Opposition Brief — Hayes v. Thomas & Betts Corp. (No. 08-139)

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Supreme Court, U.S.

No. 08-139 —

—SEP—3-—2008

In The | OFFICE OF THE CLERK |

Supreme Court of the Anited States

TERRANCE HAYES, et al.,

Petitioners,

THOMAS & BETTS CORPORATION,

Respondent.

On Petition For Writ Of Certiorari

To The Court Of Appeal Of Louisiana, Fifth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

LOUIS C. LACOUR, JR.,

Counsel of Record

ADAMS AND REESE LLP

701 Poydras Street

Suite 4500

New Orleans, LA 70139

Tel: (504) 581-0328

ERNEST P. GIEGER, JR.

ANDREW A. BRAUN

GIEGER, LABORDE &

LAPEROUSE, LLC

701 Poydras Strect

Suite 4800

New Orleans, LA 70139

Tel: (504) 561-0400

RAYMOND PETER WARD

ADAMS AND REESE LLP

701 Poydras Street

Suite 4500

New Orleans, LA 70139

Tel: (504) 585-0339

ROBERT E. WINN

JOY GOLDBERG BRAUN

SHARON CORMACK MIZE

SESSIONS, FISHMAN,

NATHAN & ISRAEL, LLP

201 St. Charles Ave.

Suite 3500

New Orleans, LA 70170

Tel: (504) 582-5200

Attorneys for Thomas & Betts Corp., Respondent

COCKLE LAW BRIFF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2841

QUESTION PRESENTED

In 2006, the Louisiana court of appeal rendered a

judgment in favor of respondent, reinstating a jury

verdict in respondent’s favor. This judgment became

final and definitive under Louisiana law when the

Louisiana Supreme Court denied certiorari. Two

years later, the same court of appeal held that its

2006 judgment cannot be “appealed” or otherwise

modified. In so ruling, did the court of appeal cor-

rectly apply Louisiana law?

LIST OF PARTIES

Respondent is satisfied with petitioners’ list of par-

ties, except to note that respondent’s correct name is

“Thomas & Betts Corp.”

CORPORATE DISCLOSURE STATEMENT

Thomas & Betts Corp. has no parent corporation.

Tontine Management, L.L.C. owns 12.47% of T&B’s

stock.

lll

TABLE OF CONTENTS

Page

QUESTION PRESENTED......scsssssseccscsssesssecssecvses i

LANE OA oo iris ii

CORPORATE DISCLOSURE STATEMENT........ ii

TABLE OF AUTHORITIES ....cccccscssecssesseecsseesseesees v

CITATIONS OF REPORTED DECISIONG............ vii

JURISDICTIONAL STATEMENT. ......-..ccscssscesseee: 1

STATEMENT OF THE CASE....-sccccsccssesssecssseeseees 1

SUMMARY OF THE ARGUMENT. ........--sccssceeeee- 7

WI i 9

1. Kaiser-AXA and Hayes failed to raise a

substantial federal question timely in the

Louisiana Supreme Court ..............c2c0eceseeees 9

2. Kaiser-AXA and Hayes had fair notice that

the judgment on T&B’s appeal would have

the authority of res judicata ...................0000 1l

3. In the course of T&B’s appeal, Kaiser-AXA

and Hayes had the opportunity to attack

the verdict with any argument supported

by tie POCONE 5... ica pcaco iit xeaicaneators 13

4. The court of appeal necessarily considered

the sufficiency of the evidence supporting

Le SY We entities enciniiaee 16

TABLE OF CONTENTS -— Continued

Page

5. A second appeal, under a manifest-error

standard of review, would serve no legiti-

mate purpose and would be a waste of ju-

I io ric srdecccnueivrndecuauniaiameeeiion 20

SN 655 Goin sae dau < Snkcssdbostiannnepopucaugatocouventbe 22

APPENDIX

Petitioners’ Writ Application in the Louisiana

NN ooo inc cissvasecnswanteonasversncrsstorees App. l

Petitioners’ Motion for Rehearing in the Lou-

isiana Supremic Court..............cccecsccsseseesseneets App. 58

TABLE OF AUTHORITIES

Page

CASES

Am. Sur. Co. v. Baldwin, 287 U.S. 156 (1932)........... 10

Cardinale v. La., 394 U.S. 437 (1969)...................... 1,9

Davis v. Borskey, 660 So. 2d 17 (La. 1995) ................ 15

Davis v. Wal-Mart Stores, Inc., 774 So. 2d 84

Se __, MERCER cle pane ape Racal Ue IO RCS OE 17

Lindsey v. Normet, 405 U.S. 56 (1972)..................... 7,9

Ohio ex rel. Bryant v. Akron Metro. Park Dist.,

— 2 | 5 ERC e ene ener pe eine 7,9

Radio Station WOW, Inc. v. Johnson, 326 U.S.

IRIS CE SER mie ee reac gees Pe menses 10

Roger v. Estate of Moulton, 513 So. 2d 1126 (La.

RETESET Ere Coat ERS ne DIS ol et EY RO TET 15

Rosell v. ESCO, 549 So. 2d 840 (La. 1989) ................ 21

RPM Pizza, Inc. v. Automotive Cas. Ins. Co.,

es ee I, ign icivcnscesacnpuccenmebicnivewtness 15

Tolis v. Bd. of Supervisors of LSU, 660 So. 2d

ESS” RCE RSI ae bees oreeratr chy or Mee ai. i

Trunk v. Med. Center of La. at New Orleans,

Se re A, orice sen ccencncsvcacetacmnas 12, 17

Wheat v. Caruthers, 439 So. 2d 1065 (La. 1983)........ 13

STATUTES

af” IST RR AR ae RMT SRR TOC Noe 1,9

i cre a Ok DUE .. .......ncnukedbescsveemnesiaeameseununasel 16

TABLE OF AUTHORITIES — Continued

Page

a ee Ge NG TI i vids ve nsccscdecvcinutscsedsdnvegiedieeals 14

ic MN Was Bs ANG ERI sv ose sce esesccecesnyecesccessastecensemmess 15

RR, SE SOU Be OG, TEEN cas nvcevdvccaensncccvcnyecvsagnnsanses 4,13

OTHER AUTHORITIES

Re ak ual cstile dea Sesdonudenscnnonsetsouacanueins 7,10

Frank L. Maraist and Hon. Harry T. Lemmon,

Louisiana Civil Law Treatise: Civil Proce-

ar WEE. TD, S Te CWE BOOT Ji hvnccicvnsccccvaccicceescseose 14

Webster’s Ninth New Collegiate Dictionary

RIED beciisicecyas doshebdsouaissaknsaesassansayieiabdderstanmuecesuaals 13

vil

CITATIONS OF REPORTED DECISIONS

Hayes v. Thomas & Betts Corp., ___ U.S. __.,

127 S.Ct. 1380, 167 L. Ed. 2d 162 (2007)

(denying certiorari)

In re Gramercy Plant Explosion at Kaiser, 792

So. 2d 738 (La. 2001) (denying supervisory

writ)

In re Gramercy Plant Explosion at Kaiser, 836

So. 2d 109 (La. 2003) (denying supervisory

writ)

In re Gramercy Plant Explosion at Kaiser, 842

So. 2d 408 (La. 2003) (denying supervisory

writ)

In re Gramercy Plant Explosion at Kaiser, 927

So. 2d 492 (La. App. 5 Cir. 2006) Gudgment

on merits, reversing judgment notwithstand-

ing verdict and conditional new trial, rein-

OAT VIF Y VOPGICE) un. cession senceseicce. 3, 12, 14,

In re Gramercy Plant Explosion at Kaiser, 929

So. 2d 1271 (La. 2006) (denying certiorari to

WTO Tee I EE a vices ans cdudcansscmacaaconscsvess

In re Gramercy Plant Explosion at Kaiser, 936

So. 2d 190 (La. 2006) (refusing to reconsider

929 So. 2d 1271)

In re Gramercy Plant Explosion at Kaiser, 938

So. 2d 88 (La. 2006) (denying supervisory

writ)

In re Gramercy Plant Explosion at Kaiser, 2007

La. App. LEXIS 294 (Feb. 23, 2007) (denying

rehearing)

vill

CITATIONS OF REPORTED

DECISIONS -— Continued

In re Gramercy Plant Explosion at Kaiser, 954

So. 2d 132 (La. 2007) (denying supervisory

writ to review decision underlying 2007 La.

App. LEXIS 294)

In re Gramercy Plant Explosion at Kaiser, 982

So. 2d 763 (La. 2008) (denying supervisory

writ)

In re Gramercy Plant Explosion at Kaiser, 983

So. 2d 1263 (La. 2008) (denying reconsidera-

tion of 982 So. 2d 763)

JURISDICTIONAL STATEMENT

This Court lacks jurisdiction to entertain peti-

tioners’ due-process and equal-protection arguments,

because petitioners failed to raise these arguments

timely in the Louisiana Supreme Court. See 28 U.S.C.

§ 1257(a); Cardinale v. La., 394 U.S. 437, 438 (1969).

STATEMENT OF THE CASE

On July 5, 1999, a massive explosion occurred at

the Kaiser plant in Gramercy, Louisiana, when

several large vessels became pressurized far beyond

their capacity with superheated steam. A jury would

eventually find that the primary cause of the explo-

sion (75%) was Kaiser’s decades-long neglect of its

pressure-relief systems, including Kaiser’s unfathom-

able decision to disable all the pressure-relief valves

serving the vessels that exploded. A secondary cause

(25%) was a power failure preceding the explosion,

caused in small part (5%) by an electrical contractor’s

misuse of a product made by respondent, Thomas &

Betts Corp. (T&B).

This massive explosion led to massive litigation:

several personal-injury suits by Kaiser employees,

business-interruption suits by Kaiser’s industrial

neighbors, suits by Kaiser itself and its reinsurers

' The petition erroneously states that the explosion injured

“thousands of people... .” Pet. for Cert. 3. In fact, the number of

injured persons was 29.

(AXA Global Risks U.K. et al.), and several class

actions on behalf of people living near the Kaiser

plant. Among the many defendants named in these

suits were T&B and the electrical contractor who

misused T&B’s product. These numerous suits were

consolidated in the 23rd Judicial District Court in St.

James Parish, Louisiana.

The T&B product at issue in the litigation was a

one-inch square peel-and-stick adhesive mounting

base — commonly referred to as a “sticky back” — used

to anchor a nylon electrical-wire tie. Plaintiffs theo-

rized that the root cause of the power failure preced-

ing the explosion was the failure of the sticky backs

to adhere to the inside wall of a cabinet containing

high-voltage (13.8 kV) bus bars. The allegation

against the electrical contractor was that it should

have known not to use sticky-backs inside a high-

voltage cabinet, because of the possibility that they

might come loose over time. The allegation against

T&B was failure to warn the electrical contractor of

things that, according to plaintiffs, the electrical

contractor should have already known.

The trial occurred in the fall-of 2001 and lasted

six weeks. Before and during trial, numerous settle-

ments occurred, so that by the end of the trial, the

only claims left were those of Kaiser, AXA, Kaiser

employee Terrence Hayes, and the class-action plain-

tiffs against T&B and another defendant. The trial

ended with a unanimous jury verdict holding T&B

blameless for the explosion.

The trial judge signed judgments on the verdict.

Rather than appeal, the losing plaintiffs sought relief

from the verdict through post-trial motions for judg-

ment notwithstanding the verdict (JNOV), condi-

tional new trial, and change of venue. On December

16, 2002, the trial judge granted JNOV, assigning

25% fault to T&B and fixing plaintiffs’ total damages

at over $355 million. He also conditionally granted

the various motions for new trial and change of

venue.

T&B appealed. Hayes cross-appealed, but for

reasons unknown, he voluntarily dismissed his ap-

peal.” While the case was on appeal, Kaiser went into

bankruptcy, and AXA and the other reinsurers pur-

chased AXA’s litigious rights against T&B. As a

practical matter, this merged Kaiser and the reinsur-

ers for purposes of this litigation.

In due course, T&B prevailed in its appeal, just

as it had prevailed before the jury. On March 28,

2006, a unanimous panel of the Louisiana court of

appeal reversed the JNOV, reversed the conditional

new trial, and reinstated the jury’s verdict. In re

Gramercy Plant Explosion at Kaiser, 927 So. 2d 492

(La. App. 5 Cir. 2006).

* See Pet. for Cert. ».pp. 32, In re Gramercy Plant Explosion

at Kaiser, 927 So. 2d 492, 497 (La. App. 5 Cir. 2006). While the

case was on appeal, the class-action claims against T&B were

settled.

Under La. Code Civ. P. art. 2166(A), a judgment

of a Louisiana court of appeal becomes final and

definitive if the aggrieved party fails to apply to the

court of appeal for rehearing with 14 days of notice of

judgment and fails to apply to the Louisiana Supreme

Court for certiorari within 30 days of notice of judg-

ment. Petitioner Hayes failed to apply to the court of

appeal for rehearing and failed to apply to the Louisi-

ana Supreme Court for certiorari. Thus, the court of

appeal’s judgment became final and definitive as to

Hayes on April 27, 2006.

Kaiser-AXA likewise failed to apply to the court

of appeal for rehearing. Kaiser-AXA did apply timely

to the Louisiana Supreme Court for certiorari, but on

June 14, 2006, the Louisiana Supreme Court denied

the application. In re Gramercy Plant Explosion at

Kaiser, 929 So. 2d 1271 (La. 2006).° Under La. Code

Civ. P. art. 2166(E), this denial of certiorari rendered

the court of appeal’s judgment final and definitive as

to Kaiser-AXA.

At this point, the litigation should have ended.

But rather than accept the court of appeal’s judgment

with quiet dignity and grace, Kaiser-AXA and Hayes

have sought to perpetuate the litigation.

After the court of appeal’s judgment on T&B’s

appeal became final and definitive, Kaiser-AXA

returned to the trial court and moved for an order of

* See Pet. for Cert. App. 74.

appeal from the original, four-year-old, pre-JNOV

judgment on the jury verdict. And the trial court

granted the appeal. T&B moved to dismiss this

appeal on several grounds, including untimeliness,

res judicata, and the lack.of an appealable judgment.

The court of appeal granted T&B’s motion and dis-

missed the appeal, finding that there was no appeal-

able judgment. But in language unnecessary to its

decision, it suggested that this omission could be

remedied by a new trial-court judgment.*

Relying on the court of appeal’s obiter dicta,

Kaiser-AXA returned to the trial court, obtained the

trial court’s signature on a purported judgment on the

2001 jury verdict, and immediately filed a motion for

new trial. Hayes likewise filed his own motion for

new trial. In response, T&B pleaded res judicata and

lack of trial-court jurisdiction to overrule a judgment

of a superior court, i.e., the court of appeal, on the

issue of new trial. After some procedural wrangling

(the details of which are not important here), what

emerged from the trial-court proceedings were: (a) yet

another judgment on the 2001 jury verdict; and (b) a

second order granting a new trial.

In response to the new-trial order, T&B applied

to the Louisiana court of appeal for a supervisory

writ. T&B argued that the trial court had no author-

ity to overrule the court of appeal, which had previ-

ously reversed the trial court on the issue of new

* Pet. for Cert. App. 22.

trial. T&B further argued that the court of appeal’s

2006 judgment was final and definitive, thus extin-

guishing Kaiser-AXA’s and Hayes’s claims against

T&B.

In a unanimous decision, the court of appeal

granted T&B’s writ application, reversed the trial

court’s order, and decreed that its 2006 judgment was

indeed final and definitive, not subject to further

modification by any court on any issue.

