areopagus-1214742-1024x657One important process in our legal system is the ability to petition a higher court to review a lower court’s decision that you feel was wrongly decided. This appellate process is vital in making sure justice is upheld because it allows a losing party in a lawsuit to get a second opinion on how the particular issues of their case were handled. However, as with most other court procedures, the process of appealing a case can be complicated. Seeking counsel from an excellent attorney can make all the difference in whether your case succeeds or fails.

The Louisiana Fourth Circuit Court of Appeal recently heard a case that dealt with what the proper appeal procedures were. In this case, Mr. Ramirez and Iokon, LLC were appealing a partial summary judgment in favor of their opposition, Mr. Bagot and Evonir, LLC. Their appeal was dismissed as their failure to recognize certain procedures resulted in their forfeiting their right to appeal. Before the appeal process is available, the lower court must issue a final judgment. Here, the judgment was not finalized and instead, the proper procedure was to file for supervisory relief, which Ramirez and Iokon did not do.

One prerequisite before you’re able to appeal a decision in your case is that the case must be decided. This seems common sense – if a case is still ongoing, you can’t claim that the case has been wrongly decided. On the other hand, it is not always obvious whether a judgement from the court is final. Sometimes, as in this case, the judge will give a non-final judgement and it will take a good attorney to know the difference between this type of judgment and a final judgement.

golden-delicious-on-white-1584628-1024x934When entering into a contract it is important to read all the terms, especially the general provisions near the end of the agreement. Oftentimes those provisions state that a party must waive their right to a jury trial and settle all disputes arising from the contract by arbitration. Arbitration is an alternative to the judicial system when it comes to settling disputes. Each party chooses an arbitrator, which is usually a lawyer or former judge with experience in the subject matter, and then agree on a third, neutral arbitrator to comprise a panel. Generally, their decision is binding and final. It pays to hire a good attorney if you find yourself on the wrong end of an arbitration decision.

Recently, Medistar Home Health of Baton Rouge (“Medistar”) contracted to buy from Lakeview Home Care, LLC (“Lakeview”) the property rights and assets used in the operation of a home health agency. The parties agreed on a purchase price of $4,250,000. Lakeview financed a portion of the price through a $1,250,000 promissory note. The note required Medistar to make five annual payments of $250,000 with a seven percent interest rate.

Medistar did not make its first payment and claimed that Lakeview owed it for breaching their Asset Purchase Agreement and causing Medistar to suffer losses. An arbitration panel awarded Medistar $350,000 in costs and attorney’s fees. However, in Louisiana there is a law that permits parties to request a court to confirm an arbitration award or vacate or modify the award within one year after an arbitration decision. The court will only vacate an arbitration award if it was procured by corruption or misconduct of the arbitrators.

railroad-in-firenzi-1214429-768x1024If you are the victim of a tort, sometimes the damages can have lasting effects. For example, a toxic chemical spill can have negative health effects on anyone drinking contaminated water far beyond the time and date of the actual spill. There is a legal doctrine called continuing tort theory that can provide some relief in such a case. However, some Fisherville neighborhood residents in Lake Charles, Louisiana recently discovered in their negligence suit against Union Pacific Corporation (“Union Pacific”) that continuing tort theory does not apply to injuries suffered from a past accident where reasonable remedial efforts have been made. The Louisiana Third Circuit Court of Appeal affirmed the Trial Court’s decision to grant Union Pacific’s motion for partial summary judgment, thereby dismissing the case.

The circumstances surrounding the lawsuit dealt with a chemical spill that took place on April 20, 1983. A railcar carrying approximately 11,000 gallons of perchloroethylene (PCE) released the chemical through an open valve while parked at the Lake Charles Rail Yard. Southern Pacific Transportation Company (“Southern Pacific”), a predecessor-in-interest of Union Pacific, owned the rail yard and railcar; PPG Industries (“PPG”) owned the chemicals. Southern Pacific and PPG cleaned the area, allegedly eliminating all of the PCE from the ground surface level by mid-July 1983. However, roughly 1,150 gallons of PCE remained underground and cleaning and remediation efforts continued through monitoring and extraction of the groundwater and through the installation of monitoring wells at the release site and in the neighborhood.

