be produced

that was submitted to you -

A. — yes, sir.

62a

Q. By Mark Winsberg?

A. Yes, sir.

Q. Have you attempted to accumulate any of these

documents?

A. Some of the documents I do have readily

available, some are not. Some I don’t have at all. But if

you would like to go down that list, we can certainly talk

about it.

Q. I’m going to cover some of that list.

A. Okay, sir.

Q. I'd like to know, do you maintain personal bank

accounts and bank accounts through your law office?

A. No, sir.

Q. Do you have a law practice?

A. Mr. Harvey?

Q. Yes, sir.

A. When you say “through my law office" — I have

two bank accounts, and I do not have a legal bank

account.

Q. They’re both personal?

A. That’s correct.

Q. How about S.M. Business Forms, Limited?

Fr © - 2 - Oo >

They have a bank account.

Are you the signatory on that account?

I am.

I’m sorry?

Yes.

In what capacity?

I am a limited partner.

And I’m not sure if | understood, your Affidavit

Says that you are a 20 percent limited partner?

Yes, sir. That’s correct.

Who are the other partners?

There is one other, Walter Moore.

Has your interest in that particular company

changed in the last year; do you understand my

question?

A.

I do. No, sir.

Was it ever greater than 20 percent?

No, sir.

‘ So, waiter Moore is an 80 percent owner and you

are a 20 percent?

Correct.

64a

Q. On the note — “but I am the maker of this note,”

what note are you referring to?

A. That is the loan that S.M. Business Forms has

with the bank to do business. The note is filed “William

J. Crisler, Jr. doing business as S.M. Business Forms.”

Q. Is Mr. Moore a signatory on the note?

He is not.

Is the note for $46,590?

> oO P-

Yes, sir.

Q. What is the — the last financial statement for S.M.

Business Forms, Limited, what does it show the net

worth of the company?

A. I don’t have it in front of me, but probably

somewhere in the area of $15,000 to $16, 000.

Q. Does it do a volume of business per month; do

you understand my question?

A. Exactly. And if you don’t mind, I'll just explain to

you how that works. For probably the last five or six

years we have a group of set businesses that we call on,

banks and a number of other people we do print jobs

for. We had one large contract we've had for the last five

years, and that contract was basically extremely large,

like $200,000; and of that probably $60,000, $70,000 was

profit. So, that basically put our income at about

$100,000 to $110,000 a year, so that is how — we are — we

do not have basically any assets other than receivables,

because we're a distributor. And I’m not sure whether

you know what that is or not in the printing business,

65a

but we go out and get business and we send it off to

other plants to produce and they ship direct to our

customer.

Q. And am I correct, you said you had $100,000 in

accounts receivables?

A. No, sir. No, sir. What that basically did — what I’m

telling you is that one large contract is basically how

we've been able to do the loan. We did not get the

contract this year.

Q. Now, I remember from your testimony at trial

you talked about tax sales, buying and selling?

A. Yes, sir.

Q. Tell me about — what do you do when you're

involved in a tax sale? Who’s buying at the tax sale?

The individual person or the company?

Well, is there a company?

Yes, sir.

What’s the name of the company?

College Investment Company.

You don’t own any of that, do you?

I do not.

; That’s the company I believe you testified you

worked for?

ssaseitemaerciomieadiianiie ceeiiattc i cee es e re

66a

A. I do. Yes, sir.

Q. And is that where the basic — the basis of your

salary is derived from, the salary you listed on your net

worth?

A. That and the print business. Well, they make up

some of it, and obviously the Mississippi Air National

Guard makes up some of it.

Q. Now, why don’t you just kind of break your

income down. You had $116,000 last year?

A. The investment company is about $50,000.

Q. I’m sorry. Someone coughed and the speaker is

not that good. What was it?

A. The investment company would be about

$50,000. The Mississippi Air National Guard or the Air

Force, depending on whether I’m on active duty or not,

it just fluctuates depending on, you know, how much

active duty I do, itll run anywhere from probably

$17,000 to $28,000. S.M. Business Forms, when we were

getting the large contract I'd normally net probably

$15,000. And, I mean, that’s the preponderance of my

sources of income. In years past I have done pretty well

in the stock market, and, you know, that was generally

equivalent to $10,000 or $15,000, $20,000. But that’s

basically where I get my income from.