Kaiser-AXA and Hayes applied to the Louisiana

Supreme Court for a writ to review the court of

appeal’s judgment, raising various state-law argu-

ments. Lacking from this writ application was any

argument based on federal law. The writ application

contained no citation to the United States Constitu-

tion, any decision of this Court, or any other source

of federal law.’ Also lacking from the writ application

were the phrases “due process,” “equal protection,”

or any of their synonyms. The only “constitutional

right” asserted by Kaiser-AXA and Hayes was the

“right to appeal,” a right non-existent under federal

* See infra App. 10-13 (table of authorities from writ

application). The writ application contains one reference to

“decisions ... [of ] the United States Supreme Court... ,” infra

App. 14, but no citation to any specific decision of this Court.

° See infra App. 19 (“constitutionally protected right to

appeal”); ...4ra App. 22 (“constitutional right to appeal”); infra

App. 34 (“Violation of Applicants’ Right to Appeal”); infra App.

44-45 (several refirences to “right of appeal” or “right to ap-

peal”).

law.’ In a 6:1 decision, the Louisiana Supreme Court

denied the writ application.

Kaiser-AXA and Hayes applied to the Louisiana

Supreme Court for rehearing and — for the first time

— purported to invoke the United States Constitution.

But the rules of the Louisiana Supreme Court forbid

rehearing from a writ denial.° Perhaps for this rea-

son, the Louisiana Supreme Court denied rehearing

without addressing Kaiser-AXA and Hayes’s belated

constitutional arguments.

SUMMARY OF THE ARGUMENT

Kaiser-AXA and Hayes, petitioners, failed to

raise their federa!-law issu»s timely in the state

courts. This failure is fatal to their petition. They

failed to raise any issue of federal law in the Luuisi-

ana court of appeal or in their writ application to the

Louisiana Supreme Court. The first time they pur-

ported to raise their federal-law arguments was in

their motion for rehearing in the Louisiana Supreme

Yourt. This motion was unauthorized by the Louisi-

ana Supreme Court’s rules, which do not allow for

’ See, e.g , Lindsey v. Normet, 405 U.S. 56, 77 (1972); Ohio

ex rel. Bryant v. Akron Metro. Park Dist., 281 U.S. 74, 80 (1930).

* See La. S. Ct. R. IX § 6 (“An application for rehearing will

not be considered when the court has merely granted or denied

an application for a writ of certiorari or a remedial or other

supervisory writ... . ”).

rehearing following denial of a writ application. Even

if the motion were authorized, this Court’s caselaw

holds that an issue is generally untimely if raised for

the first time in a rehearing application in the state’s

highest court.

Even if Kaiser-AXA and Hayes’s due-process and

equal-protection arguments were properly before this

Court, the arguments would have no merit. Kaiser-

AXA and Hayes had ample notice that the court of

appeal’s 2006 judgment on T&B’s appeal would

hecome final, definitive, and unalterable if and when

the Louisiana Supreme Court denied certiorari,

because the caselaw saying so was on the books for 10

years before the court of appeal’s judgment. And

despite their protests that they never had the chance

to “appeal the verdict,” in fact Kaiser-AXA and Hayes

had the right, in the course of T&B’s appeal, to attack

the verdict with any argument supported by the

record. And in fact, they did attack the verdict in

T&B’s appeal, in defense of both the trial court’s

JNOV and its conditional order of a new trial. The

court of appeal considered these arguments and

rejected them, finding the verdict to be reasonable

based on the evidence presented at trial.

ARGUMENT

1. Kaiser-AXA and iTiayes failed to raise a

substantial federal question timely in the

Louisiana Supreme Court.

This Court may grant a writ of certiorari to

review a final judgment or decree by the highest court

of a state, out only if the petitioner has properly

raised and preserved a substantial federal constitu-

tional issue in the state courts. See Cardinale v. La.,

394 U.S. 437, 438 (1969); 28 U.S.C. § 1257(a). The

petitioners here have failed to properly and timely

raise their purported federal issues in state court.

Their writ application in the Louisiana Supreme

Court was devoid of any citation to federal law or any

invocation of any right provided by federal law.’ The

only “right” they asserted in their writ application

was the so-called “right to appeal.”’” But the United

States Constitution does not guarantee litigants in

state-court civil cases any right to appeal. See Ohio ex

rel. Bryant v. Akron Metro. Park Dist., 281 U.S. 74, 80

(1930) (“[T]he right of appeal is not essential to due

process, provided that due process has already been

accorded in the tribunal of first instance.”); Lindsey v.

Normet, 405 U.S. 56, 77 (1972) (“This Court has

recognized that if a full and fair trial on the merits is

provided, the Due Process Clause of the Fourteenth

* See infra, App. 10-13 (table of authorities from writ

application).

'° See n. 6 supra and accompanying text.

Amendment does not require a State to provide

appellate review. ... ”).

After the Louisiana Supreme Court denied

petitioners’ writ application, petitioners attempted to

apply for rehearing, and for the first time purported

to invoke the United States Constitution.’ This

attempt came too late. The rules of the Louisiana

Supreme Court do not allow rehearing from a writ

denial. See La. S. Ct. R. [IX § 6 (“An application for

rehearing will not be considered when the court

has merely granted or denied an application for a

writ of certiorari or a remedial or other supervisory

wret. ..0.R

Even if the rehearing petition were permissible

under Louisiana law, it would still not be a proper

vehicle for introducing a federal question. This

Court’s caselaw holds that, as a general rule,

“[q]uestions presented to the highest State court on a

petition for rehearing come too late for consideration

here....” Radio Station WOW, Inc. v. Johnson, 326

U.S. 120, 128 (1945); see also Am. Sur. Co. v. Baldwin,

287 U.S. 156, 162-63 (1932) (due-process argument

“cannot serve as the basis for review by this Court”

when not raised in state supreme court until petition

for rehearing).

‘' See infra, App. 58 et seg. (motion for rehearing); infra

App. 62 (citations to decisions of this Court).

2. Kaiser-AXA and Hayes had fair notice that

the judgment on T&B’s appeal would have

the authority of res judicata.

On page 6 of their petition, Kaiser-AXA and

Hayes suggest that they were “without notice” that

the court of appeal’s 2006 judgment could be the final

judgment in this case, foreclosing a second appeal.

This suggestion is specious. The law applied by the

court of appeal in rendering the judgment complained

of was more than a decade old when the parties were

litigating T&B’s appeal.

More than 10 years before the court of appeal

rendered its 2006 judgment, the Louisiana Supreme

Court rendered its decision in Tolis v. Board of Su-

vervisors of LSU, 660 So. 2d 1206 (La. 1995). This

decision is the basis of the court of appeal’s judgment

now complained of by petitioners. Tolis teaches that a

final judgment may be rendered by an appellate

court, and that a judgment by an appellate court that

decides the merits of the case is a final judgment. /d.

at 1206. A judgment of a Louisiana court of appeal

acquires the authority of the thing adjudged (res

judicata) when the Louisiana Supreme Court denies

certiorari. Jd. at 1207. Once that happens, no court

has jurisdiction, in the sense of power or authority, to

modify, revise, or reverse the judgment, even if the

judgment is erroneous. Jd. at 1206-07.

Tolis controlled the proceedings below and com-

pelled the court of appeal to render the judgment now

complained of. The court’s 2006 judgment was based

not on legal technicalities, but on the merits. The

court reversed the JNOV because the jury’s verdict

was reasonable based on the evidence:

Despite the trial court’s statement, we con-

clude that reasonable persons, could arrive

at a contrary verdict, as this jury did.

Pet. for Cert. App. 41, 927 So. 2d at 500.

[W]Je conclude that “reasonable and fair-

minded persons in the exercise of impartial

judgment might reach different conclusions.”

... Accordingly, we find the trial court erred

in granting the motion for judgment not-

withstanding the verdict.

Pet. for Cert. App. 44-45, 927 So. 2d at 501, quoting

Trunk v. Med. Center of La. at New Orleans, 885

So. 2d 534, 537 (La. 2004).

The court of appeal reversed the conditional new

trial for the same reason: the jury’s verdict was

reasonable based on the evidence:

In several recent cases, our supreme court

has ruled that when a JNOV is reversed on a

determination that the jury’s verdict was

reasonable in light of the evidence presented,

the conditional new trial also should be re-

versed. We find that reasoning applicable

here....

Pet. for Cert. App. 47, 927 So. 2d at 502.

This judgment on the merits became final and

definitive as to petitioner Hayes when he failed to

apply timely to the court of appeal for rehearing or to

the Louisiana Supreme Court for certiorari. See La.

Code Civ. P. art. 2166(A). This same judgment became

final and definitive as to petitioner Kaiser-AXA when

the Louisiana Supreme Court denied its application

for certiorari. Jd. art. 2166(E); In re Gramercy Plant

Explosion at Kaiser, 929 So. 2d 1271 (La. 2006). In

this context, “final” means “not to be altered or un-

done.” Webster’s Ninth New Collegiate Dictionary 463

(1984). Once final under article 2166, the court of

appeal’s 2006 judgment became definitive, acquiring

the authority of res judicata: the thing adjudged.

Wheat v. Caruthers, 439 So. 2d 1065, 1066 (La. 1983).

The court of appeal’s latest decision, in accord with

Tolis, recognizes these unalterable facts.

Kaiser-AXA and Hayes knew or should have

known of the 10-year-old Tolis decision while litigat-

ing T&B’s appeal. Their failure to heed its lesson does

not raise a substantial federal issue.

. In the course of T&B’s appeal, Kaiser-AXA

and Hayes had the opportunity to attack

the verdict with any argument supported

by the record.

The crux of Kaiser-AXA and Hayes’s petition

is their complaint that they never had the chance

to appeal “the verdict.” Their argument betrays a

profound misunderstanding of Louisiana appellate

procedure.

To begin with, Louisiana law does not permit an

appeal of “the verdict.” What one appeals is a judg-

ment, not a verdict. See La. Code Civ. P. art. 2082

(“Appeal is the exercise of the right of a party to have

a judgment of a trial court revised, modified, set

aside, or reversed by an appellate court.”). Although a

jury verdict may serve as the basis of a judgment, the

verdict itself is not a judgment. Frank L. Maraist and

Hon. Harry T. Lemmon, Louisiana Civil Law Treatise:

Civil Procedure, vol. 1, § 13.4 (West 2007).

Here, when the trial court first signed judgments

on the jury verdict, Kaiser-AXA and Hayes had the

right to appeal. They chose to forgo that right, choos-

ing instead to move for JNOV and conditional new

trial. They knew when they filed these motions that,

if the motions were granted, the trial court’s judg-

ment on the verdict would be vacated, and they would

no longer have the opportunity to appeal the judg-

ment on the verdict.

After the trial court granted JNOV and condi-

tional new trial, Kaiser-AXA and Hayes again had

the right to appeal, to seek to have the trial court’s

judgment modified in their favor. In fact, Hayes

availed himself of this right and appealed. But for

reasons unknown to T&B, he voluntarily dismissed

his appeal.” Kaiser-AXA, for its part, chose again to

forgo its right to appeal.

' See Pet. for Cert. at App. 32; In re Gramercy Plant

Explosion at Kaiser, 927 So. 2d at 496.

T&B did appeal. And after the record was filed in

the court of appeal, Kaiser-AXA and Hayes had 14

days to answer T&B’s appeal. Under Louisiana law,

an answer to an appeal is the functional equivalent of

a cross-appeal, giving the appeilee the right to seek to

have the judgment modified in its favor. See La. Code

Civ. P. art. 2133(A). But Kaiser-AXA and Hayes chose

to forgo answering the appeal.

Even if they were totally satisfied with the

judgment in their favor, Kaiser-AXA and Hayes still

remained free — as appellees — to attack the verdict

with any argument supported by the record, in de-

fense of the JNOV, the conditional new trial, or both.

La. Code Civ. P. art. 2133(B) (“A party who does not

seek modification, revision, or reversal of a judgment

in any appellate court ... may assert, in support of

the judgment, any argument supported by the re-

cord....”). Even if an argument was overlooked or

flatly rejected by the trial court, they still could have

raised it in defense of the trial court’s judgment.

Roger v. Estate of Moulton, 513 So. 2d 1126, 1136 (La.

1987); RPM Pizza, Inc. v. Automotive Cas. Ins. Co.,

601 So. 2d 1366, 1370 (La. 1992); Davis v. Borskey,

660 So. 2d 17, 21 n. 6 (La. 1995).

Repeatedly in their petition, Kaiser-AXA and

Hayes refer to unspecified “errors,” rendering the

jury’s verdict “defective.” Whatever these so-called

'* See Pet. for Cert. 6 (“The jury verdict was so defective ... ”);

id. at 12 (new trial granted “due to the errors and irregularities

(Continued on following page)

“errors” consisted of — evidentiary rulings, jury in-

structions, comments of counsel, etc. — all of them

could have been raised in the course of T&B’s appeal,

either to attack the jury verdict in support of the

JNOV or to defend the conditional new trial. Even if

the verdict were simply wrong, the argument could

have been made during T&B’s appeal in defense of

the new trial. See La. Code Civ. P. art. 1972(1) (new

trial shall be granted if verdict is clearly contrary to

the law and the evidence); Pet. for Cert. App. 63 (trial

court citing art. 1972 to justify new trial).

In sum, every argument that Kaiser-AXA and

Hayes might make against the verdict today was

available to them in T&B’s appeal from the JNOV

and conditional new trial. Any failure by them to

make their arguments timely does not entitle them to

re-do the appeal.

4. The court of appeal necessarily considered

the sufficiency of the evidence supporting

the jury verdict.

Kaiser-AXA and Hayes make the repeated claim

that “the appellate court ... has never reviewed the

jury trial under the applicable standards.”"* Even a

cursory review of the decision of the court of appeal

refutes this contention. The court exhaustively

that occurred at trial.”); id. at 15 (“This trial was so fraught with

error...”)

‘* See Pet. for Cert. 6 (argument heading).

reviewed the trial evidence, and analyzed it under a

standard of review more favorable to Kaiser-AXA and

Hayes than they could ever hope for in a direct appeal

of the verdict.

In its decision, the court of appeal identified the

task before it in its review of the grant of JNOV by

the district court:

[T]he appellate court must determine

whether the ‘facts and inferences point so

strongly and overwhelmingly in favor of the

moving party [Kaiser-AXA and Hayes] that

reasonable persons could not arrive at a con-

trary verdict. If the appellate court deter-

mines that reasonable persons might reach a

different conclusion, then the district judge

erred in granting the motion and the jury

verdict should be reinstated.’”

A motion for new trial, the court noted, requires a

less stringent test than review of a grant of JNOV, as

“such a determination involves only a new trial and

does not deprive the parties of their right to have all

disputed issues resolved by a jury.””*

Indeed, T&Bb’s first issue presented to the court

made clear what was in contention, asserting that the

'* Pet. for Cert. App. 38, 927 So. 2d at 498-99, quoting Trunk

v. Med. Center of La. at New Orleans, 885 So. 2d 534, 537 (La.

2004).

'* Pet. for Cert. App. 47, 927 So. 2d at 502, citing Davis v.

Wal-Mart Stores, Inc., 774 So. 2d 84 (La. 2000).

trial court usurped the jury’s fact-finding function

and ignored substantial record evidence."

It is against this backdrop that the court began

its work. To assess T&B’s claim that the JNOV ig-

nored substantial record evidence and its claim that a

“reasonable jury” could have exonerated it,” the court

— with a full trial record before it — closely examined

that evidence. It began by considering the trial testi-

mony of several critical liability witnesses (Excel’s

William Philyaw, and Kaiser’s Ken Scannapiego and

John Scanova), and observed that it was the jury’s

prerogative to assess the credibility of these wit-

nesses.”

