Civil Matter

May 5, 2017

Louisiana Lawsuit Shows How Hard It Can Be to Collect on a Judgment

money-money-money-1240837-1024x768 Getting a judgment in your favor can often feel like a big win in court. After a judgment has been declared by the court many people believe the losing side simply gets out their checkbook and pays what they owe. While this may happen in some cases, many times after getting a judgment a person must fight an uphill battle to collect on that judgment. This is exactly what happened when a Louisiana company, Monster Rentals, obtained a default judgment against Coonass Construction of Arcadia (CCA).

In March of 2013 Monster Rentals brought a lawsuit against CCA to collect $4122.28 in unpaid invoices. CCA failed to answer the complaint. In accordance with Louisiana law, a default judgment was entered against the company. Essentially, if after a party being sued fails to answer a lawsuit for a certain period of time it is assumed they agree that they owe the amount in controversy. This is one reason it is so important to seek a good lawyer when you find out there is litigation pending against you. If you simply ignore the problem in hopes it will disappear it often can be a sure way to lose the case and end up owing money. In the default judgment against CCA the Trial Court awarded Monster Rentals both the $4122.28 and reasonable attorney fees.

Monster Rentals then began the difficult task of attempting to collect on the judgment. In order to collect on a judgment when someone is unwilling to pay, the party that is entitled to collect needs to get the court to place a lien or garnishment on some asset owned by the party that owes the money. In order to collect, Monster Rentals tried to place a garnishment on unpaid receivables owned by CCA. In order to do this Monster Rentals approached the court and asked it to set a fixed dollar amount for attorney fees in order to facilitate the collection of the judgment.

May 4, 2017

What Happens When Your Judgment Lacks The Magic Words

by Berniard Law Firm

lamp-post-1230572-689x1024 Language is key when it comes to the law. A court cannot give a plaintiff what he or she asks for if the request is vague. In a similar vein, a judgment’s lack of certain magic words can render it defective. Words have precise meanings in order to be given legal effect. This is illustrated by a recent of the Louisiana Fourth Circuit Court of Appeal. In this case, the Court of Appeal found that a trial court’s judgment lacked the required decretal language required to give the document legal effect.

Baraki Tsegaye was a taxi driver in New Orleans. While waiting for a fare outside of a hotel a pole fell on him and he was injured. Tsegaye sued Royal Engineers & Consultants, LLC, who were responsible for the light pole that struck him. Royal Engineers argued that they had no notice that the light pole was defective and filed a motion for summary judgment for the lawsuit to be dismissed with prejudice. To dismiss a case with prejudice means the case would be permanently ended. The Trial Court granted Royal Engineers’ motion for summary judgment but the judgment did not contain any decretal language, or words giving a legal effect. Tsegaye appeal the judgment.

The Louisiana Constitution grants the Courts of Appeal with appellate jurisdiction as well as supervisory jurisdiction. See La. Const. Art. V, § 10(A). Under La. C.C.P. art. 2082, appellate jurisdiction can be invoked as a matter of right by a litigant. And according to La. C.C.P. art. 2201, the decision to invoke supervisory jurisdiction lies within the discretion of the court. In order for a Court of Appeal to consider a case, there must be a final judgment.

May 2, 2017

Gretna Woman’s Excessive Force Lawsuit Against Gretna Police Fails For Lack of Evidence

by Berniard Law Firm

ambulance-light-1245195-1024x683 Excessive police force has become a nightly topic in the American news cycle. Ranging from discrimination to life-and-death situations, no one wants to be on the receiving end of mistreatment. In a recent case, a Louisiana woman experienced what she felt was excessive force by law enforcement officers in her own home. The Court of Appeal, however, disagreed. In its decision, the Court of Appeal discussed the burden of proof necessary to succeed on civil rights claims against government officers.

