Articles Posted in Civil Matter

Many people in Louisiana have been in a situation where they are striving to earn a promotion at work. Employers typically reward loyal, qualified employees in these circumstances, but sometimes there is more than one employee who may be right for the job. The ultimate choice may leave other employees feeling spurned or, in some situations, questioning if the decision was made for the wrong reasons.

This is where Brian Toval, a former employee of the Children’s Hospital in New Orleans, apparently found himself in 2011. Toval, who is black, had initially been hired as a medical technologist, but within three years he had risen to senior systems analyst in the hospital’s IT department. However, apparently all was not right, because in 2008 he expressed some complaints to his supervisors – both of whom were white – about some circumstances of his employment. It seems nothing ever came of those complaints, and then in 2010 Toval expressed interest in a soon-to-be-created project team lead position. He did not get promoted to that position. Instead, the position was filled by a white employee – without the position ever being announced or any interviews being conducted. Two days later, Toval filed a complaint with human resources, but the HR department ultimately determined that his complaint was unfounded. In the months that followed, Toval claimed that he experienced retaliation through humiliation, a heavy work load, and excessive scrutiny of his job performance. In June of 2011, Toval took medical leave to address mental health conditions, but before doing so he filed a complaint with the Equal Employment Opportunity Commission. His complaint to the EEOC claimed that he had been discriminated against in the promotion process due to his earlier complaints from 2008. While Toval was on medical leave he accepted employment elsewhere and resigned from the Children’s Hospital, but that did not stop him from taking legal action.

In September of 2013, Toval filed a lawsuit in federal court based on discrimination claims. However, the trial court granted the Children’s Hospital’s motion for summary judgment, dismissing all of Toval’s claims. The trial court reasoned that dismissal was appropriate for two reasons. First, the EEOC had not conducted a full investigation of Toval’s claims. Second, Toval was unable to rebut the hospital’s non-discriminatory reasons for why he had not been chosen for the promotion. Toval appealed the case to the Court of Appeals for the Fifth Circuit.

Everyone likes to be paid what they think they are worth at their jobs. But, sometimes employers take actions that make employees question their value and question whether or not the employer has ulterior motives. That seems to have been the thought process for the former coach of LSU’s women’s tennis team, and he filed a lawsuit as a result.

The plaintiff, Anthony Minnis, was the first black head coach of any sports team in LSU’s history. He was hired in 1991, and by the end of his contract Minnis was earning a salary of $85,000. Throughout his tenure he had received multiple awards, despite the fact that the team he coached had only achieved a winning record in three seasons out of 20. And, in the final three years of his contract, the team had experienced three straight losing seasons. This did not stop Minnis from questioning his pay, to which LSU responded that his salary was based on the team’s performance and comparable salaries for other women’s tennis coaches in the Southeastern Conference. His performance reviews throughout his term of employment were mixed, and in 2008 Minnis had in fact received a written reprimand due to his job performance. His response to that reprimand was to accuse his immediate supervisor of being a racist, although he could not support that claim with any facts. Minnis’ employment situation with LSU seemingly came to a head in February of 2012, when he was said to have been involved in a serious incident that jeopardized the health and safety of a team member. In June of 2012, LSU announced that the school would not renew Minnis’ contract. His replacement was a white, female coach who was offered a salary of $115,000.

It did not take long for Minnis to take action. In November of 2012, he filed a lawsuit based on various state and federal claims, including claims of disparate pay, discrimination, a hostile work environment, and retaliation.  These claims included, Title VII, Title IX discrimination under state law.  About two years later, in October of 2014, the United States District Court for the Middle District of Louisiana granted LSU’s motion for summary judgment and dismissed all of Minnis’ claims. He appealed that ruling to the Court of Appeals for the Fifth Circuit.

Litigating an issue once is a difficult and time consuming process in itself, and having to do so twice would be an unbearable and unfair burden which is the reason for the existence of the doctrine of res judicata. It serves the courts purposes of fairness and efficiency by preventing the relitigation of matters previously litigated and decided on as well as those that should have been raised and litigated in a previous lawsuit. The application of this doctrine is a complicated and lengthy one but the Second Circuit when reviewing a trial courts application of the doctrine in a lawsuit involving teacher Kamithia D. Penton as plaintiff and the Caddo Parish School Board (CPSB) as defendant (with others) was able to do so whilst also addressing a few of the doctrines exceptions.

The lawsuit itself arises out of an injury suffered by Ms. Penton when escorting a bipolar, disruptive and violent student to the school’s office. The injury took place after Ms. Penton had already urged principal Pamela Bloomer to remove the child from the school due to the danger he posed to the staff and other students. Ms. Penton, on October 12, 2011 filed a lawsuit against the child’s divorced parents; Ms. Bloomer and; the CPSB in its capacity as Ms. Bloomer’s employer seeking damages for her personal injuries. State Farm was later added as as a defendant, as the insurer of each parent. In response to the lawsuit CPSB and Ms. Bloomer filed a motion for summary judgment asserting Ms. Penton could not establish an intentional tort and that all of her recovery was in workers compensation and that she had in fact already made the workers compensation claim and received full benefits.