The court then noted that the jurors physically

handled the allegedly defective product (the sticky

back), and that they “could decide for themselves”

whether its limitations should have been obvious to

Philyaw (i.e., whether their verdict was reasonable).”

The court went on to consider Kaiser-AXA and Hayes’s

claim that the product was defective because of a

deficient warning, and examined the trial testimony of

Kaiser’s expert (Jerry Householder), and T&B’s expert

(Jerry Purswell).” After considering that testimony,

the court concluded that “[a] reasonable jury could

’ Pet. for Cert. App. 33, 927 So. 2d at 496.

* Pet. for Cert. App. 39, 927 Su. 2d at 499.

° Pet. for Cert. App. 40-41, 927 So. 2d at 499-500.

Pet. for Cert. App. 41-42, 927 So. 2d at 500.

* Pet. for Cert. App. 42, 927 So. 2d at 500.

have decided that a sticky-back, like a nail, does not

need the kinds of warnings that Kaiser-AXA argues

for.””

Lastly, the court of appeal examined Kaiser-AXA

and Hayes’s claim that the district court was correct

to apportion 25% of the fault to T&B, based on their

arguments on the merits of the evidence. The court

dismissed that contention, but only after closely

analyzing the various roles of the instrumentalities

causing the explosion, and concluding that unlike

Excel (the electrical contractor), T&B could “not have

knowr the risk created by the proximity between the

CT leads and the high-voltage bus bars.” And more:

“(S]ince Philyaw .. . never saw any of the warnings or

instructions ... the jury could reasonably find that

any alleged deficiency in [them] was not a proximate

cause of any of the events.”

The court ultimately concluded that the jury’s

verdict was eminently reasonable: “Considering all of

the above factors, we conclude that ‘reasonable and

fair-minded persons in the exercise of impartial

judgment might reach different conclusions’” from

those advanced by petitioners.“ On that basis, it

reversed the district court’s grant of JNOV, and

similarly reversed the district court’s conditional

grant of a new trial.

” Id.

“ Pet. for Cert. App. 44, 927 So. 2d at 501.

“ Pet. for Cert. App. 44-45, 927 So. 2d at 501.

It is difficult to reconcile Kaiser-AXA and Hayes’s

claim that the evidence supporting the jury’s verdict

has never been examined on appeal with the court’s

detailed discussion of that very evidence. Properly

stated, what Kaiser-AXA and Hayes complain of is

not that the jury verdict has never been reviewed, but

that it was not reviewed in the context of a direct

appeal of the verdict — a distinction without a differ-

ence. The jury’s verdict, and the evidence that sup-

ported it, was thoroughly reviewed by the court of

appeal. It had to be — how could the court possibly

assess the “reasonableness” of the verdict (required in

both the JNOV and new-trial analyses) without a

consideration of the entire body of evidence?

In short, Kaiser-AXA and Hayes’s claim that

“(tlhe merits of the verdict have never been addressed

., and that T&B’s appeal did not involve a consid-

eration of the merits of the jury verdict,” reveals a

startling misapprehension of the underlying proceed-

ings. This Court should not be similarly beguiled.

5. A second appeal, under a manifest-error

standard of review, would serve no legiti-

mate purpose and would be a waste of ju-

dicial resources.

As alluded to above, part of Kaiser-AXA and

Hayes’s displeasure with the proceedings in the state

court seems to revolve around the notion that they

* Pet. for Cert. 13.

have been prejudiced because the jury’s verdict was

not assessed under the “applicable standards.” Yet

nowhere do they articulate what that standard would

be, and how such a review would be substantively

different from the review conducted by the court of

appeal.

Under Louisiana law, a jury’s findings cannot be

overturned unless manifestly erroneous or clearly

wrong.” Taken to its logical endpoint, what Kaiser-

AXA and Hayes suggest to this Court is that a verdict

that has already been found to be “reasonable,” is

somehow also “manifestly erroneous.” This point is

studiously avoided in the petition because of its

patent absurdity. The jury’s verdict was validated

under both the more stringent JNOV standard and

the less stringent new-trial standard. Under both

standards, it was found to be amply supported by the

evidence. Kaiser-AXA and Hayes offer this Court no

explanation how a second appellate review of the

verdict under the manifest-error standard could

_possibly yield a different result. They do not because

they cannot.

* Rosell v. ESCO, 549 So. 2d 840, 844 (La. 1989): “It is well

settled that a court of appeal may not set aside a trial court’s or

a jury’s finding of fact in the absence of ‘manifest error’ or unless

it is ‘clearly wrong,’ and where there is conflict in the testimony,

reasonable evaiuations of credibility and reasonable inferences

of fact should not be disturbed upon review, even though the

appellate court may feel that its own evaluations and inferences

are as reasonable.”

The court of appeal thoroughly vetted the chal-

lenged verdict under standards of review more ad-

vantageous to Kaiser-AXA and Hayes than what they

now seek. Finding constitutional error under these

circumstances is simply inconceivable.

CONCLUSION

The petition for certiorari suffers from a fatal

infirmity: petitioners’ failure to raise any substantial

issue of federal law timely in the state courts. Their

belated attempt to do so did not come until their

unauthorized motion for rehearing in the Louisiana

Supreme Court. This alone is enough reason to deny

the petition without any further consideration. T&B

suggests that the Court do just that.

Respectfully submitted,

Louis C. LACour, JR.,

Counsel of Record

ADAMS AND REESE LLP

701 Poydras Street

Suite 4500

New Orleans, LA 70139

Tel: (504) 581-0328

RAYMOND PETER WARD

ADAMS AND REESE LLP

701 Poydras Street

Suite 4500

New Orleans, LA 70139

Tel: (504) 585-0339

ERNEST P. GIEGER, JR.

ANDREW A. BRAUN

GIEGER, LABORDE &

LAPEROUSE, LLC

701 Poydras Street

Suite 4800

New Orleans, LA 70139

Tel: (504) 561-0400

ROBERT E. WINN

JOY GOLDBERG BRAUN

SHARON CORMACK MIZE

SESSIONS, FISHMAN,

NATHAN & ISRAEL, LLP

201 St. Charles Ave.

Suite 3500

New Orleans, LA 70170 .

Tel: (504) 582-5200

App. 1

SUPREME COURT OF LOUISIANA

Docket No.

IN RE:

GRAMERCY PLANT EXPLOSION AT KAISER

On application for Supervisory Writ of Certiorari

or Review from the Fifth Circuit Court of Appeal

for the State of Louisiana

Docket No. 07-C-893

On Application for Supervisory Writ of Certiorari

or Review from the 23rd Judicial District Court,

Parish of St. James

State of Louisiana

Honorable Pegram J. Mire, Jr., Judge, Presiding

Docket No. 25,975

Original Writ Application Filed on Behalf of

Respondents/Appellants Terrance Hayes,

Kaiser Alumina & Chemical Corporation/

AXA Global Risks, et al.

Counsel for Kaiser/AXA: Counsel for Terrance Hays

Thomas G. Wilkinson Walter Dumas,

La. Bar No. 2184 La Bar No. 5163

Michael P. Ciaccio Dumas &

La. Bar No. 21428 Associates Law Corp.

320 Huey P. Long Ave. The Lawyer’s Complex

Gretna, Louisiana 70053 1261 Government Street

Telephone: (504) 364-1892 Baton Rouge, Louisiana

Facsimile: (504) 366-1519 70821

Caleb H. Didriksen,

La. Bar No. 1334

Diane R. Cosenza,

La. Bar No. 4419

Richard J. Garvey, Jr.,

La. Bar No. 20822

Loyd J. Bourgeois, Jr.,

La. Bar No. 29771

Amanda K. Wingfield,

La. Bar No. 30800

DIDRIKSEN LAW FIRM

3114 Canal Street

New Orleans, Louisiana

70119

Tele: (504) 586-1600

FaxX: (504) 822-3119

Counsel for Appellants, Terrance Hayes, AXA Global

Risks (U.K.) et al, suing on their own behalf and in

the name Kaiser Alumina & Chemical Corporation

Civil Case

Volume 1 of 2

SUPREME COURT OF LOUISIANA

WRIT APPLICATION FILING SHEET

No.

TO BE COMPLETED BY COUNSEL or PRO SE

LITIGANT FILING APPLICATION

TITLE

In re: Gramercy Plant Explosion at Kaiser

VS.

Thomas and Betts Corporation

App. 3

Applicant: Kaiser/AXA and Terrance Hayes

Have there been any other filings in this

Court in this matter? M@ Yes OJ No

Are you seeking a Stay Order? No

Priority Treatment? No

If so you MUST complete & attach a

Priority Form

LEAD COUNSEL/PRO SE

LITIGANT INFORMATION

APPLICANT:

Name: Caleb H. Didriksen, Esquire/

Walter Dumas, Esquire

Address: 3114 Canal Street/

1263 Government Street

New Orleans, LA 70119/

Baton Rouge, LA 70821

PhoneNo. (504) 586-1600 Bar Roll No. 1334

RESPONDENT:

Name: Louis C. Lacour, Jr., Esquire

Address: 4500 One Shell Square

New Orleans, LA 70139

PhoneNo. (504) 592-3234 Bar Roll No. 14102

Pleading being filed: LJ In proper person.

(} In Forma Pauperis

Attach a list of additional counsel/pro se litigants,

their addresses, phone numbers and the parties

they represent.

App. 4

™ Civil, LJ Criminal, ) RS. 46:1844 protection,

C) Bar, O Civil Juvenile, LJ Criminal Juvenile,

Cj) Other

C1) CINC, 0 Termination, (J Surrender,

[J Adoption, LJ Child Custody

ADMINISTRATIVE OR

MUNICIPAL COURT INFORMATION

Tribunal/Court: Docket No.

Judge/Commission/

Hearing Officer:

Date of Ruling:

Parish and Judicial

District Court: 23rd Judicial District

Court, Parish of St. James

Docket No. 25,975

Judge and Section: Hon. Pegram Mire, Division D

Date of Ruling/Judgment: October 10, 2007

APPELLATE COURT INFORMATION

Circuit: Fifth Docket No. 07-C-893

Action: Writ granted, Reversed motion for

new trial, Dismissed appeal

Applicant in Filing

Appellate Court: Thomas & Betts Date: Nov. 8, 2007

Corporation

App. 5

- Ruling Date: Jan. 30, 2008

Panel of Judges: Hon. S. Chehardy,

Hon. M. Edwards,

Hon. G. Guidry

En Banc: U

REHEARING INFORMATION

Date Action on

Applicant: Filed: Rehearing:

Ruling Panel of En

Date: Judges: Banc: (0

PRESENT STATUS

LJ Pre-Trial, Hearing/

Trial Scheduled date: If new trial is reinstated,

pre-trial status.

(] Trialin Progress, @M Post Trial

If there a stay now in effect? No

Has this pleading been filed simultaneously in

any other court? No

If so, explain briefly

VERIFICATION

I certify that the above information and all of the infor-

mation contained in this application is true and correct

to the best of my knowledge and that all relevant plead-

ings and rulings, as required by Supreme Court Rule X,

are attached to the filing. I further certify that a copy of

App. 6

this application has been mailed or delivered to the

appropriate court of appeal (if required), to the respon-

dent judge in the case of a remedial writ, and to all other

counsel and unrepresented parties.

2/28/08 /s/ Caleb Didriksen

DATE SIGNATURE

List of all parties and counsel

For Applicants:

DUMAS & ASSOCIATES LAW CORPORATION

Walter Dumas, La Bar No. 5163

The Lawyer’s Complex

1261 Government Street

P.O. Box Office 1366

Baton Rouge, Louisiana 70821-1366

Telephone: (225) 383-4701

Facsimile: (225) 383-4719

Counsel for Terrance Hayes

and

Thomas G. Wilkinson, La. Bar No. 2184

Michael P. Ciaccio, La. Bar No. 21428

320 Huey P. Long Ave.

Gretna, Louisiana 70053

Telephone: (504) 364-1892

Facsimile: (504) 366-1519

DIDRIKSEN LAW FIRM

Caleb H. Didriksen, La. Bar No. 1334

Diane R. Cosenza, La. Bar No. 4416

Richard J. Garvey, Jr., La. Bar No. 20822

Loyd J. Bourgeios, La. Bar No. 29771

Amanda K. Wingfield, La. Bar No. 30800

3114 Canal Street

App. 7

New Orleans, Louisiana 70119

Telephone: (504) 586-1600

Facsimile: (504) 822-3119

Counsel for:

AXA GLOBAL RISKS (U.K.),

ALLIANZ INSURANCE COMPANY,

CERTAIN UNDERWRITERS AT LLOYD’S, LONDON,

COMPAGNIE TRANSCONTINENTALE

DE REASSURANCE,

HOUSTON CASUALTY COMPANY,

LEXINGTON INSURANCE COMPANY,

MUNICH REINSURANCE COMPANY,

NATIONAL UNION FIRE INSURANCE COMPANY,

QATAR INSURANCE COMPANY,

Q.B.E. INTERNATIONAL INSURANCE, LTD.,

SOREMA INSURANCE COMPANY,

SWISS REINSURANCE COMPANY,

WINTERTHUR INTERNATIONAL

INSURANCE COMPANY,

ZURICH REINSURANCE COMPANY

in their own names and in the name

Kaiser Alumina & Chemical Corporation

For Respondents:

ADAMS & REESE

Louis C. LaCour, Jr., Esquire

Raymond P. Ward, Esquire

4500 One Shell Square

New Orleans, LA 70139

GIEGER, LABORDE & LAPEROUSE, LLC

Ernest P. Gieger, Jr., Esquire

Andrew A. Braun, Esquire

4800 One Shell Square

New Orleans, LA 70139

App. 8

SESSIONS, FISHMAN & NATHAN, LLP

Robert E. Winn, Esquire

Sharon Cormack Mize, Esquire

201 St. Charles Ave., 35th Floor

New Orleans, LA 70170-3500

Counsel for Thomas & Betts

Certificate of Service

I HEREBY CERTIFY that a copy of the foregvuing

pleading has been forwarded to all counsel of record

addressed as follows by placing same in the United

States mail, facsimile, or other electronic means this

28th day of February, 2008:

Division D

23rd Judicial District Court for the

Parish of St. James

St. James Parish Courthouse

5800 LA 44

Convent, Louisiana 70723

Clerk for the Louisiana Fifth Circuit Court of Appeals

101 Derbigny Street "

Gretna, Louisiana 70053

Louis C. LaCour, Jr., Esquire

Raymond P. Ward, Esquire

ADAMS & REESE

4500 One Shell Square

New Orleans, LA 70139

App. 9

Ernest P. Gieger, Jr., Esquire

Andrew A. Braun, Esquire

GIEGER, LABORDE & LAPEROUSE, LLC

4800 One Shell Square

New Orleans, LA 70139

Robert E. Winn, Esquire

Sharon Cormack Mize, Esquire

SESSIONS, FISHMAN & NATHAN, LLP

201 St. Charles Ave., 35th Floor

New Orleans, LA 70170-3500

/s/ Caleb Didriksen

DIDRIKSEN LAW FIRM

Index

Writ Application Filing Sheet................000..0........ i

List of all Parties and Counse].............. Saiktuada Dubie ii

Bs a aor iv

Bias dada gh usucodneoivereas¥eeredsovessade Vv

Ls cacsadciccpndwbeasnescncunentisecorecns vil

I Nt No os co sancans sweden sanedsisevecesevedesesess Vill

Statement of Writ Grant Considerations ............ ix

(2) COPERICURIS EPOCISIONS ......50.025.5..ccccccccseeccee ess 1X

(2) Significant Unresolved Issues of Law....... xl

I i I orn scv cnrnninvicavescssdesarccncens 1

i os dic aenipsle ds wnsiinanhvednecuwukension 6

Summary of the Argument ...................cceceeeece eee es 7

ee elas ba yang bnnau bnicdosiniuaeenepuneis 8

Assignment of Error No. 1 ................,........2e0ees 8

SN I oii sis dinticrisnnianpvisaeovesmartuae nas 8

Violation of Applicants’ Right to Appeal

a5 Aisi mct tori dscns 9

Preservation of and Applicants’ Right to

BE FE VI once cccccescsasicctasevercesisce 13

Louisiana Law does not Mandate an

Appeal of a Vacated Judgment.................. 15

Assignment of Error INO. @ ...;.....0<0sc.csccsseneecsenss 16

PT RII i seit cdicsxiidieysuidopigrereckatwacaecaccaaxnennntae 16

Rea ia cdiscincs cacrneeaniccs ibuainibiguns amaananivcokawscaimmneh 17

Verification....... 5 Gieeichbu aie neaiupien inate sea GN ka tlcky cana 19

Table of Authorities

Cases

Allen v. Stater [sic] of Louisiana through the

Ernest N. Morial — New Orleans Exhibition

Hall Authority, 2002-1072 (La. 04/096/03)

SE Ms I i ain x cca ooeeeninn apenas ietasbinses 13

Burgeuieres v. Pollingue, 02-1385 (La. 02/25/03),

as iat g cc councessntecnccensicelanemiendainninian cad 8

Burris v. Wal-Mart Stores, Inc., 94-0921 (La.

