Civil Matter

March 30, 2017

A Tale of Two Stories: Differing Story Details Allow Excessive Force Charges Against Deputy Stand Trial

school-bus-1-1450452-1024x683 As the adage goes, there are two sides to every story and when it comes to lawsuits, the details of those stories can make the difference between a courtroom success and a case never making it to trial. A case arising out of Mandeville, Louisiana is the perfect example of just how important the details of a story can be.

At the beginning of many lawsuits, a good lawyer will often seek summary judgment when appropriate, which allows a case to be resolved before going to trial. A court will only grant summary judgment when there is no material issue of fact; if a reasonable jury could only find in favor of the party moving for summary judgment then there is no need for the case to move forward. In the case of April Curran, a few differing details in her recounting of events ensured that her case defeated a summary judgment motion and moved on to be heard at trial.

Student cell phone use was prohibited on Fontainebleau High School’s campus, but on September 24, 2008, April Curran, a sophomore at the school, missed the bus to her afternoon classes and used her cell phone to call her mother. Curran took morning classes at Fontainebleau and attended afternoon classes at the New Orleans Center for Creative Arts (NOCCA). A teacher who witnessed Curran’s phone use instructed Curran to give him the cell phone or go to the disciplinarian’s office. Curran refused to give the teacher her phone but told the teacher she needed to go to the NOCCA campus. The teacher called in Phillip Aleshire, a deputy with St. Tammy’s Parish Sheriff’s Office and the school’s resource officer, for assistance and told the officer Curran was attempting to get away.

March 27, 2017

Louisiana’s Fact-Pleading System Allows Woman to Recover for Battery When Only Suing for Negligence

by Berniard Law Firm

hummer-h-2-1450806-1024x768 The law often hinges on technicalities, which is why technical accuracy is critical in ensuring that all parties to a lawsuit have a fair and adequate understanding of the issue and that courts operate efficiently. Despite this importance, courts do not want justice to be skirted on the sole basis of a technical error. The Second Circuit Court of Louisiana emphasized this sentiment when it allowed a woman to recover damages for battery, despite the fact that she only alleged negligence in her pleadings. The court was able to do so under Louisiana’s fact-pleading system which allows recovery as long as the facts necessary to establish a claim are pled.

The incident from which this case arose occurred on July 14, 2012, on the shoulder of Highway 84 near Winnfield, Louisiana. Devon Zimmerman and Michael Carter were in a Monte Carlo when, according to Zimmerman, a person driving a Hummer, (Hummer) sideswiped the car. The vehicles then parked on the shoulder of Hwy. 84. After parking, Zimmerman and Hummer got into a physical altercation which Carter broke up. Minutes later another party arrived and parked behind Zimmerman’s Monte Carlo, trapping the car. One of the parties in the lawsuit alleged that the driver of the Hummer then returned to the Hummer and rammed the Monte Carlo three times. Zimmerman’s insurance company, State Farm, later determined that the Monte Carlo was a total loss.

Zimmerman filed suit against the parties who she believed were at fault and Progressive their insurance company. Progressive alleged that the events were not accidental. The Trial Court dismissed Progressive by directed verdict on the grounds that the acts by the driver of the Hummer were clearly intentional. The jury found the driver of the Hummer at fault for intentionally ramming the Monte Carlo, further finding that Zimmerman’s actions were not a proximate cause of the accident. The jury found that Zimmerman proved physical and emotional pain suffered as a result of the accident and awarded her $70,000 in general damages and $12,819.50 in medical special damages. It also found the driver of the Hummer liable for all costs of litigation.

March 19, 2017

Appellate Court Says Pro Se Plaintiff Can Proceed With State Law Discrimination Claims Against Tulane Hospital

by Berniard Law Firm

hospital-02-1505482-1024x768 Discrimination has always been a controversial topic in America and especially salient in the workplace context. The following case arises out of a situation where an employee felt that she was discriminated against based on her race and disability. She sued in federal court based on federal and state discrimination laws.

Ms. Shawlean Lee, a former employee of Tulane Hospital, filed the federal lawsuit without an attorney, known as proceeding “pro se.” The controversy in question was the termination of her employment in November 2011. Soon after the termination of her employment, Ms. Lee followed the proper procedure by filing a Charge of Discrimination with the Equal Employment Opportunity Commission, also known as the EEOC. About a year and a half later, in April 2013, the EEOC issued what is known as a “Right to Sue” letter, which stated that Ms. Lee had 90 days to file a legal action against her former employer for violations of federal discrimination laws.

