Articles Posted in Litigation

by

vacancy-1232656-1024x768Ever feel like you have been wrongfully brought to court? If so, then what legal remedies do you have at your disposal? In Louisiana, the law provides a person who has wrongly been brought to court with a tort cause of action called abuse of process. A recent Fifth Circuit Louisiana Court of Appeal decision highlights some of the procedural and legal requirements for this lesser known tort.

The alleged “frivolous” lawsuit centers around an eviction lawsuit. Allicen and Kenneth Caluda filed an eviction lawsuit against Fifth Business, LLC (“Fifth Business”). In the lawsuit, the Caludas also added No Drama, LLC (“No Drama”) as a defendant. Nearly seven years after the eviction lawsuit, No Drama filed an abuse of process lawsuit. To prove an abuse of process claim, No Drama needed to prove 1) the Caludas sued No Drama for an improper purpose and 2) the Caludas engaged in improper conduct during the prosecution of the action. See Goldstein v. Serio, 496 So. 2d 412, 415 (La. Ct. App. 1986). No Drama alleged the Caludas improperly filed suit in order to hold the company financially liable for the couple’s lease dispute with Fifth Avenue. It also claimed that the cost of defending the lawsuit, after informing the couple of its independent status, forced it to halt operations. The Caludas’ countered, arguing that No Drama was prescribed from bringing the abuse of process claim because it failed to file the claim within the appropriate time period required by Louisiana law which, for an abuse of process claim, is one year. The trial court agreed with the Caludas, dismissing No Drama’s lawsuit. No Drama appealed the trial court’s ruling.

On appeal, No Drama argued that the prescription period never commenced because the underlying eviction case needed to be decided prior to it bringing the abuse of process lawsuit. No Drama also argued the prescription period was suspended because Caludas was committing a “continuous tort.” A continuous tort is an ongoing unlawful course of conduct that results in uninterrupted injury to the plaintiff. Crump v. Sabine River Auth., 737 So.2d 720, 728 (La. 1999). No Drama alleged the Caludas, by maintaining a wrongful lawsuit and causing ongoing financial injury, committed a continuous tort and therefore, the prescription period was suspended or tolled as a result.

Continue reading

by

books-illustations-1489534-768x1024Labor contracts are often tricky and scary because potential employees generally find it difficult to negotiate with employers for terms favorable to them, while employers use standard contracts with terms potential employees don’t understand or aren’t used to seeing, which guarantee the employers a better deal.

The National Labor Relations Act (“NLRA”), whose purpose is to provide protection to employees from unfair labor practices of employers, provides that an employer commits an unfair labor practice when it coerces or prevents employees from engaging in their legal rights, including, but not limited to, the rights of employees to band together in a union or otherwise. A recent case out of the United States Fifth Circuit Court of Appeals (“the Court”) addressed this problem in a labor contract case between a retail gas station and its employee.

Murphy Oil Inc. (“Murphy Oil”) operates retail gas stations in many cities in the United States, but the following dispute takes place at the Calera, Alabama location. Sheila Hobson, upon starting employment with Murphy Oil, was required to sign a binding arbitration agreement—an agreement which prevented herself and other employees working at this location from settling any disputes with management by any means other than arbitration—a process which would require both employee and employer to meet with a professional mediator for all legal claims.

Continue reading

by

shaking-hands-1240911-1024x768Leasing agreements often are complex and lengthy, especially in a commercial context. A common provision contained in most leasing agreements is an indemnity provision. An indemnity provision is a section in a leasing agreement that requires the leasee (the person who leases the property) to take responsibility for certain lawsuits involving the leased property. A recent decision from the Second Circuit Court of Appeal for Louisiana illustrates the power of an indemnity provision.

