Louisiana Personal Injury Lawyer Blog

In our most recent post, we began a review of the Third Circuit Court of Appeal's application of the law of the case doctrine in a lawsuit that followed an auto accident in Vernon Parish. The plaintiffs, in opposing UUT’s motion for summary judgment, argued that UUT's no-coverage arguments had previously been heard in a "peremptory exception of no right of action" filed by UUT which the trial court had denied. Both the Third Circuit and the Louisiana Supreme Court denied writs of appeal in that ruling; thus, the plaintiffs argued that the law of the case doctrine should "preclude UUT from re-litigating those same arguments" in the instant case. The plaintiffs also argued that the federal case cited by UUT offered "no precedential value in this state court action." UUT's reply asserted that the exceptions previously heard by the trial court "dealt with procedural, rather than substantive, matters," and were not properly before the trial court at the exceptions hearing. In sum, UUT argued that the trial court's rulings on the exceptions were interlocutory and therefore "subject to revision by the trial court at any time prior to rendition of final judgment." The trial court granted UUT's motion for summary judgment and dismissed all of the plaintiffs’ claims based on the finding that there was no coverage under the UUT policy. The plaintiffs appealed, arguing that UUT’s arguments had previously been heard and rejected in an earlier action (the peremptory exception) and therefore "the law of the case doctrine should have been applied because no new argument or evidence was produced by UUT."

The Third Circuit concluded that UUT showed that "the policy it issued to Olympic did not provide coverage for the plaintiffs’ claims." The truck Coronado wrecked was a vehicle leased from Olympic, and the UUT policy by its language excluded coverage for leased vehicles. Rather than refute UUT’s position on the merits, the plaintiffs simply "argued that the issue had already been litigated and that the trial court was bound to follow its earlier ruling." The court rejected that the law of the case doctrine applied. It noted that UUT did not raise coverage issues when it filed its exceptions in the trial court. Instead, "the plaintiffs brought up the issue of coverage in their opposition to UUT’s exceptions." In fact, UUT was not even made aware of the plaintiffs' position on coverage until the day of the hearing. "Clearly," the court concluded, "the issue of coverage under the UUT policy was not squarely before the trial court at the hearing on the exceptions." In the view of the court, "[t]he issues raised in the motion for summary judgment filed by UUT ... did not cause indefinite re-litigation of the same issue[s] as were raised in its [exceptions motion]." Accordingly, the court affirmed the trial court’s grant of summary judgment in favor of UUT.

The Willis case is a stark reminder to litigants that the rules of civil procedure in Louisiana can be extremely complex. Even when the disputed issue in a case (such as whether an auto insurance policy covers a particular driver) is fairly straightforward, a plaintiff can face a complicated path to a resolution without the counsel of an experienced attorney.

Continue reading ""Law of the Case" Doctrine, Part 2" »

Under the Louisiana Code of Civil Procedure, judgments are either interlocutory or final. A judgment that "determines the merits [of an issue] in whole or in part" is a final judgment, while a judgment that determines "only preliminary matters" is an interlocutory judgment. Generally speaking, final judgments can be appealed, but interlocutory judgments cannot unless there is a statutory exception that permits the appeal. See La.Code Civ.P. art. 2083. If a court renders a judgment that addresses fewer than all of the claims or that concerns fewer than all litigants in a case, that judgment is not final and may be revised by the court at any time prior to a final judgment. See La.Code Civ.P. art. 1915(B). With parallel reasoning, if a court of appeal denies a writ of appeal, thereby declining to exercise its supervisory oversight of a trial court, the court of appeal cannot affirm, reverse, or modify the judgment of the trial court. This means that "any language in the court of appeal’s ... writ denial purporting to find no error in the trial court’s ... ruling is without effect." See Bulot v. Intracoastal Tubular Services, Inc..

Related is the "law of the case doctrine." This principle pertains to:

"(a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate rulings at the trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case." Petition of Sewerage & Water Bd. of New Orleans.

The doctrine is intended to avoid endless re-litigation of the same issue and to promote consistency of result in the same litigation. It also promotes efficiency by affording the parties a single opportunity to resolve the matter at issue.

The law of the case doctrine was reviewed by Louisiana's Third Circuit Court of Appeal in the recent case of Willis v. Gulf Coast Building Supply. The case centered on an auto accident on November 7, 2005. Steve Coronado was operating a tractor-trailer in Vernon Parish on behalf of his employer, Gulf Coast Building Supply, when he struck multiple vehicles. Six lawsuits were filed by various plaintiffs naming as defendants Coronado, Gulf Coast, Home State County Mutual Insurance Company, Gulf Coast's primary insurer, and Universal Underwriters of Texas Insurance Company (UUT), Gulf Coast's excess insurance carrier. UUT filed a motion for summary judgment seeking to have the plaintiffs’ claims dismissed because its policy did not cover their claims. The tractor trailer that Coronado was driving at the time of the accident was leased to Gulf Coast by Olympic International; the lease agreement specified that Gulf Coast was responsible for providing liability insurance and that Gulf Coast would name Olympic as an additional insured on its policy. UUT's policy covered Olympic, but Gulf Coast and Coronado were not named as insured parties. Also, no provision in the policy extended coverage to lessees of the named insured’s property. Therefore, UUT argued that its policy excluded coverage for the plaintiffs’ claims. To further support its position, UUT pointed the trial court to a decision rendered in a case arising out of the same accident that had been filed in federal court by a different plaintiff. In that matter, the federal court granted summary judgment in favor of UUT and dismissed the case on the basis that the UUT policy did not provide coverage for the claims. That decision was affirmed by the U.S. Court of Appeals, Fifth Circuit.

