Articles Posted in Business Dispute

mercantile-bank-building-dallas-1228577-771x1024There is no shortage of frivolous lawsuits. As a result, courts have developed many different ways to nip these sorts of lawsuits in the bud. One way is by allowing defendants to file an exception of no cause action, which is essentially a request that asks the court to drop the plaintiff’s lawsuit because there is no factual support to justify the lawsuit. In the case below, the plaintiff truly believed she was wronged by her employer, but because the facts she provided in her lawsuit did not support a valid claim, her lawsuit was ultimately denied. So, how can you avoid your lawsuit being dismissed by no cause of action in Louisiana? 

Gina K. Lusich worked as the branch manager at Capital One Bank in St. Bernard Parish, Louisiana. Lusich’s employment with Capital One was terminated in June 2013. She then filed a lawsuit against Capital One for wrongful termination. Lusich argued in her petition that she was terminated wrongfully because of a false accusation claiming that she instructed other employees to falsify time cards. She also claimed that her personal property was stolen by Capital One. Capital One responded by filing an exception of no cause action. The trial court granted this exception in favor of Capital One, and Lusich appealed to Louisiana’s Fourth Circuit Court of Appeal.

When an appellate court reviews an appeal of an exception of no cause of action, it must examine the sufficiency of the claims within the lawsuit. In other words, the court must seek to determine whether the law can sufficiently provide a remedy for the plaintiff. Badeaux v. Southwest Computer Bureau, Inc., 929 So.2d 1211, 1217 (La. 2006). In doing so, the court must accept the facts as stated by the plaintiff’s petition to be true, asking whether the plaintiff would be entitled to a remedy based on those facts. Jackson v. State, 785 So.2d 803 (La. 2001). However, the lawsuit should be dismissed if the plaintiff cannot show some theory under which he can prove the facts that would support his claim. Wallace C. Drennan, Inc. v. Sewerage & Water Bd. of New Orleans, 753 So.2d 861 (La. Ct. App. 1999).

clock-face-1631303-1024x683Summary judgment is a legal procedure courts may use to dispose of a case when there are not enough facts in dispute to proceed with a lawsuit. This is a good strategy to use when applicable because it purges certain claims that have no merit, saving time and money. The Fifth Circuit Court of Appeal demonstrated the principles of summary judgment within the context of an employment discrimination lawsuit when it comes to untimely filing.

The plaintiff in this case, DeBlanc, suffered from a condition called “chemo brain” after undergoing prior breast cancer treatments. When DeBlanc was fired, she sued her employer for failure to tell her why she was terminated. DeBlanc alleges that the St. Tammany Parish School Board violated the Americans with Disabilities Act (“ADA”) and discriminated against her when they fired her because of her medical condition. A Federal Court in Louisiana determined that summary judgment in favor of St. Tammany was appropriate because DeBlanc failed to file her discrimination claim within the required timeframe and failed to show that the time limit should be tolled. Thus, the claim was barred. DeBlanc appealed. The issue upon appeal was whether the trial court abused its discretion when refusing to apply equitable tolling to save DeBlanc’s claim. Equitable tolling is applied when the court decides there is a legal and justifiable basis to extend the time in which plaintiff can file her claim. The Fifth Circuit Court of Appeal agreed with the trial court and affirmed summary judgment in favor of St. Tammany School Board.

A former employee has three hundred days from the date of termination to file an Equal Employment Opportunity Commission (“EEOC”) complaint alleging that they were terminated based on discrimination. See 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117(a). Filing a timely discrimination claim with the EEOC is a requirement that is subject to waiver, estoppel, and equitable tolling. Granger v. Aaron’s, Inc., 636 F.3d 708, 711 (5th Cir. 2011). However, equitable tolling is applied sparingly, and the burden is on the plaintiff to prove its application.

businessmen-shaking-hands-1240995-1024x643A non-compete agreement often takes the form of a clause in an employment contract whereby an employer seeks to restrict a former employee’s ability to compete with the employer after the employment relationship is terminated. These types of clauses are usually valid if they are reasonable in scope, time, and area and line of business. But, what happens happens when someone ignores a non-compete agreement in Louisiana?

In the present case, four investors formed a company in Shreveport, Louisiana, called Endurall, Inc. to manufacture and sell rod guides to local businesses in the oil and gas industry. The four investors signed a non-compete agreement, which stated that, if any of them were to be terminated as shareholders, they would not establish another business to compete against Endurall for at least two years after termination.

