Articles Posted in Litigation

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.

house-1188265-1024x683In Louisiana, a victim of fraud can recover actual damages resulting from the fraud, treble damages up to three times the amount of actual damages, and reasonable attorneys fees and costs. However, this potentially large recovery is barred by a peremptory period if the defrauded party doesn’t bring the lawsuit within one year. In certain cases, the issue of when exactly this one-year timer starts can be dispositive. The following case dealing with two real estate transactions illustrates the point.

Here, Amanda Adcock owned a home in West Monroe, Louisiana. Ms. Adcock lost her job and was unable to make her monthly mortgage payments to JP Morgan Chase (“Chase”). As a result, Chase initiated foreclosure proceedings against Ms. Adcock’s home in August 2011. Shortly afterward, Ms. Adcock filed for Chapter 13 bankruptcy, which halts any foreclosure already in process. Ms. Adcock then listed the home for sale as part of the bankruptcy estate. At the time of the bankruptcy, Ms. Adcock owed Chase $195,842.29.

In January 2012, Shane Wooten, a real estate agent, contacted Ms. Adcock and informed her that her home could be taken out of the bankruptcy estate and listed as a short sale. Three months later, Ms. Adcock wrote a letter to Chase to begin the short sale process and Chase cooperated (bank approval is required before a short sale can be completed). In June 2012, Tracy Ginn, the spouse of one of the real estate agents who worked for the same realty company as Mr. Wooten, offered to buy Ms. Adcock’s home for $190,000.

old-bulldozer-1441562-1024x768Wrongful demolition is a cause of action rarely invoked because the events giving rise to such an action rarely occur. Essentially, a claim for wrongful demolition arises when a plaintiff’s property was mistakenly or wrongfully demolished. In the following case, Morgan Moss found himself in the unique position of asserting such a claim against the town of Rayville, Louisiana. See La. C.C. art. 2315; see also Hornsby v. Bayou Jack Logging, 902 So.2d 361 (La. 2005).

One morning, while in his home Mr. Moss heard some strange noises coming from across the street. When he walked out of his house to inspect the source of the noise he discovered that his storage property across the street was being demolished by town workers. The town had somehow mistaken Mr. Moss’s property for another property that was scheduled to be demolished. Significantly, Mr. Moss filmed the town workmen but did not try to stop the demolition.

Mr. Moss presented his case to the Trial Court where he won a judgment for only $5000 for the loss of his property. Unsatisfied, Mr. Moss appealed to the Louisiana Second Circuit Court of Appeal hoping to recover more. Any good attorney knows to speak to judges with deference and respect. Along those lines, it’s unwise to make frivolous arguments or to embellish facts.

injection-1323678-1024x873Ignoring instructions when assembling a coffee table, toys, or other household items may not, in the end, prove highly detrimental. In fact, such practices are commonplace.  However, failing to follow the correct procedural steps is ruinous in the world of lawsuits. Recently, the Louisiana Third Circuit Court of Appeal was forced to dismiss an appeal because of a plaintiff’s failure to follow the required procedural steps.

On June 20, 2011, Gloria Welch brought a medical malpractice action against Southwind Nursing and Rehabilitation Center. However, Southwind was never served with the lawsuit and did not make any appearances in the lawsuit.  On January 7, 2013, Ms. Welch filed a second lawsuit in the same venue against the same parties. Southwind appeared specifically in the case to file two exceptions.  First, Southwind filed an exception of lis pendens because the first lawsuit about the same matter as the second was still pending.  “Lis pendens” means “suit pending. ” Second, Southwind filed an exception based on Ms. Welch’s failure to serve Southwind in the second lawsuit.  Ms. Welch then voluntarily dismissed her first lawsuit.  

The Judicial District Court for the Parish of Acadia sustained Southwind’s exception of insufficient service of process and denied the lis pendens exception based on the voluntary dismissal.  At the hearing, the District Court issued a judgment specifically denying the lis pendens exception and finding the first lawsuit was abandoned rather than voluntarily dismissed.   

dentist-1422973-1024x768Does your homeowner’s insurance policy include coverage for libel or slander?  We all make inappropriate comments and write negative reviews online from time to time.  But what if you are sued for something you say or write? In a recent case out of Caddo Parish, Louisiana a dentist learned that while your policy may extend coverage for negligent acts, the insurance company may not be so willing to come to your defense for intentional acts.  

In this case, the Louisiana State Board of Dentistry (“Board”) revoked Dr. Ryan Haygood’s dental license.  On November 8, 2010, after an investigation and disciplinary proceedings, the Board found that Dr. Haygood violated the Dental Practice Act by over-diagnosing patients.   Dr. Haygood appealed all the way to the Louisiana Fourth Circuit Court of Appeal which vacated and remanded the case.  Dr. Haygood then filed a lawsuit for damages against the Board, Dr. Herman O. Blackwood, III and others. Dr. Haygood specifically alleged that Dr. Blackwood intentionally presented false claims that Dr. Blackwood knew to be untrue. Moreover, Dr. Haygood alleged that Dr. Blackwood conspired with other members of the Board to bring the disciplinary proceedings against Dr. Haygood without good cause for the purpose of causing him to lose his license.  Dr. Haygood contended that Dr. Blackwood used his position in the community to essentially force the other Board members to go along with his plan to destroy Dr. Haygood’s career.     