Ms. Lee filed the federal lawsuit in September 2013, more than 90 days after receiving the “Right to Sue” letter from the EEOC. As a result, Tulane Hospital moved to dismiss the complaint because it was untimely. In what would later be seen as a crucial oversight by Tulane Hospital, the motion to dismiss only mentioned the federal claims brought by Ms. Lee and not the state law claims. The Trial Court granted the hospital’s motion to dismiss and again Ms. Lee’s state law claims were overlooked. After the Trial Court dismissed Ms. Lee’s case, she appealed to the United States Fifth Circuit Court of Appeal. The Court of Appeal has analyzed the case and issued a brief five-page opinion.

March 18, 2017

Plaintiff Fails in Appeal of Employment Termination Case out of St. John the Baptist Parish

by Berniard Law Firm

police-car-1414442-1024x683 Law enforcement agencies throughout the country have been under intense scrutiny over the past few years because of controversial policies and procedures. However, one agency in Louisiana, the Sheriff’s Office of St. John the Baptist Parish, faced another type of scrutiny surrounding the termination of a high-ranking official. The termination resulted in a lawsuit based on federal and state law.

The controversy dates back to 2013 when the Plaintiff, Tregg Wilson, was employed by the Sheriff’s Office as Chief Deputy. In May of that year, Mr. Wilson discovered that there was automatic and constant video and audio surveillance in the office interrogation rooms. Mr. Wilson believed that this might present some legal problems for the Sheriff’s Office, so he reported the issue to the Sheriff, Mike Tregre. Mr. Wilson also reported the issue to Internal Affairs, as well as the District Attorney. In turn, the District Attorney asked the Louisiana State Police to investigate the issue. The State Police ultimately determined that there were no legal issues with regard to the surveillance in the interrogation rooms. Shortly thereafter, Mr. Wilson was terminated from his employment with the Sheriff’s Office.

In the subsequent lawsuit filed in federal court, Mr. Wilson claimed that his termination from employment was a First Amendment retaliation violation under federal law, as well as a violation of various provisions of state law. See Nixon v. City of Houston, 511 F.3d 494 (5th Cir. 2007). The Sheriff, as the defendant, moved for summary judgment, a legal process whereby a party asks a trial court to make a legal determination because there are no disputes with regards to the facts of the case. The Trial Court granted summary judgment in favor of the Sheriff and Mr. Wilson appealed.

March 16, 2017

Government Expropriates Land to Reroute Highway 105 in Louisiana, Landowners Compensated Fairly After Lawsuit

by Berniard Law Firm

tree-1494188-768x1024 When the government takes privately owned property to be used for the benefit of the public, it is called an expropriation. Federal and state law prohibit the government from taking private property without compensating the owner. The Louisiana Constitution provides that property shall not be taken or damaged by the State except for a public purpose and with just compensation paid to the owner of the private property. A landowner whose property is expropriated by the State is to be compensated so that he remains in the equivalent financial position he enjoyed before the taking. The following case provides a concrete example of such a situation.

Knoll & Dufour Lands and Glenn and Barbara Dauzert (Plaintiffs) brought a consolidated action against the Louisiana Department of Transportation (“DOTD”) alleging the amount paid for the expropriation of their properties was insufficient to cover the value of said property. The Trial Court awarded compensation and damages to each of the property owners and the DOTD appealed the decision. The Court of Appeal affirmed the Trial Court’s award of damages, improvements on the land expropriated, and additional damages. However, it also found that the Trial Court erred in its valuation of the property expropriated from Plaintiffs. Importantly, the Trial Court erred by relying on expert testimony as to the total value of the land, which simply added the value of the trees to the fair market value of the property. This form of valuation is an improper basis for determining the value of the property. Since the Trial Court record did not contain enough evidence to determine the value of the trees added to Plaintiff’s property, the Court of Appeal remanded the case to the Trial Court to allow the parties to present evidence as to how much the trees contributed to the total value of the land taken.

After a second trial, the Trial Court awarded Knoll & Dufour Lands $164,720.00, including $158,000.00 for the trees taken from a 0.533 acre tract of land that the DOTD expropriated for the construction of a new route for Highway 105 in Avoyelles Parish. In addition, the Trial Court awarded the Dauzerts $33,051.00, including $30,000.00 for trees taken from a 0.639 acre tract of land also expropriated by the government in rerouting the highway. In determining the compensation owed to the landowners for the added value of the trees the Trial Court heard from four expert witnesses: the real estate appraiser who did the original appraisal for the DOTD, a landscape horticulturist, an arborist and real estate agent, and Plaintiff’s real estate appraiser. Again, the DOTD appealed the decision of the Trial Court arguing that none of the expert testimony should have been admitted, except for the expert testimony offered by the DOTD, because it was irrelevant to the question before the Court.