App. 1 Cir. 03/03/95), 652 So. 2d 558........................ 7

Carlone v. Carlone, 444 So. 2d 1274 (La. App. 4

tii ME aiid acinar nae cote: en gupta het, iat Stas x, 16

Cary v. Richardson, 35 La. Ann. 505 (La. 1883) ......... 9

Delco v. Stafford, 2001-0018 (La. App. 1 Cir.

EOE) BA BO. Be GG ane ca nsivcisccneccncccteccsstseses x, 15

Fitzpatrick v. Letten, 49 So. 494 (La. 1908)............... 13

App. 11

Foster v. Kaplan Rice Mill, 13 So. 2d 850 (La.

Garland v. Dimitry, 114 So. 2d 718 (La. 1927)

General Motors Acceptance Corp. v. Deep South

Pest Control Inc., 173 So. 2d 190 (La. 1965)

Horton v. Mayeaux, 2005-1704 (La. 05/30/06),

931 So. 2d 338

In re Gramercy Plant Explosion at Kaiser, 04-

1151 (La. App. 5 Cir. 03/28/06), 927 So. 2d

In re: Gramercy Plant Explosion at Kaiser, 06-

871 (La. App. 5 Cir/ 02/23/07), 2007 La. App.

LEXIS 294

In re: Gramercy Plant Explosion at Kaiser,

2007-0544 (La. 04/05/07), 954 So. 2d 132

Irby v. Harrell, 74 So. 163 (La. 1917)

Junot v. Morgan, 2001-0237 (La. App. 1 Cir.

02/50/02) [sic], 818 So. 2d 152....x, 3, 5, 11, 13, 14, 15

Mancuso v. Siegel, 94-525 (La. App. 5 Cir.

11/29/94), 646 So. 3d [sic] 1200

Oliphint v. Oliphint, 54 So. 2d 18 (La. 1951)

Pate v. Crescent City Motors Exchange, Inc.,

256 So. 2d 471 (La. App. 4 Cir. 1972)

Rey v. Guidry, 618 So. 2d 425 (La. App. 5 Cir.

Savoie v. Rubin, 2001-3275 (La. 06/21/02), 820

So. 2d 486

Segura v. Frank, 93-1271 (La. 01/14/94), 630

So. 2d 714

App. 12

Shadoin v. Shadoin, 2003-0042 (La. 05/09/03),

847 So. 2d 1184

Simmons v. Beauregard Parish School Bd., 284

So. 2d 668 (La App. 3 Cir. 1973)

Ken Smith, et al v. State Dept. of Transp. and

Dev c/w Ken Smith, et al v. Mike Unkel,

2004-1317 c/w 2004-1594 (La. 03/11/05), 899

So. 2d 516

Smith v. Town of Vinton, 25 So. 2d 237 (La.

State v. Shaddinger, 97-439 (La. App. 5 Cir.

10/28/97), '702 So. 2d 965

Strain v. Indiana Lumberman’s Mut. Ins. Co.,

2000-2720 (La. App. 1 Cir. 02/20/02), 818 So.

Terrebone Fuel & Lube v. Placid Refinery Co.,

95-0654 (La. 01/169/96) [sic!, 666 So. 2d 624

Tolis v. Board of Supervisors, 95-1529 (La.

10/13/95), 660 So. 2d 1206 5, 10, 13, 16

Webb v. Parish Council of East Baton Rouge, 47

So. 2d 718 (La. 1950)

Wooley v. State Farm Fire & Cas. Co., 04-0882

(La. 01/19/05), 893 So. 2d 746

App. 13

Statutes

I MI, SEO ics sus ses oecivins ceownevesceveoscduvecosecee 10

ee Re, PPO. BIC. 1673 ........000cccccccscssccecsseceee 10, 11

ee, WOME. EOE: BOLL... .scccccccccscscessscsapeonenvesos 14

mame Ree Cav. Fro. art. 1641 ..............0cc.cc0000. 5, 8, 13, 16

RE, PUD, GANG, LOEZ 20.5. csscccsscccescaccsersevevenseenees 10

EM, FOO, GEG, LOT 20... .c.cccccsccccessssccssosnseveocess 17

Bae epoee Gav. Fro. art. ZOSZ ................ccccccscessess 3, 13, 16

ae, PPO. OPC. BOBS ..........0.cccsccssccocccsecenccsotecsecs 6

SRM, PEO, BIC. DOGG ........00ccccccescevesevensceversecsss 11

Pe See, SO, GEC. DLGZ ........0cccersccenceovecveserscesesiens 14

La. R.S. § 13:4231

Secondary Sources

1 La. Civil Law Treatise § 13.4, n.21 (2006)......... ix, 15

Restatement (Second) of Judgments, § 26 (1982)....... ll

Table of Appendices

Appendices

Appendix 1: Judgment of the district court in No.

25,975, signed October 10, 2007 (grant-

ing Kaiser/AXA and Hayes a new trial)

Appendix 2: Ruling of the Louisiana Fifth Circuit

Court of Appeal in No. 07-C-893 (re-

versing trial court’s grant of a new

trial and dismissing Kaiser/AXA and

Hayes’ appeal)

App. 14

WRIT GRANT CONSIDERATIONS

IN THE PRESENT CASE

There are several writ grant considerations in

the present case that weigh strongly in favor of

granting this writ application, which include conflict-

ing decisions between the Louisiana Fifth Circuit

Court of Appeal, the Louisiana First Circuit Court of

Appeal, the Louisiana Fourth Circuit Court of Appeal,

the Louisiana Supreme Court and the United States

Supreme Court on the same legal issues. There is at

least one significant unresolved issue of law that

should be addressed by this Court, that of whether

the statutory right to file a new trial motion is an

empty right after or in conjunction with a JNOV that

is reversed. The Fifth Circuit granted a supervisory

writ in this matter, reversing its two prior judgments,

and held that res judicata barred the trial court’s

grant of a new trial in this matter and also blocked an

appeal of the jury’s verdict. The only decision on the

merits in this case is the judgment adopting the jury

verdict, which has never been appealed.’ Louisiana

Supreme Court Rule X “Erroneous Interpretation or

Application of Constitution or I.aws” is also impli-

cated by the Fifth Circuit’s erroneous application of

the res judicata statute, as it will deprive Hayes and

Kaiser/AXA of their right to appeal the jury verdict.

' Appendix 2.

App. 15

1. Conflicting Decisions

The Fifth Circuit’s newest decision in this matter

creates conflicts between the Fifth, First and

Fourth Circuits, fails to follow controlling

Supreme Court law, and conflicts with prior

case law in this case. The Fifth Circuit’s decision

also conflicts with the Civil Law Treatise which

cites Juno v. Morgan, a First Circuit decision, for the

proposition that “the judgment on the jury verdict

was ‘procedurally in abeyance’ when the appeal [of

the JNOV] was lodged.” 1 La. Civ. Law Treatise

§ 13.4, n.21 (2006).

The Fifth Circuit denied Kaiser/AXA and Hayes’

motion for a new trial, which conflicts with the follow-

ing authorities: In re: Gramercy Plant Explosion at

Kaiser, (prior judgment in this case dismissing appeal

of Kaiser/AXA due to lack of trial court judgment —

requiring trial court to enter judgment on January

16, 2007);’ In re: Gramercy Plant Explosion at Kaiser,

(consent judgment in this case dismissing unlodged

appeal of Hayes pending trial court issuance of re-

placement judgment dated September 4, 2007);°

Horton v. Mayeaux, 2005-1704 (La. 05/30/06), 931

So. 2d 338 (discretionary new trials are truly discre-

tionary with trial court); Carlone v. Carlone, 444

So. 2d 1274 (La. App. 4 Cir. 1984) (a second new trial

can be ordered as there is no statutory prohibition of

* Exhibit C.

* Exhibit E.

App. 16

a new trial on a new judgment); State ex rel Land v.

Martin, 21 So. 2d 481 (La. 1945) (an order granting or

denying a new trial is an interlocutory judgment);

Junot v. Morgan, 2001-0237 (La. App. 1 Cir. 02/50/02

[sic]), 818 So. 2d 152 (a party cannot appeal a jury

verdict while a JNOV is on appeal); Strain v. Indiana

Lumberman’s Mut. Ins. Co., 2000-2720 (La. App. 1

Cir. 02/20/02), 818 So. 2d 144; Delco v. Stafford, 2001-

0018 (La. App. 1 Cir. 02/20/02), 813 So. 2d 458).

The Fifth Circuit held that both the issue of a

new trial and an appeal of the jury verdict were

barred by res judicata, which conflicts with the fol-

lowing authorities: in re: Gramercy Plant Explosion

at Kaiser, (prior judgment (January 16, 2007) in this

case dismissing appeal of Kaiser/AXA due to lack of

trial court judgment — requiring trial court to enter

judgment);* In re: Gramercy Plant Explosion at Kai-

ser, (consent judgment of September 4, 2007 in this

case dismissing unlodged appeal of Hayes pending

trial court issuance of replacement judgment dated

September 4, 2007), Carlone, 444 So. 2d 1274 (a

second new trial can be ordered as there is no statu-

tory prohibition of a new trial on a new judgment);

Martin, 21 So. 2d 481 (an order granting or denying a

new trial is an interlocutory judgment); Junot uv.

Morgan, 2001-0237 (La. App. 1 Cir. 02/50/02 [sic]),

818 So. 2d 152; Strain v. Indiana Lumberman’s Mut.

* Exhibit C.

° Exhibit E.

App. 17

Ins. Co., 2000-2720 (La. App. 1 Cir. 02/20/02), 818

So. 2d 144; Delco v. Stafford, 2001-0018 (La. App. 1

Cir. 02/20/02), 813 So. 2d 458) (the jury’s verdict can

not [sic] be appealed during the appeal of the JNOV

as the jury’s verdict is vacated by the entry of the

JNOV). State v. Shaddinger, 97-439 (La. App. 5 Cir.

10/28/97), 702 So. 2d 965 (res judicata only applies to

final judgments on the merits and not to interlocu-

tory judgments).

The Fifth Circuit’s latest decision reversed the

trial court’s grant of a new trial and denied Hayes

and Kaiser/AXA the right to appeal the jury verdict

on the grounds of res judicata. This decision conflicts

with the principles of res judicata. The Fifth Circuit

ignored its previous decision that it rendered on

January 16, 2007, which dismissed Kaiser/AXA’s

appeal until the trial court entered a judgment incor-

porating the jury verdict.*° The Fifth Circuit also

rendered a consent judgment on September 4, 2007,

which specified that dismissal of Hayes’ appeal, was

“without prejudice to refile after the entry of a re-

placement judgment by the trial court.”’ Thus, the

Fifth Circuit chose to reverse itself from its last two

decisions in the case.

* Exhibit C.

* Exhibit E.

App. 18

2. Significant Unresolved Issues of Law

A court of appeal has decided, or sanctioned a

lower court’s decision of, a significant issues [sic] of

law which have not been, but should be, resolved by

this court. According to the Fifth Circuits [sic] rulings

herein, if a JNOV is reversed: (1) any alternative new

trial order is automatically reversed; and (2) there is

no right to appeal the jury verdict.* This ruling con-

flicts with Horton, Junot, Strain, Delco, and Louisi-

ana statutory law, and creates the following questions

of law that should be addressed by this Honorable

Court:

1. Does Horton apply equally to alternative

new trials ordered in connection with a

JNOV?

2. If second new trials are permissible un-

der Carlone, then res judicata cannot

apply to a second new trial.

3. Should the Fifth Circuit decision, which

stated that there can be no new trial un-

der an circumstances when a JNOV is

reversed be allowed to stand, even

though it conflicts with the legislative

intent as evidenced by the Code of Civil

Procedure, which provides for the oppo-

site result?

* Appendix 2.

App. 19

3. Erroneous Interpretation

Supreme Court Rule X “Erroneous Interpretation

or Application of Constitution or Laws” is also present

herein. The Fifth Circuit’s decision to erroneously

apply the res judicata statute, La. R.S. § 13:4231 will

cause material injustice as it will operate to deprive

Hayes and Kaiser/AXA of their constitutionally

protected right to appeal the adverse jury verdict.

STATEMENT OF THE CASE

This case involves a massive short circuit and

explosion at the Kaiser Gramercy plant on July 5,

1999 that caused injuries to thousands of people,

including applicant Terrance Hayes, who was blinded,

and caused nearly half a billion dollars in losses to

Kaiser Alumina and Chemical Corporation, severe

injuries to others, including massive life threatening

burns to some and more minor injuries to thousands

of others. Plaintiffs filed suit against Thomas and

Betts (“T&B”) in 2000 because the short circuit was

caused by the failure of adhesive backed mounts

which were designed, manufactured, and sold by

T&B. When the T&B mounts failed in normal service,

they allowed a low voltage instrument line to contact

an 8,000 volt bus bar, which caused a short circuit,

and a power failure at the Kaiser plant at night. The

Kaiser workers, searching in the dark, were unable to

find the source of the power outage fast enough to

avoid the explosion.

App. 20

The matter was tried to a jury, which, through

various errors, concluded that T&B was not at fault.

The trial court presided over the six week trial, heard

and evaluated the evidence, and was well aware of

the errors that occurred at trial. The trial court

granted a JNOV in favor of Kaiser/AXA and Hayes,

found Kaiser/AXA lost $335,000,000 in the event, and

Hayes [sic] loss was $20,000,000, and allotted 25% of

the fault to T&B, which resulted in a judgment of

$88,750,000 million plus interest and costs, for a total

judgment of over $120,000,000. The Fifth Circuit

reversed the JNOV and conditional new trial in 2006.