Q. Does the investment — the College Investment

income, does that vary from year to year, or is that -

A. — you know, it just probably goes up with cost of

living.

67a

Q. You don’t receive any type of commission or

bonus on any sales that you —

A. - you know, there are occasion where we've

gotten an extra paycheck, I mean if you want to call that

a bonus. But I don’t — I’m not on commission at all.

Q. What was your cousin’s name, Lee Crisler?

Lee.

Does he own any part of College Investment?

I believe he does. Yes, sir.

— Mr. Harvey?

A

Q

A.

Q. How much —

A

Q Yes, sir.

A

; I do not know whether he has given that stock

away. I mean, I know that his father owns some and at

one time I would presume that he did, but he has a lot of

children as well and he very well may have given the

stock to his children. I can’t really answer that question.

I don’t know.

Q. Is College Investment incorporated?

Yes, sir.

Does your wife own any stock in it?

No, sir.

o P- © >

Any of your children?

Yes, sir.

How much stock do your children own?

I think they have about a little over 500 shares.

A

Q

A.

Q. Out of how many?

A Five thousand.

Q

Were any of those shares transferred in the last

A. No, sir.

Q. How long has College Investment, Incorporated

been in existence?

A. I think since about 1947.

Q. Is that kind of a family-owned thing? I’m trying to

recollect some of your testimony.

A. It was. It was started by my grandfather.

Q. How many brothers and sisters do you have, Mr.

Crisler?

A. I have one brother and one sister.

Q And your brother’s name is?

A. Tommy.

Q. All right. Does Tommy Own any part

of College Investment?

69a

A. I do not know whether he does or not.

Q.

Do you maintain some type of an office in the

corporation?

You mean is my office

~ no. Are you an officer? I’m SOITYy.

Iam the Treasurer, yes, sir, Secretary/Treasurer.

Who is the President?

Julius.

Crisler?

How are you related to Julius?

He is my father.

Okay. And who is the Vice President?

There are two: Jim Crisler -

Is that an uncle or cousin?

A.

Q

A.

Q

A.

Q

A. Yes.

Q

A.

Q

A.

Q

A.

That's an uncle. — and Tomy Crisler, who is my

brother.

Q. Do any of them work in the company as you do,

buying and selling?

A. All of them.

Q. All of them.

70a

A. Well, Mr. Harvey, everybody does something

different, but they all work here, yes, sir.

Q. Is that a Subchapter S-type corporation?

A. No, sir.

Q. What was the total income of that corporation

last year?

A. It lost $90,000.

Q. Nine?

A. Ninety.

Q. Did they own any property?

A. Oh, yes.

MR. KERRIGAN:

Who's “they”?

MR. HARVEY:

That’s the corporation. He understood.

BY MR. HARVEY CONTINUED:

Q. You understood me, didn’t you?

MR. KERRIGAN:

I need to understand.

MR. HARVEY:

All right.

BY MR. HARVEY CONTINUED;

Q. College Investment, they own property?

7la

Yes, sir.

A.

Q. Do they own any leases?

A. Mr. Harvey, I’m not aware of any leases.

Can you just ballpark how much property College

vestment, Incorporated owns?

Q.

In

A. I have no idea.

Q Is it more than ten?

A. Ten pieces?

Q Yes.

A. Yes, sir. \

Q Is it more than 100?

A. Yes, sir.

Q. It lost $90,000 last year. Was that due to

depreciation; do you understand my question?

A. Well, obviously depreciation was part of it, yes,

sir.

Q. All right. Do you have a total value for the

property that’s owned by College Investment?

A. I do not.

Q. Do they have annual board meetings?

A. Oh, they do. Yes, sir.

72a

Q. Is the stock, the 500 shares, in all — excuse me,

the names of your four children?

A. Yes, sir. Well, let me — in Mississippi a minor

cannot hold it. It's in trust, and my wife is the trustee.

And that was done three, four, or five years ago. I think

the age is 25 when the disbursement will come for each

of the children.

