Articles Posted in Civil Matter

by

hot-spicy-wings-1324961-1024x768Contractual relationships can advance or dissolve as time passes, often turning sour when promises are not kept.  One or both parties may attempt to break the relationship but the underlying contract is not so easily terminated.  As a result, the parties may find themselves in a court battle over seemingly small details.  In this recent Louisiana case before the United States Fifth Circuit Court of Appeal, the presumably costly break-up came down to one little word.   

Spencer Franchise Services of Georgia, Incorporated (“Spencer”) and WOW Café and Wingery Franchising Account, L.L.C. (“WOW”) contracted to develop restaurants in Georgia.  Spencer agreed to open, manage, and provide for WOW restaurants in Georgia as well as to provide reports to WOW regarding the franchise locations.  WOW granted Spencer the exclusive right to open WOW restaurants in Georgia (excepting two counties) and the right to receive royalty and other fees associated with franchise operations.  The parties’ relationship began to deteriorate with Spencer failing to inspect franchise locations and furnish WOW with reports.  Spencer claimed that WOW also breached the contract by failing to sell a minimum number of franchise agreements as arguably required by the contract.  The legal dispute centered on the contract language which stated the “Franchisor” was required to sell franchise agreements.  WOW asserted “Franchisor” was a typographical error meant to read “Developer” which would obligate Spencer to franchise sales.  Spencer argued that obviously the contract’s wording of “Franchisor”  was accurate since it obligated WOW to open franchises.  Spencer reasoned that language to the contrary would not have been worth its investment.

Spencer and WOW filed numerous lawsuits against each other asking the United States District Court for the Eastern District of Louisiana for summary judgment. A court may award a party summary judgment when there is no genuine dispute about any material fact.  FED. R. CIV. P. 56(a).  When the court grants summary judgment, the judge is deciding the case according to the law, no fact-finders (usually a jury) are required.  The District Court found “Franchisor” as written was a clear mutual error and determined there were no facts remaining in dispute. The District Court granted summary judgment in WOW’s favor and rescinded the contract.  Spencer appealed arguing summary judgment was not proper in this case as it was not clear from all the evidence that “Franchisor” was a mistake and thus there were still questions requiring resolution by a jury.  

Continue reading

by

money-1537576-1-768x1024What if you are injured, hire a lawyer, and that lawyer fails to sufficiently work on your case? Outrage ensues and you may choose to fire that lawyer and hire a second.  But is that first lawyer entitled to payment if you happen to win and receive an award in your case? In a recent Louisiana case, the Fifth Circuit Court of Appeals decided that the answer can be in the affirmative.  

After David Corey was the injured, he hired Salvador Brocato and Lionel Hutton to handle his personal injury lawsuit. In the two years that Mr. Brocato and Mr. Hutton handled Mr. Corey’s case, the attorneys did little work on his case: failing to hire an investigator,  failing to adequately prepare Mr. Corey for his deposition, and failing to hire experts as well as other faults. Mr. Corey fired Mr. Brocato and Mr. Hutton and subsequently hired Arnold & Itkin, LLP, to handle his case.  Arnold & Itkin worked on Mr. Corey’s case, and eventually secured a settlement of $2,187,500, with $875,000 awarded in attorneys’ fees. Mr. Brocato and Mr. Hutton intervened seeking a share of the amount of the attorneys’ fees awarded for the work they had done on Mr. Corey’s case prior to termination. The United States District Court for the Eastern District of Louisiana awarded Mr. Brocato and Mr. Hutton 20% of the awarded attorneys’ fees. The judge calculated the percentage based on the principles of quantum meruit: generally expressed as the actual value of the services performed. In this case, the amount of work completed before termination was calculated at 20%.  Contending that to award the 20% would be an improper and illegal award of a contingency fee to lawyers who did not have a contingency fee agreement, Arnold & Itkin appealed to the United States Court of Appeals for the Fifth Circuit.  

Louisiana fee awards in quantum meruit are calculated by factors set out by the Louisiana Supreme Court. See State, Dep’t of Transp. & Dev. v. Williamson, 597 So. 2d 439 (La. 1992). There are ten factors, including the ultimate result, obtained, the importance of litigation, the amount of money involved, the extent of the work performed, skill and diligence of the attorneys, the number of appearances made, intricacies of the facts, and the court’s own knowledge. Courts may consider these factors in the quantum meruit analysis when a contingency fee agreement has been discharged or when a contingency fee agreement was never involved. See City of Alexandria v. Brown, 740 F.3d 339 (5th Cir. 2014). The factors sometimes referred to as “Saucier Factors” are applied even when the attorney was discharged either with or without cause, although courts must reduce the award of an attorney discharged for cause according to the gravity of cause for discharge. Saucier v. Hayes Dairy Product, Inc., 373 So. 2d 102 (La. 1978).

