Articles Posted in Civil Matter

Wouldn’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.

As 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.  

Sexual 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.   

Generally, 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.