Q. Other than the $50,000 that you receive, do you

receive any bonuses?

A. Mr. Harvey, I think I answered that question. On

occasion we will get one extra paycheck, but not

generally, no, sir.

Q. All right. Do your children receive any dividends

from this?

° No, sir. There's never been a dividend paid off the

stock, to my knowledge.

Q. Can you tell me who are the two mortgages with

on your home?

MR. KERRIGAN:

I'm going to object to the form of the question for the

simple reason that he doesn't own an interest in the

corporation. -

MR. HARVEY:

I'm asking on his home.

MR. KERRIGAN:

I apologize.

73a

BY MR. HARVEY CONTINUED:

Q. My question was: Can you tell me who holds the

mortgages on your home?

A. Absolutely. Chase Manhattan has one and my

company, College Investment Company, has another.

Q. The one that College Investment has, is that the

second mortgage or the first?

A. It is the second.

Q. I notice you have two credit cards: American

Express and Master Card. Those two have a balance,

and did I understand you right that the balance of those

two cards is $8,823?

A. Yes, sir.

Q. Is that just for the month, or is that a balance that

you pay out monthly?

A. That was the balance at the time that did that

Affidavit. And, no, sir, I would not be paying that cut at

the end of the month.

Q. Then you still have a balance similar to that

amount?

A. At this time it’s higher.

Q. Higher, okay. Do you have credit cards through

your company?

A. No, sir.

Q. Are any of your cars furnished through your

74a

company?

A. No, sir.

Q. Are the car loans through banks or through the

manufacturers?

A. Through neither. College Investment Company

has the car loan.

Q. All three of them?

A. Yes, sir. Actually, Mr. Harvey, there is a car loan

on one car. The others I've paid off. The total value of

the car loan is $18,000 and some change, $18,435.12. The

other car loans I had, one was with — well, two were

with the bank.

Q. Am I correct — well, maybe I'm not. Let me just

ask the question: Other than the two credit cards and

what's listed on your Affidavit of net worth, do you

money to anyone else?

A. Yes, sir.

Q. And who would that be?

A. I did — per the Affidavit, I did a stock pledge

agreement to buy the stack that I’m holding.

Q. When did you do that?

A. I don’t have the exact date. I would say it was

probably about 2 years ago, 2 1/2 years ago.

Q. I think you have that on here. You have that on

here. I'm talking about anyone else — .

75a

A. — oh, I’m sorry.

Q. — that you owe money to that’s not on the

Affidavit of Net Worth.

A. I misunderstood you. I apologize. Mr. Harvey, not

to my knowledge. If I do, they’re not getting paid.

Q. Is there any — are any of the loans that you have,

the amounts that you owe, are any of them insured, do

you understand, against life insurance?

A. No, sir.

Q. you indicated in your Affidavit of Net Worth that

you are insured under a general liability policy issued by

Zurich, and you gave the number. Have you ever seen

the policy?

A. I think I have once. Yes, sir.

Q. Who was your agent who sold you that policy?

A. Phillip Rutlidge, and he is with Arthur Gallagher,

Arthur J. Gallagher.

Q. And are they in New Orleans?

A. I understand they have an office in New Orleans.

His office is here in Jackson.

Q. Jackson?

A. Or Ridgeland.

Q. Did you know the amount of coverage you had on

that policy when you purchased it?

Yes, sir.

And you had no excess?

No, sir No excess or umbrella.

© > © >

Did you purchase that yourself, or did someone

else purchase it?

A. Maybe I don't understand. I, myself did not, buy

that. policy. I am included on that policy. DeGaulle

Manor, Limited purchased the policy.

Q. I understand. But did you negotiate the — in other

words, did you go in for DeGaulle Manor to Arthur

Gallagher and say, I want to purchase insurance for my

company?

A. I probably, yes, sir, was involved in it. I would

imagine there was some other people as well. But we

had been with Arthur J. Gallagher for a number of years,

so if you're referring to this specific policy certainly I

had a part in it, yes, sir.

Q. Just so I know, who signs your paycheck wih

College Investment?