The case revolves around a leased commercial building located in Bastrop, Louisiana. The building’s owner, Hollis Charles Larche, entered into a leasing agreement with Paul Eikert. Mr. Eikert obtained the lease in order to open up a grocery store. Contained in the lease is a provision that stated that Mr. Larche would be held harmless for any damages or injuries caused by defects on the building’s premises.

A couple of years after entering into the lease agreement, an employee of Mr. Eikert’s grocery store, Deborah Beebe, was injured while on the job. Ms. Beebe sustained her injuries after she slipped on water that came from a leak in the building’s ceiling. Ms. Beebe filed a lawsuit against Mr. Larche claiming that Mr. Larche knew of the leaking ceiling and failed to take appropriate measures to fix the leak. Mr. Larche, citing the indemnity provision contained in the leasing agreement, argued that Mr. Eikert is responsible for any damages resulting from Ms. Beebe’s injury. Mr. Eikert never responded to Mr. Larche’s claim that the indemnity provision allocated responsibility of Ms. Beebe’s injuries to Mr. Eikert. The trial court agreed, granting a default judgment on the issue for Mr. Larche. A default judgment is a judgment that a court can grant if one side in a legal matter fails to take steps to resolve the legal controversy. The default judgment is granted to the side who did take steps to resolve the legal controversy, in this case, Mr. Larche.

Continue reading

by

downtown-salt-lake-city-2-1446473-683x1024Buying a home is a complex and stressful process. Not only must a homebuyer make sure he or she has the required funds to purchase the home, but must also thoroughly check that the home is in good condition. Generally, determining the condition of a home is relatively easy. Under the law, a home-seller is obligated to disclose certain defects. Failure to do so can result in a lawsuit. A recent case from the United States Fifth Circuit Court of Appeals illustrates the legal repercussions that can befall a home-seller when he or she withholds certain deficiencies in the condition of the home.

The case centers around a home purchased in Bossier City, Louisiana. The home-purchaser, Britney N. Jones bought a foreclosed house from Wells Fargo Bank (“Wells Fargo”). After purchasing the house, Ms. Jones discovered that it contained mold. The mold was discovered after an environmental assessment of the property. The assessment was undertaken because Ms. Jones’s children had developed respiratory and other health issues.

After discovering that the home she purchased contained mold, Ms. Jones brought a lawsuit against Wells Fargo alleging claims of redhibition and fraud. In Louisiana, a seller warrants a buyer against redhibitory defects. For a defect to be considered redhibitory it must render the thing useless or diminish its value in such a way that it could be presumed that the buyer would have not bought it or would have bought it at a much lower price. La. C.C. art. 2520 (2016). Defects that a buyer either knew of or that were apparent are excluded from the warranty of redhibition. When a defect is concealed within a home’s structure it is considered unapparent. See Amend v. McCabe, 664 So. 2d 1183 (La. 1995).

Continue reading

by

tenis-1571373-1920x1440-1024x768When bringing a personal injury lawsuit a plaintiff must prove that the defendant in the lawsuit caused the injury. Often, when an injury involves two parties, the question of who caused the injury has a relatively straightforward answer. However, problems arise when the circumstances surrounding the injury involve multiple parties. A recent case out of the Louisiana First Circuit Court of Appeal illustrates the complexity of proving who caused an injury when multiple parties are involved.

Plaintiff William Bourg, an employee of Shamrock Management LLC (“Shamrock”), a Houma, Louisiana company, was injured while helping move an aluminum generator cover. The cover, which weighed 2800 pounds, was delivered to Shamrock’s shop by Cajun Cutters, Inc (“Cajun Cutters”). Mr. Bourg and a Cajun Cutter’s employee, Russell Felio, attempted to move the generator cover into Shamrock’s shop. To facilitate the delivery of the generator cover, Mr. Felio decided to use a large forklift that he was unauthorized to use. While using the forklift, Mr. Felio accidentally flipped the generator cover on its side, which fell on Mr. Bourg’s left foot, crushing it. The injury required Mr. Bourg to undergo two surgeries.