March 15, 2017

Suicide Forecloses Survival Action But Leaves Open Claims by Succession Representative of Estate

by Berniard Law Firm

general-business-1241245-1024x582 When someone with a family and a business suddenly dies, sensitive estate issues arise and can often become complicated, especially if the decedent was in the midst of strained business negotiations or when the death was the result of a suicide. In these situations, it’s essential for surviving family members to hire a good attorney in order to keep a stressful situation from deteriorating further. The following case illustrates such a situation.

Chi Pham, a physician, became ill in 2012 and was unable to continue her Lafayette, Louisiana medical practice. Dr. Pham ran the practice through Chipham, a corporation she had formed, which owned the physical aspects of the business. On August 6, 2012, Chi Pham negotiated a non-binding Memorandum of Understanding with Southwest Medical Center Multi-Specialty Group (SWMG) that outlined a proposal for SWMG to purchase certain assets of Dr. Pham’s medical practice. The Memorandum also laid out the terms and conditions for the lease of her office building and the possibility of Dr. Pham resuming the practice as an employee of SWMG when she was sufficiently recovered. In conjunction with this Memorandum, Dr. Pham signed the First Medical Records Transfer Agreement, which transferred responsibility for Dr. Pham’s patient medical records to SWMG. Ultimately, negotiations between Dr. Pham and SWMG failed and the parties rescinded the First Medical Records Transfer Agreement. Approximately two months later, the parties signed the Second Medical Records Transfer Agreement.

Meanwhile, negotiations continued on the points outlined in the non-binding Memorandum of Understanding. These negotiations culminated in an offer that was sent to Dr. Pham, acting on behalf of Chipham. Dr. Pham committed suicide without accepting the offer. Following his wife’s death, Bau Pham tried to finalize the negotiations but was unable to come to an agreement with SWMG. SWMG formally discontinued the negotiations on April 29, 2013, and on May 2, 2013, Bau Pham dissolved Chipham.

March 13, 2017

In Personal Injury Case Out Of Lake Charles, Plaintiff’s Inconsistent Testimony Fails to Convince Court of Appeal

by Berniard Law Firm

out-of-place-1184032-1024x590 It is common for Louisiana residents who are injured due to another person’s negligence to seek financial compensation through a personal injury lawsuit. Typically, these types of lawsuits will pursue compensation to cover medical expenses that are incurred by the victim for the treatment of the injury they suffered, among other damages. That is exactly the approach that Destiny Guidry decided to take after she claimed that she was injured in an incident at a grocery store in Lake Charles back in 2011.

According to Ms. Guidry, she was injured on June 14, 2011, when she was struck by a stock cart that was loaded with canned goods. The stock cart was under the control of a store employee, Kenneth Wyant. Mr. Wyant did not deny that there was an incident in which he claimed he had to stop the stock cart suddenly, resulting in some cans potentially hitting Ms. Guidry on the leg. But, he did deny that Ms. Guidry was injured in any significant way. Ms. Guidry, on the other hand, claimed that she suffered a serious injury to her ankle in this incident, resulting in a trip to the emergency room four days later on June 18, 2011, and again on June 28, 2011. Then, in March of 2013, 21 months after the incident in the grocery store, Ms. Guidry ultimately had surgery on her ankle. Ms. Guidry filed a personal injury lawsuit against the grocery store and the store employee, Mr. Wyant. The case was tried before a jury.

The first question for the jury was whether the store employee, Mr. Wyant, was at fault for the incident that occurred at the grocery store on June 14, 2011. The jury answered “no” to this question, ending deliberations. Before the case was dismissed with prejudice, i.e., the claim was foreclosed from ever being brought in court again, Ms. Guidry asked the Trial Court for a “judgment notwithstanding the verdict.” This is a legal procedure whereby a party asks the court to enter a judgment that is different from the jury’s conclusion on the basis that the jury made a manifest error in reaching its conclusion. In this case, Ms. Guidry claimed that the manifest error was the jury’s finding that Mr. Wyant was not at fault for the incident on June 14, 2011, especially since Mr. Wyant had not denied that some type of incident had in fact occurred, which was supported by corroborating testimony. The Trial Court denied Ms. Guidry’s motion and she appealed to the Louisiana Third Circuit Court of Appeal.