Continue reading

by

hand-with-money-1056938-1024x689It is not uncommon for a victorious party in a lawsuit to seek attorneys’ fees upon their win.  There is no guarantee however the judge will agree an award of attorneys’’ fees are warranted.   In some cases filed in state court, the defendant can remove the case be heard in federal court.  If the federal court lacks jurisdiction, however, the case will be sent back to state court.  Whether the attorneys’ fees associated with the removal process can be recouped by the winning party is the subject of a recent lawsuit out of New Orleans.

CamSoft Data Systems, Inc. (“CamSoft”)  teamed up with Active Solutions (“Active”) and Southern Electronics Supply (“Electronic”) to install video surveillance systems in New Orleans. Just before the trio submitted their proposal for their joint venture for the future sale of the video surveillance system, Dell, Inc. (“Dell”) used their existing contract concerning the sale of technology to the state of Louisiana to halt the proposal. Moreover, Dell then sought to oust CamSoft from its joint venture with Active and Southern, who both then sold proprietary information that belonged to CamSoft. Later, in another business dealing, Dell ousted Southern and Active and replaced them with NetMethods, and cut Southern and Active out of the agreed arrangement.

CamSoft filed a lawsuit against Dell in Louisiana State Court, seeking its rights in the video surveillance system recognized and a share of the proceeds of the suit Active and Southern had against Dell. Using state law instead of federal patent law, CamSoft alleged breach of fiduciary duty and breach of contract.

Continue reading

by

lawnmower-1219945-1024x680When a case goes to trial, there are many nuances that a lawyer might have to address, including a motion for a continuance or a dismissal. A continuance is the postponement of a hearing, trial or other scheduled court proceeding at the request of either party or by the judge. A dismissal occurs when the court ends a legal action before completing the trial process. This case out of the Parish of East Baton Rouge demonstrates Louisiana’s requirements for a continuance or a dismissal in the district courts.

While Wayne Boyd was driving on Main Street at Regions Bank in Zachary, Louisiana, a rock was thrown from a lawnmower broke his window and struck his face, resulting in personal injury and property damage. Boyd filed a petition for damages against John Doe, who was operating the lawnmower, and Doe’s employer, BNL.

At the pre-trial conference on March 18, 2014, the District Court for the Parish of East Baton Rouge set a trial date of May 20, 2014. On the scheduled date for trial, Boyd was nervous, unstable and remained outside of the courtroom. Boyd’s attorney asked for a continuance of the trial because Boyd needed to think and discuss the problem with family. Boyd’s attorney also indicated that he could not proceed with trial because he had just taken the case over and did not have certified copies of records. BNL was present in the courtroom, with all exhibits and witnesses, and was ready to proceed with the trial. The District Court denied the motion to continue but stated that it would not entertain a motion to dismiss for at least 10 days. On July 9, 2014, BNL filed a motion to enforce the settlement, asserting that Boyd and BNL have reached settlement agreements. On August 28, 2014, the District Court granted BNL’s motion to dismiss. Boyd appealed the dismissal to the Louisiana First Circuit Court of Appeal.

Continue reading

by

chinese-text-1-1314353-1024x768Res Judicata, also known as claim preclusion, is a Latin term that literally means “for a matter judged.” In the legal system, res judicata is a doctrine that prohibits a second lawsuit from being filed for a matter that has already been judged or decided on the merits. Once parties to a lawsuit have had the opportunity to be heard by the court and the court rules on the claims asserted in the lawsuit, those parties are generally not ever again allowed to bring a lawsuit against the same parties for the same claims that arose from the same transaction or occurrence.

Res judicata prohibited a Mandeville, Louisiana man, George Cepriano, Jr., from being allowed to file a lawsuit against Lowe’s Home Center (Lowe’s).  But, Mr. Cepriano, never personally filed the first lawsuit against Lowe’s. Mr. Cepriano’s lawsuit against Lowe’s was not barred solely due to res judicata, but due to an already adjudged class action lawsuit of which Mr. Cepriano was a class member.  A class action lawsuit permits one or more people to bring a lawsuit on behalf of all class members. A class action ruling results in a res judicata blanket application for all members of the class.

Mr. Cepriano’s journey to the Louisiana First Circuit Court of Appeal began after he bought a newly built home in Mandeville, Louisiana. About two years later, while trying to sell the home to a potential buyer, Mr. Cepriano learned the home was manufactured with defective Chinese-made drywall.  Mr. Cepriano filed a lawsuit against Diamond Investments of Louisiana, L.L.C., the property seller, and B Square Builders, L.L.C., the contractor/builder, and Lowe’s.