Billy Joe Edwards was terminated as a shareholder of Endurall on July 31, 2013. Less than a year after his termination from Endurall, in March 2014, Edwards and his son formed a new company, DHE, LLC in Benton, Louisiana, which posed competition for Endurall in the manufacture and sale of rod guides. As a result, several Endurall sales representatives left Endurall to work at DHE, and some of Endurall’s customers switched from Endurall products to DHE products, causing Endurall’s sales to decline.

supply-vessel-1449728-1-698x1024Contracts between parties working toward a common goal can sometimes result in detail-oriented litigation when something goes wrong. When those parties need to subcontract with a third party, the responsibility for that third party if something goes wrong can be a point of contention.

In the Western District of Louisiana, a lawsuit and appeal revolved around whether the defendant-appellant, W & T Offshore Incorporated (W&T), or the defendant-appellee, Triton Diving Services (Triton), was responsible for injuries sustained by the plaintiff, Jakarta Grogan. W&T contends that Triton is liable because the injury occurred on Triton’s vessel. Triton disputes all liability and contends that W&T must pay for Mr. Grogan’s injuries, due to the contractual relationship between them.

W&T operates a pipeline in the Gulf of Mexico and hired Triton to participate in a recommissioning project. Triton was to be responsible for flushing the pipeline for impurities and was able to do so by using a dive support vessel called the Achiever. The two parties signed a Master Services Contract that allowed Triton operational control of the vessel but granted overall operational control to W&T. During the flushing process, Triton detected potentially unsafe levels of hydrogen sulfide being released. Due to this hazard, Triton consulted with W&T engineer, Alan Greig, about how to proceed. Mr. Greig recommended they hire a third party to help resolve the issue, and they brought Tiger Safety onto the project. W&T representatives, including Mr. Greig himself, made the necessary arrangements with Tiger Safety. The Plaintiff, Mr. Grogan, was one of Tiger Safety’s personnel that boarded the Achiever in order to resolve the hydrogen sulfide issue. Mr. Grogan acted under the direction of W&T’s on-site representative and provided necessary information gathered to said representative. The problem was resolved, and Tiger Safety’s personnel had been discharged. During the departure from the Achiever, Mr. Grogan fell. He subsequently sued both W&T and Triton for the injuries he sustained. W&T and Triton filed cross-claims against one another, and each defendant claimed indemnification. Simply, each defendant claimed that they could not be held liable for Mr. Grogan’s injuries because the other defendant had contracted to release them from any potential claims. The contract between the parties held that Triton indemnified W&T from personal injury claims brought by members of the ‘contractor group’. The term ‘contractor group’ was meant to refer to the Contractor, its parent company, affiliated companies, and all respective officers, employees, and invitees on the work sites. The district court held in favor of Triton and found that, based on all relevant facts, Mr. Grogan was W&T’s invitee. W&T appealed the ruling.

agreement-blur-business-261621-1024x768Louisiana citizens interact with contract law every day, in many cases without even realizing it. Whether buying groceries at a supermarket with a credit card or installing a new iPhone app, countless purchases are governed by consumer agreements. What may be even less known to purchasers is that many of these agreements include an arbitration clause, which provides that any disputes arising out of that agreement must be handled by an arbitrator rather than a court. Arbitration is a form of “alternative dispute resolution” in which an arbitrator — typically a certified attorney —  evaluates the parties’ claims and renders a binding decision as to who should prevail. In general, companies prefer arbitration because it costs less than litigation. But because the rules of arbitration can vary significantly from the rules of court, the consumer does not always benefit from being kept away from the courthouse. The validity of arbitration clauses is a common point of contention. Although Louisiana generally favors arbitration, the legislature has enacted the Louisiana Arbitration Act (“LLA”) (see La. R.S. 9:4201) to ensure that arbitration proceeds fairly.

Arbitration is also common in commercial agreements. In 2013, a sales representative of UniFirst Corporation (“UniFirst”) approached the shop foreman at the Homer, Louisiana location of Fluid Disposal Specialties, Inc. (“FDS”). The shop foreman’s job title was Manager of Transportation Logistics. The purpose of the meeting was to discuss FDS’s entering into a contract with UniFirst to provide uniforms to FDS employees. After nearly six months of negotiation, a price was agreed upon and the FDS shop foreman executed a contract with UniFirst. The contract contained an arbitration clause. Later, FDS attempted to void the contract, citing that the shop foreman did not have the authority to bind the company. Unifirst argued that, based on the arbitration clause in the agreement, the matter should be settled by an arbitrator. FDS, preferring to avail itself of the court, argued that because the contract itself was invalid, any clauses within it — including the arbitration clause — could not be valid either.

