Articles Posted in Property

refinery_petroleum_oil_industry-2-1024x683When another or a company’s actions harm a person, he is entitled to financial relief under Louisiana law. The law also requires proof of damages to prove entitlement to monetary compensation. Damages are proven by submitting facts to a trial court. Sometimes the parties agree upon the facts, and sometimes they are disputed. 

Another way of providing facts to the Court is through Judicial Notice. This legal concept allows a court to take notice of facts generally known within a community or otherwise cannot be reasonably questioned. What may be known in the community can still be a disputed issue at trial. The following case, which involved the Berniard Law Firm’s clients, raised the question concerning judicial notice of facts when it can and cannot be used in Louisiana trials.

An industrial accident occurred at Chalmette Refining’s St. Bernard facility on September 6, 2012, due to an emergency shutdown. The sudden shutdown caused a release of nineteen tons of regenerated catalyst over a large portion of St. Bernard Parish and Orleans Parish homes and property.

doorway_1-686x1024Tripping over a ledge in public can be both embarrassing and painful. Sometimes the fall can result in serious injuries. Who should be at fault for any damages sustained? As with many legal issues, it depends. Unfortunately for one woman in Covington, Louisiana, the apparent nature of the ledge, coupled with her own activities contributing to the fall, led the Louisiana First Circuit Court of Appeal to dismiss her case.  

While soliciting a security systems company, Ms. Dale Cordell fell outside the Tanaka Building in Covington, Louisiana. Rather than attempting to enter through a doorway, Ms. Cordell walked through a patch of grass between the Tanaka Building and neighboring buildings. After looking through the window, Ms. Cordell walked back through the grass towards the street, where she tripped on a short ledge. She fell to her knees, hit her hands, and head on the cobblestone in front of the Tanaka Building. Ms. Cordell filed a lawsuit in the Twenty-Second Judicial District Court for the Parish of St. Tammany against Lorna Madison, the owner of the building, as well as several other parties, alleging severe injuries due to the unreasonably risky ledge at the Tanaka Building.   

Ms. Madison filed a motion for summary judgment seeking to dismiss the case based upon Ms. Cordell’s inability to prove the existence or knowledge of a defect that could have created an unreasonable risk of harm. The District Court agreed for one reason that a color change between the ledge and the cobblestone existed, putting pedestrians on notice. The District Court further noted that Ms. Cordell was not using the proper entrances or exits leading to and from the building. Ms. Cordell appealed to the Louisiana First Circuit Court of Appeal, arguing the District Court did not understand the facts of her case regarding the open and obvious nature of the ledge.  

maracaibo_venezuela_building_old-1024x788What would you do if you were heir to property and found out the City had issued a demolition order for that property? A recent case decided in New Orleans discusses that question. The City of New Orleans, Louisiana, brought administrative proceedings against property owners whose property was allegedly blighted. However, the situation became more complicated because the property owners were deceased.  

Before the City of New Orleans (“the City”) held the hearing, it sent the property owners notice by certified mail. The notice stated that if the property owners did not appear for the hearing, their absence would be considered an admission of liability. Even though the U.S. Postal Service returned the notice as “Not Deliverable” and “Unable to Forward,” the City still proceeded with the hearing.

At the hearing, the City assessed significant fines for code violations and issued a demolition order for the property. After the hearing, the City sent the property owners a notice via certified mail stating the property owners had 30 days to correct the code violations or else the City would demolish the property. The U.S. Postal Service again returned the notice as “Not Deliverable.” 

46-1024x575Buying a house and later discovering that the house has foundational defects is a nightmare every homeowner seeks to avoid. Even more unpleasant is to find out that you do not have any recourse against the seller. The nature of such recourse would partially depend on when the defects were discovered, but also whether the seller is a builder, contractor, or manufacturer, because such a status might extend the timeframe of bringing in an action against the seller.

Penny Duplechien acquired a house from sellers Edward George Ackal and his wife in 2005. In 2012, Penny (plaintiff) discovered foundational defects and the next year filed a lawsuit against the sellers. In her cause of action, the plaintiff alleged that the defendants designed and constructed the house. In response, the defendants argued that even if they did construct the house (but they did not), plaintiff was late filing the lawsuit. This argument is based on the exception of peremption in the New Home Warranty Act (NHWA). This exception provides for only a five-year warranty for structural defect cases. La.R.S. 9:3144(A)(3).

In response, the plaintiff asserted that defendants should not even be allowed to use the five-year warranty limitation because Mr. Ackal supposedly lied to the plaintiff about being a licensed contractor. Specifically, the plaintiff said that the defendant purposely held himself out as a manufacturer, and thus it should not be her fault that she did not know better.

38-1024x678In Louisiana, if someone does work to your home and you find the work to have been completed unsatisfactorily, you have a one-year prescription period to bring the issue to court. However, what does one do if problems from this work do not appear right away? Considering the statute that allows a one-year prescription period at the first notice of damage, what exactly is noticing damage? Is it formally reporting the issue or simply remarking on an observation?  The Louisiana Fifth Circuit Court of Appeals recently decided a case on appeal from Jefferson Parish that answered such questions. 