A. I do.

Q. Do you have any savings accounts?

A. Ido __ not.

Q. Now, I believe we talked about a trust account, a

trust, one that your wife has for the kids. How many

trusts do you have? |

77a

A. Just that one.

Q. Is there anybody at — Phillip Rutlidge, is that —

Arthur J. Gallagher, is there anyone else that you deal

with there?

A. Depending on what the issue was. But as far as —

I mean, Mr. Harvey, I'll be glad to tell you anything I

know, but he’s the primary agent. There’s some other

ladies when they would have a question would call me,

but I don’t even know whether they’re still there or not. I

know Phillip is still there.

Q. Are any of the properties- owned by College

Investment insured through Arthur Gallagher?

A. Not to my knowledge.

Q. And the only property that you had on this

particular policy was the DeGaulle Manor property?

A. Right.

Q. Can you tell me which entity on that policy you

fall under; do you understand my question? I never did

find DeGaulle Manor in the policy.

MR. KERRIGAN:

Let me object to the form of the question. Unless you

have sufficient expertise to answer an insurance

coverage question, I specifically do not want you to

guess. We have tried in several different forms, by letter,

Affidavit, and like, to Satisfy the answer to that question,

and I do not believe that you are the right person who

can answer that.

78a

By MR. HARVEY CONTINUED:

Q. Can you tell me who set up the trust for your

children?

A. I did.

Q. Who is the beneficiary?

A. My children. Mr. Harvey, let me make sure I

understood what you were saying. I thought I had

already explained that, but the beneficiary are my four

children.

Right. And your wife, she’s the trustee?

She is.

Anyone else?

No, sir.

Q

A

Q

A.

Q. Do you vote the trust in any way?

A. Do i vote it?

Q Yes.

A.

What do you mean? I don’t understand the

question.

Q. You have any say-so in the trust?

A. I don't Arid I'll even tell you this, Mr. Harvey, one

thing I did was should my wife die there is a successor

trustee named, who is my sister; and should she die, as

part of the trust instrument a court of competent

jurisdiction must appoint the next trustee.

79a

Q. Do you have any life insurance?

A. Yes, sir. :

Q. Does it have any equity in it?

A.

The preponderance of what I have, Mr. Harvey,

are terra policies. I have one whole life policy. I'm not

aware that it does, because anything — the cost of the

insurance each year varies. I pay a set premium. And

what I set up a couple of years ago was that if the cost

two to three years ago the cost of life insurance

basically went down, so it was probably spinning off

cash value. And I asked the agent to basically turn the

cash value into term policies each year, so it shouldn't. I

don’t know that it does. If it does, it’s very little. But I

will find that out for you and I will fax it to Mr. Kerrigan

and get him to fax it to you.

Q. Is it all with the same company?

A. Oh, no, sir.

Q. How many policies?

A. There are two with American General. And this

term policy they buy, I’m really not sure who that’s with

but they spin that off. Then the rest of the policies are

primarily through the Air National Guard, I mean,

they’re SGLI, and there’s now SGLI Plus, and there is the

National Guard Association.

Q. Do you have any line of credits with any banks?

A. Yes, sir. That would be the S.M. Business Forms

loan.

80a

Q. You don’t have any personal lines?

A. No, sir.

Q. Who is your primary bank? What is your primary

bank, or who is your primary

bank?

A. Ban Corp South.

Q. Say that — it's Ban Corp?

A. Yes, sir. It's B-A-N, C-O-R-P, S-O-U-T-H.

Q. Is that — wait, that's B-A-N?

MS. BENNETT:

“V” as in Victor.

THE WITNESS:

No, sir, “B” as in Bravo.

MS. BENNETT:

Bravo, I'm sorry.

BY MR. HARVEY CONTINUED:

Q. Do you own any art?

A. No, sir, I don’t.

Q. Who’s your stockbroker?

A. One is E-Trade, so there's basically no broker

involved there, The other is Round Hill Security, and

that -the guy’s name there is Mike Morgan.

Q. Are you on a margin account there?

8la

A. No, sir.

Q. Have you attempted to obtain a bond for this

judgment?

