Civil Matter

May 16, 2017

Elderly St. Tammany Parish Woman Denies the Need for Interdiction

old-woman-1437938-681x1024 According to the Alzheimer’s Association, 5 million people are currently living with Alzheimer’s disease. Statistics also show that people age 70 are 61% more likely to die from the disease before they turn the age of 80, compared to 30% of the people living without it. So what is Alzheimer’s disease? It is a type of dementia that causes problems with memory, thinking, and behavior. Symptoms worsen over time, rarely get better and are so severe that they can interfere with the daily lives of these individuals. A recent case out of the Louisiana First Circuit Court of Appeal is illustrative of just some of the hardships those who suffer from Alzheimer’s disease face.

In 2014, A St. Tammany Parish Trial Court decided that Shirley Fichtel, an elderly woman, needed an interdiction. Interdiction requires another person or persons to help the interdicted person to care for themselves and/or their personal affairs. This decision came after three different doctors determined that Shirley was no longer capable of caring for herself, her property or her finances. She could not keep her house clean and on several different occasions she had gotten lost while driving, experienced hallucinations, and had her utilities cut off. She was diagnosed as having “Alzheimer’s dementia” and tremors by all three doctors. Her son Matthew testified that Shirley repeated the same things over and over again while speaking and could not remember one conversation to the next. Shirley’s daughter Gretchen testified that she had been handling her mom’s finances for over twenty years.

Shirley believed that her property could have been handled by less restrictive means other than an interdiction and therefore she is appealing her interdiction. She believed that her current caregiver could take care of her as she had been the five weeks before trial. The Court of Appeal found that the caregiver had not been around Shirley enough to handle this task and believed the testimony of her lifetime doctors and her children, who had more time to spend with her, were more valuable than the caregiver.

May 15, 2017

Louisiana Insurance Dispute Highlights Complexities of Concursus Proceedings

by Berniard Law Firm

money-1537580-781x1024 Concursus proceedings can be complicated. In a concursus proceeding, multiple parties assert competing claims to money or property. La. C.C.P. art. 4651. These types of proceedings are designed to free the court from the burden of dealing with multiple lawsuits. As a party to a concursus proceeding, you assert your claims to a particular piece of property against all other claimants. This necessitates a good lawyer, as demonstrated by a recent case of the Louisiana First Circuit Court of Appeal.

In 2010, Joseph Shows was injured in an automobile accident that left him with extensive bodily injuries and significant medical expenses. Fortunately for Mr. Shows, he had prepared for such events by obtaining uninsured/underinsured motorist (“UM”) insurance through Farmers Insurance Exchange in the policy amount of $100,000. He was also covered under a health benefits plan provided by his employer Trimac Transportation, Inc., administered by Blue Cross and Blue Shield of Texas, Inc. (“BCBSTX”).

After the accident, Shows was able to recover $25,000 from the at-fault driver’s insurance company, Allstate, in addition to $63,933.34 of Shows’ $100,000 Farmers UM policy limit. However, one question remained: Who would receive the remaining balance of Mr. Shows’ UM policy limit, totaling $36,066.66? Farmers filed a concursus petition against Mr. Shows and BCBSTX to recover the remaining balance.

May 13, 2017

Dispute Over Attorney Fees In New Orleans Turns into Volleyball Game Between Courts and Arbitrators

by Berniard Law Firm

the-law-society-1241368-683x1024 Louisiana law strongly encourages arbitration as a method of resolving disputes. Arbitration is a form of alternative dispute resolution whereby parties agree to be bound by the decision of neutral third parties. Arbitration promotes efficiency in dispute resolution because it attempts to resolve disputes before court involvement becomes necessary. It prevents courts from becoming backlogged with excessive caseloads. While arbitration promotes court efficiency, it can be a burdensome roadblock to certain litigants seeking recovery. A recent Louisiana case is illustrative.

Tiffany Christian and David were associate attorneys at The Law Office of Paul C. Miniclier in New Orleans, Louisiana. In 2008, both resigned, taking along with them one of the firm’s clients, Carolyn Hall-Williams. At the time of Ms. Christian and Mr. Binegar’s resignation, Ms. Hall-Williams had a lawsuit pending in the federal District Court for the Eastern District of Louisiana. While that lawsuit was eventually settled, the Miniclier Law Firm wanted to collect fees associated with Ms. Hall-William’s representation during her time as a client of the firm. The Miniclier Law Firm filed an intervention with the federal District Court. A magistrate judge awarded the law firm the costs associated with Ms. Hall-Williams representation, but no attorney fees. That award was later modified by a federal District Court judge to include a sum for attorney fees.