In a subsequent post, we'll examine the plaintiffs' response to UUT's motion and the court's judgment.

Continue reading "Exploring the "Law of the Case" Doctrine in Vernon Parish Car Accident Litigation" »

Under Louisiana jurisprudence, special damages are the category of damages that can be "established to a reasonable mathematical certainty." Myers v. Broussard. Special damages include awards for past and future lost earnings, since a plaintiff's forgone income can be numerically calculated by the court. Given the relatively high level of precision, "when a trier of fact assesses special damages, the discretion is more limited or narrower than the discretion to assess general damages," Eddy v. Litton, though the standard of review is still abuse of discretion. The plaintiff carries the burden to prove that he has suffered a loss of income to induce the court to award damages for lost wages in an amount that equals what the plaintiff would have likely earned if he had not been injured by the defendant and been able to work. In cases where there is "no basis for a precise mathematical calculation of the amount of lost earnings," the trial court may award a "reasonable" amount of damages. However, "to allow a plaintiff to recover damages for lost wages in the absence of independent support is highly speculative.” Turner v. Cleveland Trust Co.

The Third Circuit recently considered an automobile collision case in which the plaintiff was awarded damages for lost wages by the trial court. Lori Johnson claimed that, due to the injuries she sustained when her car was struck from behind by David St. Romaine on Highway 1 in Marksville, she was unable to perform her part-time weekend work as a farrier (horse-shoer). The trial court awarded Johnson $7,200 for loss of income, which St. Romaine appealed. The Third Circuit reviewed the trial record containing Johnson's testimony that she was unable support a horse's weight on her injured shoulder and therefore could not install the shoes. She estimated that she typically earned between $400 and $750 per month, but was unsure of the exact amount because it was a cash business and she did not keep records. Johnson also admitted that she did not report her income from the farrier business to the IRS. The court concluded that, "[a]lthough the uncorroborated testimony of the plaintiff can support a lost wage award, based on the facts of this case, we find that Johnson’s testimony regarding the lost wage claim is insufficient." In the court's view, Johnson's wage calculation was a mere "guesstimate" that could not support an award for foregone income. Thus, the court concluded that it was error for the trial court to award damages for lost wages based on only this speculative information, and reversed that part of the judgment.

This case reminds litigants that claims for special damages must be corroborated by some minimum amount proof. Although the court allows that a plaintiff's testimony alone can in some cases support a special damages award, the facts of each situation will weigh heavily on the court's decision process. Clearly, here, the Third Circuit did not approve of the trial court's treatment of Johnson's claim for wages, perhaps particularly because Johnson did not report her income as taxable.

Continue reading "The Plaintiff's Burden in Proving Special Damages" »

It is well settled in Louisiana jurisprudence that an appellate court's review of a trial court's apportionment of fault in a negligence action is subject to the manifest error standard. In other words, in order for an appellate court to overturn a trial court's assessment of fault, it must conclude that no reasonable factual basis exists to support the trial court's finding and that it is clearly wrong. The Third Circuit reached this conclusion in Thibodeaux v. Trahan, a recent case that was marked by witness testimony that was "externally conflicting and often internally inconsistent."

On the afternoon of October 18, 2006, Melinda Trahan was driving a school bus owned by the Lafayette Parish School Board on Richfield Road in Duson. Harold Thibodeaux, driving an RV, pulled out from a side road in front of Trahan's bus and made a quick left turn into the parking lot of Thib's Corner, a grocery store. Trahan, who approached Thibodeaux's RV from the rear, also turned her bus into Thib's Corner, at which point the two vehicles collided. Thibodeaux suffered a knee injury in the collision and sued Trahan and the school board for damages. The trial court heard testimony from the parties as well as several witnesses and ultimately found both Trahan and Thibodeaux at fault for the accident. It awarded Thibodeaux damages for pain and suffering and medical expenses, but reduced the amount by 40 percent, the amount of his fault. Thibodeaux appealed, arguing that the trial court erred in finding him partially at fault for the accident. On appeal, the Third Circuit noted that "the trial court was left with numerous conflicting versions of how the accident occurred." It did, however, make specific findings of fact. Specifically, the trial court found Thibodeaux at fault "for having pulled out in front of Ms. Trahan while driving an RV in the rain while she was driving a school bus." It concluded Trahan was at fault because she should have maintained better control of her bus when she saw Thibodeaux's RV pull out into her path. The Third Circuit reviewed the testimony from the record and arrived at a different explanation of how the collision occurred: it concluded that Thibodeaux did nothing wrong when he pulled onto Richfield Road from the side street, but that he "failed to ascertain that the left turn could be made with reasonable safety" and therefore breached his statutory duty to execute the turn properly. Still, the court concluded that "the majority of the fault in this instance should be allocated to Ms. Trahan," as she "was in a better position, as the following vehicle, to prevent the accident from happening." The court concluded that the accident would have been avoided if Trahan had stopped her bus "within the adequate stopping distance existing between her and the RV," rather than being forced to take an evasive turn into the Thib's Corner parking lot. Accordingly, the court reversed the trial court's apportionment and assessed 80 percent of the fault to Trahan and 20 percent to Thibodeaux.