In re: Gramercy Plant Explosion at Kaiser, 04-1151

(La. App. 5 Cir. 03/28/06), 927 So. 2d 492. In late 2006

or early 2007, the appeal of the jury verdict was

lodged with the Fifth Circuit.’ Before briefs were

filed, the Fifth Circuit dismissed the appeal on the

basis that the record lacked any judgment of the trial

court adopting the jury verdict, but mentioned that

this could be easily remedied at the trial court level.’

On September 4, 2007, the Fifth Circuit Chief Judge

ordered a dismissal of Hayes’ unlodged appeal with-

out prejudice to refile after the trial court replaced

the judgment adopting the jury verdict.’ In 2008 the

Fifth Circuit reversed its 2007 judgments and held

that there can never be an appeal of the jury verdict,

and that the trial court should not have entered a

' Exhibit A

* Exhibit C.

’ Exhibit E

App. 21

judgment adopting the jury verdict in accordance

with its own two 2007 judgments, including the

consent judgment dated September 4, 2007, and that

the new trial should not be granted on the basis of res

judicata, again failing to address the legal standard

enunciated in Horton v. Mayeaux.* 2005-1704 (La.

05/30/06), 931 So. 2d 338.

This writ application principally seeks reversal of

two issues raised by the most recent Fifth Circuit

decision in this matter:

1. Does res judicata apply to this matter

and to a subsequent new trial order, or is

prior jurisprudence, including Carlone

and Horton valid?

Does res judicata automatically prevent

any appeal of a jury verdict when a

JNOV is reversed?

Applicants request that this court grant their writ

because the January 30, 2008 Fifth Circuit decision

conflicts with its own prior decisions, Louisiana

statutory law, and prior jurisprudence and so should

be addressed by this court. The January 30, 2008

Fifth Circuit opinion reversing the new trial order

closed with:

On this basis [res judicata], we hereby

grant Thomas and Betts’ writ application,

reverse the trial court’s judgment granting

* Appendix 2

App. 22

respondents’ a new trial, and deny respon-

dents’ motions for new trial.°

Buried within the body of the decision, is a clear

violation of plaintiffs’ constitutional right to appeal:

Thus, as of June 14, 2006 [the date the

Supreme Court denied writs on the reversal

of the JNOV], the judgment of the jury ac-

quired the authority of a thing adjudged and

was not subject to modification, revision or

reversal on this issue, or any other issue.°

Importantly, the Fifth Circuit had already ruled

in the opposite fashion in this case, against T&B, on

the res judicata issue on January 16, 2007,’ and

denied rehearing on February 23, 2007. In re: Gra-

mercy Plant Explosion at Kaiser, 06-871 (La. App. 5

Cir/ 02/23/07), 2007 La. App. LEXIS 294. The Su-

preme Court denied T&B’s writ on April 5, 2007.

In re: Gramercy Plant Explosion at Kaiser, 2007-0544

(La. 04/05/07), 954 So. 2d 132. The Fifth Circuit’s

dismissal of Applicants’ appeal that T&B challenged

read:

Mover, Thomas & Betts Corp. (“T&B”),

seeks to have us dismiss Kaiser-AXA’s appeal

on the basis that all issues are res judicata

pursuant to our prior opinion, Jn re Gra

mercy. Plant Explosion at Kaiser, 04-1151

* Appendix 2.

* Appendix 2 (emphasis added)

Exhibit C

App. 23

(La. App. 5 Cir. 3/28/06), 927 So.2d 492; writ

denied, 2006-1003 (La. 9/1/06), 986 So.2d

190. In our previous opinion, however, we

only addressed the issues of whether the

trial court erred in granting a JNOV and

new trial in favor of Kaiser-AXA; we re-

versed the judgment of the district court and

reinstated the jury verdict, and the Louisi-

ana Supreme Court subsequently denied

writs.

Citing to the First Circuit’s opinion in

Junot v. Morgan, 2001-0237 (La. App. 1 Cir.

2/20/02), 818 So.2d 152, Kaiser asserts that

its first opportunity to appeal the jury’s ver-

dict came after the supreme court denied

writs from our opinion which reinstated the

jury verdict, allowing for all further proceed-

ings or appeals as provided by law.

LSA-C.C.P. art. 2082 prov‘des that an

appeal can only be taken from a judgment of

a trial court. In the present case, without a

judgment of the trial court that adopts

the original jury verdict, which does not

presently appear in the record, Kaiser-

AXA has no basis for appeal at this time.

It would appear, however, this could be

easily remedied by a motion from the

defendant to the trial court.

Accordingly, for the foregoing reasons,

T&B’s Motion for Dismissal is granted."

* Exhibit C.

App. 24

There has never been an appeal of the jury

verdict, even though the most recent judgment from

the Fifth Circuit provides that there can never be

such an appeal. The jury verdict of 2001-2002 was

vacated by the entry of the JNOV. Therefore, it was

not and could not be appealed. T&B appealed the

JNOV. The JNOV and alternative new trial from the

2002 judgment was reversed on March 28, 2006.

In re: Gramercy, 04-1151, p. 3, 927 So. 2d at 494.

After the JNOV was reversed, Kaiser/AXA filed a

devolutive appeal from the jury verdict, as Kaiser/

AXA assumed that the Fifth Circuit decision of March

28, 2006 constituted the rendering of a judgment on

the jury verdict. On motion of T&B, the Fifth Circuit

dismissed the devolutive appeal of the jury verdict on

the grounds that there was no trial court judgment to

appeal. As per Junot, the 2002 judgment incorporat-

ing the jury verdict had been vacated, and no new

judgment incorporating the jury verdict was entered.

T&B, happy with the dismissal, but unhappy with

the reasons for the dismissal, moved for rehearing of

the dismissal and for writs to the Supreme Court on

the basis that res judicata barred any further trial

court action and the appeal. Both the Fifth Circuit

and the Supreme Court left the January 16, 2007

decision as it was, and the Fifth Circuit found res

judicata did not apply. Both the January 16, 2007 and

° See discussion on pgs. 14-16 under Junot v. Morgan, 2001-

0237 (La. App. 1 Cir. 02/50/02 [sic]), 818 So. 2d 152.

* Id.

App. 25

the September 4, 2007 Fifth Circuit orders clearly

anticipate the entry of a trial court order adopting the

jury verdict. The 2008 Fifth Circuit decision states

the opposite of its own January 16, 2007 and the

September 4, 2007 decisions in this same case, and

denies Applicants any right to appeal the jury ver-

dict.”

When the devolutive appeal of the jury verdict

was dismissed for lack of a trial court judgment, with

advice that the lack of a judgment could be remedied

by the trial court, the Fifth Circuit effectively re-

manded this matter back to the trial court for entry of

judgment in conformance with the jury verdict. T&B

admitted in open court that the trial court had juris-

diction on May 14, 2007 to enter a new judgment

incorporating the jury verdict: [sic]

T&B acknowledged in open court on May 14,

2007 that the trial court now had jurisdiction to enter

a judgment on the jury’s verdict:

THE COURT:

Are you saying that now I have jurisdic-

tion over it since your writs are com-

pleted?

MR. WARD:

That would be — well, we still have

the problem with Mr. Hayes. Kaiser is

Appendix 2, Exhibit C.

App. 26

properly before you at this point, I guess,

on that issue...

MR. WARD: Z

... Your Honor, there’s an easy was to

straighten this out. The first thing, Mr.

Hayes needs to file in the Court of Ap-

peal a Motion to Dismiss an Unlodged

Appeal. There is such an animal.

THE COURT:

Correct.

MR. WARD:

It’s procedurally possible. He can do

that. That will take care of that.

THE COURT:

I agree.

MR. WARD: _

The next thing that happens, you sign

another judgment on the verdict after we

try to work that, and, if necessary,

maybe have a contradictory hearing on

that. Then, we can go forward. If they

want to bring whatever motions they

want to bring following that, that would

be the way to do that.

T&B then provided the trial court with its own choice

of form for that judgment on August 22, 2007.” On

September 4, 2007, just six months ago, T&B also

* Exhibit D, letter from T&B counsel to Trial Court re-

questing entry of judgment and attached form.

App. 27

consented to a Fifth Circuit order dismissing Hayes’

unlodged appeal without prejudice to refile after a

replacement judgment would be ordered by the trial

T&B’s own form of new judgment incorporating

the jury verdict was entered on September 4, 2007

after Hayes’ unlodged appeal was dismissed, as

requested by T&B. On September 5, 2007, Hayes and

Kaiser/AXA filed timely motions for new trial from

the new judgment.” The trial court received briefs

and heard arguments from all parties. On October 10,

2007, the trial court granted a new trial on purely

discretionary grounds as per this court’s holding in

Horton v. Mayeaux."” T&B filed a writ application to

the Fifth Circuit based on res judicata, which had

already been rejected by all Louisiana trial and

appellate courts in this case. The Fifth Circuit, which

had rejected T&B’s identical arguments last year,

reversed themselves and accepted T&B’s arguments

this year, and reversed their own decision of one year

ago. This writ application is from the Fifth Circuit's

grant of T&B’s 2007 writ, in which the Fifth Circuit

reversed the grant of a new trial and any appeal

° Exhibit E.

* Id.

Appendix 1.

Appendix 2

App. 28

based upon res judicata, a ground that it previously

rejected in this same case.”

Res judicata only applies following a final judg-

ment on the merits. La. R.S. § 13:4231 cmt. (d) (2007);

Tolis v. Bd. of Supervisors of LSU, 95-1529,

p. 2-3, (La. 10/16/95), 660 So. 2d 1206-07, citing La.

Code of Civ. Pro. art. 1841. Res judicata should not

apply herein, as there has never been a final judg-

ment on the jury verdict, as Applicants’ appeal of the

jury verdict was lodged after the JNOV was reversed,

but has never been briefed or argued.” In 2007, the

Fifth Circuit dismissed Plaintiffs’ appeal just before

briefs were due based upon the lack of a trial court

judgment adopting the jury verdict." The JNOV

reversal related to the appellate process was com-

pleted, but the appeal of the jury verdict had not yet

taken place. The JNOV reversal was not a final

judgment on the merits of the jury verdict, as the

jury verdict had not been in effect or appealed, and

was not yet briefed. Different legal standards of

review apply to appeals of jury verdicts and to JNOVs.

The Fifth Circuit erred in its order, as new trial

orders are interlocutory judgments, so they are not

subject to the res judicata defense. Simmons ov.

Beauregard Parish School Bd., 284 So. 2d 668, 669

' Appendix 2.

* See discussion at pgs. 14-16, under Junot, 2001-0237, 818

So. 2d 152.

* Exhibit C.

App. 29

(La. App. 3 Cir. 1973), citing Official Revision Com-

ments, LSA-C.C.P. Art. 2083; Foster v. Kaplan Rice

Mill, 203 La. 245, 13 So. 2d 850 (La. 1943); Pate uv.

Crescent City Motors Exchange, Inc., 256 So. 2d 471

(La. App. 4 Cir. 1972).” The Fifth Circuit also erred in

holding that res judicata applies to all aspects of this

case, effectively denying applicants any right to

appeal the adverse jury verdict. The merits of the

jury verdict have never been considered by any appel-

late court.

ASSIGNMENT OF ERRORS

1. The Fifth Circuit erred in determining

that its 2006 decision reversing the trial

court’s JNOV was a final judgment, such

that the doctrine of res judicata could be

applied to prohibit any appeal of the jury

verdict.

* Likewise, the Louisiana Supreme Court has specifically

stated, “It is well settled that a judgment refusing a new trial is

not appealable. It is not a final judgment and can produce no

irreparable injury.” General Motors Acceptance Corp. v. Deep

South Pest Control, Inc., 173 So. 2d 190, 191 (La. 1965), citing

State ex rel Land v. Martin, 207 La. 410, 21 So. 2d 481 (La.

1945).

The Louisiana Supreme Court has further held that a

judgment or an order granting a new trial is interlocutory and

operates only as a postponement or continuance, and further, an

order granting a new trial does not cause irreparable injury and

no appeal (or writ) lies from an order granting a new trial in

cases where the application for a new trial was timely filed.

Foster v. Kaplan Rice Mill, 13 So. 2d 850, 852 (La. 1943).

App. 30

2. The Fifth Circuit erred in reversing the

trial court’s decision to grant a new trial

and in denying Hayes and Kaiser/AXA’s

motion for a new trial, and in reversing

the trial court’s entry of a new judgment

incorporating the jury verdict (as it has

been ordered to do by the Fifth Circuit).

SUMMARY OF THE ARGUMENT

This writ application is filed on behalf of Hayes,

Kaiser and AXA, and seeks the reversal of the Fifth

Circuit decision reversing the trial court’s grant of a

discretionary new trial and denying a new trial, and

ordering that there can never be an appeal of the jury

verdict, on the basis of res judicata.

This case itself has conflicting and contradictory

decisions from the Fifth Circuit. Not only are there

contradictions between the circuits, there are contra-

dictions-by the Fifth Circuit in this very case. The

January 16, 2007 decision in this case stated that

there was no trial court judgment from which to

appeal, and stated that situation could easily be

remedied. The September 4, 2007 consent dismissal

of Hayes unlodged appeal specifically reserved Hayes’

right to file his appeal after the trial court entered

the replacement judgment.” Contradicting its own

prior orders on the subject, the judgment from which

” Exhibit E.

App. 31

this writ is taken states that a reversal of a JNOV

alone is a final judgment on the merits that auto-

matically prevents any appeal of the jury verdict.

A conflict exists in the jurisprudence concerning

discretionary new trials. This; Court declared in

Horton that a trial judge has almost unlimited discre-

tion to order a new trial, as long as reasonably articu-

lated reasons are given. Horton, 2005-1704, p. 10, 931 |

So. 2d at 344, citing Burris v. Wal-Mart Stores, Inc.,

94-0921, p. 11 (La. App. 1 Cir. 03/03/95), 652 So. 2d

558, 562, writ denied, 654 So. 2d 562 (La. 1995). In

this matter, the Fifth Circuit ruled that no new trial

can be granted for any reason in the event that a

JNOV is overturned.” There is no statutory support

for this proclamation by the Fifth Circuit, only juris-

prudential support, and this jurisprudence conflicts

with statutory law, so it should be reversed or limited.

The Fifth Circuit’s 2006 decision on conditional new

trial also appears to have been overruled by Horton v.

Mayeaux. In re: Gramercy, 04-1151, 927 So. 2d 492.

Both of these subjects are areas of law that would

benefit by clear standards being set by this Honorable

Court.

Assignment of Error No: 1

Res Judicata

The Supreme Court has repeatedly ruled on res

judicata motions and appeals since the mid-1800s. It

” Appendix 2.

App. 32

is generally a well-established body of law. Neither

the law nor the jurisprudence support what the Fifth

Circuit has just done.

The doctrine of res judicata precludes

subsequent litigation when all of the follow-

ing are satisfied: (1) the judgment is valid;

(2) the judgment is final; (3) the parties in

the two matters are the same; (4) the cause

or causes of action asserted in the second

suit existed at the time of the final judgment

in the first litigation; and (5) the cause or

causes of action asserted in the second suit

arose out of the transaction or occurrence

that was the subject matter of the first litiga-

tion.

One of the initial obvious differences between

this case and those covered by the general rule of res

judicata is that this is not a second suit. We are still

in the middle of the original suit. The appeal of the

jury verdict, which was lodged and pending, but not

yet briefed or argued, was dismissed pending entry of

a judgment by the trial court.“ The Chief Judge of the

Fifth Circuit, with the consent of all parties, dis-

missed Hayes’ unlodged appeal without prejudice to

*” Burguieres v. Pollingue, 02-1385, p. 8 (La. 2/25/03), 843

So. 2d 1049, 1053, citing La. R.S. 13:4231; see also Ken Smith, et

al. v. State, DOTD c/lw Ken Smith, et al. v. Mike Unkel, 2004-

1317 c/w 2004-1594 (La. 03/11/05); 899 So. 2d 516, 529; See also

Wooley v. State Farm Fire & Cas. Ins. Co., 04-0882, (La.