The case eventually made its way to Louisiana’s Second Circuit Court of Appeal, which applied a two-step analysis commonly relied upon by the courts. The first step is to determine whether there is a valid agreement to arbitrate between the parties; the second is to determine whether the dispute in question falls within the scope of that arbitration agreement. In applying the first step, the Court determined that the agreement was invalid because the FDS shop foreman lacked the authority to enter into a contract with UniFirst. In response to UniFirst’s argument that the foreman had apparent authority, a doctrine in which an innocent third party (Unifirst) could rely on the representations of an agent (the FDS shop foreman) when entering an agreement (see American Zurich Insurance Co. v. Johnson, 850 So. 1112 (La. Ct. App. 2003)), the Court found that both the shop foreman’s job title and the six-month negotiation period should have indicated to UniFirst that the foreman was not in a position to enter into a contract for uniform services. For these reasons, the Court found that no agreement existed between the parties and therefore there was no need to apply the second step of the analysis. Arbitration cannot be compelled under an agreement that never came into being. The Court went on to note, however, that UniFirst could still proceed against FDS for any obligation or damages arising from FDS’s use of the uniforms that UniFirst provided the shop.

competition-1024x683A non-compete clause is a common feature in many employment agreements in Louisiana. The clause is a way for an employer to restrict an employee from going to work for a competitor and thus potentially harming the original employer. Most non-compete clauses, in order to be enforceable, must contain some limitation as to time and geographical location.

Katie Urban-Kingston was hired by Billedeaux Hearing Center (“Billedeaux”) in Lafayette in May of 2014. Urban-Kingston and Billedeaux entered into an employment agreement containing a non-compete clause that applied to certain areas of Louisiana, Arkansas, Texas, and Mississippi, and allowed for the collection of any costs incurred by Billedeaux for legal enforcement of the clause. Less than a year later, Urban-Kingston left Billedeaux and became employed by Williamson Hearing Center (“Williamson”), just outside of Baton Rouge. Billedeaux sought and was granted a temporary restraining order in February 2015 to enjoin Urban-Kingston from working for Williamson, and a show-cause hearing for a preliminary injunction was set for early March.

At the hearing, the parties stipulated that Urban-Kingston was trained by Billedeaux, that she left Billedeaux’s employ and worked for Williamson at the time of the trial, and that Williamson is in direct competition with Billedeaux. Urban-Kingston claimed as a defense against the issuance of a preliminary injunction, however, that the non-compete clause in her employment agreement with Billedeaux was too broad. The trial court determined that the only issue to decide based on Urban-Kingston’s defense was whether the two hearing centers were actually in competition. But since the parties had already stipulated that point, the court rejected the defense, issued the preliminary injunction in Billedeaux’s favor, and ordered Urban-Kingston to pay Billedeaux’s attorney fees of approximately $6,000.

tax-1501475-1-1024x768The old saying goes:  nothing is certain but death and taxes. In the case of property taxes on real, or immovable, property, failure of payment can permit the sheriff of the parish in which the property is located to hold a “tax sale.” In a tax sale, the delinquent property taxes are paid out of the proceeds of the property’s sale. Removing a homeowner from his residence in order to pay overdue taxes is a very serious and potentially damaging action — both financially and emotionally — for the homeowner. For this reason, under Louisiana law, property owners who lose their homes due to a tax sale have options for reclaiming their property after a tax sale if they can obtain sufficient funds to make good on what they owe. This process is known as redemption of the property. If redemption is not feasible, a homeowner can still seek an annulment of the tax sale if certain conditions are met. A case that came before Louisiana’s Fifth Circuit Court of Appeal illustrates how these procedures operate.

Mark Manganello owned a condominium on Avant Garde Circle in Kenner, Louisiana. He failed to pay property taxes for the condo in 2009. In April 2010, the Jefferson Parish Sheriff’s Office notified Manganello of his property tax delinquency by certified mail. Two months later, the Sheriff’s Office advertised a tax sale of the property, and the property was purchased by Virtocon Financial Services. A Tax Sale Certificate in favor of Virtocon was recorded in the immovable property records of Jefferson Parish. Virtocon subsequently assigned its rights to the Tax Sale Certificate to Philnola, LLC.

Four years later, Philnola filed a lawsuit against Manganello to confirm the tax title of the property. Philnola asserted that Manganello was properly notified of the tax sale, but that he neither paid the taxes due nor redeemed the property within the three year period provided by Louisiana law. Phinola’s motion for summary judgment was denied by the trial court, however, because the court found genuine issues of material fact existed in relation to whether Mangenello sought redemption of the property. Then Phinola filed a second motion for summary judgment, arguing that Manganello failed to begin a proceeding to annul the tax sale within the six-month service notice of sale as required by Article 7 of the State Constitution. Philnola argued that because Manganello failed to seek an annulment of the tax sale, the property should belong to Phinola. Manganello argued that because the 2009 taxes had either been paid or because he had begun the redemption process within the statutory redemption period, there was no reason to seek an annulment of the tax sale. The trial court granted the second motion for summary judgment and confirmed Philnola’s tax title to the property. Manganello appealed to the Fifth Circuit.

money-money-money-1241634-1-1024x768Have you ever heard the maxim “be careful what you wish for?” This phrase applies almost savagely to Robert Alvarez, a New Orleans financial advisor who sought relief on appeal from an order to pay attorney’s fees and costs in a dispute with his former employer.