Continue reading "Third Circuit Rejects Trial Court's Apportionment of Fault in Lafayette Auto Accident" »

In a medical malpractice lawsuit, the plaintiff faces a three-part evidentiary burden. First, she must present evidence to establish the applicable standard of care. Next, she must show that a breach of that standard of care occurred. Finally, she must demonstrate a link between that breach and the injury that resulted. In nearly all cases, the opinion of a medical expert is an essential element of the required evidence. Without a qualified medical expert's opinion, the plaintiff risks losing at summary judgment due to a lack of material issues of fact to be determined at trial. The availability of an expert's opinion was at the center of the recent case in the Third Circuit, Dupree v. Louisiana Medical Mutual Insurance Co.

Katie Dupree became a patient of Dr. Jose Dorta, an OB/GYN specialist, in 2008 when she was pregnant. On January 9, 2009, Dupree went to the ER at Opelousas General Hospital with facial swelling, vomiting, and a severe headache. She was told to stop working and rest at home due to elevated blood pressure. Two weeks later, Dupree again went to the ER with elevated blood pressure and other symptoms that suggested pregnancy complications. Dr. Dorta did nothing to treat these issues and did not suggest an early delivery of Dupree's baby. In fact, Dr. Dorta merely sent Dupree home with the suggestion of bed rest. Two days later, Dupree was found face down and unconscious. Tragically, her baby was stillborn the following day, at which point Dupree was then taken off life support and died. Dupree's parents requested review by a Medical Review Panel in June 25, 2009. The panel rendered its finding of no malpractice on Dr. Dorta's part on May 12, 2010. Sixteen days later, Dupree's parents filed suit against Dr. Dorta and his medical malpractice insurance carrier, Louisiana Medical Mutual Insurance Co. After overcoming a series of exceptions filed by the defendants, the plaintiffs requested a status conference to schedule a trial date. Immediately thereafter, the defendants filed a motion for summary judgment. The trial judge granted the defendants' motion based on the plaintiffs' "failure to submit an affidavit from an expert showing a genuine issue of material fact sufficient to defeat summary judgment." At the hearing, plaintiffs' counsel argued that he had obtained an expert but did not submit an affidavit because the trial scheduling order called for expert reports to be exchanged several months later. The trial court disregarded this argument. It then denied the plaintiffs' request for a new trial after they produced an affidavit from Dr. James Tappan, a board certified physician specializing in obstetrics and gynecology.

The Third Circuit Court of Appeal, mindful that a "trial court is imbued with great discretion in both pre-trial and post-trial matters," ultimately concluded the this denial of a new trial was an abuse of that discretion. "[T]he Louisiana Code of Civil Procedure provides that a 'new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law,'" the court reasoned, and "after reviewing the record before us, we find good and valid reasons for a new trial." Namely, Dr. Tappan's affidavit included "three specific acts of medical negligence ... : failure to diagnose, failure to warn, and failure to timely deliver the baby." The court noted that Dr. Tappan reported that "Dr. Dorta failed to warn Ms. Dupree and/or her family of her condition and what to look for with respect to further symptoms,” which was at odds with the Medical Review Panel's finding that “we are sure a lengthy discussion ensued” when Dupree sought treatment. These conflicting views presented a genuine issue of material fact. Yet, the trial court "ruled on the motion for new trial without reference to the affidavit, choosing to rely instead on the fact that plaintiffs failed to take advantage of their one opportunity to present evidence." Being careful not to "condone or legitimize the actions of plaintiffs' counsel in failing to timely file an expert affidavit," the court concluded that "the facts, the law, and plaintiffs' prudence and initiative in prosecuting this case compel a finding of an abuse of discretion by the trial court," and reversed the denial of a new trial.

The court admitted that "[r]are is the case where we find an abuse of the trial court's great discretion." But the Dupree case shows that a negative result at the trial level can still be overcome on appeal. Moreover, the case demonstrates the need for a skilled attorney for every step of a medical malpractice dispute.