Mr. Bourg sued both Cajun Cutters and Mr. Felio for his foot injury. In a personal injury lawsuit, the jury is required to determine who is at fault for the plaintiff’s injury and allocate a percentage of fault onto each party member, including the plaintiff. In Mr. Bourg’s case, the jury decided that Mr. Bourg and Shamrock were 90% at fault for the accident and that Cajun Cutters and Mr. Felio were 10% at fault. Mr. Bourg filed a motion for a judgment notwithstanding the verdict (“JNOV”). A JNOV is a procedural device where the trial court may correct a jury verdict by modifying the jury’s findings of fault or damages, or both. La. C.C.P. art. 1811 (2016). The trial court granted the JNOV and reallocated fault 50% to Bourg and Shamrock and 50% to Cajun Cutters and Mr. Felio. Cajun Cutters and Mr. Felio appealed the trial court’s decision.

Continue reading

by

piggy-bank-1-1241054-1024x764Life insurance benefits can provide beneficiaries with the monetary needs they require. What is a life insurance policy? An insurance company agrees by contract to provide a lump-sum payment, called a death benefit, to the beneficiaries upon the insured’s death in exchange for premium payments. But what happens when the insured dies and the beneficiary encounter problems in getting paid? This case out of Concordia Parish explains entitlement to life insurance proceeds in Louisiana.

On October 16, 2012, Michael Burley and his brother William each purchased life insurance policies from New York Life Insurance Company (“New York Life”) and named the other as beneficiary. Mitch Ashmore, the insurance agent, filled out the application for the policy insuring William’s life and answered “No” to question 3(1) that asked if the applicant had been diagnosed, treated, tested positive for or been given medical advice for drug or alcohol use. In December 2012, the policy insuring William’s life became effective. On April 24, 2013, William died from a heart attack. Mr. Ashmore filed Mr. Burley’s claim for the policy proceeds. On October 14, 2013, New York Life sent a letter to Mr. Burley stating that the answer to question 3(1) should have been “Yes” because of William’s medical records and death certificate listed marijuana use. The letter also stated that New York Life’s normal procedure was to refund all premiums and void the policy. On January 30, 2014, New York Life sent Mr. Burley a check for the premiums.

Mr. Burley filed suit against New York Life seeking the $200,000 policy proceeds, as well as penalties and attorney fees. Mr. Burley filed a Motion for Default Judgment because of New York Life’s failure to Answer. The trial court awarded a default judgment to Mr. Burley for the $200,000 proceeds, $20,000 in penalties under La.R.S. 22:1973, as ewell as $100,000 in penalties under La.R.S. 23:1892. New York Life filed a Motion for a New Trial, which the trial court denied. New York Life appealed the default judgment and the denial of its Motion for New Trial to the Louisiana Third Circuit Court of Appeal.

Continue reading

by

fencing-1434215-1024x855People have bargained with one another since the dawn of time. Many agreements occur through mere conversation, but memory may be faulty or even denied. Thus, written contracts exist to keep a record of agreements made by two people or business entities. When a disagreement over the meaning of a contract is brought to court, the court will refrain from unnecessarily changing the meaning of words in a contract, opting instead to take the written words literally and simply. RJAM, Inc. v. Miletello, 44 So. 3d 283 (La. Ct. App. 2010). This means that even a single word can completely change how a contract is enforced. A lawsuit concerning that exact issue arose in Parish of Bossier.

In 2004, Endurall, Inc. was created out of an older company that made supplies for oil and gas lines. This new company provided a specific tool for oil rigs. As part of the process of forming the corporation, the four founders signed a non-compete proprietary agreement. This agreement would prevent any of them from going into the same line of business in the same geographical area for two years after leaving the company. In 2012, two of the founding shareholders formed a similar company. They were immediately fired for possibly having used Endurall information to form their new venture, but they did keep their stock. Soon afterward, the two petitioned the court to dissolve Endurall due to the disagreement amongst the stockholders. As a result of the filing, Billy Joe Edwards was no longer a shareholder. His stock and that of the other fired shareholder was sold at private auction to the other two shareholders that had not been involved in the scheme. The two remaining shareholders filed to dismiss the dissolution which was granted.