Robert Alvarez was associated with Ameriprise Financial Services. After a dispute with the company, Alvarez left Ameriprise and sold his book of business to another Ameriprise advisor, Rufus Cressend. In August 2014, Alvarez filed a petition for a temporary restraining order (“TRO”) and an injunction against Cressend and Ameriprise, seeking to enjoin them from soliciting his former clients and other actions that allegedly damaged his professional reputation. The trial court granted Alvarez’s motion for a TRO on the condition that Alvarez pays a $25,000 security deposit.

Approximately a month later, Cressend and Ameriprise filed a motion to dissolve the temporary restraining order, as well as for the award of attorney’s fees. They asserted that Alvarez failed to prove irreparable harm and failed to provide justification for lack of notice required by La. C.C.P. art. 3603. The trial court denied Alvarez’s motion for a preliminary injunction, found that the TRO had been improperly issued, and granted Cressend’s and Ameriprise’s motion to dissolve the TRO. On the issue of attorney’s fees, Cressend submitted an invoice of fees and costs of about $9,000, and was awarded about $2,500; Ameriprise submitted invoices in the amount of roughly $56,000 and was awarded approximately $20,000. Alvarez appealed the award of attorney’s fees. He settled with Ameriprise, leaving the only issue for the appellate court to consider the $2,500 fee award to Cressend.

architecture-2-1446689-1024x681It really does go without saying, but lawsuits tend to progress slowly.  Delays abound and the realities of finite court resources mean that lawsuits can take years to complete.  As an alternative to using this system, some parties will agree to arbitrate disputes. Arbitration takes place outside the court system before a contractually agreed upon third party who hears evidence and renders a final decision (much like a judge). Although it is sometimes successful, arbitration can often result in court litigation anyway. After a dispute arose over the quality of some condo construction in Biloxi, Mississippi, the New Orleans Glass Company attempted to litigate rather than arbitrate.  

The New Orleans Glass Company (“NOG”) was a subcontractor for the Roy Anderson Corporation (“RAC”) on a project building condos in Mississippi.  The parties executed a subcontract which required any subcontractors to participate in arbitration proceedings between RAC and a third-party when the subcontractor had claims against RAC arising out of the same general subject matter as the already-pending proceeding. NOG interpreted the contractual provisions to mean that arbitration was only required in regards to that third-party and not for disputes between NOG and RAC.      

Predictably, a dispute did arise between RAC, the condo developer, and the condo owner’s association over the quality of the construction. Developer and owners initiated arbitration proceedings.  RAC determined that many of the claims for damages involved work performed by subcontractors and subsequently filed a demand requiring NOG to participate in the arbitration proceedings. NOG filed a complaint before the United States District Court for the Southern District of Mississippi requesting the District Court to issue a judgment stating that NOG and RAC did not agree to arbitrate but to litigate.  

machine-2-1426327-662x1024The majority of banking regulations are in place to protect you and your privacy. But some regulations are created to make it easier for law enforcement to obtain information about suspicious banking activity. For the most part, this is a good thing; it enables law enforcement to more effectively combat social ills such as terrorism and the drug trade. At times, however, a bank’s attempt to cooperate with law enforcement could put your personal information, or even your property, in jeopardy. Here, an inaccurate tip to the police lead to the confiscation of a Metairie couple’s belongings, namely the contents of their safety deposit box. And they soon discovered that they had no viable legal recourse.  

In December 2015, the Fifth Circuit Court of Appeals for the state of Louisiana upheld a ruling which absolved Gulf Coast Bank of liability after the bank surrendered a safe deposit box and its contents to police, even though the box was erroneously identified as the property of a different party. The laws at issue were two federal laws which regulate the bank’s action in reference to customers’ accounts: the Right to Financial Privacy Act (“RFPA”) 12 U.S.C. §3401, et seq. and the Annunzio-Wylie Anti-Money Laundering Act (“the Act”). 31 U.S.C. §5318.

Salvadore Marino, owner of Toker’s, a head shop in Metairie, was arrested for drug charges and tax fraud. During the investigation of Toker’s bank holdings, an employee of the bank mistakenly told police a certain safe deposit box belonged to the business. In fact, the box in question, which contained over $127,000 in cash, was the personal property of Marino and his parents, Julia and Martin Marino. Mr. and Mrs. Marino sued the bank for damages arising from the seizure of the box, asserting Gulf Coast disclosed the information in violation of state and federal law, as well as negligent misrepresentation. The bank claimed protection from the lawsuit, asserting that the anti-money laundering laws gave them safe harbor from liability in such matters.