Continue reading "Third Circuit Reverses Trial Court in Rare Finding of Abuse of Discretion in Med Mal Action" »

The Louisiana Court of Appeals rejected an appeal filed by Brenna Davis regarding her medical malpractice claim against the Women and Children’s Hospital Lake Charles and her doctor, Dr. Richard Shimer. Davis underwent a weight loss procedure known as a lap band surgery. Known in the medical industry to be a minimally invasive surgery, this procedure involves the doctor inserting an adjustable belt around the top section of the stomach to create a full feeling in the patient. Davis filed her claim in order to recover damages as a result of a sponge that had been left within her abdomen during the procedure despite the numerous counts required by the hospital’s procedure for surgery.

The district court awarded Davis $50,000 and apportioned fault equally between Dr. Shimer and the hospital. For a variety of reasons, Davis appealed that judgment, claiming that Dr. Shimer was not at fault in her claim and asking the courts to put full responsibility upon the hospital. In personal injuries law, the judge is responsible for distributing fault between the parties involved so that each one only pays for the damages he specifically caused. To prove medical malpractice against a Louisiana physician, the plaintiff must show the doctor lacked the knowledge and skill required by physicians in his specialty or failed to use reasonable care, and that the plaintiff suffered in a way that plaintiff would not have otherwise. The hospital’s procedure requires three separate sponge counts during different periods of the surgery. Not only does the surgical technician count the sponges, but a nurse oversees each of the counts.

So who is responsible for SpongeBob being left in Davis’ abdomen? The appeals court agreed with the lower district court in their ruling, following previous decisions holding that leaving sponges in patients is a breach of duty by the surgeon. But when a hospital affirmatively assigns that duty to multiple staff members (none of which are the surgeon) on what do the courts rely for creating such a duty for the surgeon? During most of the entire surgery, it wasn’t even possible for the surgeon to see the sponges since his field of view is limited and magnified. Two members of the surgical staff were responsible for counting the sponges on three separate occasions. The count is recorded on the white board at the beginning of the procedure. Therefore, both staff members counting could have double-checked their numbers on the white board at the end of the surgery.

The appeals court affirmed the district court’s judgment that the surgeon had breached his duty to Ms. Davis by negligently leaving one of the surgical sponges within her body. However, when considering Dr. Shimer’s fault, neither of the courts seemed to consider the numerous preventative measures the hospital had in place, instead following the “well-established jurisprudence” on the issue.

In all, a case of medical malpractice carries with it crucial requirements to have the matter handled properly by an attorney that closely identifies the legal possibilities at work. Whether apportioning responsibility or making sure that all of the diverse issue are handled properly for the correct financial restitution, hiring the proper legal representative can mean the difference in tens, if not hundreds, of thousands of financial settlement or judgment.

As previously discussed, the Daigle v. City of Shreveport case regards an instance where a woman slips and falls on a freshly painted city sidewalk, that had no markings to indicate it was freshly painted, and she sues the city for negligence damages.

When an individual is injured as a result of an unreasonably dangerous condition existing on a landowner's property, he can recover damages relying on La. Civ. Code Ann. art. 2315, which is the basis of general negligence liability. The owner, or person, having custody of the property has a duty to keep the property in a reasonably safe condition, and must discover any unreasonably dangerous condition on the premises, and either correct that condition, or warn potential victims of its existence. Louisiana's duty-risk analysis is made up of five elements: 1) duty - proof that the defendant has a duty to conform his conduct to a specific standard, 2) breach - proof that the defendant's conduct failed to conform to the appropriate standard, 3) cause-in-fact - proof that the substandard conduct was a cause-in-fact of the plaintiff's injuries, 4) scope of liability - proof that the defendant's substandard conduct was a legal cause of the plaintiff's injuries, and 5) damages - proof of actual damages.

Proof of liability on the part of a public entity, such as a city in this case, is governed by La. Civ. Code Ann. art. 2317, and provides in part that individuals are responsible, not only for the damage occasioned by their own acts, but for that which is caused by the act of persons for whom they are answerable, or of things which they have in their custody.

A city has a duty to maintain its streets in a safe condition for use by the public. To determine whether a defect complained of presented an unreasonable risk of harm, courts balance several factors including the probability and gravity of the harm presented by the risk, against the social utility of the thing involved. There is no standard rule for determining whether a defect presents an unreasonable risk of harm. Instead, the trier of fact determines whether a defect presents an unreasonable risk of harm and that determination is reviewed under the manifest error standard. There must be a dangerous condition that would be reasonably expected to cause injury to a prudent person exercising reasonable care under the circumstances.

A pedestrian has a duty to pay attention and be conscientious of his or her surroundings. However, pedestrians are not required to scrutinize the pavement for irregularities, and it is reasonable for a pedestrian to react to traffic conditions by looking at vehicles instead of at the pavement. A city, when performing work on a curb where pedestrians walk, therefore, must warn of a dangerous condition and the warning must be sufficient to alert an ordinary pedestrian, considering all the circumstances.