A. Yes, sir.

Q. Where did you attempt to get a bond?

A. I attempted it through my attorney. let's see, did

you attempt through Mr. Kerrigan, through Mr. Weiss,

through Mr. Morton?

MR. KERRIGAN:

Mr. McReynolds.

THE WITNESS:

Primarily at that point in time I guess we're talking

about the Weiss & Eason firm, and basically Mr.

Kerrigan.

BY MR. HARVEY CONTINUED:

Q. He’s already answered it for me.

A. Are you talking to me, Mr. Harvey?

Q. Yes. Mr. Kerrigan just said Mr. McReynolds tried.

A. Okay.

Q. Did you personally try?

A.

No, sir. I will tell you this: My brother also has an

insurance license and we at one time had an insurance

agency, and we discussed this at length and he said

there was absolutely no possibility for me to get a bond.

82a

Q. Did you try to get some type of bond through

College Investment?

A. No, sir. I don’t have any assets to put up for the

bond. I'm just not aware of how I can get a bond, Mr.

Harvey.

Q. Have you taken any steps to declare bankruptcy?

A. Would you describe more of what you mean?

MR. KERRIGAN:

I object to the form of the question. That issue is

definitely premature at this point.

MR. HARVEY:

I realize that.

MR. KERRIGAN:

And there is no judgment that is seeking to be enforced

against him at this time.

BY MR. RARVEY CONTINUED;

Q. Have you ever consulted with anyone to protect

your assets?

MR. KERRIGAN:

Other than talking to Mr. Morton about the L.L.C.

involved in the ownership of DeGaulle?

BY MR. HARVEY CONTINUED:

Q. Let's do it this way: Prior to the — just after the

lawsuit was filed, when you were served the lawsuit, did

you ever consult with anyone to protect your assets,

about asset protection?

A. No, sir, not that I'm aware of.

83a

Q. And I understand what’s going on now, so I don't

need to know that. What's the status of DeGaulle Manor

at this time?

A. DeGaulle Manor, are you referring to the

partnership or the apartment complex?

Q. It's limited liability.

MR. KERRIGAN:

The limited liability corporation?

BY MR. HARVEY CONTINUED:

Q. It owned the complex, didn’t it?

A. No, sir.

Q. Oh, I remember now that it was a very

complicated testimony.

MR. KERRIGAN:

Ask him to explain it.

BY MR. HARVEY CONTINUED:

Q. Why don’t you go ahead and just explain it. I

remember the L.L.C. owned the limited liability

corporation, right?

MS. BENNETT:

I'm going to object to the form of the question. At this

point I don’t know which question he’s being asked to

answer.

MR. KERRIGAN:

That’s fair. Why don’t we, why don’t we just get the

question clearly on the table so that I can understand it.

84a

BY MR. HARVEY CONTINUED;

Q. We have two companies. We have DeGaulle

Manor, Limited, right?

A. Yes, sir.

Q. And we have DeGaulle Manor, L.L.C.?

A. Yes, sir.

Q. Now, as I understand it, correct me, DeGaulle

Manor Limited, which owns the complex, is owned by

the L.L.C. — I mean, right?

MR. KERRIGAN:

What?

BY MR. HARVEY CONTINUED:

Q. Isn't that right?

MR. KERRIGAN:

I don’t understand that. Ask it again.

MR.. HARVEY:

I’m just going back to the testimony.

BY MR. HARVEY CONTINUED:

Q. Why don’t you go ahead and explain it, Mr.

Crisler, and then —

THE WITNESS:

—Mr. Kerrigan, if there’s something objectionable that I

say, just stop me, but let me just explain to you the

ownership. DeGaulle Manor Limited is a Mississippi

limited partnership. It owns DeGaulle Manor Apartment,

DeGaulle Manor/Live Oaks Apartments. The general

85a

partner of DeGaulle Manor Limited is DeGaulle Manor,

L.L.C. That’s the structure.

BY MR. HARVEY CONTINUED:

Q. I thought that was what I said. Anyway, what is

the present status of the L.L.C. at this time?

It’s still there.

Does it have any assets?

No, sir.

Was it ever — it has not been liquidated?

No, sir.

Did it have any assets in 1999?