On November 16, 2011, the Gretna Police Department Special Response Team (“SRT”) entered Ms. Willie Nell Bullock’s home to execute a drug warrant. Video footage shows that two minutes after entering the home, an officer escorted Ms. Willie Nell Bullock outside and unfolded a chair for her on which she could sit. Ms. Bullock’s health was poor. She recently underwent surgery and suffered from advanced stage cancer, blood pressure, and diabetes. A year after this event, Ms. Bullock’s family filed a Section 1983 civil rights claim against the Gretna Police Department in federal court. The Bullocks’ alleged that Willie’s Fourth Amendment rights were violated by Gretna Police Department’s use of excessive force. The Trial Court granted the Police Department’s motion for summary judgment because of the dubious reliability of the claims asserted by the plaintiff, and the defendant’s qualified immunity. Ms. Bullock’s family appealed.

To prove a violation of a constitutional right by excessive use of force, the plaintiff must provide evidence that her injury resulted from the defendant’s clearly excessive use of force. That use of force in question must be so excessive that it is objectively unreasonable. Ramirez v. Martinez, 716 F.3d 369, 377 (5th Cir. 2013). This type of analysis requires the U.S. Courts of Appeal to look at the totality of the circumstances in determining whether the plaintiff has met her burden of proof.

April 27, 2017

Lawsuit Against Louisiana Department Wildlife and Fisheries “Barred” and “Not Ripe”

by Berniard Law Firm

three-herons-1395291-1024x819 When a plaintiff files a lawsuit, he or she must make sure that the filing is done in the right court at the right time. The court hearing the dispute must have the power to adjudicate and resolve those claims. Sometimes, certain legal doctrine can bar a court from hearing a case, such as sovereign immunity. And similarly, cases can only be decided if the timing is right – the claim must not be brought to early or too late. The effect of filing the claim in the wrong court or at the wrong time can lead to a dismissal, wasting a substantial amount of time and money. In a recent decision, the United States Fifth Circuit Court of Appeal found that a case against the Secretary of the Louisiana Department of Wildlife and Fisheries was both barred by sovereign immunity and not ripe for adjudication.

The initial controversy in this East Baton Rouge case arose when the owners of Comite Dirt Pit, Inc. (CDP), Plaintiffs Richard and Betty Rush, failed to comply with the Louisiana Scenic Rivers Act (LSRA). The LSRA prohibits mining, logging, and the removal of trees within 100 feet of rivers such as the Comite River. La. R.S. 56:1856. The Louisiana Department of Wildlife and Fisheries (LDWF) had multiple temporary restraining orders (TRO) served upon CDP, which was situated on the Comite River, to cease its activity. The Plaintiffs challenged these TROs and filed a lawsuit alleging that LDWF was in violation of the Takings Clause and the Tenth Amendment. The lawsuit was dismissed because the Trial Court found that there was no subject matter jurisdiction. The Plaintiffs appealed.

There were two significant legal issues in this case. First, the Eleventh Amendment prohibits lawsuits in which the damages would be paid from public funds (i.e. lawsuits against the government). See Edelman v. Jordan, 415 U.S. 661 (1974). This is known as sovereign immunity. Though the lawsuit named Robert Barnham as a defendant, he was the Secretary of the Louisiana Department of Wildlife and Fisheries. Thus, if the defendant was found guilty of the Rush’s allegations, the damages would be paid with state money and the Eleventh Amendment. The Fifth Circuit accordingly found that the suit was barred and it had no jurisdiction over the Plaintiffs’ complaints.

April 26, 2017

Court of Appeal Considers Dance Ballroom to Be a “Merchant” Under Liability Statute

by Berniard Law Firm

ballroom-sign-1195748-1024x768 The Louisiana Merchant Liability Statute aims to protect persons from unreasonable risks of harm by unscrupulous merchants. At the same time, it limits the liability of merchants and protects them from frivolous lawsuits. In order to succeed on a merchant liability claim, the plaintiff must show that the merchant knew or should’ve known of the dangerous condition that harmed the plaintiff. In a recent case, while considering that a dance ballroom can be considered a “merchant, the Louisiana First Circuit Court of Appeal found that the plaintiff failed to show that the defendants had knowledge or constructive knowledge of the risk of harm.