The trier of fact is given deference in allocating fault to the different parties and looks at the following factors: 1) whether the conduct resulted from inadvertence or involved an awareness of danger, 2) how great a risk was created by the conduct, 3) the significance of what was sought by the conduct, 4) the superior or inferior capacity of the parties, and 5) any extenuating circumstances which might require one to proceed in haste and without proper thought.

The plaintiff bears the burden of proving special damages by a preponderance of the evidence. In meeting his or her burden of proof on the issue of future medical expenses, the plaintiff must show that, more probably than not, these expenses will be incurred and must present medical testimony that they are indicated and the probable cost of these expenses. General damages are those which are inherently speculative in nature and cannot be fixed with mathematical certainty. The trial court is afforded much discretion in fixing general damages because of its superior position to evaluate the witnesses' credibility and see the evidence firsthand.

If you or a loved one feel as though you may have been injured due to the negligence of your city, town, or the state, then please contact the Berniard Law Firm to determine the validity of your claim, and for expert advice and legal services.

The Daigle v. City of Shreveport case regards an instance where a woman slips and falls on a freshly painted city sidewalk, that had no markings to indicate it was freshly painted, and she sues the city for negligence damages. A second point of the case, and the first to be discussed, is the sanctioning of the city's attorney for 'wasting' time in attempting to get an unnecessary Independent Medical Examination (IME) from a physician who was highly unattainable, and using this as an improper means to delay the proceedings. Also, the trial judge in this case was placed on the witness list, and the attempt to have the judge recuse himself was also determined to be used as an inappropriate manner for the city's attorney to delay the proceedings.

A trial court's judgment must be found to be clearly wrong or that there was an error in the law. Great deference if provided the trial court and the finders of fact because they are the parties, be it judge or jury, that has the greatest and most humanlike exposure to the witnesses. An appellate court, however, merely has documents pertaining to the facts and witnesses, but cannot personally observe the witness' demeanor, truthfulness, etc. An appellate court determines if the judgment of the trier of fact was a reasonable one, not whether it was the correct one.

When asking the court for an IME, a party must show: 1) that the physical or mental condition of the party sought to be examined is in controversy, and 2) that good cause exists for requiring the party to submit to the examination. In determining if an IME is proper, a court has wide discretion and should determine whether to allow for one on a case by case basis. Courts will consider whether the physical/medical information can be attained by other means, and that a treating physician should be given greater weight than a physician who only examines a patient a couple times or even just once. Continuances for IMEs are discretionary and may be granted if there is good ground for one. La. Code Civ. Proc. Ann. art. 1601.

The duty of a judge is to conduct fair and impartial proceeding, and is presumed to be impartial. A judge shall be recused, for instance, if he or she is a witness in the case that he or she is supposed to preside over. La. Code Civ. Proc. Ann. art. 151(A)(1). A witness is determined to be a material witness to the case according to La. Code Civ. Proc. Ann. art. 1602, if the witness is essential to a party's presentation of its case.

A court cannot impose sanctions on a lawyer simply because a particular argument or ground for relief contained in a non-frivolous pleading was found to be unjustified. La. Code Civ. Proc. Ann. art. 863. An appellate court reviewing a trial court's sanctioning of a lawyer will look at whether the district court abused its discretion in assessing sanctions. But in determining whether a litigant and his counsel made the required, reasonable, factual inquiry as is required by art. 863, a court will look at: 1) time available to the signor or investigator; 2) extent of the attorney's reliance on the client for factual support for pleadings; 3) feasibility of prefiling investigation; 4) whether the signing attorney accepted the case from another attorney; 5) complexity of factual and legal issues; and 6) the extent to which development of factual circumstances underlying the claim required discovery.

An appellate court will determine whether a trial court abused its discretion in administering a sanction on an attorney, but the trial court has considerable discretion in its determination. Four factors that assist in determining a sanction award are: 1) the conduct being punished or sought to be deterred by this sanction; 2) the expenses or costs caused by the violation of the rule; 3) whether the costs or expenses are reasonable as opposed to self-imposed, mitigatable, or the result of delay in seeking court intervention; and 4) whether the sanction is the least severe sanction adequate to achieve the purpose of the rule under which it was imposed.

Each individual attorney must sign a document in his or her own name. La. Code Civ. Proc. Ann. art. 863. Sanctions may be imposed on the person who made the certification, but only on the attorney, and not an entire law firm. As an officer of the court, an attorney has a duty to conduct a reasonable inquiry into the issue of his pleadings before filing them.

For a further discussion of Daigle v. City of Shreveport, and the city's liability please continue reading Part II of this post. If, however, you feel as though you have read all you need and have questions or need expert advice in a potential negligence claim of your own against a town, city, or the state, then please do not hesitate to contact the Berniard Law Firm.