On March 3, 2003, five lawsuits were filed and consolidated into this case. At the Trial Court level, the Plaintiffs initially experienced success when the Trial Court granted them class action status. The Trial Court also stated that the Plaintiffs could pursue their claim on a continuing tort theory. However, the Defendants filed a motion for partial summary judgment on April 28, 2014, in which they sought dismissal of the claim based on prescription and the Plaintiffs’ alleged failure to provide discovery responses. The Trial Court granted the Defendants’ motion for partial summary judgment. Subsequently, the Plaintiffs appealed the decision.

roadman-1395447-695x1024No one wants to be injured at work and thus be unable to continue working to pay one’s bills.  Worker’s compensation exists to assist employees who may have been badly injured in the workplace. Among the benefits that may be paid after an employee has suffered a debilitating injury are temporary total disability benefits, (TTD), and supplemental earnings benefits (SEB). TTD benefits are awarded on an employee’s proof that he or she cannot work at all following injury, equal to two-thirds of the pre-injury wages. La.R.S. 23:1221(1)(c).  Supplemental earnings benefits are paid out when an employee is limited in his or her earning capability following an injury, payable at two-thirds of the difference between wages before the injury and those earned after returning to work. La.R.S. 23:1221(3)(a)(i).  Upon proof of an employee’s ability to work productively, an employer may be able to change the higher TTD payments to SEB payments.

In Louisiana, just because an employee has suffered from conditions that predate an incident of injury does not mean that that employee is to be prevented from recovery under worker’s compensation for that work-related injury.  If some accident in the workplace aggravates or reinjures a part of the body that has been previously injured, and this aggravation is to the point of disability, then an injured employee may bring a claim for disability.  The plaintiff still must prove that the workplace injury in question caused the disability.  However, it is enough to show that the injury could be factored into the chain of events that created the disability.  In this situation, the employee must show only that the disability did not exist before the accident, that the symptoms arose after the accident, and evidence that tends to show that it is possible that the disability could have resulted from the alleged incident.

As people age, their bodies become frailer and prone to injury.  Medical procedures necessary to restore one’s abilities to function in daily life as well as the workplace have beneficial effects but can also leave a person vulnerable to an increased risk of injuries.  These factors, alone or combined, can mean that an injury that does not sound very serious can prove debilitating to a person, as Cathy Turner discovered.  In December 2011. the 60-year-old Ms. Turner was a full-time admissions coordinator at the Lexington House nursing home in Alexandria, Louisiana.  On December 12th, she was accidentally struck on the hip by a swinging door.  This injury just so happened to be at the same location as her recent total hip replacement surgery in September of 2011.  This was the site of two previous hip surgeries as well.  After this incident, she experienced a tremendous amount of pain and inability to walk or even stand on the injured hip.  Multiple doctors concluded that Ms. Turner had become disabled due to the injury and the additional surgery required to help ease the constant pain. The extent of her injuries necessitated that she obtain a motorized scooter in order to get around when before she had been able to walk.  As such, the evidence tended to show that the disability stemmed from the work injury rather than the several pre-injury operations.  Most people who undergo these varieties of surgeries, according to the medical evidence, generally see improvement.  Regardless, Lexington House refused to pay the disability payments, claiming that her preexisting condition the three previous surgeries. The company also did not pay any supplemental earnings or for necessary medical tests.  Ms. Turner filed a worker’s compensation claim.  The Office of Worker’s Compensation (OWC) ordered her employer to pay her disability payments, an award for reconstructive surgery and medications, and penalties for failing to pay out certain specified benefits.

supermarket-1575072-1024x692If you slip and fall on a pile of food left on the floor of a supermarket and evidence shows that an employee observed the hazard a minute earlier but failed to warn you, it may seem obvious that the store was at fault and owes you full compensation for your injuries. However, as Sheneatha Stevens of Lake Charles, Louisiana learned, the situation may not be so clear cut. The amount of compensation you are awarded will depend on whether you had knowledge of the hazard at the time you were injured, personal characteristics or distractions in the environment affecting your ability to avoid the hazard, any risks you took and why you took them, and whether the trial court finds the evidence you present on these factors to be convincing. An aspect of the situation that may not seem important to you can wind up having a major effect on your credibility and, ultimately, on the amount of damages awarded to you, as Ms. Stevens learned. Her case shows why it is important to have an experienced attorney representing you when you have been injured in a retail store and both sides have strong evidence supporting their positions.