Soon after, Mr. Edwards and his son created another company that would sell the exact same product line as Endurall only twenty miles away. He also worked for another company selling paraffin products to customers he had worked with while at Endurall. In 2014, the two remaining shareholders sued to have the court enforce the non-compete provision against Mr. Edwards. Any court order which requires a party to do or cease from doing something is an injunction. The trial court granted an injunction ordering Mr. Edwards to stop the competitive business until the agreement expired. Mr. Edwards appealed.

Continue reading

by

wood-floor-texture-1181928-1024x731It’s a common belief that a landlord is always responsible for the upkeep of a property, and if an injury occurs because of the landlord’s failure to keep premises safe the landlord is financially responsible for any injury suffered. As Kwan Anderson learned the difficult way, however, this is not always the case. A lawsuit out of Parish of Evangeline shows that when a tenant contracts to take on responsibilities of upkeep, they could lose their ability to collect damages for an injury caused by that failure of upkeep.

On September 7, 2012, Anderson fell through a weak part of the floor of a house rented by Meagan Thomas, his girlfriend, and mother of his child. Thomas had rented the house from Wanda Ardoin-Bailey, the owner, on June 9, 2012, and Anderson lived there with Thomas up to the time of his fall. The weak part of the floor had been noted in the lease and the lease also said that Thomas agreed to be responsible for the house’s condition, which included fixing the weak part in the floor. Thomas said her “paw paw” would fix it in exchange for a reduction in rent.  The floor was never repaired.

Anderson filed a petition for damages against Ardoin-Bailey, who answered the petition but also filed a third-party demand against Thomas to have the lease provisions enforced. Ardoin-Bailey also filed a motion for summary judgment. A Motion for Summary Judgment is rendered if “there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 (B)(2).  “A material fact is one that would matter on the trial on the merits.” Southpark Cmty. Hosp., LLC v. Southpark Acquisition Co., LLC, 126 So.3d 805, 815 (La. Ct. App. 2013).  If there is no issue on the facts that would matter at a trial, then there is no need for the parties to go further on the lawsuit and it should be dismissed. Summary judgment was granted and Anderson’s lawsuit was dismissed. Anderson appealed.

Continue reading

by

the-flooded-clay-quarry-1636282-1024x683Lawsuits often appear to be complicated and complex, but what many people don’t know is that the outcome of a lawsuit can often be determined by a simple matter of logistics. The who, what, when, where and why of a situation can make the difference between winning and losing a case. For instance, a simple matter of jurisdiction was the deciding factor in a case brought by a South Louisiana man and his wife.

Mr. Leger was injured on a job site at Peoples Moss Gin in Palmetto Louisiana when a conveyor belt ripped apart and struck him. Leger was employed by Rice Belt Distributors, Inc., a company that was hired to install an eighty-foot vertical conveyor belt in a grain elevator. The conveyor belt which was manufactured by International Conveyors Limited, (ICL) an Indian company, and sold to D.E. Shipp Belting Company (Shipp Belting) using ICL America, a wholesaler of conveyor belts, as an intermediary in the transaction. Mr. Leger and his wife, Gwen Leger, brought a personal injury suit against ICL America, Shipp Belting, International Conveyors, and Brown Cranes whose crane and crane operator were handling the conveyor belt at the time of the accident.

ICL raised a declinatory exception of personal jurisdiction, which allows a party to claim that they are not subject to the court’s power. La.C.C.P. art. 925(A)(5). The trial court granted this exception. The Legers, ICL America, and Burlington Insurance all appealed the decision.

Continue reading

by

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.

Continue reading