Paul and Anna Moreau thought they were buying a house with a 10-year-old roof. After they moved in, they learned that the roofing tiles were so old that they were no longer made. Their claim against the real estate agent, who represented both sides in the sale, failed at the trial court. In Moreau v. McKenzie, No. CA 11-197 (La. Ct. App. 3 Cir. 10/5/11), the court of appeal agreed with the trial court's dismissal of claims against Kelly Ducote, stating the real estate agent was not liable for failure to disclose defect in sale of house in Alexandria because the agent did not know the seller's statement was misleading.

The Moreaus purchased the home in Alexandria, La., from Mary McKenzie and Priscilla Goudeau. Ducote was agent for both buyer and seller. The property disclosure form that the Moreaus received said that the house's roof had leaked in the past, but it was replaced in 1998-99 with "all new decking & felt replaced with 70 yr. clay tile." A home inspection indicated that the roof was six to ten years old. The inspector found nothing serious. The sale closed. Sales documents warned that the sale was "as is" and without warranty, and Ducote made no warranty on the house or its condition.

When the Moreaus tried to repair a few broken roof tiles, "they learned that the tiles on the roof had not been manufactured for several decades, meaning the entire roof had not been ten years old as they had previously thought." Only the underlying deck and felt had been completely replaced. The old tiles had been reinstalled over the new deck and felt.

With a house that had a "new" roof with 70-year-old tiles, the Moreaus sued the sellers, real estate agent Ducote, and her insurer. The original claims sought damages and voiding of the sale ("redhibition"). The redhibition claim against the agent failed. Ducote moved the trial court to have the remaining claims dismissed. Ducote argued that "the Moreaus had presented no evidence to support the remaining claims of fraud and negligent misrepresentation." Ducote succeeded before the Ninth Judicial District Court, Parish of Rapides.

The duties of a real estate agent are not the same as the seller's duties, the court of appeal explained. The buyer is more limited in claims of fraud or negligent misrepresentation against an agent. Recovery is possible when an agent breaches a duty to provide accurate information that causes damages to the buyer. The agent does not have a duty to disclose what the agent does not know.

This was the case with Ducote. She did not know that the statement on the disclosure form was false or misleading and wrote what the sellers told her. The sellers signed and attested that the disclosure form was correct. The record contains no evidence of negligent misrepresentation, the court of appeal summarized, and the Moreaus admitted in deposition that they had no evidence to show that Ducote knew that the disclosure form was false or misleading. The Moreaus "have never even spoken to the seller to determine any culpability on the part of Ms. Ducote." The court of appeal found only speculation that Ducote breached a duty. That was not enough. No genuine issue of material fact remained, and therefore, the court of appeal affirmed the trial court's dismissal.

The problem with the Moreau's claims could have been reduced. A thorough investigation of potentially liable parties would have narrowed the dispute to the people most responsible. That would have saved time and money. It also may have strengthened all their claims by revealing telling facts. The more facts about who knew what would have shown a court with more clarity the validity of the Moreau's thwarted expectations that justified a claim of misrepresentation. For any claim, an objective assessment of the value lost from 70-year-old tiles on a new roof, or physical damage caused by the broken and aging tiles, would have shown that the misrepresentation harmed the Moreaus and justify compensation.

Even claims that appear to be solid need to be scrutinized. A thorough investigation of potential claims will determine their worth, and later to improve chances of success. A lawyer will ask the right questions. Different parties to a sale may have different duties. An experienced lawyer will recognize those different duties and advise on the necessary investigation and parties to obtain just recovery.

Continue reading "Real Estate Agent Not Liable for Defect in Alexandria Case" »

Paul Breaux, an employee injured on the job, hired an attorney to represent him in a personal injury suit against his employer, Jade Marine. Unbeknownst to Breaux, the company settled the matter out of court. A check in the amount of $60,000 was sent to the attorney, which was immediately forged and deposited into the attorney's IOLTA account at Gulf Coast Bank. After about fourteen months, Breaux finally learns of this despicable action by the attorney and files a claim against the bank for conversion. Specifically, the action was for check conversion or conversion of a negotiable instrument.

However, Breaux hit a wall when the defendant raised the exception that the statute of limitations for such a claim under La.R.S. 10:3-420 is strictly one year. Accordingly, Breaux appealed, arguing that the defendant’s exception was ineffective based on the doctrine of contra non valentem, specifically that “a prescription does not run against one who is unable to act.” Breaux emphasized that he was not equipped to discover what his attorney did, as he was under the impression that his case was ongoing. The court was not convinced.

Breaux sought the support from the case of Marin v. Exxon Mobil Corp., 09-2368, 09-2371(La. 10/19/10), 48 So.3d 234, which outlined four situations when contra non valentem (doctrine outlining prescription and when an individual knows the clock of liability begins) applies to defeat prescription. The fourth and most difficult category, known as the “discovery rule,” is where Breaux saw an opportunity. Under this exception, a plaintiff’s claim is not barred when the statute of limitations has run if the defendant has acted in fraudulent concealment.