In October 2010, D’Andrea Mills slipped and fell on a spilled drink and broken glass on the dance floor while attending a private party at the Lyceum Dean Ballroom in Baton Rouge. Mills sustained injuries, including two broken bones, which later required surgery, and was taken to the local ER for assistance. Mills filed a lawsuit seeking damages against Cyntreniks Plaza, L.L.C., the owner and operator of the Lyceum. Cyntreniks moved for summary judgment, seeking to have the case thrown out before trial. In its motion, Cyntreniks argued that Mills failed to satisfy her burden of proof under the Merchant Liability Statute, La. R.S. 9:2800.6, and there were no genuine issues of material fact for the court to determine.

The Trial Court granted summary judgment in favor of Cyntreniks and dismissed Mills’ claim. Mills appealed the judgment to Louisiana’s First Circuit Court of Appeals. The Circuit Court affirmed the lower court’s grant of summary judgment in favor of Cyntreniks. Judge Holdridge dissented.

April 23, 2017

Louisiana Trial Court Trips Up On Procedural Aspects of Improper Medicine Dosage Lawsuit

by Berniard Law Firm

medicine-5-1544051-1024x768 It is no secret that a lawsuit has the potential to become a tangled web of procedural issues. This is why it is always a good idea to secure a good attorney with experience in dealing with the court system. Perhaps less common is the situation where the judge, the party responsible for ensuring an efficient and timely resolution of the dispute, gets tripped up in this procedural web. This is exactly the situation below.

The dispute centers on a medical malpractice claim. Ms. Johnson showed up to Tulane University Hospital and Clinic (Hospital) one evening suffering from a severe headache and double vision. The Hospital staff administered an IV in Johnson’s arm, which later became infected. The Hospital discharged her with some antibiotics and told her to follow up with her primary care physician. Ultimately, the infection worsened and required a more serious antibiotic treatment and even surgery. Johnson sued the Hospital and the nursing staff.

Johnson alleged six total negligence claims against the Hospital and the nurses. Pursuant to the Hospital’s summary judgment motion, the Trial Court dismissed all five allegations against the nursing staff but allowed one claim to proceed against the Hospital. That one claim pertained to the antibiotic dosage the Hospital prescribed to Johnson after her initial visit.

April 21, 2017

Louisiana Court of Appeal Discusses Driving Rules in Left Passing Motorist Case

by Berniard Law Firm

life-is-a-highway-2-1174522-1024x768 When you are in a motor vehicle accident, there are many issues that can arise as to the issue of fault and whose version of events is more reliable. Conflicting versions of what happened can make it difficult for the court to assign fault. It is thus important to always be aware of your surroundings and the laws of driving a motor vehicle, as illustrated in the following case.

In September 2013, in Ouachita Parish, Mr. Williams was operating a tractor on the road while traveling between two landscaping jobs. Sheriff’s Deputy Mr. Coleman attempted to pass the slow-moving tractor near an intersection, and the tractor struck the rear passenger side of the Sheriff’s van as it was passing. Mr. Williams suffered minor injury as a result.

Mr. Williams filed a lawsuit against Mr. Coleman, the Parish Sheriff, and their insurers. But the Trial Court assigned Mr. William’s 100% of the fault. It considered that he should have been able to avoid the accident had he looked before he turned and saw the Sheriff’s vehicle passing him. Mr. William’s appealed.

April 20, 2017

Louisiana Medical Malpractice Case Dismissed in Summary Judgment Because of Lack of Evidence

by Berniard Law Firm

abandoned-mental-hospital-1543214-1024x766 In November 2008, in Claiborne Parish, Mr. Fields went to Willis Knighton Claiborne Regional Health Center for complaints of diarrhea. Mr. Fields also had an extended history of medical issues, including hypertension and a kidney transplant. He saw a nurse practitioner, who consulted with a doctor and gave him a prescription for a generic antibacterial, which he took as directed. About a week later, he called his doctor’s office complaining that the medicine was making him feel worse. He alleged that he was instructed to continue taking the medicine as originally directed.