The motion was granted as to all parties except the father and his insurer, who asserted the affirmative defense of the payment of workers compensation benefits. CPSB then sought intervention to recover the sums already paid and any future sums they may have to pay on Ms. Penton’s behalf. In response Ms. Penton filed the exception of Res Judicata as set forth in La. R.S. 13:4231 stating that the intervention sought to present a claim which CPSB was obligated to bring prior to the dismissal as a compulsory pleading. Before the exception was heard in court on June 16, 2014, a settlement was reached regarding the liability of the father and his insurer for Ms. Penton’s injuries. The claims were dismissed “with prejudice, reserving any and all rights” as they relate to claims by Ms. Penton between her and the CPSB.

Mental and physical disability is a trying issue for families that can cause incredible stress, especially when the person suffering from these infirmities is unwilling or unable to recognize their condition.  Further, when the person is mentally unable to manage their health, personal, financial, and business affairs, legals steps must be taken to protect those interests and counsel from an excellent lawyer can mitigate some of the pain and stress such a situation can cause a family.  The Foster family faced just such a situation when Mrs. Patricia Foster suffered a ruptured brain aneurysm during surgery and as a result of brain injury no longer was able to live independently, care for herself, or make sound personal and financial decisions.  Her husband, Mr. Billy Joe Foster, thus sought a full interdiction so that he could make legal decisions on her behalf.  The trial court took testimony from Mr. Foster’s doctors and her family members and ruled that full interdiction was warranted.  Mrs. Foster appealed and the Louisiana First Circuit Court of Appeal upheld the full interdiction order.

An interdiction in Louisiana is a process whereby a concerned party requests that a court holds hearings to determine whether a person is unable to make reasoned decisions about personal and property matters.  If a court finds that interdiction is warranted, the court will appoint someone to make decisions for them.  A full interdiction is warranted when a court determines that the person in question is unable to competently make decisions about their personal affairs and their property.   “A court may order the full interdiction of a natural person of the age of majority, or an emancipated minor, who due to an infirmity, is unable consistently to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means.  LSA-C.C. art. 389.  Essentially, a court will look to testimony of family members and doctors to determine whether a medical or other condition renders a person unable to make decisions in a reasoned manner, placing their interests at risk.  The person petitioning the court for the interdiction bears the burden of proving the interdiction is necessary by clear and convincing evidence.  LSA-C.C.P. art. 4548.

After Ms. Foster suffered the ruptured brain aneurysm, her family felt that she had become a different person and was acting strangely and illogically.  She began acting unreasonably and became fixated upon a man she knew from her past but had not spoken to in over fifty years.  Mr. Foster and their three sons all supported the interdiction based on these allegations because they had all seen the changed behavior in a formerly stable and reasonable person.  Mrs. Foster’s brother and sister also testified that Mrs. Foster had become an irrational person and supported Mr. Foster as consistently acting within her interests, thus making him a suitable legal guardian.  Further, Mrs. Foster’s physicians also supported interdiction.  Mrs. Foster’s medical psychologist testified that Mrs. Foster had admitted to trying to jump out of a moving car on two separate occasions.  The doctor testified that Mrs. Foster consistently acted illogically and that her obsession with a man from her past was delusional and a result of her condition.  A court appointed doctor who evaluated Mrs. Foster also came to the same conclusions and did not believe that Mrs. Foster would be able to live independently.

In the law, it is quite rare for a case to ever be considered simple. Though the issues may seem quite obvious and clear to a plaintiff, it is almost never a good idea to represent oneself “pro se”. This is partially because of the subtle procedural pitfalls which may decide the outcome of a case. In the vast majority of legal matters, it is a good idea to carefully select an experienced attorney to guide the plaintiff through the legal process.  Unfortunately for a Pro Se Plaintiff in a case arising out of Calcasieu Parish the complexities of appellate procedures caused him to lose his rights to appeal.

In the original matter before the trial Court Pro Se Plaintiff Sidney Stagg alleged that he was injured while walking in a parking lot by a vehicle being driven by a Suddenlink employee.  The defendants filed various motions stating that the Plaintiff could not prove any of the alleged acts, specifically they produced evidence that the vehicle did not hit Mr. Stagg.  After an initial hearing following the defendants’ motion for summary judgment, the Fourteenth Judicial District Court of the Parish of Calcasieu granted the motion and dismissed the plaintiff’s case with prejudice. This means that the plaintiff would be unable to file another action regarding the same transaction. The judgment was signed on June 26, 2014, and the court signed an order granting the plaintiff an “out of time” appeal on December 5, 2014. The defendants filed a motion to dismiss the unlodged appeal on February 6, 2015, essentially contesting the  district court’s grant of the out of time appeal since the plaintiff’s appeal was untimely. Notably, the plaintiff never filed an opposition to defendants’ motion.