On January 5, 2012, Sheneatha Stevens slipped and fell in a pile of rice that had spilled onto the floor near a  drink cooler she was walking toward in the Market Basket supermarket in Lake Charles, Louisiana. She was taken by ambulance to Lake Charles Memorial Hospital, released and underwent chiropractic treatment between February 2012 and April 2012. Her medical exam showed no tenderness, just soreness and bruising that the trial court believed was from an earlier injury.

Ms. Stevens filed suit against Market Basket in December 2012.The trial court evidence included a surveillance video that showed her entering the store while talking on her cell phone, walking straight toward the drink cooler, slipping but not falling on the spilled rice near the cooler, pulling a drink out of the cooler and, about 22 seconds later, slipping and falling in the rice as she retraced her steps down the same aisle and headed toward the store entrance. Evidence also included Ms. Stevens’ testimony that she had filed more than 20 personal injury claims since 2003, as well as a finding that a Market Basket employee had seen the spilled rice less than a minute before Ms. Stevens entered the store but failed to warn her about it.

home-sweet-home-1228389-1024x768Insurance is such a lucrative business because while almost everyone will purchase some form of it, very few will ever make a claim against the insurance company, and even fewer will be successful. This allows insurance companies to generate huge profits on premiums paid by policyholders. Unsurprisingly, those who do make claims against insurance companies can count on being challenged at every turn, as the insurance companies will hire some of the best attorneys in order to avoid shelling out a dime to cover the policyholder. That is exactly what happened when Shelter Mutual Insurance Company became a party to a suit brought by a University of Louisiana Lafayette student after her professor, the insured, went on a tirade in class.

The incident began in 2004 when UL Lafayette student Kacie Renee Spears attended a class taught by Dr. Louis Houston. During that class, Dr. Houston became extremely agitated and, in a fit of rage, threatened to kill Ms. Spears if she attempted to leave the classroom, spat in her face, and physically struck one of her fellow students. Ms. Spears was so severely distressed by the experience that she sued for damages associated with emotional and physical trauma and medical expenses, naming Dr. Houston, his homeowner’s insurer Shelter Mutual Insurance Company, and the Board of Supervisors for the University of Louisiana System as defendants.

In her complaint, Ms. Spears alleged that the University of Louisiana System was liable due to its negligent hiring, retaining, and supervising of Dr. Houston, given that he had a history of delusional and outrageous acts and had a previous delusional episode while employed by the University. Ms. Spears also asserted that Dr. Houston suffered from bipolar disorder, a mental illness that causes delusions and that, at the time that Dr. Houston exhibited the aforementioned behavior, he was suffering a delusion that may have manifested from his mental illness.

louisiana-swamp-2-1489252-1024x674Minor car accidents occur on a daily basis. Many of us have probably been involved in a fender bender or two, ourselves. The usual course of action includes exchanging information and getting insurance companies involved, but even the smallest car accidents can lead to litigation. It is imperative to understand everything that is necessary in order to prevail at trial in such matters. Unfortunately for one plaintiff in Crowley, Louisiana, the complexities involved with these seemingly small lawsuits left him unable to overcome his burden of proof at trial.

In March of 2013, Jahlia Joubert (Mr. Joubert ) was involved in a minor car accident at the West Hutchinson Avenue and North Western Avenue intersection. Mr. Joubert was driving west on West Hutchinson Avenue when he came to a four-way stop. Shella Poullard (Ms. Poullard) was traveling southward on North Western Avenue when she came to the same four-way stop.

