Articles Posted in Property

plumbing_plumber_old_faucet-1024x732Picture this: you’ve just bought a new condo, envisioning a future filled with joyful moments shared with loved ones. But what happens when those dreams are shattered because the condo management company neglects essential repairs for years on end? Robert Jordan, a condo owner, experienced this very nightmare when he encountered a persistent water leak issue in his recently purchased unit. As the battle for justice unfolded, Jordan fought for his rights and the compensation he deserved.

Jordan was the member and manager of FIE and Iberia Tigers, through which he acquired commercial investment properties. He purchased a condo unit at a building managed by New Jax. Soon after he purchased the condo, Jordan saw water leaking below the roof of the building. He reported it to Earl Weber, the president of New Jax’s board, and requested repairs. When New Jax did not repair it, Jordan started withholding the monthly fees he owed New Jax. 

Thereafter, New Jax attempted to fix the issue by cutting through the condo’s ceiling and walls. It placed tarps and plastic sheets around the condo. Jordan claimed the condo was uninhabitable and could not be used for its intended purchase. Jordan communicated with New Jax for years about the ongoing issues and damage and requested updates on the status of repairs. Repairs were not completed until 75 months after Jordan had first reported his condo was unusable. 

pregnancy_belly_expectant_mother-1024x683Pregnancy invariably alters a woman’s life.  The process is physically demanding and disruptive, but do these challenges entitle a female employee to disability status under the law?  According to a recent Slidell, Louisiana lawsuit, pregnancy is not considered a disability under Louisiana employment discrimination law.  

Shameka Brown worked as a mobile blood center supervisor.  Brown was seven months into a difficult pregnancy when she vomited and urinated on herself at work.  Embarrassed, Brown left for home during the middle of her shift to change clothing without notifying her supervisor.   Two hours later, Brown telephoned her supervisor and then returned to work. Brown did not provide details of her pregnancy-related illness during the call.  While Brown was away, a manager discovered her absence amidst a busy center.  Brown was soon after terminated for abandoning her assigned duty without appropriately notifying her supervisor.  

Brown filed a lawsuit in the Civil District Court for Orleans Parish which dismissed the case.  Brown appealed to the Louisiana Fourth Circuit Court of Appeal.  Brown sought damages for both employment discrimination and pregnancy discrimination. To successfully prevail under employment discrimination, Brown had to prove three things: 1) disability; 2) qualified for the job, and 3) termination made solely because of the disability.  See Thomas v. Louisiana Casino Cruises, Inc., 886 So. 2d 468 (La. Ct. App. 2004).  A disabled person has a mental or physical impairment that substantially limits major life activities such as caring for oneself, walking, seeing, hearing, breathing, learning, working, etc.  See La. R.S. 23:322.  

hurricane_katrina_as_seen_0-1024x640Dealing with the elements is an inherent part of construction work. Yet, sometimes the elements get unexpectedly unruly. This is where insurance is supposed to step in and compensate for delays or damage. In the following case, however, overlapping insurance policies made determining who should step up difficult. 

Gibbs Construction, L.L.C was the general contractor for appellant National Rice Mill, L.L.C. Rice Mill hired Gibbs to renovate their new luxury apartment complex, Rice Mill Lofts. Gibbs hired Rush Masonry, Inc. as a subcontractor tasked with restoring the masonry related to the renovations. Before the renovation, Westchester Surplus Lines Insurance Company issued Rush Masonry a commercial general liability policy. This policy covered the restoration from February 2011 to February 2013. On top of the CGL coverage, the Fireman’s Fund Insurance Company also issued an excess liability policy to Rush Masonry during the same time period. A Zurich American Insurance Company CGL policy issued to Gibbs, the general contractor, also covered the restoration. The Zurich policy was in effect from January 2011 to January 2013. 

During the restoration, the construction site experienced three instances of water intrusion. The first occurred during a thunderstorm in July 2011, and the second happened during Tropical Storms Lee and Isaac. General contractor Gibbs filed a lawsuit against Rice Mill for failure to make payments under the general contract. Rice Mill counter-claimed against Gibbs, Rush, Zurich, and other parties. 

field_land-1024x768Aquisitive Prescription. It is a strange-sounding set of words, yet it can be vital in proving ownership of land and property in Louisiana. What exactly is it? The subsequent lawsuit helps answer that question and the following one: How can I prove ownership of land through acquisitive prescription in Louisiana?

Crystal and Gwendolyn Smith sued Raymond Felton, claiming they owned land in White Castle, Louisiana. The Smiths claimed Felton misrepresented that he owned the property, had entered the property without permission, and intentionally damaged the home located thereon. The Smiths sought injunctive relief prohibiting Felton from entering the property. The Smiths also sought damages for the damage to the property and the mental distress they suffered. 

In response, Felton argued he owned the land at issue. Although Felton did not have the actual title to the at-issue property, he provided a chain of titles dating back to 1897, whereas the Smiths only dated back to 1899. The trial court ruled in favor of Felton because he and his ancestors in title had been in possession of the at-issue property for over thirty years, which is required to establish ownership by acquisitive prescription. See La. C.C. art. 3486. The Smiths filed a motion for a new trial, which the trial court denied. They then appealed. 

door_front_door_input-1024x768Some doors, such as bathroom doors, are heavy and have quick automatic closing mechanisms attached. If a door of that nature hits you in the back on your way and knocks you down, who is liable? The following case out of New Orleans shows how courts deal with door-closing mechanisms and trip-and-fall lawsuits. 

In 2011, Gail Encalade visited her insurance agent’s office in an office building on General DeGaulle. Before leaving, she pushed the restroom door open without issue and entered the bathroom. When exiting, she pulled the restroom door, and the door began to close behind her. As it was closing, she alleged it hit her on the back, causing her to fall forward, sustaining injuries to her shoulder and face.

In April of 2012, Encalade sued for damages, America First Insurance Company (AFIC) and other defendants were negligent in failing to maintain safe public areas, that being the restroom specifically. She argued the AFIC should have known of the problems with the doorways and the door equipment. AFIC answered the lawsuit by filing a motion for summary judgment. 

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. 

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