Articles Posted in Litigation

guns-1315486-1024x681Wouldn’t it be a disappointment to have your legal claims dismissed because you missed a filing deadline? The rules that apply to time limits for filing cases can be complicated, as Top Dollar Pawn, Gun and Car Audio #5 in Shreveport, Louisiana found when Top Dollar’s lawsuit was dismissed by the trial court because it was filed after the one-year statute of limitations, the allowed period of time to bring a legal claim, had run.

Top Dollar Pawn, Gun, and Car Audio loaned money to customers, using merchandise the customers gave the store as security for the loan. If a customer failed to repay the loan, Top Dollar sold the merchandise. Between August 2005 and December 2010, officers from the Caddo Parish Sheriff’s Office and the Shreveport Police Department repeatedly seized merchandise from Top Dollar that they believed had been stolen. They either kept the merchandise in their offices or returned it to the alleged original owners. No hearing was held to determine whether the customer using the merchandise as security for a loan was the lawful owner or had stolen the merchandise.

This procedure was a violation of Louisiana law, which provides a process for handling allegedly stolen goods that have been given to a pawnshop as security for a loan. Because the owners of the pawnshop have the right to due process of law, Louisiana law requires a  hearing before depriving them of property. La. R.S. 37:1805.

old-family-photos-1423774-1024x768As individuals approach the end of their life or encounter health problems, they may utilize a general power of attorney (POA) in order to care for their property. A POA is a written authorization to represent or act on another’s behalf in private affairs, business, or some other legal matter. The individual executing the POA is the principal and the individual acting under the POA is the principal’s agent. Dealing with a POA can be difficult since it is usually exercised during a stressful period in the principal’s life. Recently, the issue of using a POA was made even more complicated when it stirred up family drama in the Parish of Lincoln District Court after an agent used the POA to transfer all of the principal’s property into his own account days prior to the principal’s death.   

Kimberly Pee Tatum, Roy Pee, Timothy Pee and Raymond Pee filed a lawsuit against Joseph Daniel Riley in order to void a gift that Riley donated to himself. Riley was the son of Barbara McManus’ second marriage and the plaintiffs were the children of McManus’ first marriage. Riley acted as McManus’ agent under a POA, with McManus as the principal. On January 30, 2006, Riley donated all of McManus’ immovable property, including 32 acres and a house, to himself.  This was done before a notary and witnessed by two witnesses. McManus passed away days later, on February 2, 2006.

At trial, the plaintiffs attempted to show that Riley’s donation left McManus without sufficient funds to care for herself. The plaintiffs presented bills to show that there was no way McManus could care for herself but the plaintiffs admitted these bills were not actually McManus’ bills; the bills presented were from the plaintiffs’ memory and by looking at what was paid by other single, older women. Additionally, Riley testified that he and McManus shared a joint checking account. McManus received $1,037 dollars from Social Security every month and $100 dollars in royalties that were deposited into the shared account. Riley testified that even though they shared an account, McManus paid her own bills and Riley even supported McManus sometimes with his own money.  Riley’s wife, Amy Riley, testified and stated the same thing as Riley. She said McManus never asked them for money but they offered her money when they wanted to. Further, Amy said that even though they shared an account, Riley and herself paid for all of their bills from a separate account. The District Court in the Parish of Lincoln sided with Riley and held that the POA expressly authorized him to donate all of McManus’ property to any person, including himself.  The district court also held that public policy was not violated through the donation.  

motel-sign-1258206-1024x768When a patron is injured by a third party at a hotel, the patron might wish to seek damages from a national franchisor. There are however several criteria to establish a franchisor’s liability making it very difficult for a patron to recover in the absence of direct links between the injury and negligence.  In a recent case out of New Orleans, a shooting victim was left with little recourse against the big company behind the local Motel 6.  

