ROYANNE DAVIS Vs. CHEEMA, INC. AND CENTURY SURETY COMPANY

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ROYANNE DAVIS * NO. 2014-CA-1316 VERSUS * COURT OF APPEAL CHEEMA, INC. AND CENTURY SURETY COMPANY * FOURTH CIRCUIT * STATE OF LOUISIANA * * ******* LOVE, J., CONCURS AND ASSIGNS REASONS I concur with the results reached by the majority. However, I write separately to emphasize the discretionary nature of the law of the case doctrine at the appellate court level. The law of the case doctrine “is a discretionary guide that will not be applied inflexibly.” KeyClick Outsourcing, Inc. v. Ochsner Health Plan, Inc., 11-0598, p. 8 (La. App. 4 Cir. 3/14/12), 89 So. 3d 1207, 1212. See also Scott v. Am. Tobacco Co., 09-0461, p. 4 (La. App. 4 Cir. 4/23/10), 36 So. 3d 1046, 1050. On appeal, we are permitted to disregard this doctrine if a “palpable error” is discovered in our first decision. First Bank & Trust v. Duwell, 11-0104, p. 5 (La. App. 4 Cir. 5/18/11), 70 So. 3d 15, 19. See also Washington v. Aetna Life Ins. Co., 03-0790 (La. App. 4 Cir. 7/2/03), 853 So. 2d 34. An appellate court may also choose not to apply the law of the case doctrine to avoid “obvious injustice,” (First Fed. Sav. & Loan of Warner Robins, Georgia v. Disiere, 542 So. 2d 11, 13 (La. App. 4th Cir. 1989)), if “operative facts upon which the court’s prior decision was based have changed,” (Bank One, Nat. Ass’n v. Velten, 04-2001, p. 7 (La. App. 4 Cir. 8/17/05), 917 So. 2d 454, 459), or “ when there is intervening case law.’” KeyClick, 110598, p. 8, 89 So. 3d at 1212, quoting Mann v. Brittany Place Associates Ltd., 991588, p. 3 (La. App. 4th Cir. 9/13/00), 770 So. 2d 25, 27. 1

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