There was a dispute as to which party failed to stop at the intersection. The police were called, but because of the conflicting accounts of the events by the parties involved, the officer at the scene could not assess fault. None of the parties involved reported injuries at the scene of the accident, but Mr. Joubert and his passenger both later complained of injuries and were treated by a chiropractor for roughly three and a half months.

forest-2-1550924-1024x768Parties to a lawsuit are required to submit evidence in support of their claim. Depending on the piece of evidence, the court may demand very specific evidence; and in such circumstances, complying with the mere spirit of the order to produce evidence may not be enough for the court. A party who does not provide the evidence requested by the court may be held in contempt as one Louisiana plaintiff recently found out the hard way.   

The case arose from a dispute regarding the right to harvest particular tracts of timber. The plaintiffs in the original case were the owners of the land, Paradise Land and Lake, LLC, and Paradise Rod and Gun, Inc. (“Paradise”). In 1998, an Act of Exchange was executed between Paradise and Roy O. Martin Lumber Company, Inc. (“Martin”). According to the document, Martin bought the merchantable timber, but with a limitation of one harvest during a twenty-five period. In 2008, as a result of a pair of Timber Rights Agreements between Martin and Louisiana Hardwood Products, LLC and Louisiana Hardwood Forestlands, LLC (“Louisiana Hardwood”), Martin’s right to harvest timber was transferred to Louisiana Hardwood for the remainder of the twenty-five years stipulated by the original agreement.

Before transferring rights to Louisiana Hardwood, Martin had harvested timber on two portions of the property. Per the terms of the original agreement, Louisiana Hardwood did not have the right to harvest timber from either of these two areas; however, when Louisiana Hardwood attempted to harvest timber from other portions of the property, timber from the disallowed area was taken.

nz-police-car-1313773-1024x450Driving is a dangerous and daily task for many people and becomes even riskier when roads aren’t conducive to safety. Adding modern distractions like cell phones and a splash of alcohol to the equation creates the perfect storm for a terrible collision. An incident in Lafayette, Louisiana demonstrates how the culmination of these factors can create difficulties when a court is trying to determine liability and damages.

Taylor Burtner (Mr. Burtner) sustained a complex tibia and fibula fracture of his right leg when he was injured in a car accident with Lafayette City Police Officer Michael Milazzo (Officer Milazzo). As a result of the accident, Mr. Burtner underwent three separate surgeries which cost over $67,000.

Mr. Burtner was turning onto West Pinhook Road at its intersection with Jomela Drive when a speeding Officer Milazzo struck his vehicle. At trial, it was determined that Mr. Burtner had been drinking earlier in the night, but, although his exact blood alcohol concentration was at dispute, it was not disputed that he was under the legal limit at the time of the crash. Mr. Burtner was turning left onto West Pinhook after stopping at the stop sign on Jomela Drive, but this intersection contains a curve right before Jomela Drive for drivers on West Pinhook. Officer Milazzo was driving on this curve, speeding at a contested level between 10 and 15 miles over the speed limit. In addition to this bad combination, additional factors impaired the motor skills of both drivers. The trial jury found that Mr. Burtner was distracted by a passenger texting at the time he was turning and Officer Milazzo’s vision was obstructed by trees along the curve of West Pinhook. With everything taken into account, the jury found Mr. Butner to be 90 percent at fault in the wreck and Officer Milazzo to be 10 percent at fault. In addition, the jury awarded Mr. Butner $67,072.12 in medical damages and $40,000 in general damages.

tree-bouleau-1396832-1024x617Expropriation is the act of the government taking privately owned property and using it for the benefit of the public. Generally, most expropriation cases deal with the construction of public roadways and highways. Where the land is expropriated, the private landowner is generally compensated. In one particular matter involving the expropriation of land to build a highway, valuing the trees on the land became more troublesome than anticipated.

In this Louisiana case, involving the expropriation of two parcels of land located in Avoyelles Parish, the court of appeals conducted an appellate review of the matter twice. After the judgment in the second trial of the matter, the State of Louisiana, through the Department of Transportation and Development (DOTD), appealed the trial court’s judgment which awarded compensation for the value of the land taken for construction of a new highway.

There were two parcels of land that were the subject of dispute. Parcel No. 2-1 and Parcel No. 2-2. The main dispute, among others, was the valuation of the trees on the respective parcels that were expropriated in order to build the new highway. The trial court awarded monetary compensation to the landowners for the presented value of the land taken.