In this case, Jorge A. Espinosa was staying at the Motel 6 on Gentilly Boulevard in New Orleans, Louisiana when he was shot in the Motel’s parking lot. The armed robber entered the Motel’s parking lot through a missing section in the Motel’s fence.  Mr. Espinosa’s injuries left  Mr. Espinosa a paraplegic.  Mr. Espinosa filed a lawsuit against the national franchise, Accor Franchising North America (“Accor”) as well as the local franchisee, Century Bayou Hospitality, LLC (“Bayou”) and their respective insurance companies.  Mr. Espinosa claimed the missing section of the Motel’s fence led to the robber entering the property and shooting Mr. Espinosa.  The District Court for the Parish of Orleans granted Accor’s motion for summary judgment reasoning that Accor could not be held liable because there was no evidence that Accor controlled, owned, or operated the Motel.  Mr. Espinosa appealed to the Louisiana Fourth Circuit Court of Appeal asserting that Accor was directly negligent and that the company had authority over Bayou making them vicariously liable.     

To establish liability, a plaintiff must first show that the defendant had a duty to protect against the plaintiff’s injury.  To prove that defendant had a duty to protect against a property defect, the plaintiff must show that the defendant had custody over the thing which caused the damage and this thing contained a defect posing an unreasonable risk of harm which caused the plaintiff’s injuries.  See Wiley v. Sanders, 796 So. 2d 51, 55 (La. Ct. App. 2001).  The defective condition must be of a dangerous nature which would be reasonably expected to cause an injury to a prudent person using ordinary care.   A business has a duty to take reasonable care to ensure the safety of its patrons.  However, this duty does not extend to unforeseeable injuries that were caused by the criminal acts of third parties.  See Mundy v. Dep’t of Health & Human Res., 609 So. 2d 909, 912 (La. Ct. App. 1992).  Moreover, vicarious liability will not apply to the principal when an independent contractor relationship exists and the principal actor does not control the contractor’s day to day operations. See Morales v. Davis Bros. Const. Co.,  647 So. 2d 1302, 1305 (La. Ct. App. 1994).   

the-pig-1189462-1024x807When employees are fired they can often be entitled to benefits upon termination; including money payments to act as a substitute salary while the terminated employee searches for another job. While there is no federal requirement in the United States for an employer to offer severance pay, many do as it can be an attractive benefit to potential employees. Many employers choose to adopt a plan that falls under the Employee Retirement Income Security Act (“ERISA”).  Employers can get tripped up however when they fail to support a denial of severance pay by substantial evidence.   

In this case, Mr. Napoli was denied severance pay because the company he worked for claimed that he was terminated for violating company policies. Mr. Napoli was hired by Scios, Inc. in 2001 which was subsequently acquired in 2003 by Johnson and Johnson. He enrolled in the severance pay plan through Johnson and Johnson. After he was terminated, Mr. Napoli filed for severance pay and was initially told he was eligible. However, Johnson and Johnson later denied his claim asserting that Mr. Napoli committed a “Group 1 Violation” and that he made around $3,000 in wrongful charges to a corporate credit card. Mr. Napoli, in a wise move, hired an attorney who subsequently applied for severance pay again and requested additional information about why the claim was denied. Johnson and Johnson again denied the claim and included the provision of the severance agreement Mr.Napoli allegedly violated. Mr. Napoli appealed through the corporation’s internal procedures in 2012 and the claim was denied again.  

Mr. Napoli filed a lawsuit in state court alleging that the company denied him benefits without just cause and that such an act violated ERISA. Johnson and Johnson responded by removing the case to federal court and counterclaiming for $3,000 in unauthorized credit card charges. The United States District Court for the Middle District of Louisiana agreed with Johnson and Johnson that the denial was based on a reasonable interpretation of the severance pay plan. Mr. Napoli appealed that decision to the United States Court of Appeals for the Fifth Circuit.  

wreck-1459986-1024x686In nearly every case of injury to person or property, there is a time period during which you can bring a lawsuit. When that time period ends is determined by statute. Defendants in cases where the time has past may bring an exception of prescription to have these cases dismissed. But how many times and when the exception of prescription may be raised is an issue that took center stage in an automobile accident case from  Jefferson Parish.

On May 8, 2008, Pauline Herrera filed a lawsuit against Beatrice Gallegos and USAgencies Casualty Insurance Company. Ms. Herrera alleged that her vehicle was struck by Ms. Gallegos’s vehicle on May 8, 2007. In response, Ms. Gallegos filed an exception of prescription and answer, alleging that the accident actually occurred on May 7, 2007, and Ms. Herrera’s lawsuit was filed beyond the one-year prescriptive period.