Unsatisfied with the award, the Miniclier Law Firm appealed to the U.S. Fifth Circuit Court of Appeal. The Fifth Circuit kicked the case back down to the federal District Court and ordered that the case is stayed (or postponed) until the parties commenced with arbitration. The federal District Court ordered Ms. Hall-Williams to proceed to arbitration, and a petition to arbitrate was filed with the Louisiana State Bar Association (“LSBA”). The LSBA has a Fee Dispute Program which helps resolve disputes between lawyers and their clients as well as disputes between lawyers. Ms. Hall-William’s fee agreement with the Miniclier Law Firm required that fee disputes be arbitrated with the LSBA. The LSBA dismissed the arbitration, in part because the parties could not reach an agreement concerning the scope of the proceedings and the potential impact on the law regarding attorney fee contracts.

May 12, 2017

Louisiana Court of Appeal Upholds Plaintiffs’ Pauper Status

by Berniard Law Firm

faculty-of-law-1492587-1024x768 Are you being or have you been sued and simply can’t afford court costs and litigation due to financial instability? If this is your case, you can file an affidavit of poverty also known as obtaining pauper status pursuant to La. C.C.P. art. 5183. By applying and obtaining this status, the court will permit you to continue litigation without requiring any payments before or throughout the litigation process. If in the course of litigation, the opposing side suspects that you are not actually eligible to obtain pauper status, they may request a hearing and provide evidence to show that you lack the required eligibility criteria (1/125 of the poverty level). At issue in an appeal from the Thirtieth Judicial District Court, the Third Circuit Court of Appeal entertained the discussion of whether or not an unconditional tender of a judgment can be used to revoke a pauper status.

The issue itself arose out of a claim made by plaintiffs Tammy and Tommy Dubois regarding medical expenses for an injury that was caused due to the defendants’ (Scottsdale Insurance Company and SMI Group) negligence. The plaintiffs prior to the court proceedings had gone through the correct procedure as outlined by La. C.C.P. art. 5183 and were granted pauper status.

The District Court ruled in favor of the plaintiffs on their negligence claims and the plaintiffs were awarded $211K. Unhappy with the amount awarded to them, the plaintiffs filed an appeal of the judgment. In response to the appeal, the defendants filed a motion to have the plaintiffs’ pauper status revoked claiming they had been “unconditionally tendered” payment of both the judgment and of the interest on the judgment in two separate checks. The plaintiff’s counsel refused to cash the checks, but the defendant argued that the money was readily available to them, therefore, their pauper status should be revoked because they did, in fact, have access to a sufficient amount of money.

May 6, 2017

Louisiana Whistleblower Law Protects Against Employer Retaliation

by Berniard Law Firm

whistle-1423801-1024x768 The State of Louisiana has laws in place to protect whistleblowers with legitimate claims. These laws are critical to protecting workers and promoting healthy corporate self-governance. In Louisiana, La. R.S. 23:967 protects an employee whistleblower from retaliatory actions when in good faith, the employee advised the employer of some unlawful practice. It allows the employee to commence a civil action against the employer for the employer’s retaliatory actions. In a recent case, the U.S. Fifth Circuit Court of Appeal spells out the legal elements required to succeed on a whistleblower claim.

Justin Richardson worked for Axion Logistics, LLC, in Baton Rouge. Axion promoted Richardson to general manager within two months of hiring him. Shortly thereafter, Richardson became aware that two Axion employees were fraudulently billing an Axion client. Richardson reported these acts up the chain of command, including Axion’s president, its CEO and its CFO.

At one point, Axion’s CEO requested that Richardson not to tell anyone about the matter. Axion’s CEO and president allowed the illegal practice when they refused to inform the client. Subsequently, Richardson expressed to the CFO that Richardson would notify the client if Axion was unwilling to do so. A few weeks thereafter, Axion management criticized Richardson’s job performance. The president then terminated Richardson’s employment within a month, on the grounds that Richardson “was not a good fit” for the company.

May 5, 2017

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

by Berniard Law Firm

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.