Unfortunately Breaux’s argument failed for the following reason:

Here, the bank could not be held responsible for the lost funds, as it did not act out of the ordinary. Banks are accustomed to depositing large client checks into lawyers’ trust accounts, and had no reason to suspect that the instrument had been forged. The bank did not participate in any fraudulent acts to conceal anything. Although exceptions of prescription require a substantive case-by-case factual analysis, the courts share a common goal to encourage consistency and uniformity. The holding in this case is aligned with the Uniform Commercial Code and reinforces the legislative intent of the utility of negotiable instruments, that they “are intended to facilitate the rapid flow of commerce by providing certainty and finality in commercial transactions” as stated in the court’s opinion.

The real question: Breaux possibly saw a chance for full compensation with the bank as the defendant. However, it is clear that Breaux’s true cause of action should have been filed against his attorney along with a heavy claim for malpractice. At the very least, the fourth class of contra non valentem exceptions is satisfied by the attorney's actions, irrespective of other possible victories against this unethical practitioner.

Cases such as this are not only a valuable tool for learning legal practices but also why hiring the proper attorney is crucial.

Continue reading "Dishonest Attorney Helps Illustrate Need to Hire Representation Carefully" »

Alan Kite had many disagreements with his father as the two separated from their business relationship. Alan said that his father had harmed his reputation, that his father had discharged Alan to retaliate against him, and that Alan had relied on his father's promises to his detriment. Alan had other disputes, but the 36th Judicial District Court, Beauregard Parish, saw disputed facts that required more consideration than dismissal by a motion for summary judgment. The Louisiana Court of Appeal agreed with the district court's decision to dismiss some of Alan's claims in Kite v. Kite Bros., No. 11-334 c/w 11-335 (La. Ct. App. 3 Cir. 10/5/11).

Alan Kite had worked in the Kite Brothers recreational vehicle dealership since the 1980s. He did well, earning more than $200,000 a year, as set by his father, Robert Kite. Alan wanted more. He agreed with his brother, Jeff, to raise their salaries, as much as triple the salary for Alan, and to take 10% of the business revenues. The chaos from Hurricane Rita hid this action temporarily, but the father learned about it a few months later in January 2006. The sons quit, or were fired, from the dealership. Alan took business papers with him. The sons sued their father and the business and set up their own competing RV dealership. The brothers fought over control of their own dealership, and Jeff reconciled with his father. Jeff dismissed his claims against his father.

Robert Kite tried to have dismissed more of the claims against the business. The trial court agreed in part. The trial court's decision does not affect other claims that Alan still has against his father's business. Alan claimed that his father had damaged his reputation by calling him a "thief" and a "liar." The district court dismissed the claim. It concluded that "the fact that Alan did what any reasonable person would see was stealing would be a complete defense to the action for defamation."

The first of four required elements for defamation is "a false and defamatory statement concerning another." The court of appeal easily found that element had not been satisfied. "The evidence clearly established Alan, without his father's permission, raised his salary substantially and also unilaterally gave himself an unauthorized percentage of all revenues." In addition, "Alan, without permission, removed business documents from the Kite Bros., L.L.C. office," and didn't return them even after he told a police officer that he would. The court of appeal agreed that the father's statements were not false. The defamation claim was properly dismissed.

Alan claimed that Kite Brothers fired him in retaliation for objecting to renting recreational vehicles without a license to do so. The Louisiana Whistleblower Statute prohibits an employer from taking a reprisal "against an employee who in good faith, and after advising the employer of the violation of law . . . [o]bjects to or refuses to participate in an employment act or practice that is in violation of law," or "[d]iscloses or threatens to disclose a workplace act or practice that is in violation of state law."

Alan facilitated the two contracts for renting recreational vehicles in September 2005, and he claims that he is owed 10% "of the funds realized from those leases." Whistleblowers refuse to participate in the employer's illegal practices or intend to report them. Alan participated, to his profit, and did not intend to report the violation. He stayed with his employer for four months after this alleged objection. By the time he left, Kite Brothers had a license to lease vehicles. For these reasons, the court of appeal found that Alan's claim had "no merit." It agreed with the trial court's dismissal. Finally, Alan sought a 1% ownership in the business because he claimed to rely upon his father's statement that Alan would obtain ownership. The trial court dismissed this claim because "Alan has acknowledged elsewhere that [Mr. Kite] was the sole owner of [Kite Bros.,] LLC and Alan disclaimed any ownership of the [Kite Bros.,] LLC in his divorce proceedings."

Detrimental reliance occurs when a promise induces the other party to rely on it, and the other party suffers as a result of reliance that is reasonable. In such circumstances, the promise is enforceable under the Louisiana Civil Code. It's a powerful tool, and for that reason, courts look "carefully and strictly" at those claims.

The alleged statement by the father that he wanted Alan to have a controlling interest in the business came from a conversation more than 20 years ago. Alan's testimony does not support that he reasonably believed his dad promised him a share of ownership in the dealership. Since that alleged statement, Alan has admitted at least three times before a court or administrative board that his father was the company's sole owner. Even if the statement had become a promise that Alan believed in, the court of appeal noted that Alan has not shown that he changed his position because of the alleged promise. As a result, the court of appeal affirmed dismissal of the three claims.