A. The assets of DeGaulle Manor, L.L.C. were the

basically the assets of the two members of DeGaulle

Manor, L.L.C., and that was their partnership — their

ownership interest in the apartments.

Q. Okay. The apartments were sold,

weren't they?

Yes, sir.

When were they sold?

December 13th, I believe, 2000.

Q. Now, just so — for this Record, the only asset

was the apartment complex; is that right?

A. That is absolutely correct. And, Mr. Harvey, let

86a

me — you know, that is a very broad term when you say

the “apartment complex.” That represented everything

when we sold it and all the personal property that was at

the complex, all the tools, trade name. Everything

associated with that apartment complex was what the

assets of DeGaulle Manor, Limited were, and we sold

every asset of the apartment complex.

Q. And I believe you testified at that trial it was

something like $995,000?

A. Yes, sir. That’s my recollection.

Q. Was there any money due — was there a mortgage

on the property, the apartment complex?

Yes, sir.

And what was the amount of the mortgage?

The first mortgage was about, I think $1,340,000.

And what was the second mortgage?

There were — probably in the area of $2 Million.

oOo -— O&O F&F O PY

Was the $995,000 the excess to the mortgage? It

was assume the mortgage and put up $995,000?

A. Mr. Harvey, I’m sorry. I didn’t understand your

question. Would you repeat it?

Q. According to what you just testified, there were —

there was approximately $3.3 Million in mortgages on

the property?

A. Right.

87a

Q. Was that assumed by the purchaser and the cash

put up was $995,000?

A. No, sir, not really. The — at the time of the sale

basically what transpired, and I’m — this has been a

while ago, but at the time of the sale there was a wrap

mortgage put on for the purchaser that was short-term.

The purchaser did not assume any of the debt, but he

did not pay $995,000 in cash. So, basically what

happened is at the time the mortgage ended, which I

think was about five, six months after the

consummation of the sale, the total amount we received

was $995,000.

_ And where did that money go?

To pay off the first mortgage.

Who passed that Act of Sale?

Q

A.

Q

A. DeGaulle Manor, L.L.C.

Q No, what notary?

A. Jim Morton’s law firm.

Q

: Do you have any judgments against

you now other than this one?

A. No, sir.

Q. Do you have any lawsuits against you now that

have not gone to judgment?

A. No, sir, not that I’m aware of.

Q. Do you have a safety deposit box?

I do.

In what bank is that located?

Pressmark (phonetic) National Bank.

You listed stocks. Do you own any bonds?

I do not. No, sir.

Do you have any purchase agreements that would

that the benefit of which would annue to you?

A. I do not. No, sir. And, Mr. Harvey, let me back up

on that. When you say a "purchase agreement,” would

you -

Q. — I’m talking about on property.

A. You're talking about where I am involved in a

purchase agreement?

Q. Where you would benefit from the purchase.

A. No, sir. I don’t have any.

Q. Okay. The only questions I have left deal with

what I don’t think your attorneys are going to want to

get into.

MR. HARVEY:

Bob, do you want to talk to -get a judge on the phone

and see?

MR. KERRIGAN:

Your question, again, is what?

89a

MR. HARVEY:

Well, my questions are now going to go to indemnity

agreements with Zurich.

MR. KERRIGAN:

Ask him about an indemnity agreement with Zurich.

BY MR. HARVEY CONTINUED:

Q. Mr. Crisler?

A. Yes, sir.

Q. At any time, did you ever request or was there

ever an indemnity agreement signed with Zurich in

which they would indemnify you against any judgment?

A. Mr. Harvey, I’m not aware of signing anything

with Zurich other than what’s relevant to that Zurich

American Insurance policy I put on my Affidavit of

Net Worth. No, sir, I’m not aware of that.

Q. Well, let me put it this way just to be sure: At any

time during the pendency of these proceedings, did

someone from Zurich get you to sign a document, not

the policy or not related to the policy but an agreement,

to say, we’re going to indemnify you individually against

any judgment?

MR. KERRIGAN;

Within the terms of the policy, or any judgment?

MR. HARVEY:

Any judgment.