March 12, 2017

Louisiana Court of Appeal Discusses Theories of Liability in Products-Related Injury Case

by Berniard Law Firm

dumbbell-1306867-1024x683 When a products-related injury occurs, multiple parties may be at fault. In litigating personal injury claims, among the most important legal questions, are whom may the plaintiff recover from, if anyone, and under what theory of liability. The following case provides a good discussion of some typical theories of liability involved in products-related injury cases.

In 2013, Russell Maricle was involved in a serious car accident that resulted in him needing to use a wheelchair. Mr. Maricle’s bad fortune continued after the accident one day as he rolled up a wheelchair ramp. The fabric on the back of his wheelchair ripped causing Mr. Maricle to fall out of his chair and re-injure his neck. Mr. Maricle rented his wheelchair from Axis Medical and Fitness Equipment, L.L.C. (Axis) in Alexandria, Louisiana. The wheelchair was manufactured by Dalton Medical Corporation and Dalton Instrument Corporation (Dalton).

Mr. Maricle filed a lawsuit against Dalton and Axis, alleging that the wheelchair produced by Dalton was defective and that Axis was negligent in failing to inspect it before renting it to him. These are two separate legal theories. Mr. Maricle’s claim against Dalton is a products liability claim. The Louisiana Products Liability Act (LPLA) sets out the exclusive products liability theories against manufacturers caused by their products. La. R.S. 9:2800.52. Under the LPLA, a manufacturer of a product is liable for damages foreseeably caused by a defect in the product which renders it unreasonably dangerous. The damage suffered by the claimant must arise from “reasonably anticipated use” of the product by the claimant or someone else. A product can be considered unreasonably dangerous for purposes of liability in four ways: (1) construction or composition; (2) design; (3) inadequate warning; or (4) nonconformity to an express warrantee.

March 11, 2017

Filing Deadline Makes All The Difference in Court of Appeal Legal Malpractice Claim

by Berniard Law Firm

bell-county-texas-courthouse-1549054-1024x768 Court litigation involves the filing of multiple court submissions, and of course, deadlines. Procedural rules dictate deadlines for when certain motions need to be brought. Effective attorneys stay informed of these deadlines. Untimely filings generally result in a denial of legal relief by a court. Courts must be able to timely dispose of disputes in order to prevent a backlog of cases clogging up the court system. The following decision of the Louisiana Third Circuit Court of Appeal demonstrates the importance of deadlines in litigating claims.

In 2012, William Lewis, representing himself and his company, Biosonix, LLC (Plaintiffs), filed a legal malpractice complaint against his attorney. Mr. Lewis alleged that the attorney was negligent in drafting security agreements on behalf of Sports Design & Development, Inc. (SDD) and that his representation of SDD created a conflict of interest. Plaintiffs further alleged that the attorney violated the Louisiana Rules of Professional conduct by representing SDD in litigation that involved issues substantially related to those involved in his prior representation of Mr. Lewis and Biosonix.

Ethical rules prohibit attorneys from representing a particular client when a conflict of interest arises. Rule 1.9 of the Louisiana Rules of Professional Conduct prohibits attorneys from representing a client in a “same or substantially related matter” in which the client’s interests are materially adverse to the interests of a former client. Attorneys can be subject to both lawsuits and professional sanctions for violating the Louisiana Rules of Professional Conduct. However, at issue in this particular decision was not the merits of Plaintiffs’ complaint. The issue was with deadlines.

March 9, 2017

Court Rules in Favor of Plaintiff in Case Involving Defamation, Extortion, and Intentional Infliction of Emotional Distress

by Berniard Law Firm

puerto-vallarta-mexico-1520777-1024x768 When an individual employs tactics to instill humiliation, fear, and emotional distress in another person, they should be held accountable for the damages they cause. Fortunately, Louisiana legislators agree and have provided for exactly that under its civil code. See La. C.C. art. 2315. As an initial matter, these bad acts must be “intentional,” i.e., the actor must consciously desire the physical result of the act or know that the result is substantially likely to follow from his conduct. Let us now take a look at a case that turns on the issue of intent to gain a better understanding.

This case involves an ongoing property dispute between the Plaintiff, Mr. DZ, and the Defendants, Mr. DZ’s ex-wife, AZ, and her brother, RM. The legal causes of action springing from the facts of the case include defamation, extortion, and intentional infliction of emotional distress.

The initial conflict began when Mr. DZ and his then-wife AZ purchased property in downtown San Miguel, Mexico. The couple placed ownership of the property in their children but reserved the right to enjoy the use of the property for themselves. One month after purchasing the property the couple obtained a divorce issued by a Mexican court. Following the divorce, a custody battle ensued that crossed country borders for several years.