In early 2010, Carlos Caballero Castro contacted Omar Oceguera from Triple OH Shoring, Inc. about fixing the elevation of the Caballero home. Mr. Oceguera recommended Keystone Custom Homes, LLC to Mr. Caballero, and as a result Mr. Caballero made a deal with Keystone to fix the elevation of the Caballero home. However, Mr. Oceguera would remain the general contractor of the project – he would design the foundation plan and Keystone would implement the plan. The work was completed on the home on November 20, 2010 and at the time the work was completed Mr. Caballero said the job was well done.

In January 2011, Mr. Caballero decided to build a deck on the back of his house. When he began to build the deck, he noticed there was two-inch dip in the slab – at the time Mr. Caballero rationalized the dip to simply be either the house settling or evidence of poor craftsmanship. However, Mr. Caballero stated that there was no apparent damage to his home at that time. A few days later, Mr. Caballero decided to call Keystone and inform them of the dip. He also told Keystone that since the work had been completed he and his family has heard popping noises, but that he thought these noises were a normal byproduct of the house setting. 

19-Picture-05-22-2019-1024x658The strip of grass between the street and the sidewalk seems harmless enough. Yet, when negligently maintained, it can pose a danger to the public. The case that follows helps determine who should be liable for such a defect when an injury occurs on that piece of property.

Edward Cusimano was delivering pizzas in the Parish of Jefferson. He stopped in front of the defendant’s house to deliver the pie to the neighbors across the street. He got out of his car, walked around to the passenger side to get the pizza, and stepped in a hole and was injured. The hole was on the grassy stretch of land between the road and the sidewalk. Mr. Cusimano filed suit against the Parish of Jefferson and against the owners of the property that had the “grassy hole” in front of it. The defendant property owners claimed that the area where the hole was located was public property and therefore, they were not liable for injuries that occurred due to a defect on that land. The plaintiff, however, claimed that they had a duty to maintain the property, as they owned the property in question. Mr. Cusimano claimed they should have been aware of the hole’s existence, as they had maintained that part of their property for many years. Because they owned the property and should have known of the defect, Mr. Cusimano claimed the defendant landowners should be liable for his injury. The trial court granted the defendant’s motion for summary judgment, as Mr. Cusimano failed to show that the defendants actually knew of or created the hole that caused his injuries. Mur. Cusimano appealed the trial court’s decision.

As the appeal was for the grant of summary judgment, the Louisiana Court of Appeal, Fifth Circuit would review the judgment from the beginning, or de novo. The Court of Appeal noted that “the party moving for summary judgment bears the burden of proof.” La. C.C.P. art. 966(C)(2). Therefore, Mr. Cusimano had the burden of showing that the defendants were liable for his injuries. 

couple-investment-key-1288482-1024x684Carrying a great deal of debt is a liability, and it may lead to some disastrous consequences. In the event of a default, your creditors can take you to court to recover the amount owed. If a judgment is made against you, your finances come under a microscope. Large transfers of money or property are strictly monitored and may even be reversed if your creditor feels the loss of the property may lead you to become more insolvent. So, what do you do when you have a large debt but need to transfer property? You need a good lawyer to navigate high debt situations, and to help you decide whether bankruptcy is the best way to avoid misfortune.

In the case of River Parish Financial Services, LLC v. London and B.W. Gill, River Parish won a money judgment against London Gill for a past due debt. River Parish was displeased to learn that London had gifted some of her property to B.W. Gill. Consequently, River Parish filed a revocatory action. The “revocatory action” entitles a creditor to annul a gift made by a debtor, if that creditor believes making that gift increases the debtor’s insolvency. See La. Civ. Code art. 2036. B.W. Gill claimed the action was barred by preemption. This simply means the period in which to contest the gift had lapsed. The gift was made in 2005, and River Parish did not file its action until late 2011. The trial court agreed, dismissing the action. River Parish appealed, arguing the prescriptive period should not have begun until the gift was recorded, and here the gift was not recorded in the public record until September of 2010.

On appeal, the Louisiana First Circuit Court of Appeal had to determine whether River Parish’s claim was indeed time-barred or not. The court looked at La. Civ. Code art. 2041, which states that the creditor must take action within one year of learning of the transaction, but no more than three years from the time of the transaction. River Parish’s argument was that the prescriptive period should begin running on the date the transfer was recorded, rather than the date it actually occurred.

apartment-architectural-design-architecture-1693946-1024x736Lease agreements are important documents that specify the rights and obligations of both lessor and lessee. Specifically, termination of leases must follow specified procedures and the tenant must be given adequate notice before leases can be terminated. That being said, does a letter from the lessor to the lessee constitute proper notice for termination of a lease? The Fourth District Court of Appeals of Louisiana recently held that a tenant was not given proper notice for termination of his lease and therefore, the termination was not valid.