Upon notification of the lawsuit, Dr. Blackwood contacted his insurance company, Encompass Insurance Company of America (“Encompass”), seeking defense and indemnity through his homeowner’s insurance policy.  However, Encompass declined coverage based upon a provision in the insurance policy which specifically provided that intentional acts of libel or slander are not covered.  Encompass filed a motion for summary judgment on the issue of coverage.  The Judicial District Court for the Parish of Caddo agreed that the policy did not cover the claims against Dr. Blackwood, therefore, Encompass had no duty to defend the lawsuit.   Dr. Blackwood appealed to the Louisiana Second Circuit Court of Appeal.  

management-school-3-1524193-1024x348School bullying is a commonly discussed problem in our generation.  Parents are often faced with dilemmas on how to protect their children and instruct them in dealing with bullies at school.  In earlier eras perhaps this was considered a problem for the individual family to bear alone.  In a recent case out of Plain Dealing, Louisiana however, the Louisiana Second Circuit Court of Appeal affirmed that school teachers and the school board can now be held liable for such bullying and its effects.  

On December 10, 2012, a fourth-grade boy, J.B., at Carrier Martin Elementary School in Plain Dealing, Louisiana broke his arm during playground recess when three boys knocked him to the ground to keep him from tattling. J.B.’s parents filed a lawsuit on behalf of their son against the Bossier Parish School Board (“Board”), and teacher Tricia Huckaby seeking damages. After a trial before the Judicial District Court for the Parish of Bossier, Louisiana, the jury found in favor of the parents and awarded $125,000 in general damages, $12,674.14 in special damages, and $25,000 to the mother for the loss of consortium for a grand total of $166,784.63 with legal interest. The Board appealed the finding of liability and argued that the award was excessive.

A school board, through its agents and teachers, owes a duty of reasonable supervision over students pursuant to La. C.C. art. 2320.  For liability to be imposed on a school board for inadequate supervision of students, there must be (1) proof of negligence and (2) proof of a causal connection between the negligent supervision and the resulting damage to a student. See  Creekbaum v. Livingston Parish School Board, 80 So. 3d 771 (La. Ct. App. 2011).   The standard of care required by the school supervisors over the students is only what would be expected of a reasonably prudent person in same or similar circumstances. The risk of injury had to be both foreseeable and preventable if a requisite degree of supervision had been exercised.  In awarding damages, a jury is empowered with great discretion and the award will only rarely be disturbed on appeal if an abuse of discretion is found.  

closed-window-1218252-1024x683It is no secret that lawsuits are expensive creatures. It is perhaps baffling then that a party would retain an attorney, file a lawsuit, and maintain that lawsuit for over thirteen years without sufficiently actively pursuing that lawsuit.  Yet, that is exactly what happened in a recent case out of Livingston Parish.  And as the case explains, such inactivity within a case subjects the lawsuit to dismissal for abandonment.  Money and time wasted for all parties involved.  

In 2001, R.L. Hall and Associates, Inc. (“R.L. Hall”) filed a lawsuit against Brunt Construction, Inc. (“Brunt”) and Fidelity Deposit Company of Maryland (“Fidelity”) over a lien arising out of a construction contract.  The next action on record does not occur until 2005 when R.L. Hall filed a motion to compel discovery.  Then, in 2007,  R.L. Hall filed the first motion to set a scheduling conference. After the 2007 telephone conference between the parties, nothing else appeared in the record until the plaintiff filed a second motion to set a conference in December of 2010. After the court established discovery deadlines following the 2010 conference, nothing appeared in the record again until the plaintiff filed a third motion to set a conference on June 4, 2014. During 2011 however, counsel for R.L. Hall did send letters to lawyers for the defendants in an attempt to schedule depositions.  The informal correspondence, however, was not filed and does not appear in the court record.  The defendants then filed a motion to dismiss R.L. Hall’s claim because there were no steps taken to further the action in over three years.   The Judicial District Court for the Parish of Livingston dismissed the matter as abandoned.  

R.L. Hall appealed the dismissal to the Louisiana First Circuit Court of Appeal.  Pursuant to La. C.C.P. art. 561 an action “is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years[.]”  Upon the passage of three years without any steps taken in the case, the case is automatically dismissed without the need for a court order.  To maintain a case, a party needs only to take some step within three years of the last action toward the prosecution or defense of the action and the step must be in the proceeding and on the record. See Clark v. State Farm Mutual Automobile Insurance Corporation, 785 So.2d 779 (La. 2001).   Attempting to schedule a deposition through informal correspondence without a filed formal notice of deposition does not constitute a “step” which would interrupt the abandonment clock.