01/19/05); 893 So. 2d 746.

* Exhibit C.

App. 33

refile after the entry of judgment by the trial court.”

The trial court’s case numbers never changed. This is

still the first suit. No new suit has been filed. “A final

judgment is defined in LSA-C.C.P. art. 1841 as one

that determines the merits in whole or in part. An

interlocutory judgment is defined as one that does

not determine the merits but only preliminary

matters.” State v. Shaddinger, 97-439, p. 9 (La. App. 5

Cir. 10/28/97), 702 So. 2d 965, 970 (emphasis

added).

The 2006 judgment reversing the JNOV has

indicia of both final and interlocutory judgments. It

was not an appeal of the jury verdict, it was only an

appeal of the JNOV. A similar situation to that herein

was considered by this court in 1951. Oliphint uv.

Oliphint, 54 So. 2d 18 (La. 5/28/51). A judgment that

concerned merit issues that did not resolve all of the

open issues in the case was rendered, appealed and

decided, but it left open ongoing issues and appeals.

Id. The case was not concluded, but the defendant

urged that res judicata compelled an immediate

dismissal. Jd. The Oliphint court stated:

It is, of course, true that the

judgment is not a final judgment in

the sense that it is the last judg-

ment to be rendered in the case.

Therefore, it cannot be said to fit

exactly within the definition of

* Exhibit E.

App. 34

definitive judgments contained in

Article 539 of the Code of Practice.

On the other hand; it is apparent

that it cannot be regarded as an in-

terlocutory judgment, as defined by

Article 538 of the Code of Practice,

since it trenches upon the merits of

the case and does not merely pro-

nounce on preliminary matters in

the course of the proceedings. Albeit,

the judgment falls within that zone

of decrees which are not defined in

the Code of Practice but which

really partake of final judgments in

that they dispose of issues applica-

ble solely to the merits of the case.

The omission of provisions in the

Code of Practice relative to this type

of judgment has been heretofore

commented upon by this court in a

number of cases and appeals from

such judgments have been sanc-

tioned.

Id. at 789-90; see Cary v. Richardson, 35 La.

Ann. 505 (La. 1883); Garland v. Dimitry, 114

So. 2d 718 (La. 1927).

Violation of Applicants’ Right to Appeal

The plaintiffs’ appeals in this case were pending

and lodged, but were not yet briefed or argued at the

time T&B’s motion to dismiss was granted. In addi- |

tion to the directive provided by the Fifth Circuit to

the trial court and litigants to enter a new judgment

App. 35

on the jury verdict in its 2007 dismissal of the ap-

peal,” the Fifth Circuit, with the consent and concur-

rence of T&B, provided the following order to appellant

Hayes and the trial court on September 4, 2007:

IT IS ORDERED that the unopposed

motion to dismiss unlodged appeal without

prejudice to refile is granted, and the

unlodged devolutive appeal of Terrance

Hayes is dismissed without prejudice to re-

file after the entry of a replacement judg-

ment by the trial court.

Gretna, Louisiana, this 4th day of Sept.,

2007.

s/ Edwin Dufresne, Chief Judge”

It is clear that the Fifth Circuit remanded this

matter to the trial court for entry of judgment. When

that new judgment was entered, a motion for new

trial was filed, was later argued, heard, and granted.

It cannot be reasonably questioned that the trial

court was authorized and expected by the Fifth

Circuit to enter a judgment in accordance with the

ju verdict so that the matter could proceed in

accordance with law. After entry, of a ne'v judgment,

the Code and jurisprudence permits the filing of a

motion for new trial, and if not granted, the filing of

the appeal. This Court has previously ruled that

*® Exhibit C

? Exhibit E

_ App. 36

whenever there remain appeal rights that have not

been exhausted, res judicata is inappropriate.

We also find it significant that

on June 10, 1992, the effective date

of Act 237 of 1992, neither the

judgment rendered by the trial court

in Rey, nor that rendered by the

trial court in Segura, were res judi-

cata. Under the law of res judicata

applicable in Rey,” “(a] final judg-

ment is definitive when it has ac-

quired the authority of the thing

adjudged.” La. C.C.P. art. 1842

(West 1990). “Thing adjudged” is de-

fined in La. C.C. art. 3506(31) as

“that which has been decided by a

final judgment, from which there

can be no appeal, either because

the appeal did not lie, or because the

time fixed by law for appealing is

elapsed, or because it has been con-

firmed on the appeal” (emphasis

added). Obviously, the trial court’s

judgment in Rey had not ac-

quired the authority of a thing

adjudged on June 10, 1992

because that judgment was

then on appeal. Similarly, under

the law of res judicata applicable

in Segura, “a valid and final

judgment is conclusive between

the same parties, except on ap-

peal or other direct review...”

La. R.S. 13:4231 (emphasis added).

App. 37

Because the trial court’s judgment

in Segura was on appeal on June 10,

1992, it was not conclusive-between

the parties at that time.

In light of the foregoing, we

conclude a claim is pending as

long as it is subject to judicial

scrutiny. Even though a lower court

has adjudicated a claim and ren-

dered judgment, the claim continues

to be pending until appeal of that

judgment has been exhausted. Until

then, something further remains to

fix the plaintiff’s right to enforce

the claim as well as the defendant’s

obligation to pay it. In other words,

a claim “pending appeal,” as that

phrase is commonly understood in a

legal context, is a pending claim.

Segura v. Frank, 93-127 (La. 1/14/94), 630

So. 2d 714, 727 (emphasis in original).

Even though it did not do so herein, the Fifth

Circuit has relied in the past on the analysis of the

Supreme Court to Segura v. Frank. See Mancuso v.

Siegel, 94-525, p. 7 (La. App. 5 Cir. 11/29/94), 646

So. 2d 1200, 1203-04. The situation we have herein,

where the appeal of the jury verdict has never been

completed because it was interrupted by a motion to

dismiss based on res judicata, is far different from the

Tolis case, which has been cited both by T&B and by

the most recent Fifth Circuit panel herein:

App. 38

The intermediate court’s judg-

ment of March 29, 1994 dismissed

plaintiffs’ action in its entirety with

prejudice, thereby deciding the mer-

its of the case. That judgment was -

therefore a final judgment, which

became res judicata and conclusive

between the parties when it was

rendered, although subject to modi-

fication by a higher court on direct

review. La. Rev. Stat. 13:4231.

Tolis v. Board of Supervisors, 95-1529, p.3

(La. 10/13/95); 660 So. 2d 1206, 1207.

This Court has refused in the past to be lured-in

by absurd “literal” readings of prior law:

While a literal reading of La.

Code Civ. P. art. 1673 would support

Mr. Savoie’s interpretation, we be-

lieve that construing an interlocu-

tory judgment of dismissal based on

venue as a final disposition on the

merits would produce an absurd or

unintended result under the facts of

this case. The function of the court

is to interpret the laws so as to give

them the meaning which the law-

makers obviously intended them to

have and not to construe them so as

to give them absurd or ridiculous

meanings. Webb v. Parish Council of

East Baton Rouge, 217 La. 926, 47

So. 2d 718 (1950); Smith v. Town of

App. 39

Vinton, 209 La. 587, 25 So. 2d 237

(1946).

The absurdity of a literal appli-

cation of La. Code Civ. P. art. 1673

under the facts of this case is readily

apparent ... it has been held that

this requirement is not satisfied

when the merits of the underlying

proceeding have not been reached.

See Irby v. Harrell, 140 La. 828, 74

So. 163 (1917) (abandonment of

prosecution as a result of a compro-

mise is not the same as a termination

of litigation in plaintiff’s favor). Mr.

Savoie’s interpretation of La. Code

Civ.. P. art. 1673 would render this

requirement meaningless and allow

him to proceed on his malicious

prosecution suit without a bona fide

termination of the underlying pro-

ceedings.

Savoie v. Rubin, 2001-3275, p.4 (La. 06/21/02),

820 So. 2d 486, 488.

This Court previously refused to allow courts of

appeal to bar a plaintiff from appealing the tnial

court’s judgment based upon res judicata.

Granted. The court of appeal

erred in finding principles of res ju-

dicata barred plaintiff from appeal-

ing the trial court’s judgment. See

La. R.S. 13:4231 (“a valid and final

judgment is conclusive between the

App. 40

parties, except on appeal or other

direct review”). The proper inquiry

is whether relator voluntarily acqui-

esced in the trial court’s judgment

pursuant to La. Code Civ. P. art.

2085. Because the court of appeal

did not consider this issue, we va-

cate the judgment of the court of ap-

peal and remand the case to the

court of appeal to determine, after

appropriate briefing from the parties,

whether relater’s post-judgment ac-

tions constituted an acquiescence in

the judgment.

Shadoin v. Shadoin, 2003-0042, p.1 (La.

05/09/03); 847 So. 2d 1184.

This matter falls within one of

established exceptions to the general res judicata

rules as previously outlined by this court:

Although rarely mentioned, excep-

tions exist to the common law the-

ory of res judicata, as noted in the

Restatement (Second) of Judgments,

§ 26 (1982). These exceptions involve

“exceptional circumstances” as where

... (c) there are restrictions on

the subject matter jurisdiction of

the courts ... Restatement (Sec-

ond) of Judgments, § 26 (1982), pg

233-234, fn4.

the well-

App. 41

Terrebonne Fuel & Lube v. Placid Ref. Co.,

95-0654, p. 13 (La. 01/16/96); 666 So. 2d 624,

632 (emphasis added).

There were restrictions on the subject matter

jurisdiction of the Fifth Circuit at the time it con-

cluded that the JNOV should be reversed, as the

JNOV had replaced the only judgment on the merits

in this case — the jury verdict. See Junot, 2002-0237,

p. 3-4; 818 So. 2d at 156-157. The only matter before

the Fifth Circuit at that time, and the only matter it

could have decided in the posture of the case before it,

was whether or not the JNOV should be affirmed or

reversed. The Fifth Circuit concluded the JNOV

should be reversed. Jn re: Gramercy, 04-1151, 927

So. 2d 492. That decision was challenged, and the

challenge lost. The next step in the appeal process of

this matter was to appeal the jury verdict, which had

never been appealed. The Fifth Circuit ruled in 2007

that in order to perfect plaintiffs’ appeals, the trial

judge had to enter a judgment incorporating the jury

verdict.” Both the 2007 panel and the Chief Judge

signed judgments that made it clear that jurisdiction

was returned to the trial court for entry of judgment”

It is clear that the appeal process in this matter has

never been completed and has additional steps,

whether they begin with the new trial or reeommence

with the appeal.

* Exhibit C.

*® Exhibit E.

There are now four Fifth Circuit opinions in this

matter related to the JNOV, appeal, and new trial

issues that are inconsistent, dissonant and that

App. 42

cannot be harmonized.

March 28, 2006: The Fifth Circuit re-

versed the trial court’s JNOV, condi-

tional new trial, and reinstated the jury

verdict. In re: Gramercy, 04-1151, 927

So. 2d 492.

January 16, 2007: The Fifth Circuit dis-

missed the plaintiffs’ appeal before it

was briefed due to absence of a trial

court judgment from which to appeal

and stated:

...an appeal can only be taken from a

judgment of a trial court. In the present

case, without a judgment of the trial

court that adopts the original jury ver-

dict, which does not presently appear in

the record, Kaiser-AXA has no basis for

appeal at this time. It would appear,

however, this could be easily remedied

by a motion from the defendant to the

trial court.””

September 4, 2007: The Fifth Circuit

dismissed Terrance Hayes’ unlodged ap-

peal without prejudice to refile it after

the tral court was to enter a replace-

ment judgment incorporating the jury

verdict.

* Exhibit C.

App. 43

4. January 30, 2008: The Fif:h Circuit

granted T&B’s writ, reversed the trial

court’s judgment granting new trial, de-

nied Kaiser/AXA. and Hayes’ motion for

new trial, and stated:

...our judgment, which reinstated the

jury verdict, became final and definitive

and acquired the authority of the thing

adjudged ... the judgment of the jury

acquired the authority of a thing ad-

judged and was not subject to modifica-

tion, revision or reversal on this issue, or

any other issue.”"

There is no previous statutory or jurisprudential

authority that a reversal of a JNOV and a conditional

new trial operates as a final decision on the merits of

a jury verdict sufficient to trigger res judicata and to

deny any appeal of the jury verdict. This decision is

res novae and conflicts with established jurispru-

dence and statutory authority.

The Louisiana Supreme Court has affirmed, that

the doctrine of res judicata is triggered only by a final

judgment on the merits. Tolis v. Bd. of Supervisors of

LSU, 95-1529, p. 2 (La. 10/16/95), 660 So. 2d 1206,

1206-07, citing La. Code Civ. Pro. art. 1841. The

original jury verdict judgment was vacated by the

trial court’s JNOV, and T&B’s appeal of the trial

court’s JNOV was not a consideration of the merits of

Appendix 2 (emphasis added).

App. 44

the jury verdict. Junot v. Morgan, 2002-0237, p. 3-4

(La. App. 1 Cir. 02/20/02), 818 So. 2d 152,156-157.

Preservation of and Applicants’ Right to

Appeal the Jury Verdict

The standards on appeal of JNOVs and jury

verdicts are two very different standards, and are

applied differently. When this Court or the Fifth

Circuit reviews the jury trial record for reversible

error, which it has never done, it will apply a different

standard of review than that which it applied to the

question of the propriety of the JNOV. The differences

between the two standards are significant. De novo

review, which is available and may well be applied to

this case, would not depend to any degree on the jury

verdict, but instead depends upon the evidence pre-

sented at trial, and the law.

The right of appeal is favored in Louisiana law.

Allen v. State of Louisiana through the Earnest N.

Morial — New Orleans Exhibition Hall Authority, et

al, 2002-1072 (La. 04/09/03), 842 So.2d 373, 376,

footnote 2. The right of appeal is lost only through the

unconditional, absolute, and voluntary acquiescence

in the judgment by the appellant, and only if the

appellant evidences an intention to abandon the

right. /d., citing Succession of Franz, 116 So.2d 267,

268 (La. 1959). To the contrary, Hayes and Kaiser/

AXA here are actively pursuing their right to appeal

and are actively challengin.s the faulty trial court jury

verdict and judgment, and have not, in any way,

App. 45

acquiesced in the judgment or abandoned their

rights. As the Louisiana Supreme Court long ago

stated, “(t]he right to appeal is a precious one, and it

should be favored and aided by the court.” Fitzpatrick

v. Letten, 49 So. 494, 497 (La. 1908).

Louisiana Code of Civil Procedure article 2082

provides,

Appeal is the exercise of the right of

a party to have a judgment of a

trial court revised, modified, set

aside, or reversed by an appellate

court.

La. Code Civ. Pro. art. 2082 (2008).

The judgment Hayes/Kaiser/AXA has the right to

appeal (in the absence of a new trial), the trial court’s

judgment incorporating the jury verdict, was never

subject to being revised, modified, set aside, or re-

versed by an appellate court, until now. The Fifth

Circuit has now wrongly declared that plaintiffs will

never have the right to appeal the jury verdict. Until

the “appeal as of mght” has been allowed and com-

pleted or the case is re-tried as per the tria) judge’s

order, a final judgment on the merits of the case

has not been rendered.