MR. KERRIGAN:

Object to the form of the question. Don’t answer that,

notwithstanding the fact that he’s already said he’s

signed nothing.

MR. HARVEY:

Weli, he started referencing the policy, and I just wanted

MR. KERRIGAN: }

— his testimony is, A, he has not signed anything, and my

objection had to go to other than whatever were the

terms or conditions of the policy that he purchased from

Zurich.

BY MR. HARVEY CONTINUED:

Q. Did you sign a formal conflict of — waiver of

conflict?

MR. KERRIGAN:

Objection. Don’t answer that question.

MR. HARVEY:

The rest of them — do you want to put them all down

and then call?

MR. KERRIGAN:

Well, it seems to me, Bob, that now what you're going

into is the manner of counsel’s representation or any

independent correspondence that he had with Zurich

during the pendency of your case, all of which are his

rights. And you may tend to believe that that somehow

can be turned into an asset for the benefit of your

clients; I personally fail to see how that could be. So,

why don’t we get on another phone, keep this line open,

and who would you like to talk to?

MR. HARVEY:

I would like to talk to a Judge, I guess.

PE LIOR IME RT Noi ‘i

9la

MR. KERRIGAN;

Which Judge?

THE WITNESS;

Mr. Kerrigan and Mr. Harvey, do you mind if we go off

the Record for a minute?

(Off the Record.)

(Whereupon Judge Jefferson was called.)

JUDGE JEFFERSON:

I don’t think that — there should not be any questions

with regard to Mr. Crisler’s conversations with his

lawyers with regard to any subject matter. What he

discusses with lawyers I believe is privileged

information. I will permit any questions he asks with

regard to whether or not there is an indemnity

agreement between Mr. Crisler or any of the other

defendants with regards to Jean Casler’s judgment as

regards to this trial. I will let the indemnity question be

asked. If it’s already been asked and answered, then

that’s the end of the discussion.

(Off the Record.)

MR. KERRIGAN:

For the Record, the Judge said that nothing that

transpired between counsel during the counsel’s

representation of you during this trial is coming out in

any way, shape, or fashion.

MS. JACOBSON:

At this time.

MR. KERRIGAN:

At this time, as Ms. Jacobson chimed in.

92a

MR. HARVEY:

And I understand, for the Record, I will furnish those

questions in a letter, you will review them, you'll tell me

which ones you will answer or won't answer, if not all of

them, one way or the other, and then we can take it

back up with the Judge.

MR. KERRIGAN;

That sounds good.

MR. HARVEY:

Mr. Crisler, thank you.

MR. KERRIGAN:

We reserve our right to read and sign the deposition.

(Whereupon the deposition concluded. )

WITNESS CERTIFICATE

I, William J. Crisler, Jr., pursuant to the Rule 30(e) of the

Federal Rules of Civil Procedure and/or Article 1445 of

the Louisiana Code of Civil Procedure, have read or

have had the foregoing testimony read to me and do

hereby certify that the testimony is true and correct to

the best of my ability and understanding.

I do hereby certify that I have not marked on, written on

or in any way altered the foregoing transcript pages.

I do hereby tender to the Certified Court Reporter, the

lawful officer before whom my sworn testimony was

reported, transcribed, and thereafter certified, the

foregoing transcript:

( )Without corrections

93a

( )With corrections as reflected on the errata sheet(s)

prepared by me and made a part hereof.

Dated

Signed:

William J. Crisler, Jr.

CERTIFICATE

This certificate is valid only for a_ transcript

accompanied by my blue stamp on this page.

I, JoLyn A. Malley, Certified Court Reporter in and for

the State of Louisiana, as the officer before whom this

testimony was taken, do hereby certify that the

foregoing 52 pages of court proceedings and/or

testimony was reported by me in Stenomask and

transcribed under my personal direction and

supervision, and is a true and correct transcript to the

best of my ability and understanding; that I am not of

counsel, not related to counsel, nor to the parties

hereto, and I am in no way interested in the outcome of

this event.

JoLyn A. Malley

Certified Court Reporter

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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Petition for Writ of Certiorari — Crisler v. Browne · 537 U.S. 1106 | Frix