A hearing on the exception of prescription was held and no exhibits were admitted into evidence. The judge for the Parish Court of the Parish of Jefferson suggested the best way to find out the date of the accident was to call the Kenner Police Department. The judge overruled the exception for lack of sufficient evidence.

When a natural disaster strikes the issue of insurance comes to the forefront. What can a homeowner do when their home is damaged but the insurance company delays and fails to pay? That was the case when a Kenner, Louisiana, couple had their wood floors ruined by Hurricane Isaac. After taking the company to court, the family was finally able to recover claims for the damages as well as sanction the insurance company for the delay.

japanese-porch-tsumago-1228438-1024x768Russell and Tracy Varmall owned a home in Kenner, Louisiana. Their home sustained damages during Hurricane Isaac in 2012. The home was insured by Bankers Specialty Insurance Company (“Bankers”) for wind damage and New Hampshire Insurance Company for flood damage.

The Varmalls initially made claims to Bankers after the hurricane, which included damages to their roof and attic, water damage to their living room ceiling, damages to their fence, and a claim for spoiled food. These claims were adjusted in a timely fashion and were not an issue in the case.

pancakes-2-1319096-717x1024Sexual harassment in the workplace is unfortunately all too common.  While a victim of such harassment might feel entirely justified in filing a lawsuit against his or her employer, the harassing conduct might not be bad enough to survive a motion for summary judgment.  Just how bad does a work environment have to be for a harassment victim to have a potentially successful claim?  This was the issue in a recent case out of the United States Fifth Circuit Court of Appeal.   

In this case, Ruba Management (“Ruba”) operated an IHOP restaurant in Boutte, Louisiana.  Kelly Matherne worked at IHOP as a server and Sharetha Tart as a cook.  Both worked there for about a month.  Shortly after being hired, Ms. Matherne reported suffering physical and verbal sexual harassment from four co-workers:  three cooks and her weekend manager.   She complained on several occasions to various members of Ruba’s management team about the cooks’ actions however neglected to report the manager’s actions.  Ms.Tart made similar claims and made reports to management.  The harassment allegations were recorded in an IHOP record book kept for such allegations. The weekday manager reviewed video footage from cameras in the restaurant but no actionable conduct could be seen.  Lisa Garrison, the store manager, heard of the sexual harassment claims and reviewed the video footage as well and did not see any evidence of sexual harassment. Nevertheless, the alleged harassers were assigned to different shifts so they would not interact with Ms. Matherne or Ms. Tart.  Ms. Matherne and Ms.Tart soon after quit and filed a lawsuit against Ruba alleging hostile work environment due to sexual harassment and constructive discharge under Title VII of the Civil Rights Act of 1964. The  United States District Court for the Eastern District of Louisiana granted Ruba’s motion for summary judgment.  Mr. Matherne and Ms. Tart then filed an appeal with Fifth Circuit.  

To establish a hostile work environment claim, a plaintiff must prove five elements of which only two were at issue in this case: 1) the harassment complained of affected employment and  2) the employer knew or should have known of the harassment in question and failed to take prompt remedial action.  See Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 401 (5th Cir. 2013).  For harassment to be actionable, it has to be sufficiently severe or pervasive to change the plaintiff’s employment atmosphere thus creating an abusive environment.  Offensive conduct that includes teasing, comments, or mild isolated incidents will not withstand a motion for summary judgment.   

decadencia-1179583-1024x777Generally, plaintiffs bring an action against an adverse party to be made whole again in some way. Bringing a claim is a remedy seeking process. But, can a claimant’s inaction cause the proceeding to be dismissed? The Louisiana Fifth Circuit Court of Appeal recently answered this question in the affirmative in a case out of Jefferson Parish.  

Kevin Lewis filed a petition against Digital Cable alleging tortious conduct and seeking damages for injuries he sustained while their employee.  A year later on November 17, 2009, the Twenty-Fourth Judicial District Court for the Parish of Jefferson entered a preliminary default against Digital Cable. On September 16, 2014, nearly five years later, Mr. Lewis filed a motion for confirmation of the default judgment. Digital Cable filed a motion for dismissal for abandonment asserting that since more than three years had passed since Mr. Lewis’ last step in the case, an order of dismissal was required. Mr. Lewis opposed this motion and argued that abandonment was interrupted on November 28, 2011, because he served a notice of deposition for his physician, Dr. Ogbuokiri. Digital Cable argued that the notice of deposition entered into evidence did not contain a certificate of service thus there was no proof that the notice had actually been served on all parties; a requirement to interrupt abandonment.    On January 13, 2015, the Trial Court signed an order dismissing the case for abandonment.