Continue reading

by

money-1239608-1024x768Most of us probably owe money to someone.  Whether it be for our home, a vehicle, a credit card or even just to a friend.  A common legal tool called a garnishment is one way of using the civil court system to help recover money owed to you when someone is not paying their debts. Garnishment is explained in a recent case out of East Baton Rouge Parish, Louisiana.  

In this case, the original lawsuit was between Foundation Materials, Inc. (“FMI”) and Harmon Construction, L.L.C. (“Harmon”).  FMI obtained a money judgment against Harmon in the amount of $102,475.42.  At the time of this case, Harmon was working on an unrelated project with D.F. Chase, Inc. (“Chase”) as a subcontractor.  Chase allegedly owed $98.510.00 to Harmon for its work.  In order to collect upon the judgment against Harmon, FMI filed a garnishment naming Chase as garnishee and issued interrogatories, sets of questions, to Chase to determine the amount of money that Chase owed to Harmon.  Chase contended it only arguably owed $98,510.00 to Harmon and refused to turn over the money to FMI.

A garnishment is a legal process for obtaining property of a judgment debtor in the hands of a third party. Covington Pontiac-Buick-GMC Trucks, Inc. v. AAA Sewer & Water Fabrication & Serv., LLC, 873 So.2d 56 (La. Ct. App. 2004).  The test of a garnishee’s liability to the judgment creditor is whether the garnishee has in his hands the debtor’s property, funds, or credits for the recovery of which the debtor has a present subsisting cause of action. Houma Mortg. & Loan, Inc. v. Marshall, 664 So.2d 1199 (La. Ct. App. 1995). A garnishment judgment is entered and the garnishee required to pay the creditor if the garnishee admits to having property belonging to the debtor pursuant to La. C.C.P. art. 2415.

Continue reading

by

doctor-1415837-683x1024In a medical malpractice case, often lawyers for either or both sides will hire what is called an expert witness.  These cases are complex and frequently require such experts to explain to the judge and jury the medical procedure at issue and what went wrong.  These necessary experts, however, are not inexpensive and the winning party in a lawsuit can often come out ahead but at a serious financial setback.  This is what happened in a recent case out of Ouachita.  And due to a lack of evidence on record in support of expert witness fees, the winning party had no chance of recovering these costs.     

Doctors from St. Francis North Hospital, defended allegations of medical malpractice from plaintiffs William McDougald, Joey McDonald, and Tracy McDonald. The hospital was successful in their defense of the case, however the cost of hiring expert witness Dr. David Elizardi was calculated by the hospital at $34,064.41. After the jurors in the Ouachita, Louisiana Trial Court rejected all claims of medical practice, the prevailing defendants filed a motion to tax the defense’s costs against the unsuccessful plaintiffs for the $34,064.41 fee for Dr. Elizardi, plus other fees from defending the lawsuit. Dr. Elizardi had a letter that detailed all of the elements of the $34,064.41 fee, however, the letter was not placed into the record as evidence. The Trial Court assigned some of the costs and fees to the plaintiffs but excluded the $34,064.41 fee for Dr. Elizardi.

In Louisiana, the trial court has the power to set and assign costs and expert witness fees, as the trial court deems equitable and fair. La. C.C.P. art. 2088(A)(10). The party seeking to have their costs paid, as the Hospital and Insurer were seeking here, has the burden of proving the reasonable value of the expert’s out-of-court work. If the parties do not stipulate to the specifics and costs of the out-of-court work, then the expert must testify at the hearing determining costs. See Dakmak v. Baton Rouge City Police Dept., 153 So. 3d 511 (La Ct. App. 2014).  An expert witness is entitled to reasonable compensation for trial testimony and preparation for trial.  The trial court has great discretion in awarding and setting costs and expert witness fees and is not required to set the amount charged by the expert as the amount of the expert witness fee.  Only on a showing of an abuse of the trial court’s discretion can an appellate court reverse the charges and fees taxed as costs by the trial court.  However, the appellate court cannot review anything from the trial court that is not in the record nor can it receive any new evidence.   

Continue reading

by

ear-defenders-1415305-1024x679What are your legal options when you experience job-related hearing loss? Are you limited to benefits under workers’ compensation laws or can you file a lawsuit for possibly a considerable monetary amount?  That was the essential question put forth to the Supreme Court of Louisiana in a recent case out of West Monroe.