The next day, he collapsed at home and died soon after. The cause of death on his death certificate was listed as an acute cardiovascular attempt, which related to his past medical conditions. His children petitioned the Medical Review Panel (“MRP”) alleging malpractice by the hospital and its medical professionals. But the MRP concluded that the standard of care had not been breached, partly because Mr. Fields had never come back in for a follow-up. Mr. Fields’ children then filed a lawsuit against the hospital and Mr. Fields’ doctor and nurse as its employees.

The hospital filed a motion for summary judgment, arguing that the case should be dismissed because there were no genuine issues of material fact. The hospital supported its motion with the MRP’s findings of no breach of care and no causation. Opposing the motion, Mr. Fields’ children supported their allegations with a statement from Dr. Blanche Borzelle, a board-certified physician stating that the nurse and doctor involved had breached the standard of care and concluding that the breach led to Mr. Fields’ death.

April 14, 2017

Pro Se Litigant Loses Claim Over Failure to Meet Burden of Proof in Louisiana Court

by Berniard Law Firm

supreme-court-of-canada-1551191-1-683x1024 When asserting a claim under constitutional law, the moving party must meet a specific standard that is easily navigated by an attorney. As one Louisiana man recently learned, without the help of a lawyer, navigating these pleading standards can be difficult and detrimental to the outcome of your case.

In this case, Ms. Young, a health care provider, picked up Mr. Wright, a patient, from a doctor’s appointment. In the course of dropping Mr. Wright off at his house, Ms. Young noticed he escaped from her car. Following her company’s protocol, Ms. Young called the police hoping for help in locating Mr. Wright. When police located Mr. Wright, he assaulted one of the police officers and the officers subsequently criminally charged him.

Mr. Wright believed Ms. Young and her employer, Superior Options, were at fault for the incident leading to the officer’s assault. Mr. Wright filed claims against the parties under the premise of 42 U.S.C. § 1983 which imposes liability on anyone who impedes upon someone else’s rights provided by the Constitution. He claimed that his constitutional right barring cruel and unusual punishment was violated by the health care providers. Mr. Wright also claimed that, under Louisiana law, Ms. Young was negligent and intentionally caused him emotional distress. The Trial Court denied Mr. Wright’s federal claims because his case was not supported by evidence, but Mr. Wright was not satisfied with the Trial Court’s decision and appealed.

April 13, 2017

Failure to Maintain a Claim at Each Level of the Court System Causes Man to Lose Federal Question Jurisdiction

by Berniard Law Firm

us-capitol-building-7-1233904-1-1024x683 In a lawsuit, a client’s claims need to be monitored every step of the way. If an issue is revived in an appeal, an attorney must keep track of it and reinforce it at each new representation. If an attorney doesn’t continue to assert a claim, a court might think the party abandoned the issue and the court will not review it on appeal. Keeping these claims alive is not a major undertaking, but as Glenn E. Alphonse, Jr. learned in his recent case, even the slightest misstep in this area can make or break an outcome.

In 2010, Mr. Alphonse defaulted on his mortgage, so Arch Bay Holdings, LLC began foreclosure proceedings on his house. Alphonse filed a lawsuit against Arch Bay Holdings, LLC under the Louisiana Unfair Trade Practices Act (LUTPA) and Federal Debt Collection Practices Act (FDCPA). After various motions and appeals, the District Court dismissed Alphonse’s case. Alphonse appealed this ruling to the Fifth Circuit Court of Appeal.

A central issue to Alphonse’s appeal was whether federal question jurisdiction existed. Federal question jurisdiction allows a plaintiff to proceed with a case in federal court; it is what gives the official power to a court to make legal decisions and judgments. The Fifth Circuit first examined whether Alphonse waived his right to certain claims during the litigation of his case which gave rise to federal question jurisdiction. If Alphonse waived his rights to these claims then he waived his right to proceed under federal question jurisdiction. Waiver of Alphonse’s federal claims during the appeals process meant that those claims could not be brought before the District Court for consideration. Alphonse admitted that he waived some of his federal claims during the appeals process, but claimed that he left one claim intact and argued that he still possessed federal question jurisdiction.