The January 16, 2007 Fifth Circuit opinion

herein, cited Junot v. Morgan, 2001-0237 (La. App. 1

Cir. 2/20/02), 818 So.2d 152 and followed its ruling.

Junot is directly on point. In Junot, the First Circuit

considered a jury verdict that had been amended by

the grant of plaintiffs’ JNOV. 7d. In the present case,

App. 46

as in Junot, Plaintiffs’ JNOV also included an alter-

native motion for new trial. The trial court granted

plaintiffs’ JNOV and reapportioned fault, with a

higher fault assigned to defendant Burger King, and

increased both plaintiffs’ general damage awards. The

trial court denied Burger King’s JNOV, /d. Burger

King suspensively appealed both the original judg-

ment and the JNOV. Id. The appellate court dis-

missed as premature Burger King’s suspensive appeal

of the jury verdict, which had been superceded by the

JNOV and the new trial ruling:

Because the trial judge granted

plaintiffs’ motion for JNOV, the

jury’s verdict was set aside. See La.

C.C.P. art, 1811. Thus, the August

29, 2000 judgment rendered in con-

formity with the trial judge’s rulings

superseded the February 11, 2000

judgment which incorporated the

jury’s verdict. As such, at the time

this appeal was lodged, the Febru-

ary 11, 2000 judgment was proce-

durally in abeyance. Therefore, when

Burger King lodged its appeal of the

February 11, 2000 judgment, it was

requesting of this court a review of a

judgment which was procedurally in

abeyance and without legal effect

since it is a judgment which pur-

ports to incorporate a verdict that

was “set aside.”

App. 47

Louisiana Civil Code of Procedure article

1811E states:

If the motion for a [JNOV] is denied,

the party who prevailed on that mo-

tion may, as appellee, assert grounds

entitling him to a new trial in the

event the appellate court concludes

that the trial court erred in denying

the motion for a [JNOV]. If the ap-

pellate court reverses the judgment,

nothing in this Article precludes the

court from determining that the ap-

pellee is entitled to a new trial or

from directing the trial court to de-

termine whether a new trial shall be

granted. (Emphasis added.)

Thus, the party who prevailed

on the JNOV at the trial court level

— but whose favorable JNOV deter-

mination is subsequently reversed

on appeal — may be the subject of a

ruling in the trial court on new trial

grounds at the direction of the court

of appeal. It follows that it is prema-

ture for an appellate court to con-

sider an appeal of the judgment

which incorporates the set-aside ver-

dict at the same time it reviews the

propriety of the trial court’s ruling on

the motion for JNOV. To do so has

the potential effect of terminating

the post-judgment rights of the par-

ties, for example, the right to a new

trial ruling in the trial court under

App. 48

La. C.C.P. art. 1811 E. When Burger

King lodged this appeal of the Febru-

ary 11, 2000 judgmeni, that appeal

was premature.

An appellate court may dismiss

an appeal for lack of jurisdiction on

its own motion at any time. See La.

C.C.P. art, 2162. Therefore, we dis-

miss as premature Burger King’s

appeal of the February 11, 2000

judgment incorporating the jury’s

verdict as this judgment has been

set aside by the judgment dated

August 29, 2000. We now address

Burger King’s contentions challeng-

ing the rulings of the trial judge on

the parties’ motions for JNOV.”

The procedure outlined by Junot has become

part of hornbook law taught to law students.

In 1 La. Civil Law Treatise § 13.4, n.21 (2006),

the holding of Junot is cited for the proposition

that “the judgment on the jury verdict was

‘procedurally in abeyance’ when the appeal is

lodged and that it is premature to consider the

appeal of the judgment on the set aside verdict

at the same time as consideration of the JNOV.”

* Junot, p. 4-5, 818 So.2d at 156-57 (emphasis added). See

also Strain v. Indiana Lumberman’'s Mut. Ins. Co., 2000-2720

(La. App. 1 Cir. 2/20/02), 818 So.2d 144; and Delco v. Stafford,

2001-0018 (La. App. 1 Cir. 2/20/02), 813 So.2d 458, writ denied,

2002-1125 (La. 6/14/02), 818 So.2d 779.

App. 49

Under the clear holding of Junot, Hayes, and Kaiser/

AXA were precluded from appealing the correctness

of the jury verdict while the JNOV was on appeal.

Upon the reversal of the JNOV and upon the entry of

judgment incorporating the jury verdict by the trial

court, Hayes and Kaiser/AXA obtained the right to

move for a new trial and/or appeal the jury verdict.

Louisiana Law does not Mandate an Ap-

peal of a Vacated Judgment

Louisiana Code of Civil Procedure article 2082

provides that an appeal is the exercise of the right of

a party to have a judgment of a trial court revised,

modified, set aside, or reversed by an appellate court.

La. Code Civ. Pro. art. 2082 (2008). The 2006 appeal

was filed to appeal the reinstated jury verdict, as it

had never been subject to being revised, modified, set

aside, or reversed by an appellate court until after the

JNOV was reversed and the jury verdict was rein-

stated. Judgments adopting the jury’s verdict were

presented and signed in February, 2002. Timely

motions for new trial and for JNOV were filed there-

after. Both the motions for new trial and for JNOV

were granted, which vacated the jury verdict (as per

Junot). After the JNOV and the new trial motions

were granted, there was no judgment on the jury

verdict available to appeal. The JNOV and the new

trial ruling were in favor of Hayes and Kaiser/AXA.

There was no appeal of the jury verdict, because there

was no judgment on the jury verdict to appeal.

App. 50

Contrary to T&B'’s assertion that the Fifth Cir-

cuit already considered all aspects of an appeal of this

case, Hayes and Kaiser/AXA never had an opportu-

nity to raise the errors committed by the court below

at trial, such as improper jury venire, improper jury

selection, improper evidentiary rulings, violation by

T&B of evidentiary rulings, mischaracterization of

testimony by counsel, obtaining opinion testimony

from lay witnesses, denial of mistrial motions, im- —

proper jury instructions, and/or any other trial errors

that helped justify de novo review and/or create the

manifest error that occurred at trial. The analysis

regarding these legal errors is different from the

analysis required in supporting the affirmance of the

JNOV and/or new trial. Without the opportunity to

address the merits of the jury verdict, no final judg-

ment on the “merits” of the case exists.

An appeal from the jury’s verdict’s not a subse-

quent action. Hayes and Kaiser/AXA have not filed a

new lawsuit. They have been appealing and challeng-

ing the original jury verdict against them. The Fifth

Circuit’s reversal of the JNOV completed the appeal

of the JNOV, but no judgment was entered by the

trial or the appellate court incorporating the jury

verdict, and making the jury verdict the verdict of the

court. The Supreme Court did not render a judgment

on the merits, -it refused to review the Fifth Circuit

decision reversing the JNOV.

App. 51 ed

Assignment of Error No. 2

New Trial

There are no specific provisions in Louisiana law

that prohibit a trial court from granting a second new

trial. Carlone v. Carlone, 444 So. 2d 1274, 1276 (La.

App. 4 Cir. 1984). The trigger for filing a motion for

new trial is the entry of judgment. La. Code Civ. Pro.

art. 1974 (2008). The Lowisiana Supreme Court has

held that a judgment granting or denying a new trial

is an interlocutory judgment. State ex rel Land v.

Martin, 207 La. 410, 21 So. 2d 481, 482 (La. 1945). A

final judgment determines the merits in whole or in

part; an interlocutory judgment does not determine

the merits, but only preliminary matters in the

course of the action. La. Code Civ. Pro. art. 1841

(2007). Therefore, no interlocutory judgment can be a

final judgment on the merits sufficient to invoke

res judicata. Jd. The two concepts are opposite. Res

judicata does not apply to new trial orders. Res

judicata requires a final judgment, and the commen-

tary that accompanies La. R.S. § 13:4231 requires

that the final judgment be rendered on the merits.

La. R.S. § 13:4231 cmt. (d) (2007). This Court has

held that the doctrine of res judicata is triggered only

by a final judgment on the merits. Tolis, 95-1529, p. 2, .

660 So. 2d at 1206, citing La. Code of Civ. Pro. art.

1841.

The Code of Civil Procedure:-allows for the filing

of a motion for new trial within seven business days

of the entry of a new judgment. La. Code Civ. Pro. art.

App. 52

1974 (2008). The court signed a new judgment and

used T&B’s new form of judgment, at T&B’s request,

on September 4, 2007.” A motion for new trial was

timely filed on September 5, 2007. The motion for

new trial was set for hearing, was heard, and the

opinion granting it fulfilled every requirement of the

Supreme Court ruling in Horton.“ The trial judge was

absolutely clear that he did not believe that the jury

did substantial justice herein, and that the jury

verdict should not be the judgment of the courts of

Louisiana. He had the right under the Code of Civil

Procedure, Horton and Carlone, to grant a new trial

from T&B’s new judgment. His reasons are lengthy

and more than adequately fulfill the requirements for

a discretionary new trial as set out by this court in

Horton.

There is no adequate justification for reversing

the granting of a new trial herein.

CONCLUSION

The Fifth Circuit has erred in its application of

res judicata to the case at bar. Its error conflicts with

Louisiana’s legislative intent as evidenced by our

Codes and Statutes, and conflicts with prior expres-

sions of the law by this Honorable Court and other

circuits, \and prior Fifth Circuit jurisprudence from

* Exhibit F.

* Appendix 1.

App. 53

other cases and from this case. Manifest injustice will

be done if the Fifth Circuit decision is allowed to

stand, which would deny applicants any right to

appeal the adverse jury verdict herein.

_ Applicants respectfully request this Honorable

Court to grant writs, to reverse and/or vacate the

Fifth Circuit Judgment that reversed the trial court’s

grant of new trial, and to reinstate the trial court

judgment that granted a new trial, as per Horton v.

Mayeaux.

In the alternative, applicants request this Hon-

orable Court to reverse and/or vacate the Fifth Cir-

cuit’s judgment and to reinstate the trial court

judgment of September 4, 2007, that incorporated the

adverse jury verdict, and to reinstate plaintiffs’ right

to appeal the September 4, 2007 judgment.

Respectfully submitted,

/s/ Walter Dumas by CHD

WALTER DUMAS,

La Bar No. 5163

Dumas & Associates Law

Corporation

The Lawyer’s Complex

1261 Government Street

Baton Rouge, Louisiana

70821-1366

Telephone: (225) 383-4701

Facsimile: (225) 383-4719

Attorney for Terrance Hayes

and

/s/

App. 54

Thomas G. Wilkinson by CHD

THOMAS G. WILKINSON,

La. Bar No. 2184

MICHAEL P. CIACCIO,

La. Bar No. 21428

320 Huey P. Long Ave.

retna, Louisiana 70053

elephone: (504) 364-1892

csimile: (504) 366-1519

DIDRIKSEN LAW FIRM

Caleb H. Didriksen

CALEB H. DIDRIKSEN,

La. Bar No. 1334

DIANE R. COSENZA

La. Bar No. 4416

RICHARD J. GARVEY, JR.,

La. Bar No. 20822

LOYD J. BOUGEOIS, JR..,

La. Bar No. 29771

AMANDA K. WINGFIELD,

La. Bar No. 30800

3114 Canal Street

New Orleans, Louisiana

70119

Telephone: (504) 586-1600

Facsimile: (504) 822-3119

Attorneys for:

AXA GLOBAL RISKS (U.K.),

ALLIANZ INSURANCE COMPANY,

CERTAIN UNDERWRITERS AT LLOYD’S

LONDON,

COMPAGNIE TRANSCONTINENTALE

DE REASSURANCE,

App. 55

HOUSTON CASUALTY COMPANY,

LEXINGTON INSURANCE COMPANY,

MUNICH REINSURANCE COMPANY,

NATIONAL UNION FIRE INSURANCE

COMPANY,

QATAR INSURANCE COMPANY,

Q.B.E. INTERNATIONAL INSURANCE, LTD.,

SOREMA INSURANCE COMPANY,

SWISS REINSURANCE COMPANY,

WINTERTHUR INTERNATIONAL

INSURANCE COMPANY,

ZURICH REINSURANCE COMPANY

in their own names and in the name

Kaiser Alumina & Themical Corporation

Verification

STATE OF LOUISIANA

PARISH OF ORLEANS

BEFORE ME, the undersigned Notary, person-

ally came and appeared:

CALEB H. DIDRIKSEN

who, after being duly sworn, did depose and state:

That he is counsel for the plaintiff-applicant

herein, that he has read the foregoing Application for

Writs of Certiorari or Review, or Alternatively, Super-

visory or Remedial Writs; that the allegations con-

tained therein are true and correct to the best of his

knowledge, information and belief; and that a copy of

the Application (with Appendices) has been served by

placing same in the United States mail, facsimile, or

App. 56

other electronic means this 28th day of February,

2008:

Division D Clerk of Court

23rd Judicial District Louisiana Fifth Circuit

Court Court of Appeals

St. James Parish 101 Derbigny Street

Courthouse Gretna, Louisiana 70053

5800 LA 44

Convent, Louisiana 70723

Counsel for Thomas and Betts:

Louis C. LaCour, Jr., Robert E. Winn, Esquire

Esquire Sharon Cormack Mize,

Raymond P. Ward, Esquire Esquire

ADAMS & REESE SESSIONS, FISHMAN &

4500 One Shell Square NATHAN, LLP

New Orleans, LA 70139 201 St. Charles Ave.,

Ernest P. Gieger, Jr., 35th Floor

Esquire New Orleans, LA

70170-3500

Andrew A. Braun, Esquire

GIEGER, LABORDE &

LAPEROUSE, LLC

4800 One Shell Square

New Orleans, LA 70139

/s/ Caleb H. Didriksen

Caleb H. Didriksen

Subscribed and sworn before me, Notary, this

28th day of February, 2008.

/s/ Loyd J. Bourgeois, Jr.

Loyd J. Bourgeois, Jr.

App. 57

La. Bar. No. 29771

My commission is issued for life.

[SEAL] LOYD J. BOURGEOIS, JR.

Notary Public

State of Louisiana

Notary ID # 84815/La. Bar

No. 29771

St. Charles Parish

[Attachments Omitted In Printing]

App. 58

SUPREME COURT OF LOUISIANA

Docket No. 2008 CC 481

IN RE: GRAMERCY PLANT

EXPLOSION AT KAISER

On application for Supervisory Writ of Certiorari

or Review from the Fifth Circuit Court of Appeal

for the State of Louisiana

Docket No. 07-C-893

On Application for Supervisory Writ of Certiorari

or Review from the 23rd Judicial District Court,

Parish of St. James State of Louisiana

Honorable Pegram J. Mire, Jr., Judge, Presiding

Docket No. 25,975

Motion for Rehearing

Filed on Behalf of Respondents/Appellants

Terrance Hayes, Kaiser Alumina & Chemical

Corporation/AXA Global Risks, et al.

Counsel for Kaiser/AXA: Counsel for

Thomas G. Wilkinson Terrance Hays .