Six current and former employees of Graphic Packaging International, Inc.’s (“GPI”) West Monroe facility filed various lawsuits against GPI.  In their lawsuits, the employees claimed that GPI failed to provide its employees with a safe workplace, resulting in the employees allegedly losing their hearing. The employees alleged that over their years of employment, their constant exposure to “hazardous levels of industrial noise” ultimately caused irreparable damage. GPI argued that any hearing loss that may have occurred would fall within the purview of Louisiana’s Workers’ Compensation Act (“LWCA”) which would preclude the lawsuit per La. R.S. 23:1031.1.   

The District Court found for the employees and awarded damages. The Louisiana Second Circuit Court of Appeal, however, reversed the District Court finding the hearing loss to be an “occupational disease” under the LWCA.  The question before the Louisiana Supreme Court was whether this was a workplace incident, which would result in workers’ compensation benefits under the LWCA, or whether it was a tort action that could potentially result in uncapped damages if liability is found.

Continue reading

by

feet-in-a-stream-1395322-1024x768Evidence in a trial can take almost any shape or form.  For murder trials, people think of weapons.  For fraud cases, perhaps incriminating documents comes to mind.  For a personal injury case, the options are almost limitless yet likely “flip flop” is not the first image that pops up; especially in a maritime case.  Yet in this case, Garrard Myers makes quite the fuss over the state of his sandals.

Mr. Myers was working aboard Hercules Offshore Services, L.L.C.’s (“Hercules”) drilling rig in 2013 when he injured his left ankle coming out of the shower.  Mr. Myers subsequently filed a lawsuit against Hercules pursuant under the Jones Act and general maritime law.  See 46 U.S.C. § 30104 et. seq.  Mr. Myers alleged that Hercules’ drilling rig was unseaworthy and that Hercules was negligent in failing to provide handrails or slip-resistant surfaces in the vessel’s showers.  

At trial, conflicting facts were presented on the cause of Mr. Myers injury.  Mr. Myers stated that he simply slipped on the shower floor.  Hercules representative Randall O’Brien testified however that Mr. Myers stated his flip flop broke and then he fell in the shower.  Mr. O’Brien also testified that an incident report stated that Mr. Myer’s shoe broke and Mr. Myers signed this report.  Moreover, Mr. Myers admits to signing the report yet denies having read the portion of the report about his broken flip flop.  Mr. Myers at trial denied that his flip-flop was ever broken or that he communicated about his flip flops to anyone.  Mr. Myers even brought the supposed shower shoes to trial to show they were intact.

Continue reading

by

offroad-1499557-1024x768A person may seek help from the federal court system when that person feels that they have been cheated or wronged.  However, one needs to make sure that the federal court can actually help the situation. Personal jurisdiction is the ability of a court to exercise power over a person or a specific case.  Subject matter jurisdiction is the court’s authority to hear cases that revolve around the certain subject matter. Generally, lawsuits end up in the federal courts in one of two ways. The first occurs when the parties are from different states and the amount of the claim is over $75,000, regardless of the type of claim. The second occurs when the nature of the claim is specific to a federal statute or law. This is usually an attempt to get a federal court to enforce a right granted by federal law. A claim that would get in court under one of these two theories must be stated in the plaintiff’s complaint. 28 U.S.C. § 1332.

The United States Fifth Circuit Court of Appeal recently demonstrated the need to properly establish a federal claim.  In 2012, Landry Dixon sued Lakeside Toyota and the Toyota Motor Credit Corporation (TMCC).  Mr. Dixon believed that the Sales Manager of the dealership had lied to him by allowing him to assume that since he was leasing an automobile on behalf of the nonprofit organization of which he was the CEO, the lease would be tax-exempt, leading to a lower monthly payment. Mr. Dixon paid the lower amount stated on the lease agreement, which ultimately turned out to be almost thirty dollars below what he should have been paying as a nontax-exempt customer.  His lower payments added up, causing the Toyota Motor Credit Corporation to make collections and damage his credit rating.  Mr. Dixon brought this lawsuit in federal district court on a claim of common law fraud, which is a state law claim.

Since he did not claim anything about what states the parties were from nor did he bring a claim under federal law, the District Court dismissed it for lack of subject matter jurisdiction.  Mr. Dixon attempted to file various motions to fight this dismissal.  He also made a separate lawsuit against the TMCC only, stating a claim under the Consumer Leasing Act (CLA), which is a federal law that governs certain leases. 15 U.S.C. §§ 1667–1667f.  However, even this was not enough to establish a claim in federal court and the District Court dismissed the case once again.

Continue reading
Contact Information
1140 St Charles Ave
New Orleans, LA 70130
Phone: (504) 521-6000
Fax: (504) 617-6300

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2016 – 2025, Berniard Law Firm
JUSTIA Law Firm Blog Design