In the aftermath of Hurricane Katrina, Kenneth Lobell, plaintiff, suffered extensive damage to property that he leased from Cathy Rosenberg and 2025 Canal St., L.L.C. On December 28, 2007, Rosenberg sent a letter to Lobell stating that he had defaulted on certain lease payments for a three-story building located on 2025 Canal Street. Rosenberg subsequently sent letters on January 31, 2007 and February 12, 2008 regarding these defaulted payments. The letters also stated her desire to terminate the lease. After a bench trial, the trial court judge held that there was a proper termination of the lease and Mr. Lobell owed certain costs and back payments to Rosenberg and 2025 Canal St., L.L.C.

The Fourth District Court of Appeals of Louisiana disagreed with the trial court and held that the lease was not properly terminated. Because leases are contracts between lessor and lessee, they afford certain rights and obligations to each party. See La. C.C. 2668. Lessees must pay rents for the property according to the terms of the lease agreement, among other obligations. See La. C.C. 2683. When a lessee does not pay rent, a lessor has two options: 1) obtain a money judgment based on the amount owed or 2) cancel the lease. See Richard v. Broussard 495 So.2d 1291, 1293 (La. 1986). To terminate a lease, the lessor must follow specific eviction procedures. These procedures include giving a five-day notice to vacate, followed by judicial procedures to effectuate an eviction. See La. C.C.P. art. 4701; see also La. C.C.P. 4731; see also La. C.C.P. 4733.

34-Email-3-13-19-1024x683In the Parish of Plaquemines in Louisiana, the oyster business can be quite profitable. Anywhere in the state, land can be a method of maintaining a person’s livelihood, whether it be through oil, tourism, or even an oyster lease. When a person with valuable land passes away, especially if that person is your relative, you may be curious as to how the death will affect claims to the land and its profits. One family found out when the courts were forced to interpret the law of community property as it relates to oyster leases.

Sometime in the 1960s, Antoinette Bernice Cognevich Barrois (“Bernice”) and her husband, Mancil Barrois (“Mancil”) executed oyster leases. Mancil died in 1975 and left Bernice all of his property in his will. Because Mancil had children outside of the marriage, some children could benefit from Mancil’s estate with no claim to Bernice’s estate. Bernice maintained the oyster leases, including renewing them, for six years after Mancil’s death. When Bernice died in 1981, the administrators of her estate continued to maintain and renew the oyster leases. Neither Mancil’s nor Bernice’s estates were ever closed after their deaths, and in 2014, the administrator of Bernice’s estate, Helen, received a damage award from the 2010 BP oil spill as it damaged the oyster lease property. Mancil’s estate then filed motions seeking to declare the oyster leases as community property and seeking some of the award money pursuant to this decision. Although there were multiple procedural complications with this case, the only issue the Appellate Court was concerned with was whether or not the oyster leases obtained during the marriage of Mancil and Bernice are community property under Louisiana law.

Generally, property acquired during the existence of a legal marriage is considered community property, unless there are special circumstances that make the property separate property belonging to only one spouse. La. C.C. art 2338. This includes any “natural and civil fruits” of all community property. The spouse arguing against community property requirements does have the ability to rebut this presumption. La. C.C. art. 2340. Crucial here is also the Louisiana statute barring a renewal or extension of existing oyster leases to be considered “‘new” leases. La. R.S. 56:426.

47-Email-03-13-19-Image-1024x795When most people think of filing a lawsuit, they expect to attend a trial in a court where a judge and jury decide the outcome of the case. However, most of the time cases are decided long before a trial is reached. One of the legal mechanisms for ending a lawsuit before it reaches trial is called a Motion for Summary Judgment. A summary judgment motion allows a party to ask the court to rule in their favor on a particular issue as a matter of law. The court may grant the motion if the parties are in agreement as to the important facts of the case and if the party that is making the motion is legally entitled to prevail on the claim in question. As this case demonstrates, a summary judgment motion can be an effective tool for ending a lawsuit, so when should you ask for summary judgement in a personal injury case?

Javonna Rayfield was staying at the Millet Motel in LaPlace, Louisiana on August 29, 2012, when Hurricane Isaac made landfall and created wind speeds reaching 100 mph. At around 5:00 a.m. Ms. Rayfield was awakened when the ceiling and walls of her room fell on top of her. Ms. Rayfield was taken to a local hospital, where she was treated for her injuries. Later, Millet found that a fire door down the hallway was buckled and the hasp lock was dangling and that the high winds had caused a concrete block wall on the floor above to collapse. The concrete blocks fell above Ms. Rayfield’s room, causing the ceiling and wall to buckle and fall.

Ms. Rayfield brought a lawsuit against the Millet Motel and its insurer, United Fire & Insurance Company (“Millet”). She alleged that the premises in the motel were defective and that Millet knew or should have been aware of the defective conditions. Ms. Rayfield filed a summary judgment motion, asking the court to conclude that there was a defective condition on the premises and that this condition was what caused her injuries. Millet similarly filed a summary judgment motion, asking the court to find that Ms. Rayfield’s injuries resulted solely from Hurricane Isaac. The trial court decided in Millet’s favor by granting their summary judgment motion and denied Ms. Rayfield’s motion for partial summary judgment, a decision which Ms. Rayfield appealed.

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