In applying the Louisiana Code of Civil Procedure Article 2087(A)(1) and Article 1974, the Circuit Court observed that the delay period for seeking a new trial expired on July 8, 2014, and the period for  filing a motion for devolutive appeal expired on September 8, 2014. Since the plaintiff’s appeal was dated by the clerk’s office on January 5, 2015, and that appeal was labelled as an “out of time” appeal, the Circuit Court held that the original appeal request was untimely under the Louisiana statutes. This  means that the plaintiff’s appeal was successfully defeated by the defendants’ motion to dismiss the plaintiff’s unlodged appeal.

The Court of Appeals in the Second Circuit of Louisiana recently took on a “case within a case.” This phrase is used in situations of legal malpractice against an attorney’s actions. For years a standard was set for these trials that required the client of the malpracticing attorney to prove the amount of damages by going through the original case they brought to the attorney. Jenkins v St. Paul Fire & Marine Insurance Co set forth a new standard.  Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So. 2d 1109 – La: Supreme Court 1982.

In Jenkins the court decided that in situations where a plaintiff proves his prima facie case upon a showing that his former attorney is negligent (such as a showing that your attorney did not file your lawsuit in time) it makes more sense for the negligent attorney to carry the burden of overcoming the client’s accusations by proving they never could have won their original claim. Then the jury would be left with deciding causation and damages. Therefore, if the client can prove the attorney accepted the job and failed to timely assert the claim there is a prima facie case of negligence against the attorney. From here, the burden is on the negligent attorney to overcome the claim of legal malpractice.  To do this the negligent attorney will typically try to show that the client would have never won the lawsuit he was hired to pursue on their behalf.  Such a situation is shown in the facts below:

In May 2009 the Plaintiffs, suriving daughters of Brenda Noid, hired attorney Mason Oswalt for a medical malpractice/wrongful death claim arising from the death of their mother. On February 8, 2010 Oswalt filed the complaint naming a doctor, and St. Francis Medical Center as the Defendants. Oswalt received a letter dated February 18, 2010 from Patient’s Compensation Fund (“PCF”) saying Oswalt had until April 5, 2010 to pay a $300 filing fee. The payment was not done in time and the PCF notified Oswalt that the claim was not going to be considered. Oswalt sent a $300 check to PCF on May 6, 2010 asking that the Plaintiff’s claim be reinstated because the failure to pay was because of a clerical error. The PCF denied this request on May 12, 2010.

When the law is clear and unambiguous and its application does not lead to absurd consequences, then the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. If however there are multiple interpretations to a statute, the court will examine it in order to figure out what the legislative intent was behind it in hopes of clearing up any and all ambiguities. The Louisiana Fifth Circuit Court of Appeal was recently faced with the task of interpreting a statute in order to determine whether or not it was properly applied at the trial level. The particular piece of legislation at issue is Louisiana’s Code of Civl Procedure Article 971. The issue rose within the context of a lawsuit brought by Chris E. Yount against Douglas Handshoe for defamation and several other related claims in which Mr. Handshoe was granted a special motion to strike pursuant to Article 971 asserting that his speech was protected under the First Amendment.

The defamation itself arises from a series of posts and comments authored by Mr. Handshoe and codefendant Jacke E. Truitt on www.slabbed.org, which is owned and operated by Mr. Handshoe and his company New Slabbed Media, LLC. On February 13th 2014 Mr. Handshoe published a drawing authored by Mr. Yount’s 13 yr old son on www.slabbed.org which had been used in Mr. Yount’s prior divorce proceedings in the 24th Judicial District Court. The captions authored by Mr. Handshoe clearly identified the author as a minor child and the divorce proceedings the child was involved in. The trial court found Mr. Handshoe’s blog posts were protected by his right of free speech under the United States and Louisiana Constitutions. Thus granting Mr. Handshoe’s special motion to strike dismissing all of Mr. Younts claims. Mr. Yount then filed for an appeal of the trial court’s ruling to the Louisiana Fifth Circuit Court of Appeal. Mr. Yount on appeal argued that the trial court erred in application of Article 971 because he is a private figure and the claims arise out of comments made in connection to a private rather than public issue.

The appellate courts decision hinges on the interpretation of Article 971.  That code article can be interpreted so that the special motion to strike will apply to any and all statements made in connection with any issue under consideration by a government body or alternatively that it will apply only to statements made in connection with public issues under consideration by a government body. Because the statute can be interpreted in multiple ways with adverse effects and absurd consequences the appellate court examined the purpose of the law to determine which of the above meanings conforms to the true purpose of the legislature. The court identified Article 971 as Louisiana’s Anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, lawsuits under this statute involve a civil complaint or counterclaim filed against non-governmental individuals because of their communications to a government body or electorate on an issue of some public interest. The special motion to strike was created to limit discovery, dismiss meritless claims quickly and award attorneys fees to the winning party regarding SLAPP claims.