La. Bar No. 2184 Walter Dumas,

Michael P. Ciaccio La Bar No. 5163

La. Bar No. 21428 Dumas & Associates

320 Huey P. Long Ave. Law Corp.

Gretna, Louisiana 70053 The Lawyer’s Complex

Telephone: (504) 364-1892 1261 Government Street

Facsimile: (504) 366-1519 Baton Rouge, Louisiana

70821

App. 59

Caleb H. Didriksen,

La. Bar No. 1334

Diane R. Cosenza,

La. Bar No. 4419

Richard J. Garvey, Jr.,

La. Bar No. 20822

Loyd J. Bourgeois, Jr.,

La. Bar No. 29771

Amanda K. Wingfield,

La. Bar No. 30800

DIDRIKSEN LAW FIRM

3114 Canal Street

New Orleans, Louisiana 70119

Tele: (504) 586-1600

FaX: (504) 822-3119

Counsel for Appellants, Terrance Hayes,

AXA Global Risks (U.K.) et al, suing on their

own behalf and in the name Kaiser Alumina

& Chemical Corporation

Civil Case

Motion for Rehearing

Index

So cs nanusenuesiesouescensivenevense 1

i es coapedusueedevoresndeeedous 5

List of all Parties and Counsel..................ccccccccscccseesees 6

EE EES ae Oe Ok a ee eR OE &

App. 60

Table of Authorities

Cases

McKane v. Durston, 153 U.S. 684 (1894)..................... 2

Griffin v. Illinois, 351 U.S. 12, 18 (1956)..................... 2

Darouse et al. v. Andrew Mamon, dr., 201

Be. Ba Bem CEM. Aww. 1 Civ. TBGT) ii. icc ciceccccevecsevscccesss 2

Succession of Damico, 161 La. 725 (La. 1925)............. 2

Statutes

Louisiana Constitution. Art. VII, §§ 10 and 29........... 2

Bs Rate TNE. BPUEE ebtetbiaiichincanpandcchlctucia\evdsseiwensseeonsnies 2

Table of Exhibits

Exhibits

Exhibit A: Judgment of Louisiana Supreme Court,

signed May 2, 2008 (denial of Applicants’

writ)

Exhibit B: Ruling of the Louisiana Fifth Circuit

Court of Appeal in No. 07-C-893 (dis-

missal of Applicants’ appeal due to lack

of trial court judgment adopting the

original jury verdict)

Exhibit C: Ruling of the Louisiana Fifth, Circuit

Court of Appeal in No. 07-C-893 (revers-

ing trial court’s grant of a new trial and

dismissing Kaiser/AXA and Hayes’ ap-

peal)

App. 61

SUPREME COURT OF LOUISIANA

Docket No. 2008 CC 481

IN RE: GRAMERCY PLANT

EXPLOSION AT KAISER

On application for Supervisory Writ of Certiorari

or Review from the Fifth Circuit Court of Appeal

for the State of Louisiana

Docket No. 07-C-893

On Application for Supervisory Writ of Certiorari

or Review from the 23rd Judicial District Court,

Parish of St. James State of Louisiana

Honorable Pegram J. Mire, Jr., Judge, Presiding

Docket No. 25,975

MOTION FOR REHEARING

MAY IT PLEASE THE COURT:

Applicants Terrance Hayes and Kaiser/AXA,

through undersigned counsel, request that this

Honorable Court reconsider its decision rendered

May 2, 2008, which effectively denied the Applicants’

due process right to appellate review of the jury’s

verdict in this matter, which was vacated by the trial

court’s judgment notwithstanding the verdict (JNOV)

and reinstated upon reversal of the trial court’s

JNOV by the Louisiana Fifth Circuit Court of Appeal.

Applicants acknowledge that this Court’s Rule

IX, Section 6 prevents the use of rehearing when this

Court has merely granted or denied an application for

App. 62

writ of certiorari. However, in light of the violation of

the Applicants’ Due Process and Equal Protection

rights afforded by both the United States Constitu-

tion and the Louisiana Constitution, this case war-

rants the extraordinary remedy of reconsideration by

this Honorable Court. Chief Justice Calogero voiced

his concerns regarding this issue in his reasons for

granting Applicants’ writ, stating “[njo appellate

court has yet examined the merits of the jury ver-

dict,” and that he would grant writ in this matter “to

permit further proceedings, including an appeal

therefrom.” Chief Justice Calogero also noted that

this Court did not address whether an appeal from

the merits would lie from a reinstated jury verdict in

Vasalle v. Wal-Mart Stores, Inc., which is sufficient to

grant writ in this matter in order to resolve ambigu-

ity.

While the United States Supreme Court has long

held that a “right” to appeal is not found in the

United States Constitution, the Court has held that

where a state provides a process of appellate review,

the procedures must comply with the constitutional

dictates of Due Process and Equal Protection. See

McKane v. Durston, 153 U.S. 684 (1894), Griffin v.

Illinois, 351 U.S. 12, 18 (1956). The right of appeal is

constitutionally guaranteed by the Louisiana Consti-

tution. Art. VII, §§ 10 and 29; Succession of Damico,

109 So. 402 (La. 1925). Louisiana provides its process

of appellate review in La. C.C.P. art. 2082:

App. 63

Art. 2082. Definition of Appeal

Appeal is the exercise of the right of a party

to have a judgment of a trial court revised,

modified, set aside, or reversed by an appel-

late court.

An appeal as such is the exercise of the constitutional

right enjoyed by a litigant to have an adverse judg-

ment of a trial court revised, modified, reversed or set

aside by an appellate court. La. C.C.P. 2082. Darouse

et al. v. Andrew Mamon, Jr., 201 So. 2d 362 (La. App.

1 Cir. 1967).

To dismiss an appeal is to refuse to entertain

it. An appellate court may refuse to entertain

an appeal (1) when it has no appellate juris-

diction therein; (2) when the appeal was not

taken or perfected in time; (3) when the

judgment below has been confessed or con-

sented to; (4) when said judgment has been

acquiesced in by voluntary execution thereof;

(5) when the terms upon which the appeal

has been granted have not been complied

with; (6) when there is no appeal for want of

an order granting an appeal; and (7) when

the judgment, if definitive, has not been

made executory by the signing thereof. La.

Code Prac. art. 546; La. Code Prac. art. 567;

La. Code Prac. art. 574; La. Code Prac. art.

587; and La. Code Prac. art. 593. But other-

wise, in civil cases, an appeal lies of right

from all final judgments, and also from such

interlocutory judgments as may cause ir-

reparable injury, La. Code Prac. art. 565, La.

Code Prac. art. 566, La. Code Prac. art. 575,

App. 64

La. Code Prac. art. 578, La. Code Prac. art.

580, except in cases tried before a district

court, in the country parishes, involving

$ 100 or less, La. Const. art. VII, §§ 29, 48

(1921).

Succession of Damico, 161 La. 725 (La. 1925). As

Justice Calogaro wrote in his dissent, the Fifth Cir-

cuit and this Court have now effectively violated

Applicants’ right to appeal an adverse verdict. Appli-

cants have never had the right to have the adverse

jury verdict reviewed by an appellate court, as is

their constitutional right in Louisiana. On January

16, 2007, the Louisiana Fifth Circuit adjudged that

Applicants did have a right to appeal, and that the

appeal was premature because there was no trial

court judgment adopting the jury verdict, as the prior

judgment adopting the jury verdict had been vacated

by the grant of a JNOV. The recent Fifth Circuit

judgment dismisses the appeal without this ever

being heard, along with the second new trial, in

violation of Applicants’ constitutional rights of Due

Process and Equal Protection. This Court’s failure to

remedy the constitutional violations created by the

Louisiana Fifth Circuit is a floodgate, which invites

further dismissals of appeais in violation of both the

United States and Louisiana’s constitutions. This is

the first case Applicants have located in which a

party who timely took all reasonable steps to invoke

their right of appeal has been denied any review by

an appellate court of that adverse jury verdict. The

trial court who swore in the jury and who presided

over the trial believed this jury verdict to be so flawed

that he granted a JNOV and granted new trials not

App. 65

once, but twice. This flawed jury verdict has never

been appealed, and without the assistance of this

Court or of the United States Supreme Court, these

litigants will be denied their constitutional mght “to

have a judgment of a trial court revised, modified, set

aside, or reversed by an appellate court.” Justice

Calogaro [sic] recognized the impact of these deci-

sions on this $500 million dollar case. Applicants

respectfully request a rehearing and another review

and protection by this court of their constitutionally

guaranteed right of appeal.

Respectfully submitted,

/s/ Walter Dumas by CHD

WALTER DUMAS, La Bar No. 5163

Dumas & Associates Law Corporation

The Lawyer’s Complex

1261 Government Street

Baton Rouge, Louisiana 70821-1366

Telephone: (225) 383-4701

Facsimile: (225) 383-4719

Attorney for Terrance Hayes

and

/s/ T.G. Wilkinson by CHD

THOMAS G. WILKINSON,

La. Bar No. 2184

MICHAEL P. CIACCIO,

La. Bar No. 21428

320 Huey P. Long Ave.

Gretna, Louisiana 70053

Telephone: (504) 364-1892

Facsimile: (504) 366-1519

App. 66

DIDRIKSEN LAW FIRM

/s/ Caleb H. Didriksen

CALEB H. DIDRIKSEN,

La. Bar No. 1334

DIANE R. COSENZA,

La. Bar No. 4416

RICHARD J. GARVEY, JR.,

La. Bar No. 20822

LOYD J. BOUGEOIS, JR.,

La. Bar No. 29771

AMANDA K. WINGFIELD,

La. Bar No. 30800

3114 Canal Street

New Orleans, Louisiana 70119

Telephone: (504) 586-1600

Facsimile: (504) 822-3119

Attorneys for:

AXA GLOBAL RISKS (U.K.),

ALLIANZ INSURANCE COMPANY,

CERTAIN UNDERWRITERS

AT LLOYD’S, LONDON,

COMPAGNIE TRANSCONTINENTALE

DE REASSURANCE,

HOUSTON CASUALTY COMPANY,

LEXINGTON INSURANCE COMPANY,

MUNICH REINSURANCE COMPANY,

NATIONAL UNION FIRE INSURANCE

COMPANY,

QATAR INSURANCE COMPANY,

Q.B.E. INTERNATIONAL INSURANCE,

LTD.,

SOREMA INSURANCE COMPANY,

SWISS REINSURANCE COMPANY,

App. 67

WINTERTHUR INTERNATIONAL

. INSURANCE COMPANY,

ZURICH REINSURANCE COMPANY

in their own names and in the name

Kaiser Alumina & Chemical Corporation

Certificate of Service

I HEREBY CERTIFY that a copy of the foregoing

pleading has been forwarded to all counsel of record

addressed as follows by placing same in the United

States mail, facsimile, or other electronic means this

16th day of February May, 2008:

Division D

23rd Judicial District Court for the Parish of St. James

St. James Parish Courthouse

5800 LA 44

Convent, Louisiana 70723

Clerk for the Louisiana Fifth Circuit Court of Appeals

101 Derbigny Street

Gretna, Louisiana 70053

Louis C. LaCour, Jr., Esquire

Raymond P. Ward, Esquire

ADAMS & REESE

4500 One Shell Square

New Orleans, LA 70139

Ernest P. Gieger, Jr., Esquire

Andrew A. Braun, Esquire

GIEGER, LABORDE & LAPEROUSE, LLC

4800 One Shell Square

New Orleans, LA 70139

App. 68

Robert E. Winn, Esquire

Sharon Cormack Mize, Esquire

SESSIONS, FISHMAN & NATHAN, LLP

201 St. Charles Ave., 35th Floor

New Orleans, LA 70170-3500

/s/ Caleb H. Didriksen

DIDRIKSEN LAW FIRM

List of all parties and counsel

For Applicants:

DUMAS & ASSOCIATES LAW CORPORATION

Walter Dumas, La Bar No. 5163

The Lawyer’s Complex

1261 Government Street

P.O. Box Office 1366

Baton Rouge, Louisiana 70821-1366

Telephone: (225) 383-4701

Facsimile: (225) 383-4719

Counsel for Terrance Hayes

and

Thomas G. Wilkinson, La. Bar No. 2184

Michael P. Ciaccio, La. Bar No. 21428

320 Huey P. Long Ave.

Gretna, Louisiana 70053

Telephone: (504) 364-1892

Facsimile: (504) 366-1519

App. 69

DIDRIKSEN LAW FIRM

Caleb H. Didriksen, La. Bar No. 1334

Diane R. Cosenza, La. Bar No. 4416

Richard J. Garvey, Jr., La. Bar No. 20822

Loyd J. Bourgeios, La. Bar No. 29771

Amanda K. Wingfield, La. Bar No. 30800

3114 Canal Street

New Orleans, Louisiana 70119

Telephone: (504) 586-1600

Facsimile: (504) 822-3119

Counsel for:

AXA GLOBAL RISKS (U.K.),

ALLIANZ INSURANCE COMPANY,

CERTAIN UNDERWRITERS AT LLOYD’S, LONDON,

COMPAGNIE TRANSCONTINENTALE

DE REASSURANCE,

HOUSTON CASUALTY COMPANY,

LEXINGTON INSURANCE COMPANY,

MUNICH REINSURANCE COMPANY,

NATIONAL UNION FIRE INSURANCE COMPANY,

QATAR INSURANCE COMPANY,

Q.B.E. INTERNATIONAL INSURANCE, LTD.,

SOREMA INSURANCE COMPANY,

SWISS REINSURANCE COMPANY,

WINTERTHUR INTERNATIONAL

INSURANCE COMPANY,

ZURICH REINSURANCE COMPANY

in their own names and in the name

Kaiser Alumina & Chemical Corporation

App. 70

For Respondents:

ADAMS & REESE

Louis C. LaCour, Jr., Esquire

Raymond P. Ward, Esquire

4500 One Shell Square

New Orleans, LA 70139

GIEGER, LABORDE & LAPEROUSE, LLC

Ernest P. Gieger, Jr., Esquire

Andrew A. Braun, Esquire

4800 One Shell Square

New Orleans, LA 70139

SESSIONS, FISHMAN & NATHAN, LLP

Robert E. Winn, Esquire

Sharon Cormack Mize, Esquire

201 St. Charles Ave., 35th Floor

New Orleans, LA 70170-3500

Counsel for Thomas & Betts

STATE OF LOUISIANA

PARISH OF ORLEANS

Verification

BEFORE ME, the undersigned notary, did come and

appear:

Caleb H. Didriksen

who, after being duly sworn, did depose and say that

he is counsel for a plaintiff-applicant herein, that he

has read this motion for rehearing and that the

allegations contained therein are true and correct to

the best of his knowledge, information and belief; and

App. 71

that a copy of this motion for rehearing and its at-

tachments has been forwarded to all counsel of record

addressed as follows by placing same in the United

States mail, facsimile, or other electronic means this

16th day of May, 2008:

Division D

23rd Judicial District Court for the

Parish of St. James

St. James Parish Courthouse

5800 LA 44

Convent, Louisiana 70723

Clerk for the Louisiana Fifth Circuit Court of Appeals

101 Derbigny Street

Gretna, Louisiana 70053

Louis C. LaCour, Jr., Esquire

Raymond P. Ward, Esquire

ADAMS & REESE

4500 One Shell Square

New Orleans, LA 70139

Ernest P. Gieger, Jr., Esquire

Andrew A. Braun, Esquire

GIEGER, LABORDE & LAPEROUSE, LLC

4800 One Shell Square

New Orleans, LA 70139

Robert E. Winn, Esquire

Sharon Cormack Mize, Esquire

SESSIONS, FISHMAN & NATHAN, LLP

201 St. Charles Ave., 35th Floor

New Orleans, LA 70170-3500

/s/ Caleb Didriksen

DIDRIKSEN LAW FIRM

Caleb H. Didriksen

App. 72

Sworn to and subscribed before me this 16th day of

May, 2008

/s/ Amanda K. Wingfield

NOTARY PUBLIC

Amanda K. Wingfield

Bar No. 38000

My commission is for life

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