Mr. Lewis filed a motion to vacate the order and his motion was heard on March 2, 2015.   Mr. Lewis once again argued that the abandonment period was interrupted by the deposition notice.  His lawyer, Pius Obioha, testified that a signed notice of deposition and certificate of service was mailed to Dr. Ogbuokiri and to Digital Cable’s agent.  It seems that at the 2015 hearing, a certificate of service obtained from Dr. Ogbuikiri’s office was introduced into evidence, however, its authenticity was questionable.   When questioned as to why Mr. Obioha, as the lawyer, did not have a copy of the certificate he testified that someone in his office must have forgotten to make a copy and that he did not really look very hard for it. He did allegedly have the presence of mind to remember physically placing the notice and certificate in the mail; a fact not corroborated and supported solely by his own testimony.     The Trial Court concluded that the notice of deposition should be admitted into evidence yet as an unauthenticated piece of evidence.  Unable to authenticate the notice, the Trial Court upheld the dismissal order.   Mr. Lewis appealed to the Fifth Circuit.  

house-i-1491881-1-1024x768In law, deadlines and rules of procedure are very important. Good cases can be lost because someone missed a deadline or did not understand and follow a procedural rule. That is why it is so important to ensure you have a good attorney who understands the rules of procedure and who keeps close track of deadlines, especially those for appeals.

This importance is aptly illustrated by a recent decision from the Fifth Circuit Court of Appeal for the State of Louisiana. The case, Hawkins v. Willow Inc., involved 250 owners of homes located in the Village Green subdivision in Jefferson Parish. The homeowners sued several entities, including the developer of the subdivision and the insurer of their home warranties, alleging that the subdivision was built on land that was unsuitable for building and that the homeowners’ homes were damaged as a result.

Unfortunately for the homeowners, the warranty mandated arbitration of disputes, a step which the homeowners failed to take before filing suit. Because the homeowners failed to arbitrate their dispute, the trial court dismissed the home warranty company from the lawsuit and ordered arbitration of all claims. The homeowners did not seek review of the trial court’s ruling. Instead, the homeowners waited over two years to address the ruling. The homeowners then requested the trial court to grant them a new trial to pursue claims against the home warranty company and for the trial court to rescind its arbitration order because of newly discovered evidence. The home warranty company contested the homeowners’ requests. It asserted that the trial court did not have jurisdiction over the matter because the court previously dismissed the case. The trial court agreed with the home warranty company, ruling that it did not have jurisdiction and additionally denying the request for a new trial. The homeowners, displeased with the result, appealed the trial court’s decision.

cross-1442009-987x1024Sometimes procedural rules are overlooked as merely a peripheral aspect of a lawsuit. However, nothing could be further from the truth. Oftentimes you need to overcome numerous procedural hurdles just to reach the merits of a case. The following case illustrates the importance of procedure in the practice of law.

The subject of this case centers on certain events that took place after the death of Alma Payton in New Orleans, LA; the plaintiffs are Payton’s heirs. Plaintiffs argued that Lake Lawn Park, Inc. (Lake Lawn) and Lawyer’s Title of Louisiana, Inc. (Lawyer’s Title) was negligent in connection with the distribution of Payton’s property after her death. Plaintiffs alleged that Lawyer’s Title failed to disburse payments to Lake Lawn that were intended to cover Payton’s burial. As a result, Lake Lawn moved Payton’s remains to a burial ground designated for indigents.

Eventually, Lake Lawn returned Payton’s remains to the original burial place at its own cost and the lawsuit against it was dismissed. However, the lawsuit against Lawyer’s Title was still pending, although not making any progress. As a result, Lawyer’s Title filed a motion to dismiss the action as abandoned nearly eight years after Plaintiffs filed their complaint. The District Court granted Lawyer’s Title’s motion. Subsequently, Plaintiffs filed a motion for devolutive appeal of the order of dismissal.