A claim may have a popular definition, but that won't hold up in court. A lawyer is needed to recognize all the strengths and limitations of a claim. If one isn't sure that the claim will succeed, time and money may be spent without anything in return. If you believe that you have been wronged, you should seek counsel of an experienced attorney, who may guide you through the claims that are most likely to succeed.

Continue reading "Family Business Suit in Beauregard Parish Illustrates Dismissal Principles" »

As sons of an owner of a successful recreational vehicle business, Alan and Jeff Kite worked in the family business of Kite Brothers. The relationship went sour between father and son. The children gave themselves raises and later left -- taking some business records with them. But, Alan Kite's claims, such as defamation, retaliatory discharge, and detrimental reliance, against Kite Brothers didn't hold up at trial court or the court of appeal. In Kite v. Kite Bros., No. 11-334 c/w 11-335 (La. Ct. App. 3 Cir. 10/5/11) the court of appeal affirmed the 36th Judicial District Court, Beauregard Parish after it determined that the trial court had rendered a final judgment on those claims.

Family businesses create unique disputes of a personal nature. Robert Kite co-founded the dealership with his brother in 1961. It began as a corporation but was changed to a limited liability company in 1998. During the 1980s, Robert Kite hired his sons Alan and Jeff. Although he never signed an employment contract, Alan had broad powers in the business to write checks on the company account. The father believed that he was being generous to son Alan, who earned more than $200,000 a year. But, the father set the salaries. Hurricane Rita in September 2005 provided a diversion for the sons to decide, on their own, to raise their salaries. Alan agreed with his brother to take more than triple his previous weekly salary, which had been set at $1,500 a week. They also agreed to take a 10% cut of all revenues. They agreed that this arrangement would end when "everything settled down after the storm."

They didn't stop. The father noticed the increased unauthorized compensation to Jeff in January 2006. He demanded that Jeff return his salary to its authorized level. The father also revoked both sons' authority to write checks and canceled their credit cards. Alan continued to give himself a weekly salary of $5,000 instead of $1,500. Later that month, the sons left the business. Father and sons disagree whether Alan and Jeff quit or were fired. Alan took with him, also without permission, business papers owned by the business. The father sought them back by filing a criminal complaint. Alan assured an investigating police officer that he would return the records, but he never did. Alan's lawyer later returned some of them.

The father still wanted to make things right and keep the family together. He couldn't verify Alan's rightful final compensation because Alan took some of those records. The father just "wrote Alan a check for $100,000, minus employment taxes." The sons still sued their father and the business, and the father and business counterclaimed ("reconventional demands") for the unauthorized salaries and raises. The father tried to resolve the dispute through mediation. The parties came to an agreement, but Alan and Jeff failed to abide by it. The trial court combined with the sons' claims the father's claim to declare the mediation null. The sons started a competing RV dealership, but Alan and Jeff argued about control of their company. Jeff reconciled with his father and dismissed the claims he had against his father.

The father moved the trial court to dismiss Alan's claims. The motion for summary judgment had numerous affidavits and depositions to support dismissal. Although Alan argued that the parties disputed various facts, preventing dismissal, Alan never gave the court what it wanted: specific statements in dispute. The court dismissed several of Alan's claims, but not all. The dismissed claims included defamation, retaliatory discharge, and detrimental reliance.

For an issue to be accepted by the court of appeal, the trial court must be done with it. The trial court shows this by issuing a valid, final judgment. That issue was unclear. The trial court dismissed only some of Alan's claims; others could be tried. The court did not explain why it considered its judgment on some of the claims to be final. It only said "there is no just reason for delay." But, that's just some words cribbed from the Louisiana Code of Civil Procedure. Without a valid, final judgment, the court of appeal had no authority to hear the case. The trial court should have been explicit, but when a court is not, the court of appeal can decide for itself. Four factors are decisive. What is the relationship between the claims decided by the trial court and those that were not? Could the trial court's deciding of other matters make review unnecessary? Might the reviewing court, if it decides to review the issue now, have to consider the issue again? Do various other factors, such as delay, economics and solvency, shortening the time of trial, the frivolous nature of the other claims, expense, and similar concerns preclude review?

For the appeal of the partial summary judgment, dismissing only some of Alan's claims, the court of appeal felt safe in hearing the appeal. The claims were individual. They didn't relate to the claims that the trial court had not decided. It would be unlikely that the court of appeal would face the same issues again from another appeal from the case. The court accepted review of the trial court's dismissals.

The results of the claims on appeal will be described in a subsequent blog.

Sometimes, the reasons for seeking just recovery are many and complicated. In such cases, some of those claims may be solved individually. A lawyer can make sure that the trial court made a valid, final judgment that resolves the matter or allows an appeal.

Continue reading "Family Feud Demonstrates Appealable Judgements in Court Case" »